ARNETT v. KENNEDY(1974)

No. 72-1118

Argued: November 7, 1973Decided: April 16, 1974

Appellee, a nonprobationary employee in the competitive Civil Service, was dismissed from his position in the Office of Economic Opportunity (OEO) for allegedly having made recklessly false and defamatory statements about other OEO employees. Though previously advised of his right under OEO and Civil Service Commission (CSC) regulations to reply to the charges and that the material on which the dismissal notice was based was available for his inspection, he did not respond to the substance of the charges but brought this suit for injunctive and declaratory relief, contending that the standards and procedures established by and under the Lloyd-La Follette Act, 5 U.S.C. 7501, for the removal of nonprobationary employees from the federal service unwarrantedly interfere with such employees’ freedom of expression and deny them procedural due process. A three-judge District Court held that the Act and attendant regulations denied appellee due process because they failed to provide for a trial-type preremoval hearing before an impartial official and were unconstitutionally vague because they failed to furnish sufficiently precise guidelines as to what kind of speech might be made the basis for removal action. Section 7501 of the Act provides for removal of nonprobationary federal employees “only for such cause as will promote the efficiency of the service” and prescribes that the employing agency must furnish the employee with written notice of the proposed removal action and a copy of the charges; give him a reasonable time for a written answer and supporting affidavits; and promptly furnish him with the agency’s decision. The Act further provides, however, that “[e]xamination of witnesses, trial, or hearing is not required,” but is discretionary with the individual directing the removal. CSC and OEO regulations enlarge the statutory provisions by requiring 30 days’ advance notice before removal and in other respects, and entitle the employee to a post-removal evidentiary trial-type hearing at the appeal stage. If the employee is reinstated on appeal, he receives full backpay. In addition [416 U.S. 134, 135] to his First Amendment claims, appellee contends that, absent a full adversary hearing before removal, he could not consistently with due process requirements be divested of his property interest or expectancy in employment or be deprived of his “liberty” to refute the charges of dishonesty on which he asserts his dismissal was based. Held: The judgment is reversed and the case remanded. Pp. 148-171.

349 F. Supp. 863, reversed and remanded.

MR. JUSTICE REHNQUIST, joined by THE CHIEF JUSTICE and MR. JUSTICE STEWART, concluded that:

1. In conferring upon nonprobationary federal employees the right not to be discharged except for “cause” and at the same time conditioning the grant of that right by procedural limitations, the Act did not create and the Due Process Clause does not require any additional expectancy of job retention. Cf. Board of Regents v. Roth, 408 U.S. 564, 577 . Pp. 148-155.

2. The CSC and OEO post-termination hearing procedures adequately protect the liberty interest of federal employees, recognized in Roth, supra, in not being wrongfully stigmatized by untrue and unsupported administrative charges. Pp. 156-158.

3. The Act’s standard of employment protection, which describes as explicitly as is feasible in view of the wide variety of factual situations where employees’ statements might justify dismissal for “cause” the conduct that is ground for removal, is not impermissibly vague or overbroad in regulating federal employees’ speech. CSC v. Letter Carriers, 413 U.S. 548, 578 -579. Pp. 158-163.

[416 U.S. 134, 136]

is provided between the competing interests of the employee and the Government as employer. Pp. 164-171.

REHNQUIST, J., announced the Court’s judgment and delivered an opinion, in which BURGER, C. J., and STEWART, J., joined. POWELL, J., filed an opinion concurring in part and concurring in the result in part, in which BLACKMUN, J., joined, post, p. 164. WHITE, J., filed an opinion concurring in part and dissenting in part, post, p. 171. DOUGLAS, J., filed a dissenting opinion, post, p. 203. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 206.

Daniel M. Friedman argued the cause for appellants. On the brief were Solicitor General Bork, Assistant Attorney General Wood, Keith A. Jones, Walter H. Fleischer, and William Kanter.

Charles Barnhill, Jr., argued the cause for appellees. With him on the brief were Judson H. Miner and Leo Pellerzi. *

[ Footnote * ] Mozart G. Ratner and Jerry D. Anker filed a brief for the National Association of Letter Carriers, AFL-CIO, et al. as amici curiae urging affirmance.

MR. JUSTICE REHNQUIST announced the judgment of the Court in an opinion in which THE CHIEF JUSTICE and MR. JUSTICE STEWART join.

Prior to the events leading to his discharge, appellee Wayne Kennedy 1 was a nonprobationary federal employee [416 U.S. 134, 137] in the competitive Civil Service. He was a field representative in the Chicago Regional Office of the Office of Economic Opportunity (OEO). In March 1972, he was removed from the federal service pursuant to the provisions of the Lloyd-La Follette Act, 5 U.S.C. 7501, after Wendell Verduin, the Regional Director of the OEO, upheld written administrative charges made in the form of a “Notification of Proposed Adverse Action” against appellee. The charges listed five events occurring in November and December 1971; the most serious of the charges was that appellee “without any proof whatsoever and in reckless disregard of the actual facts” known to him or reasonably discoverable by him had publicly stated that Verduin and his administrative assistant had attempted to bribe a representative of a community action organization with which the OEO had dealings. The alleged bribe consisted of an offer of a $100,000 grant of OEO funds if the representative would sign a statement against appellee and another OEO employee.

Appellee was advised of his right under regulations promulgated by the Civil Service Commission and the OEO to reply to the charges orally and in writing, and to submit affidavits to Verduin. He was also advised that the material on which the notice was based was available for his inspection in the Regional Office, and that a copy of the material was attached to the notice of proposed adverse action.

Appellee did not respond to the substance of the charges against him, but instead asserted that the charges were unlawful because he had a right to a trial-type hearing before an impartial hearing officer before he could be removed from his employment, and because statements [416 U.S. 134, 138] made by him were protected by the First Amendment to the United States Constitution. 2 On March 20, 1972, Verduin notified appellee in writing that he would be removed from his position at the close of business on March 27, 1972. Appellee was also notified of his right to appeal Verduin’s decision either to the OEO or to the Civil Service Commission.

Appellee then instituted this suit in the United States District Court for the Northern District of Illinois on behalf of himself and others similarly situated, seeking both injunctive and declaratory relief. In his amended complaint, 3 appellee contended that the standards and procedures established by and under the Lloyd-La Follette Act for the removal of nonprobationary employees [416 U.S. 134, 139] from the federal service unwarrantedly interfere with those employees’ freedom of expression and deny them procedural due process of law. The three-judge District Court, convened pursuant to 28 U.S.C. 2282 and 2284, granted summary judgment for appellee. 349 F. Supp. 863. The court held that the discharge procedures authorized by the Act and attendant Civil Service Commission and OEO regulations denied appellee due process of law because they failed to provide for a trial-type hearing before an impartial agency official prior to removal; the court also held the Act and implementing regulations unconstitutionally vague because they failed to furnish sufficiently precise guidelines as to what kind of speech may be made the basis of a removal action. The court ordered that appellee be reinstated in his former position with backpay, and that he be accorded a hearing prior to removal in any future removal proceedings. Appellants were also enjoined from further enforcement of the Lloyd-La Follette Act, and implementing rules, as “construed to regulate the speech of competitive service employees.” 4

I

The numerous affidavits submitted to the District Court by both parties not unexpectedly portray two widely differing versions of the facts which gave rise to this lawsuit. Since the District Court granted summary judgment to appellee, it was required to resolve all genuine disputes as to any material facts in favor of appellants, and we therefore take as true for purposes [416 U.S. 134, 140] of this opinion the material particulars of appellee’s conduct which were set forth in the notification of proposed adverse action dated February 18, 1972. The District Court’s holding necessarily embodies the legal conclusions that, even though all of these factual statements were true, the procedure which the Government proposed to follow in this case was constitutionally insufficient to accomplish appellee’s discharge, and the standard by which his conduct was to be judged in the course of those procedures infringed his right of free speech protected by the First Amendment.

The statutory provisions which the District Court held invalid are found in 5 U.S.C. 7501. Subsection (a) of that section provides that “[a]n individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service.”

Subsection (b) established the administrative procedures by which an employee’s rights under subsection (a) are to be determined, providing:

“(b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and to –

“(1) notice of the action sought and of any charges preferred against him;

“(2) a copy of the charges;

“(3) a reasonable time for filing a written answer to the charges, with affidavits; and

“(4) a written decision on the answer at the earliest practicable date.

[416 U.S. 134, 141]

of removal or suspension without pay, and also the reasons for reduction in grade or pay, shall be made a part of the records of the employing agency, and, on request, shall be furnished to the individual affected and to the Civil Service Commission.”

This codification of the Lloyd-La Follette Act is now supplemented by the regulations of the Civil Service Commission, and, with respect to the OEO, by the regulations and instructions of that agency. Both the Commission and the OEO have by regulation given further specific content to the general removal standard in subsection (a) of the Act. The regulations of the Commission 5 and the OEO, 6 in nearly identical language, require [416 U.S. 134, 142] that employees “avoid any action . . . which might result in, or create the appearance of . . . [a]ffecting adversely the confidence of the public in the integrity of [OEO and] the Government,” and that employees not “engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful or other conduct prejudicial to the Government.” The OEO further provides by regulation that its Office of General Counsel is available to supply counseling on the interpretation of the laws and regulations relevant to the conduct of OEO employees. 7

Both the Commission and the OEO also follow regulations enlarging the procedural protections accorded by the Act itself. 8 The Commission’s regulations provide, [416 U.S. 134, 143] inter alia, that the employing agency must give 30 days’ advance written notice to the employee prior to removal, and make available to him the material on which the notice is based. 9 They also provide that the employee shall have an opportunity to appear before the official vested with authority to make the removal decision in order to answer the charges against him, 10 [416 U.S. 134, 144] that the employee must receive notice of an adverse decision on or before its effective date, and that the employee may appeal from an adverse decision. 11 This appeal may be either to a reviewing authority within the employing agency, 12 or directly to the Commission, 13 [416 U.S. 134, 145] and the employee is entitled to an evidentiary trial-type hearing at the appeal stage of the proceeding. 14 The only trial-type hearing available within the OEO is, by [416 U.S. 134, 146] virtue of its regulations and practice, typically held after actual removal; 15 but if the employee is reinstated on appeal, he receives full backpay, less any amounts earned by him through other employment during that period. 16 [416 U.S. 134, 147]

We must first decide whether these procedures established for the purpose of determining whether there is “cause” under the Lloyd-La Follette Act for the dismissal [416 U.S. 134, 148] of a federal employee comport with procedural due process, and then decide whether that standard of “cause” for federal employee dismissals was within the constitutional power of Congress to adopt.

II

For almost the first century of our national existence, federal employment was regarded as an item of patronage, which could be granted, withheld, or withdrawn for whatever reasons might appeal to the responsible executive hiring officer. Following the Civil War, grass-roots sentiment for “Civil Service reform” began to grow, and it was apparently brought to a head by the assassination of President James A. Garfield on July 2, 1881. Garfield, having then held office only four months, was accosted in Washington’s Union Station and shot by a dissatisfied office seeker who believed that the President had been instrumental in refusing his request for appointment as United States Consul in Paris. During the [416 U.S. 134, 149] summer, while President Garfield lingered prior to his death in September, delegates from 13 Civil Service reform associations met and formed the National Civil Service Reform League. Responding to public demand for reform led by this organization, Congress in January 1883 enacted the Pendleton Act. 17

While the Pendleton Act is regarded as the keystone in the present arch of Civil Service legislation, by present-day standards it was quite limited in its application. It dealt almost exclusively with entry into the federal service, and hardly at all with tenure, promotion, removal, veterans’ preference, pensions, and other subjects addressed by subsequent Civil Service legislation. The Pendleton Act provided for the creation of a classified Civil Service, and required competitive examination for entry into that service. Its only provision with respect to separation was to prohibit removal for the failure of an employee in the classified service to contribute to a political fund or to render any political service. 18

For 16 years following the effective date of the Pendleton Act, this last-mentioned provision of that Act appears to have been the only statutory or regulatory limitation on the right of the Government to discharge classified employees. In 1897, President William McKinley promulgated Civil Service Rule II, 19 which provided that removal from the competitive classified service should not be made except for just cause and for [416 U.S. 134, 150] reasons given in writing. While job tenure was thereby accorded protection, there were no administrative appeal rights for action taken in violation of this rule, and the courts declined to judicially enforce it. Thus matters stood with respect to governmental authority to remove federal employees until the enactment of the Lloyd-La Follette Act.

The Lloyd-La Follette Act was enacted as one section of the Post Office Department appropriation bill for the fiscal year 1913. That Act guaranteed the right of federal employees to communicate with members of Congress, and to join employee organizations. It also substantially enacted and enlarged upon Civil Service Rule II in the following language:

[416 U.S. 134, 151]

That Act, as now codified, 5 U.S.C. 7501, together with the administrative regulations issued by the Civil Service Commission and the OEO, provided the statutory and administrative framework which the Government contends controlled the proceedings against appellee. The District Court, in its ruling on appellee’s procedural contentions, in effect held that the Fifth Amendment to the United States Constitution prohibited Congress, in the Lloyd-La Follette Act, from granting protection against removal without cause and at the same time – indeed, in the same sentence – specifying that the determination of cause should be without the full panoply of rights which attend a trial-type adversary hearing. We do not believe that the Constitution so limits Congress in the manner in which benefits may be extended to federal employees.

Appellee recognizes that our recent decisions in Board of Regents v. Roth, 408 U.S. 564 (1972), and Perry v. Sindermann, 408 U.S. 593 (1972), are those most closely in point with respect to the procedural rights constitutionally guaranteed public employees in connection with their dismissal from employment. Appellee contends that he had a property interest or an expectancy of employment which could not be divested without first affording him a full adversary hearing.

In Board of Regents v. Roth, we said:

“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law – rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” 408 U.S., at 577 .

Here appellee did have a statutory expectancy that he not be removed other than for “such cause as will promote [416 U.S. 134, 152] the efficiency of [the] service.” But the very section of the statute which granted him that right, a right which had previously existed only by virtue of administrative regulation, expressly provided also for the procedure by which “cause” was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. In the area of federal regulation of government employees, where in the absence of statutory limitation the governmental employer has had virtually uncontrolled latitude in decisions as to hiring and firing, Cafeteria Workers v. McElroy, 367 U.S. 886, 896 -897 (1961), we do not believe that a statutory enactment such as the Lloyd-La Follette Act may be parsed as discretely as appellee urges. Congress was obviously intent on according a measure of statutory job security to governmental employees which they had not previously enjoyed, but was likewise intent on excluding more elaborate procedural requirements which it felt would make the operation of the new scheme unnecessarily burden-some in practice. Where the focus of legislation was thus strongly on the procedural mechanism for enforcing the substantive right which was simultaneously conferred, we decline to conclude that the substantive right may be viewed wholly apart from the procedure provided for its enforcement. The employee’s statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which congress has designated for the determination of cause.

The Court has previously viewed skeptically the action of a litigant in challenging the constitutionality of portions [416 U.S. 134, 153] of a statute under which it has simultaneously claimed benefits. In Fahey v. Mallonee, 332 U.S. 245 (1947), it was observed:

“In the name and right of the Association it is now being asked that the Act under which it has its existence be struck down in important particulars, hardly severable from those provisions which grant its right to exist. . . . It would be intolerable that the Congress should endow an association with the right to conduct a public banking business on certain limitations and that the Court at the behest of those who took advantage from the privilege should remove the limitations intended for public protection. It would be difficult to imagine a more appropriate situation in which to apply the doctrine that one who utilizes an Act to gain advantages of corporate existence is estopped from questioning the validity of its vital conditions.” Id., at 255-256.

“It is an elementary rule of constitutional law that one may not `retain the benefits of an Act while attacking the constitutionality of one of its important conditions.’ United States v. San Francisco, 310 U.S. 16, 29 . As formulated by Mr. Justice Brandeis, concurring in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 , `The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.'” Id., at 255.

This doctrine has unquestionably been applied unevenly in the past, and observed as often as not in the breach. We believe that at the very least it gives added weight to our conclusion that where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in [416 U.S. 134, 154] determining that right, a litigant in the position of appellee must take the bitter with the sweet.

To conclude otherwise would require us to hold that although Congress chose to enact what was essentially a legislative compromise, and with unmistakable clarity granted governmental employees security against being dismissed without “cause,” but refused to accord them a full adversary hearing for the determination of “cause,” it was constitutionally disabled from making such a choice. We would be holding that federal employees had been granted, as a result of the enactment of the Lloyd-La Follette Act, not merely that which Congress had given them in the first part of a sentence, but that which Congress had expressly withheld from them in the latter part of the same sentence. Neither the language of the Due Process Clause of the Fifth Amendment nor our cases construing it require any such hobbling restrictions on legislative authority in this area.

Appellees urge that the judgment of the District Court must be sustained on the authority of cases such as Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972), Bell v. Burson, 402 U.S. 535 (1971), and Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). Goldberg held that welfare recipients are entitled under the Due Process Clause of the Fifth and Fourteenth Amendments to an adversary hearing before their benefits are terminated. Fuentes v. Shevin held that a hearing was generally required before one could have his property seized under a writ of replevin. In Bell v. Burson the Court held that due process required a procedure for determining whether there was a reasonable possibility of a judgment against a driver as a result of an accident before his license and vehicle registration could be suspended for failure to post security under Georgia’s uninsured motorist statute. And in Sniadach [416 U.S. 134, 155] v. Family Finance Corp. a Wisconsin statute providing for prejudgment garnishment without notice to the debtor or prior hearing was struck down as violative of the principles of due process. These cases deal with areas of the law dissimilar to one another and dissimilar to the area of governmental employer-employee relationships with which we deal here. The types of “liberty” and “property” protected by the Due Process Clause vary widely, and what may be required under that Clause in dealing with one set of interests which it protects may not be required in dealing with another set of interests.

“The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U.S., at 895 .

Here the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest. The Government might, then, under our holdings dealing with Government employees in Roth, supra, and Sindermann, supra, constitutionally deal with appellee’s claims as it proposed to do here. 21 [416 U.S. 134, 156]

Appellee also contends in this Court that because of the nature of the charges on which his dismissal was based, he was in effect accused of dishonesty, and that therefore a hearing was required before he could be deprived of this element of his “liberty” protected by the Fifth Amendment against deprivation without due process. In Board of Regents v. Roth, 408 U.S., at 573 , we said:

[416 U.S. 134, 157]

The liberty here implicated by appellants’ action is not the elemental freedom from external restraint such as was involved in Morrissey v. Brewer, 408 U.S. 471 (1972), but is instead a subspecies of the right of the individual “to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262 U.S. 390, 399 (1923). But that liberty is not offended by dismissal from employment itself, but instead by dismissal based upon an unsupported charge which could wrongfully injure the reputation of an employee. Since the purpose of the hearing in such a case is to provide the person “an opportunity to clear his name,” a hearing afforded by administrative appeal procedures after the actual dismissal is a sufficient compliance with the requirements of the Due Process Clause. Here appellee chose not to rely on his administrative appeal, which, if his factual contentions are correct, might well have vindicated his reputation and removed any wrongful stigma from his reputation.

Appellee urges that the delays in processing agency and Civil Service Commission appeals, amounting to more than three months in over 50% of agency appeals, 23 mean that the available administrative appeals do not [416 U.S. 134, 158] suffice to protect his liberty interest recognized in Roth. During the pendency of his administrative appeals, appellee asserts, a discharged employee suffers from both the stigma and the consequent disadvantage in obtaining a comparable job that result from dismissal for cause from Government employment. We assume that some delay attends vindication of an employee’s reputation throughout the hearing procedures provided on appeal, and conclude that at least the delays cited here do not entail any separate deprivation of a liberty interest recognized in Roth.

III

Appellee also contends that the provisions of 5 U.S.C. 7501 (a), authorizing removal or suspension without pay “for such cause as will promote the efficiency of the service,” are vague and overbroad. The District Court accepted this contention:

“Because employees faced with the standard of `such cause as will promote the efficiency of the service’ can only guess as to what utterances may cost them their jobs, there can be little question that they will be deterred from exercising their First Amendment rights to the fullest extent.” 349 F. Supp., at 866.

A certain anomaly attends appellee’s substantive constitutional attack on the Lloyd-La Follette Act just as it does his attack on its procedural provisions. Prior to the enactment of this language in 1912, there was no such statutory inhibition on the authority of the Government to discharge a federal employee, and an employee could be discharged with or without cause for conduct which was not protected under the First Amendment. Yet under the District Court’s holding, a federal employee after the enactment of the Lloyd-La Follette Act may not even be discharged for conduct which constitutes “cause” for discharge and which is not protected [416 U.S. 134, 159] by the First Amendment, because the guarantee of job security which Congress chose to accord employees is “vague” and “overbroad.”

We hold the standard of “cause” set forth in the Lloyd-La Follette Act as a limitation on the Government’s authority to discharge federal employees is constitutionally sufficient against the charges both of overbreadth and of vagueness. In CSC v. Letter Carriers, 413 U.S. 548, 578 -579 (1973), we said:

“[T]here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. `[T]he general class of offense to which . . . [the provisions are] directed is plainly within [their] terms . . ., [and they] will not be struck down as vague, even though marginal cases could be put where doubts might arise.’ United States v. Harriss, 347 U.S. 612, 618 (1954).”

Congress sought to lay down an admittedly general standard, not for the purpose of defining criminal conduct, but in order to give myriad different federal employees performing widely disparate tasks a common standard of job protection. We do not believe that Congress was confined to the choice of enacting a detailed code of employee conduct, or else granting no job protection at all. As we said in Colten v. Kentucky, 407 U.S. 104 (1972):

[416 U.S. 134, 160]

in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Id., at 110.

Here the language “such cause as will promote the efficiency of the service” was not written upon a clean slate in 1912, and it does not appear on a clean slate now. The Civil Service Commission has indicated that what might be said to be longstanding principles of employer-employee relationships, like those developed in the private sector, should be followed in interpreting the language used by Congress. 24 Moreover, the OEO has provided by regulation that its Office of General Counsel is available to counsel employees who seek advice on the interpretation of the Act and its regulations. 25 We found the similar procedure offered by the Civil Service Commission important in rejecting the respondents’ vagueness contentions in CSC v. Letter Carriers, 413 U.S., at 580 .

The phrase “such cause as will promote the efficiency of the service” as a standard of employee job protection is without doubt intended to authorize dismissal for speech as well as other conduct. Pickering v. Board of Education, 391 U.S. 563, 568 (1968), makes it clear that in certain situations the discharge of a Government employee may be based on his speech without offending guarantees of the First Amendment:

[416 U.S. 134, 161]

speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Because of the infinite variety of factual situations in which public statements by Government employees might reasonably justify dismissal for “cause,” we conclude that the Act describes, as explicitly as is required, the employee conduct which is ground for removal. The essential fairness of this broad and general removal standard, and the impracticability of greater specificity, were recognized by Judge Leventhal, writing for a panel of the United States Court of Appeals for the District of Columbia Circuit in Meehan v. Macy, 129 U.S. App. D.C. 217, 230, 392 F.2d 822, 835 (1968), modified, 138 U.S. App. D.C. 38, 425 F.2d 469, aff’d en banc, 138 U.S. App. D.C. 41, 425 F.2d 472 (1969):

[416 U.S. 134, 162]

neither] comes as an unfair surprise [nor] is so unexpected as to chill . . . freedom to engage in appropriate speech.”

Since Congress when it enacted the Lloyd-La Follette Act did so with the intention of conferring job protection rights on federal employees which they had not previously had, it obviously did not intend to authorize discharge under the Act’s removal standard for speech which is constitutionally protected. The Act proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the Government as an employer. Indeed the Act is not directed at speech as such, but at employee behavior, including speech, which is detrimental to the efficiency of the employing agency. We hold that the language “such cause as will promote the efficiency of the service” in the Act excludes constitutionally protected speech, and that the statute is therefore not overboard. Colten v. Kentucky, 407 U.S., at 111 . We have observed previously that the Court has a duty to construe a federal statute to avoid constitutional questions where such a construction is reasonably possible. United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 n. 7 (1973); United States v. Thirty-seven Photographs, 402 U.S. 363, 368 -369 (1971).

We have no hesitation, as did the District Court, in saying that on the facts alleged in the administrative charges against appellee, the appropriate tribunal would infringe no constitutional right of appellee in concluding that there was “cause” for his discharge. Pickering v. Board of Education, 391 U.S., at 569 . Nor have we any doubt that satisfactory proof of these allegations could constitute “such cause as will promote the efficiency [416 U.S. 134, 163] of the service” within the terms of 5 U.S.C. 7501 (a). Appellee’s contention then boils down to the assertion that although no constitutionally protected conduct of his own was the basis for his discharge on the Government’s version of the facts, the statutory language in question must be declared inoperative, and a set of more particularized regulations substituted for it, because the generality of its language might result in marginal situations in which other persons seeking to engage in constitutionally protected conduct would be deterred from doing so. But we have held that Congress in establishing a standard of “cause” for discharge did not intend to include within that term any constitutionally protected conduct. We think that our statement in Colten v. Kentucky, is a complete answer to appellee’s contention:

“As we understand this case, appellant’s own conduct was not immune under the First Amendment and neither is his conviction vulnerable on the ground that the statute threatens constitutionally protected conduct of others.” 407 U.S., at 111 .

In sum, we hold that the Lloyd-La Follette Act in at once conferring upon nonprobationary federal employees the right not to be discharged except for “cause” and prescribing the procedural means by which that right was to be protected, did not create and expectancy of job retention in those employees requiring procedural protection under the Due Process Clause beyond that afforded here by the statute and related agency regulations. We also conclude that the post-termination hearing procedures provided by the Civil Service Commission and the OEO adequately protect those federal employees’ liberty interest, recognized in Roth, supra, in not being wrongfully stigmatized by untrue and unsupported administrative charges. Finally, we hold that [416 U.S. 134, 164] the standard of employment protection imposed by Congress in the Lloyd-La Follette Act, is not impermissibly vague or overbroad in its regulation of the speech of federal employees and therefore unconstitutional on its face. Accordingly, we reverse the decision of the District Court on both grounds on which it granted summary judgment and remand for further proceedings not inconsistent with this opinion.

LawCare Nigeria

No. 72-1118

Argued: November 7, 1973Decided: April 16, 1974

I

II

III

admin

YOU MAY HAVE MISSED

NATIONAL HYDROGRAPHIC AGENCY (ESTABLISHMENT) ACT, 2021

NATIONAL HEALTH INSURANCE AUTHORITY ACT, 2022

NATIONAL COMMISSION FOR REFUGEES, MIGRANTS AND INTERNALLY DISPLACED PERSONS ACT, 2022

NATIONAL COMMISSION FOR COLLEGES OF EDUCATION ACT, 2022

No. 72-1118

Argued: November 7, 1973Decided: April 16, 1974

I

II

III

admin

Related Story

YOU MAY HAVE MISSED