ARNETT v. KENNEDY

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Argument of Daniel M. Friedman

Chief Justice Warren E. Burger: We will hear arguments next in Arnett against Kennedy.

Mr. Friedman.

Mr. Daniel M. Friedman: Mr. Chief Justice and may it please the Court.

This is a direct appeal from a judgment of a Three-Judge District Court in the Northern District of Illinois, holding unconstitutional, certain provisions of the Lloyd-La Follette Act governing the discipline primarily for discharge of non-probationary federal employees.

The case brings before the Court two constitutional questions.

One, relating to the procedures followed in terminating such employees and the other relating to the validity of the standards for their termination.

Under the statute and the implementing regulations of the Civil Service Commission, a non-probationary federal employee may be removed from office after being given a written statement of the charges, an opportunity to reply in writing or orally and to submit affidavits and the receipt of a written decision by the officer effecting the termination.

The statute however explicitly provides that a hearing prior to termination is not required.

Under the Civil Service Commission Regulations however, the employee following such termination has the right to a hearing even before the agency or before the Civil Service Commission and the first question presented is whether this statutory practice which in effect defers the evidentiary hearing to an appeal following the termination satisfies the Due Process Standards of the Fifth Amendment.

The statute itself provides that a federal employee may be removed only for such cause as will promote the efficiency of the service.

Again, the Civil Service Commission has implemented this rather general standard through some regulations which I will come to shortly.

The substantive question in the case is whether is a violation of the First Amendment when this provision is applied to terminate the service of a non-probationary government employee because of statements he has made, public statements accusing his superiors of misfeasance and criminal activity and which in the judgment of his superiors effectively undermines the ability of the agency to performs its services.

Now the Court in this case invalidated the statute on its face on the basis of granting summary judgment for the appellees and under civil practices, the validity of that action maybe just be tested on the basis of the facts most strongly supporting the government and accordingly, I shall state the facts of this case on that basis.

Justice William H. Rehnquist: Mr. Friedman, I read through the record in the case that the appendix and I noticed that government supplied a number of affidavits and the like in connection with its motion to dismiss.

Mr. Daniel M. Friedman: Yes.

Justice William H. Rehnquist: And now looking through the docket entries in the District Court, it was not clear to me since there are none included in the appendix whether that government had those same affidavits carry over for consideration on the motion for summary judgment.

Mr. Daniel M. Friedman: I would think there were before, it isn’t explicit.

I would assume Mr. Justice they were before the Court on the motion for summary judgment.

But summary judgment was granted against us.

Summary judgment was granted against us and it seems to me that in considering the propriety of that action, we can properly look to the evidence that would support our case, not the evidence that would support their case.

Justice William H. Rehnquist: But it would have to have been evidence that was before the court had said?

Mr. Daniel M. Friedman: Oh, yes.

Oh, yes.

Oh, yes.

Yes.

But the evidence before the Court included much of the material that was the basis for the discharge of Mr. Kennedy.

Now, I would like to say one other thing.

In their brief, the appellees at pages 2 and 3 have stated that much of what the government has set forth as its statement of the case is not supported by the record.

We disagree with that and accordingly in my presentation, whenever we get to any controverted materials, I will give record references to the appendix which support the statements I am making.

The Appellee, Mr. Kennedy at the time of these events was a field representative in the Chicago Office of the Office of Economic Opportunity.

He was a fairly important man there.

He had a government grade of GS-12 which is in the intermediate range and paid at that time $16,000.00.

As explained in the instructions that OEO puts out to its field representatives which are quoted in the record in the affidavit of the Regional Director.

The field representative was a particularly crucial person in the operation of OEO.

OEO of course, its basic function is to channel funds to various community groups to enable them to improve their life economically.

And his job was to have contact with the community action groups to talk with them, to explain to the community action groups what OEO is doing, what its policies were and to be sure that these policies were being carried out in the implementation of the programs by the community action groups.

As OEO stated itself, this man as a practical matter was viewed by the community groups as OEO.

His job as I said was to explain these policy decisions.

That material is set forth at pages 24 and 25 of the appendix.

And Mr. Kennedy has twice been subjected to disciplinary action in this situation.

In the first instance in November of 1971, he was charged by the Regional Director with various acts of misconduct.

He replied in writing a lengthy reply which is not included in the appendix.

He had an oral presentation before the Regional Director and following this in January 1972, the Regional Director concluded that only one of the several charges made against him was sustained by the evidence, and instead of terminating his services as he had originally proposed, instead, he suspended him the 60 days.

I just mentioned in passing because I think, this is an indication of what is involved in this case.

The appellees say that this was outrageous because he was suspended for 60 days on the basis of a single telephone conversation that took place 11 months before.

Well, the reason for the 11 months before is that the charges against him which led to this suspension covered a period of almost a year and this was the only one of the charges that was sustained.

But the single telephone conversation was a phone conversation he made to officials of one these community action groups in which he told them they should get rid of the existing Board of Directors and get themselves a new Board of Directors which they could control.

He did this inspite of the fact that there were specific instructions from OEO set forth at pages 38 to 40 of the appendix that field representatives were to keep their hands off the internal operations of these community action groups.

There were allowed then to make their own decisions even though they seemed wrong to maintain an arms-length posture, and even though he had previously been warned against such activities when he had a previous situation.

I just may say one thing well, I think this illustrates very dramatically the kind of disrupted effect this sort of conduct would have.

Thank you.

Chief Justice Warren E. Burger: We will resume there after lunch.

[Lunch Recess]

Mr. Friedman, you may continue.

Mr. Daniel M. Friedman: Mr. Chief Justice, may it please the Court.

I now like to come to the second set of charges on the basis of which Mr. Kennedy was discharged from federal service.

This was served upon him in February 1972 approximately three weeks after his previous notice of his suspension.

Basically, these charges related to two different activities.

One, related to certain statements he made with relation to a problem had arisen in Chicago relating to the Indians in Chicago.

Chief Justice Warren E. Burger: Mr. Friedman, may I interrupt you for a moment?

Mr. Daniel M. Friedman: Yes.

Chief Justice Warren E. Burger: Early at the state.

I do not want to stop you from discussing what the reasons were but are they particularly relevant?

Is the case going to turn on what the reason is for?

Mr. Daniel M. Friedman: I think Mr. Chief Justice, the reasons are important.

Chief Justice Warren E. Burger: I can understand you are illustrating the need for expeditious action but otherwise, it isn’t relevant.

Mr. Daniel M. Friedman: Well, I think it is relevant to this extent Mr. Chief Justice.

One of the claims here is that a hearing was required in advance of termination.

Under the statutory provisions, this man is given an opportunity as told what the charges are against him has the opportunity to respond both orally and in writing and to submit affidavits.

And then if he is discharged, he has a right to full hearing with the complete panoply of procedures after that discharge.

In this case, he was given rather very specific charges of certain improprieties and he did not submit any material at all.

So to that extent, we think the facts are significant.

In addition, it seems to me that these facts are quite significant in evaluating his claim that the statute is unconstitutional as an infringement of his First Amendment Rights because our basic position on that is that a conscientious government employee could really have not doubt that the kind of things he is alleged to have done would be detrimental to the efficiency of the service.

Now, that’s the reason I am stressing these facts because I think the case has to be brought into a proper postures.

Now, the two allegations with respect --

Unknown Speaker: In respect, working in a very controversial field here isn’t it?

Mr. Daniel M. Friedman: He is working on a controversial field Mr. –-

Unknown Speaker: Its controversial and the State Commerce initial was in 1887 perhaps?

Mr. Daniel M. Friedman: Certainly, it’s controversial but Mr. Justice, his role, his role was supporting OEO in this controversy.

His job was to represent OEO and to explain to the community what OEO is doing and to try to persuade the community that it should accept OEO’s treatment of this problem.

What he did instead of doing that, he turned around and made a number a very serious and we think unjustified attacks on OEO and on his superiors.

Attacks which according to the affidavit of the Regional –-

Unknown Speaker: Maybe, he was just trying to save OEO?

Mr. Daniel M. Friedman: Well, with all due respect Mr. Justice, I don’t think that was his function as an employee of OEO.

If he had complaints about OEO about the way the program was being administered, it was his obligation we think to make those complaints through channels, not to make statements to the press, not to make at public meeting or the union meeting.

Let me tell you what he did for example he said, he said –-

Unknown Speaker: It is quite different from the Department of Justice?

Mr. Daniel M. Friedman: I think in terms of what happened most assuredly Mr. Justice.

Unknown Speaker: No question.

Mr. Daniel M. Friedman: Let me tell you exactly what the charges against him were.

First of all, he said that the Regional Director and his Executive Assistant had either bribed or tempted to bribe one of the leaders of the Indian Community in Chicago by offering this man a grant of $100,000.00, if this man in turn would make a statement, give a written statement against Mr. Kennedy and another employee who was active in the Union.

He made this charge at a union meeting, and this charge was repeated in a newspaper report of the meeting.

Unknown Speaker: But it was true?

Mr. Daniel M. Friedman: This is true according to the -- no, no, I am sorry.

He claimed it’s true.

The Regional Director found it was not true, found it was not true.

Now, in addition to that, he conducted a press conference in the lobby of the building where OEO.

As he conducted it into the lobby because he had been refused permission after his suspension to hold a press conference in the OEO Offices where he wanted and he got handed out a press release and set forth at pages 44 and 45 of the record in which he accused the Regional Director of breaking treaties with the Indians.

It was a newspaper story covering that.

In addition to that, he made an accusation against an OEO Official that they had violated the OEO conflict of interest standards by entering into an insurance contract with a company with which the husband of this woman was connected.

Now, as I have indicated, he was told, he was told in this notice of charges that he could submit either written answers with affidavits and an oral hearing, he did neither, all he did was file an answer which is set forth at page 62 of the record in which he said he wanted a hearing before an impartial Hearing Officer and he said that applying this statute to punish him, to discharge him on the basis of statements, speech he had made violated his rights under the First Amendment.

Following the receipt of this, he did not submit anything.

Further than that, the Regional Director informed Mr. Kennedy in writing that the charges against was sustained, directed his removal and informed Mr. Kennedy that he had the right to appeal that either to the agency, within the agency itself or to the Civil Service Commission.

He elected to appeal to the Civil Service Commission.

I just like briefly to refer to the affidavit of the Regional Director submitted in the District Court in opposition to their motion for a stay which would have the effect of putting Mr. Kennedy -- keeping Mr. Kennedy at work and he explained in considerable detail what had led to Mr. Kennedy’s discharge.

And that at the end of bottom of page 32 and the top of page 33, after first pointing out that he recognized the importance of free and open discussion within the agency, and he also recognized the importance of constructive criticism within the agency but he said however, when the criticisms take the form of malicious personal attacks made publicly by a field representative who is viewed as OEO by the community at large, when the criticism result in a breakdown and the necessary maintenance of discipline produced serious disharmony among co-workers and loss of morale and destroy ongoing efforts of this office to serve the poor and the disadvantaged then the efficiency of government has dealt a severe blow.

Justice Potter Stewart: What page are you reading from?

Mr. Daniel M. Friedman: This is the bottom of page 32.

Justice Potter Stewart: Thank you.

Mr. Daniel M. Friedman: He also pointed out at the top of the page that prior to the issuance of Mr. Kennedy’s press release, the office had been attempting to put together a coalition among the Indians of Chicago that would create an organization that was able to receive and handle a substantial grant.

But after his, Mr. Kennedy’s attack on OEO as he put it the coalition fell apart and as of the time of filing of the affidavit, he stated that had not been able to put together another coalition and process the grant.

In the District Court as I have indicated, the Court first held that the statute was a violation of Procedural Due Process because of its failure under the statute and the procedures to give Mr. Kennedy an adversary full hearing before his termination and on the basis of that conclusion directed the Mr. Kennedy be reinstated and he has been reinstated.

The Court also said that although he had recognized that the conduct of the speech which was the basis for Mr. Kennedy’s discharge did provide a basis for disciplinary action, nevertheless, the statute it held was unconstitutional on its face because it said this vague language is likely to have a chilling effect upon other employees in the exercise of their First Amendment rights and it enjoined the enforcement of the statute in the regulations and this is the language from 7 (a) of our jurisdictional statement of the opinion insofar as they have construed to regulate the speech of competitive service employees, a very broad injunction.

Now, coming to the merits of the case the statutory argument.

First, as with respect to the Procedural Due Process issue, the Lloyd-La Follette Act of 1912 was enacted to provide substantial protections for federal employees.

Prior to that time, federal employees had virtually no job protection at all.

They were subject almost to dismissal at the whim or the caprice of their superiors.

And what Congress did in the Lloyd-La Follette Act which is keep provisions of which in that present form is set forth at page 37 of the brief was to do two-three things -- really two things.

The first was it provides in the first sentence that an individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service.

For the first time wrote into law a job protection for federal employees.

They could only be dismissed for cause and only such cause would promote the efficiency of the service.

Then it provided certain procedural protections.

The employee was to get notice of the charges, had a reasonable time to file a written answer to the charges and affidavits, and was entitled for a written decision.

And then it goes on to say examination of witnesses, trial or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay.

And what Congress has done is to leave it to the individual agency to decide whether or not in following its discharge procedures it gives the man a hearing prior to his termination.

At the present time, eight agencies do provide for such pre-termination hearings.

They employ approximately 10% of the federal workforce but the statistics that we have from the Civil Service Commission indicate that's a much smaller percentage of disciplinary proceedings.

A vast bulk of government agencies in number covering the vast bulk of federal employees do not provide for any pre-discharge hearing.

What they do provide for is the and under the regulations of the Civil Service Commission, a 30-day notice of charges, full statement of the charges, an opportunity either to reply in writing or orally to submit affidavits, the opportunity of the man to examine the Civil Service files containing the information in which the charges are based and an opportunity in a written report.

Unknown Speaker: Not to confront any witnesses?

Mr. Daniel M. Friedman: Not of that, not of that stage Mr. Justice.

Not of that stage.

But, after if he is discharged, he has a full hearing with a complete right to confront all the witnesses, a transcript was taken to produced his own witness, superiored by counsel.

And if that was the result of that hearing which is I have indicated maybe either before the agency of the Civil Service Commission, if as a result of that hearing, he is ordered reinstated, if his discharged is set aside, he gets full backpay under the statute for the period he was out of work.

Now, this Court has recognized over the years and most recently in the Cafeteria Workers case that without legislation unless there is some specific legislative provision, a government employee may be summarily discharged.

Here, we do have a statute.

We have a statute which provides that before he can be discharged, it has to be for cause and after certain provisions specified by the statute.

The Procedural Due Process as this Court as many times stated is a flexible concept.

Say, you do not have fixed rules, you got to weigh competing interests in this situation.

Here, we have two competing interests.

On the one hand is the obvious interest of a government employee not to have his federal employment finally terminated without procedures in which he can fairly present his case.

On the other hand, there is a very strong government interest of removing incompetent, unsuitable employees from the public payroll so that the government can proceed with its business effectively and expeditiously and obviously, if a pre-termination hearing is required in every case, this is inevitably bound to delay the proceedings.

It seems to me that itself evident that if in every case, an employee has the option for a hearing, many employees knowing of the delay, is just going to request a hearing.

Some statistics that I referred to in an article by Professor Merrill that is quoted in our opponent’s brief in the 59 University of Virginia Law Review points out that a relatively small percentage of government disciplinary actions are taken to hearing.

The figures we have, it is something like maybe 10% or something in that range.

And inevitably, this would lead to a proliferation of these hearings to delays in discharging incompetent or unsuitable government employees.

Now, we think that the Due Process requires no more in this situation than is done.

That is the employee has -- this is not a case where someone is cutoff with a letter saying you are terminated today.

The employee has the opportunity to present informally to be sure but has the opportunity to present to his agency any facts that he believes mitigate against the proposal or show that it its uncertainty, for example he can show that perhaps the whole thing rests on a mistake.

Maybe the facts are wrong.

Unknown Speaker: Mr. Friedman, I suppose you would be making a same argument if the statute simply said that in order to fire an employee, the government must write him a letter and giving him a reason, but that is all what the government has to do.

That defines his entire right.

Mr. Daniel M. Friedman: I would be making that same argument Mr. Justice but I do not have to make that argument because here Congress --

Unknown Speaker: But you wouldn’t say in that that event there will be no denial of Procedural Due Process if that’s all the government did?

Mr. Daniel M. Friedman: If that’s all the government did but that is correct.

But here –-

Unknown Speaker: But here, they do give them more, but you say they do not need to do anymore than the statute provides?

Mr. Daniel M. Friedman: That is precisely.

Unknown Speaker: Because you say the extent, the contours, the metes and bounds of his tenure are contained in this statute?

Mr. Daniel M. Friedman: That is right.

Unknown Speaker: And the metes and bounds of his tenure would be contained in the kind of a statute that my brother White is suggesting.

That’s the point, isn’t it?

Well, but you’re also saying that is only against the background of an ultimate full trial-type hearing on appeal.

Mr. Daniel M. Friedman: What I am saying Mr. Justice is that I would be prepared to defend the narrowest statute but in this case certainly under this procedure –-

Unknown Speaker: Would he defend it if there were not this de novo proceeding --

Mr. Daniel M. Friedman: I would defend it.

Unknown Speaker: Does your position entail that proceeding?

Mr. Daniel M. Friedman: I would defend it but I do not have to attempt to justify that position because here we do have the complete de novo hearing.

And if I may point out Mr. Justice, this is not just an idle thing, his ability to respond at the administrative level in this very case at the previous disciplinary proceeding which resulted in the suspension.

Initially, two or three charges were made against him and what was proposed was he would be discharged.

But as a result of his lengthy submission, the Regional Director concluded that only one of the charges was sustained and instead of discharging, he only suspended him for 60 days.

So that we think at the result could well have been different in this case if he had submitted to the Regional Director which we think was his obligation, all of the material on which he now relies contained in this appendix which was submitted for the first time in the District Court.

Justice Thurgood Marshall: That the appellee was allowed to confront his accusers?

Mr. Daniel M. Friedman: He could have confronted his accusers Mr. Justice at the hearing that he would have been given before the Civil Service Commission.

Justice Thurgood Marshall: He could have?

Mr. Daniel M. Friedman: Oh, yes!

Justice Thurgood Marshall: I didn’t hear you say that.

Mr. Daniel M. Friedman: Oh, yes Mr. Justice.

Justice Thurgood Marshall: I understood that he could file some in writing and he could say some orally period.

Mr. Daniel M. Friedman: That is before his agency.

But after, if the agency discharges him and he then exercises his right to appeal either at a higher level of the agency –-

Justice Thurgood Marshall: Well, I am talking about that original hearing –-

Mr. Daniel M. Friedman: No, at the original hearing, he does not have the right to confront his accusers.

Justice Potter Stewart: No, it’s not a hearing?

Mr. Daniel M. Friedman: It is not a hearing, it is an informal proceeding.

It can be an oral submission, but he does have the full right, a full right to confront his accusers –

Justice Thurgood Marshall: After he is discharged.

Mr. Daniel M. Friedman: After he has discharge and if as result of that hearing –-

Justice Thurgood Marshall: Can you say that he does not even need that but just Congress has giving that?

Mr. Daniel M. Friedman: The Civil Service Commission has given.

I might say, I say that I will be prepared to defend it, the procedure, even if that was not in it but that is in it and I think at least without getting to the more difficult question of whether or not the statute would be valid without it, here, he has and he gets a full hearing.

He can cross examine, be confronted by it afterwards.

And if he prevails on that hearing, he is not only reinstated but gets his backpay.

Now, I would like to turn to the other parts of the –-

Justice Thurgood Marshall: What do you do with the Pickering case?

Mr. Daniel M. Friedman: What?

Justice Thurgood Marshall: How do you feel of the Pickering case on that?

Mr. Daniel M. Friedman: The Pickering case Mr. Justice, it seems to me.

In the Pickering Case, this Court recognized that speech may be a basis for a discharge of a government employee and it held within the particular facts of that case what the man did which was writing this letter to the newspaper that that itself was not sufficient in that case but the Court recognized that there may be incidents of speech which justify the discharge of a government employee.

Indeed, indeed in this very case.

And this very case, the District Court recognized that speech maybe a ground for discharging a government employee.

Unknown Speaker: Mr. Friedman, let us suppose that fact that it says a government employee may just be discharged at anytime for drunkenness.

All you have to do is write him a letter and say you are discharged because you are drunk.

Now, and you would say that if that is the standard, nevertheless that government is free as far as the Due Process Clause is concerned to write him a letter and say he is drunk and he can be fired just as by that letter?

You have to take that position.

Mr. Daniel M. Friedman: As a matter of constitutional law, yes.

Unknown Speaker: And even though that is the standard for discharge, drunkenness, his right to contest it, can be completely denied just by writing him a letter.

Mr. Daniel M. Friedman: I would think as a matter of constitutional law Mr. Justice but that’s not the practice.

That’s not what happened.

Unknown Speaker: I know but if you are wrong on this, you are in a little bit of trouble, aren’t you?

Mr. Daniel M. Friedman: Yes.

Justice Thurgood Marshall: But suppose he said in a public hand out to the press, that my boss was sober yesterday, would that be the same one?

Mr. Daniel M. Friedman: I could not say that.

I think that might be under the present statute -- detrimental to the efficiency of the service.

Justice Thurgood Marshall: To say that his boss was sober yesterday?

Mr. Daniel M. Friedman: Well, that again, it is seems to me Mr. Justice these are all questions, these are all questions which have to be battled out first at the administrative level and then in a hearing.

If he were discharged for making that single statement, it may be that ultimately the Civil Service Commission would hold that that was not enough to constitute conduct detrimental to the efficiency of the service.

It would depend on the context in which he was saying.

I mean, if what he said at a public meeting of all the employees and say, “Surprise! Surprise! My boss was sober yesterday.”

But it seems to me that may be a different thing.

And I think this goes to the essence of the prohibitions dealing with the speech –-

Justice Thurgood Marshall: And you don’t see any chilling effect on the employees in that particular outfit, do you?

Mr. Daniel M. Friedman: Well, I think Mr. Justice in speaking in terms of chilling effect, there is got to be something more, something specific and I do not think –-

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: No, in terms of the precise conduct involved.

I don’t really think that any responsible government employee can fairly contend that the exercise of his First Amendment rights are chilled because Mr. Kennedy is fired for making these kinds of statements against his superiors.

And that is the issue what seems to me and this Court in the Pickering Case recognized that it is impossible to specify in detail exactly what every particular situation might be.

Speeches is difficult to predict and all you can do is apply it in the particular circumstances if the application is an improper one, there is always a way of correction through the appeals with de novo hearing that is provided under the procedural system.

Chief Justice Warren E. Burger: Mr. Barnhill.

Argument of Charles Barnhill, Jr.

Mr. Charles Barnhill, Jr.: Mr. Chief Justice, if it please the Court.

The government has gone at great lengths to paint Mr. Kennedy in the most despicable posture.

I think it is important to clarify some of the factual errors that have been made in the recitation.

I would do so very briefly.

First, Mr. Kennedy’s record with the government is one to be respected not castigated.

He served with the government for seven years prior to this incident.

He received five promotions and several commendations.

After he was restored to his duties by order of the lower court and after OEO had submitted an affidavit which stated that his restoration would cause him irreparable harm, Mr. Kennedy was given a raise, a complementary evaluation and specifically complemented.

Chief Justice Warren E. Burger: Where do we find that in the record?

Mr. Charles Barnhill, Jr.: That is in the appendix to our brief Your Honor, we asked the government to include that in the joint appendix and they refused to do so.

Chief Justice Warren E. Burger: Are these events occurring since the indication?

Mr. Charles Barnhill, Jr.: They are.

Secondly, what the government states as its facts to this case are mere charges not facts.

There was no hearing on whether Mr. Kennedy did or did not say what he is purported to have said.

Actually, we responded to these charges by series of affidavits on the basis of support for intention and a now defunct, second Count which we’ve got.

But the facts are the facts in the affidavits, not in the charges.

We answered those charges and those affidavits were never denied.

Justice William H. Rehnquist: Mr. Barnhill, maybe you can try to answer the same question I asked Mr. Friedman.

You won on a motion for summary judgment.

So I take it.

It is conceded that as to any material fact that’s in dispute if there was one version by the Government and one by your client, you have to take the Government’s version and were all of the submissions of the Government in connection to file originally with its motion to dismiss before the Court on the motion for summary judgment?

Mr. Charles Barnhill, Jr.: Well, to be perfectly honest, it is not wholly clear.

What did happen in this instance was that the lower court deemed all the charges irrelevant to the proceedings.

We filed in response to count two which we earlier filed a series of affidavits stating that his speech was protected.

That was dismissed.

We amended and then charged the statute was vague and overbroad at that point.

At that point, the charges became irrelevant.

I am not sure whether the affidavits were forwarded to them or not, to tell you the truth.

Justice William H. Rehnquist: Well, I suppose if you take the lower court’s view, neither side would be entitled to state any facts since the factual background was irrelevant.

But since we might take a different view, I suppose we have got to take the view that on material, what facts we conceive to be material, we would have to buy the government’s version since you won on a summary judgment.

Mr. Charles Barnhill, Jr.: Well, I think like I said and I think the matter is irrelevant.

The factual charges are irrelevant.

And second of all, we contradict each of those facts by affidavit.

Chief Justice Warren E. Burger: Did you contradict them in the administrative hearing or the administrative process?

Mr. Charles Barnhill, Jr.: We did not.

We did when we filed an answer to the charges asking for impartial hearing examiner and asking for hearing.

Although, it is not clearly stated we stated in the in our answer that the facts were set forth inaccurately with respect to the conversation.

Unknown Speaker: Do you mean you did that in a written answer to that --

Mr. Charles Barnhill, Jr.: That’s correct.

Unknown Speaker: Under Section 3 of the Lloyd-La Follette?

Mr. Charles Barnhill, Jr.: That is correct.

We said that the facts were stated –-

Unknown Speaker: And then you just added to it.

You wanted a hearing?

Mr. Charles Barnhill, Jr.: That is correct.

Well, it really was a vice versa.

Most of the answer took place in asking for hearing and we answered also that the facts were inaccurately stated.

Unknown Speaker: And by affidavit?

Mr. Charles Barnhill, Jr.: No, we did not file an affidavit at that point in time.

We were waiting for hearing.

Mr. Friedman has told you part of the story on the suspension, he did not tell you all the story and I believe it is important to tell you that story.

At a later hearing after Mr. Kennedy was suspended, the government capitulated, gave Mr. Kennedy all his money back and supposedly expunged that matter from the record that 60-day suspension that they held.

Furthermore, one of the charges which was not sustained in that suspension was the charge of leafleting with the press out in the lobby.

That charge was not sustained in the suspension.

It was later resuscitated and used as a basis for his discharge.

With respect to the actual charges relating to the discharge, I think I can say this, Mr. Kennedy -- the fact show that Mr. Kennedy did participate in the press conference, he participated as a union representative with four other unions.

He is the only one to my knowledge who was punished for that press conference.

As I also noted that charge was not sustained in the suspension, but later brought back in the discharge.

Second, Mr. Kennedy was accosted by man named James White Eagle Stewart, an Indian who had negotiations going on with OEO.

Mr. Stewart stated to Mr. Kennedy that Mr. Verduin, the Regional Director had said he would give him a $100,000.00 grant if Mr. Kennedy would be implicated in some actions which would lead to his fining.

Mr. Stewart said this not only to Mr. Kennedy, but to Ms. Laura Rockwell, to four other employees and to the entire union at a union meeting. It was not Mr. Kennedy who said this to the union meeting, it was Mr. Stewart himself.

Mr. Kennedy did the following things with this information.

First, he sent a night letter to Mr. Verduin’s superior.

He did not charge bribery, he simply alluded to the events has he had been told.

Second, when a reporter called him, he mentioned the story to the reporter that the reporter called him first and asked the reporter check with the source of the story before doing anything about it and help him with the investigation.

Third, he had the man who made the charges go over to Senator Stevenson’s office and fill out an affidavit.

In view of the unique situation where a supervisor, at least the employee has reasonable cause to believe, the Supervisor is out to get him, I think Mr. Kennedy acted with remarkable restraint in his approach.

Chief Justice Warren E. Burger: No, I take it from your presentation of the facts that we -- you intend that we should give them some weight but did you not have an opportunity before the Civil Service Commission to test these out in the full adversary process?

Mr. Charles Barnhill, Jr.: Well, to be perfectly honest Your Honor, I don’t intend them to be given any weight and I hope that the government’s facts as they say are not given any weight, I think they are irrelevant.

I was only wanted to ensure that the fundamental –-

Chief Justice Warren E. Burger: But my question to you is a different one, did you not have an opportunity to explore all these facts that you are discussing, the pro and the con who is telling the truth and who was not telling the truth in an adversary proceeding before the Civil Service Commission?

Mr. Charles Barnhill, Jr.: We have never been granted that hearing Your Honor, but still –-

Chief Justice Warren E. Burger: You did not have that opportunity?

Mr. Charles Barnhill, Jr.: We asked for it.

We have not been given it.

Since this case had started, we have not been provided with the Civil Service Commission hearing we asked for.

That is over 15 months ago.

Chief Justice Warren E. Burger: In the Civil Service Commission itself?

Mr. Charles Barnhill, Jr.: In the Civil Service Commission itself.

Chief Justice Warren E. Burger: Is the explanation for that dependency of this litigation?

Mr. Charles Barnhill, Jr.: I have no idea of the explanation of that Your Honor.

Although, some cases take this long to process, and that is a fact that we have reported in our brief.

The government states in their brief that the appeal is still pending.

I know no explanation for that.

It seems to me –-

Chief Justice Warren E. Burger: But then in terms of the timing, the Civil Service Commission procedure allows you to test out all of these allegations, pro and con.

In that process, does it not?

Mr. Charles Barnhill, Jr.: Many months after a person is discharged Your Honor.

In this instance, by the time he was restored, nine months after, he had been fired.

He still had not been provided the hearing, and he still is not provided with the hearing.

So, it seems to me that that kind of post hoc relief becomes irrelevant when a person is out of his job for a year marked with discharge.

Unknown Speaker: Well, what is at issue here then?

Mr. Charles Barnhill, Jr.: The issue here is whether or not –-

Unknown Speaker: What is -- if your client wins, what does he get?

Mr. Charles Barnhill, Jr.: He will get the incremental cost or the incremental benefits, procedural benefits imposed in already existing systems which are resort to a neutral official prior to being discharged.

The opportunity to confront and cross examine his accusers, the opportunity –-

Unknown Speaker: And some backpay?

Mr. Charles Barnhill, Jr.: And some backpay.

Chief Justice Warren E. Burger: But he is on a job?

Unknown Speaker: I know but if he wins, he still must face the merits of whether he should be discharged or not.

Mr. Charles Barnhill, Jr.: In this instance yes, that is correct.

The merits are still provable.

Unknown Speaker: I gather basically, he would be reinstated to his job with backpay whatever all this comes to and he continues of his job.

I gather your submission is until he has been accorded the kind of hearing you say you should have?

Mr. Charles Barnhill, Jr.: That’s correct.

Unknown Speaker: And can’t be discharged or nor may his salary be suspended until he is actually found to have committed the offenses of these charges?

Mr. Charles Barnhill, Jr.: That’s correct.

Unknown Speaker: And then discharged, is that correct?

Mr. Charles Barnhill, Jr.: That’s correct.

Chief Justice Warren E. Burger: He is now on the job.

He is been reinstated?

Mr. Charles Barnhill, Jr.: By the lower court.

Chief Justice Warren E. Burger: He is getting paid.

Mr. Charles Barnhill, Jr.: By the lower court.

His pay was actually held up as a bond for the appeal.

I would like to turn to the government’s contention now if I may with respect –-

Unknown Speaker: Incidentally, are you asking for anymore of a trial-type hearing than in Goldberg v. Kelly we said or in Bell v. Burson?

Mr. Charles Barnhill, Jr.: Not at all, precisely the same.

Unknown Speaker: And what are the elements of that type hearing?

Mr. Charles Barnhill, Jr.: It resort to, I believe an independent official.

The right to confront and cross-examine your accusers, the right to present witnesses, the right to have a brief record made at the proceedings and the right to a decision based on the evidence of this.

That’s what we contend that we are entitled to.

Unknown Speaker: Did Bell versus Burson provide that much from the suspension of a --

Mr. Charles Barnhill, Jr.: Bell versus Burson to my knowledge had not precisely spell out the elements of the hearing.

Unknown Speaker: This is really what Goldberg said that --

Mr. Charles Barnhill, Jr.: That’s correct.

Unknown Speaker: The welfare of that.

Mr. Charles Barnhill, Jr.: That’s correct.

Unknown Speaker: But do you think you are entitled before suspension to anymore than the finding of probable-cause to believe that these acts had been committed?

Mr. Charles Barnhill, Jr.: I really have not --

Unknown Speaker: It is rather important, isn’t it?

Mr. Charles Barnhill, Jr.: I think that is an important issue and I think that is what the hearing does.

Unknown Speaker: Did Goldberg give anymore than probable-cause?

Mr. Charles Barnhill, Jr.: I think that is all that Goldberg gave.

Unknown Speaker: And Bell against Burson.

Mr. Charles Barnhill, Jr.: In Bell against Burson, that is correct.

We are not asking yet but we are asking for an ability to prove that there is no probable-cause through the use of the rudimentary elements of Due Process.

Unknown Speaker: But don’t you think it really makes the difference to what Due Process requires if your object of the procedure is to determine probable-cause rather than the actual fact?

Mr. Charles Barnhill, Jr.: Well I think, any kind of procedure has to be calculated to be fair to achieve the truthful result.

You can’t achieve the truthful result if you have a system which allows a person who is complaining witness, prosecutor, and judge to make the decision and that is what we have here.

Unknown Speaker: But Due Process permits people to be arrested and put in jail without a probable-cause established by your heresay?

Mr. Charles Barnhill, Jr.: Well, I understand that Your Honor.

I think there’s a difference between a man who might commit murder and a man who is on government service for many years.

Chief Justice Warren E. Burger: Well, let’s reduce it down to a man engaged in disorderly kind of conduct on the street --

Mr. Charles Barnhill, Jr.: That’s correct.

Chief Justice Warren E. Burger: -- or drunk on the street, he is picked up by the policeman and takes him to the station.

You have the accuser and the prosecutor in the terms you are talking about, all engaged at that stage, but he goes into custody, doesn’t he?

Mr. Charles Barnhill, Jr.: Yes, but he has a right to bail Your Honor.

Our client has no right to bail.

Chief Justice Warren E. Burger: That's another question.

Mr. Charles Barnhill, Jr.: I think that makes a significant difference whether one can maintain his freedom in the status quo in the interim.

Our client has no such alternative.

Chief Justice Warren E. Burger: There is no freedom question here.

You are analogizing freedom to continued employment.

Mr. Charles Barnhill, Jr.: Well, that is correct.

Just for a very short time and for a very rudimentary and expeditious hearing.

The hearing of Professor Merrill who was reported to the Administrative Conference stated that almost every hearing on discharge cases takes less than a day to adjudicate.

We do not ask for any enlargement of the time to takes to fire a federal employee, we ask merely that in the 30-day period which they already have, if you are given these rudimentary rights.

Chief Justice Warren E. Burger: But you are saying that this probable-cause to believe the charges cannot be carried out without a full adversary hearing?

Mr. Charles Barnhill, Jr.: Well, without the minimal requisites set forth in Goldberg versus Kelly.

I think no amount of process or procedural ceremony can cure the fact that the official is biased against you and this system has not guarantee of apparent and partiality.

Here in this instance, the man who fired him was also the man who felt himself aggrieved by the charges and the man who marshalled the evidence against the man.

No system can work if the man who is biased against the person used the procedure with the (Inaudible).

Additionally, we know of no other reliable way of proving the truth in conflicting facts or to even get a probable-cause estimation except like cross examination.

Unknown Speaker: Mr. Barnhill, under the District Court’s opinion, supposing let’s say the Secretary of the Treasury wanted to fire a scheduled employee, would any employee in the Treasury Department be a neutral hearing, possible neutral adjudicator or would you have to go outside the Treasury Department?

Mr. Charles Barnhill, Jr.: No, you can stay within the Treasury Department as I would --

Unknown Speaker: Even though the Secretary initiated the charges that the subordinates of the Secretary’s could hear them?

Mr. Charles Barnhill, Jr.: Well, I do not think that situation has been faced, it was not considered by the lower court.

Unknown Speaker: How would you interpret the District Court’s opinion in that hypothesis?

Mr. Charles Barnhill, Jr.: I interpret it to be that someone not connected with the initial decision to discharge the person may hear the case.

Unknown Speaker: Even though it is a subordinate?

Mr. Charles Barnhill, Jr.: Well, it depends on how closely the subordinate works with the man I suspect.

It would be a case by case analysis on something as unique as that.

Unknown Speaker: Mr. Barnhill, In Bell and Burson, what we said was, the inquiry and default of liability requisite to afford the licensee due process need not take the form of full adjudication of the question of liability.

And I gather you say here also?

Mr. Charles Barnhill, Jr.: That’s correct.

Unknown Speaker: Just need not take the form of full of adjudication of the merits of the charge?

Mr. Charles Barnhill, Jr.: I agree.

Unknown Speaker: That adjudication can only made in litigation between the parties involved in the act.

The only purpose of the provision is to attain security from which to pay any judgments against the licensee resulting from the Act.

We hold a Procedural Due Process will be satisfied by an inquiry, limited to the the determination where there is a reasonable possibility of judgments in amounts claimed, then I take it you say it here whether there is a reasonable possibility of a determination that the charges are true that you are on.

Mr. Charles Barnhill, Jr.: That is correct Your Honor.

Unknown Speaker: And you surround that with a hearing before an independent examiner?

Mr. Charles Barnhill, Jr.: Correct.

Unknown Speaker: And a right to confront witnesses?

Mr. Charles Barnhill, Jr.: Correct.

Unknown Speaker: What else?

Mr. Charles Barnhill, Jr.: The right to present you own witness and the right to a sketchy or brief, not a sketchy record.

A brief record of the proceedings –-

Unknown Speaker: That is statement of reasons?

Mr. Charles Barnhill, Jr.: That’s right.

And finally, a decision based on the evidence adduced.

I might point out the latter if there’s no requirement that a decision be based on the evidence adduced.

Unknown Speaker: Mr. Barnhill, it seems to me you have not yet, unless I missed it, addressed the government’s basic argument which is I understand is this.

In order for the demands of Procedural Due Process to become applicable, there has to be a depravation of liberty or property.

I suppose you would conceive that if an employment of an employee were clearly and concededly an employment at will and it was understood when he took the job that he could be fired on a moment’s notice for any reason, however arbitrary.

That if he were fired at will, there would no be no depravation of his property, would that be correct?

If he has no expectancy.

Mr. Charles Barnhill, Jr.: Absolutely, Your Honor.

Unknown Speaker: And the government’s argument as I understand it is that the property interests so far as there was one involved in this government job was measured by the provisions of The Lloyd-La Follette Act?

Mr. Charles Barnhill, Jr.: That’s correct.

Unknown Speaker: And that when the provisions of that Act were complied with, that was the extent of his property interests and that was all to which he was entitled.

Those were the metes and bounds because I say of his tenure so to speak.

Mr. Charles Barnhill, Jr.: That’s correct.

Unknown Speaker: Now, you just proceeded on the assumption I think that this was a property interest that was protected by some other provisions, and I do not quite think that you, as I say, addressed yourself to what I understand to be the government’s argument?

Mr. Charles Barnhill, Jr.: I would be delighted to do so right now, Your Honor.

Chief Justice Warren E. Burger: Before you get to that, I like to pursue one question, on Bell and Burson that Justice Brennan was asking you about Mr. Barnhill.

Now in Bell and Burson, we were dealing with an automobile, the license to drive an automobile.

Mr. Charles Barnhill, Jr.: That’s correct.

Chief Justice Warren E. Burger: I supposed you would agree that every person in the United States who meets the age qualifications and so forth is entitled absolutely to receive a driver’s license?

Mr. Charles Barnhill, Jr.: If he passes certain test.

Chief Justice Warren E. Burger: Now, does every person in the United States who meets qualifications, entitled to be -- to have government employments?

Mr. Charles Barnhill, Jr.: No, he’s got to pass certain tests here too.

Chief Justice Warren E. Burger: Well --

Mr. Charles Barnhill, Jr.: He’s got to be hired and he’s got to pass a probationary period.

Chief Justice Warren E. Burger: Now the difference, you can’t refuse the automobile license if you passed the test?

Mr. Charles Barnhill, Jr.: Right.

Chief Justice Warren E. Burger: But you aren’t automatically given government employment because you passed certain test and meet the age requirements are you?

Mr. Charles Barnhill, Jr.: That’s correct.

I think that that dovetails with Mr. Justice Stewart’s comments and I would like to turn to that right now.

The question of whether or not we have a right to public employment in the abstract is the not the question we have here.

The question we have here is whether or not a person may be fired for cause, 5 U.S.C. 7501 states that an employee may only be fired for cause.

I believe that that is the statutory entitlement to which this Court is indicated and to prove that a hearing is required in the Roth and Sindermann cases.

I also believe and I know that the government ignored the fact that a host of other statutory benefits and entitlements are given federal employees once they earn them by passing the probationary period.

Unknown Speaker: But doesn’t that have to be -- 7501 have to be read together with the procedural provisions of the Lloyd-La Follette Act?

Mr. Charles Barnhill, Jr.: No, I do not believe so.

I don’t believe, it’s ever been this Court’s disposition to measure property interest by the procedure protections accordingly.

For example in Goldberg versus Kelly --

Unknown Speaker: Before you get off on that.

Take Roth and Perry which was decided just two years, as I recall, Justice Stewart writing for the Court in that case said that your claim, your property claim has to be founded on some provision of State Law as some understanding is result of State Law and I would think that the analogous situation here is that your claim has to be founded on what the Lloyd-La Follette Act leads you to think your rights are going to be?

Mr. Charles Barnhill, Jr.: Well, I think that is correct.

I do not disagree with that.

And, it seems to me that the provision in the Lloyd-La Follette Act which says you may only be fired for cause leads both the employee in the abstract at least the government to believe that no one will be fired except for cause.

Now, if those provisions, those procedural protections are insufficient to show cause, then the procedural protections seem to me to fall because it’s Congress –-

Unknown Speaker: I know, they are part of the same Act?

Mr. Charles Barnhill, Jr.: I understand that.

But that does not mean that they are indivisible from it.

For example, it seems to me that the purpose of the Lloyd-La Follette Act was to protect government employees from being fired arbitrarily.

If the procedure which is kind of detail of that Act does not assure that fact and there is no evidence to the contrary.

Does not assure that an employee will not be fired for cause then the procedure is defective.

Unknown Speaker: The civil service, they obviously thought that the proceddings were ample.

Mr. Charles Barnhill, Jr.: That’s correct, but the procedures are not ample.

Unknown Speaker: If the Act said that a government employee may not be fired for cause as determined by the superior writing him a letter in that standard, do you expect him to define the property interest to that extent?

Would you like to still argue?

Mr. Charles Barnhill, Jr.: Absolutely.

Unknown Speaker: But, there might be more --

Mr. Charles Barnhill, Jr.: Well, I think the for cause limitation is a true representation of Congress’s intent that people be fired only for cause.

If the procedures are defective and they do not produce that result, then they must fall it seems to me.

Unknown Speaker: What if you just say that they defined the property but it does not define the liberty interest that he is being -- that the government’s arbitrary reporting to fire him by finding of incompetence or –-

Mr. Charles Barnhill, Jr.: Dishonesty.

Unknown Speaker: Of some other reason that will impinge his right to be represented?

Mr. Charles Barnhill, Jr.: Well I think both interests are implicated here.

I think the property interest provided by the statute and the other entitlements given by the statute in executive order and Mr. Kennedy’s liberty.

If the government takes his charges and seriously as it states it does, then Mr. Kennedy is most certainly being stigmatized in both his pursuit of other jobs and stand in the community.

I think that his affidavit which is uncontradicted which states that kind of discharge is firm bar of employment is in fact the result of the government’s firing for the reasons it states.

And I will briefly allude but I think the entitlement is there.

I think the government’s argument is very dangerous.

For example, there is no question that states and municipalities may take property through their -- even renewal projects, anything else and if the legislature were allowed to condition the taking of this kind of property on the basis of inadequate procedural safeguards, and that somehow composed a right of those persons, any property could be taken without Due Process.

The end result is that the property interest has to be evaluated apart from and not together with the procedures and the procedures if the property interest is established were next to evaluate.

And as I noted, this particular case, the procedures are notably defective and if they do not require an impartial examiner, and they do not require cross examination or confrontation of your accusers.

In fact, the procedures do not work.

24% of those fired who appealed to the Civil Service Commission are reinstated at a subsequent hearing.

Thus 24% are improperly terminated under the present procedures, and that is the result which comes from, I believe, the lack of procedure and rudimentary Due Process.

The government has no interest in this system as it stands now.

Seven or eight federal agencies have another system somewhere to what we request.

No evidence is introduced although the government certainly had the opportunity to introduce evidence, that this new proceeding will somehow hamper it or burden it, no evidence at all.

Chief Justice Warren E. Burger: You wouldn’t suggest would you, Mr. Barnhill that the governments could be somehow penalized because it tries in certain areas to grant more rights than that constitution would necessarily command?

You would not want that kind of experimentation to stop would you?

Mr. Charles Barnhill, Jr.: Absolutely not.

But I do not think –-

Chief Justice Warren E. Burger: But that’s implicit though in your suggestion that they should give as much as eight of the agencies find that they can live with?

Mr. Charles Barnhill, Jr.: No, I certainly did not mean to make that suggestion.

My suggestion is only that that kind of procedure shows that it works, the kind of system we want works, that simply a fact in the proof of our case, it is no such implication that --

Chief Justice Warren E. Burger: I don’t quite see the difference between your statement and my suggestion that –-

Mr. Charles Barnhill, Jr.: I agree with you Your Honor that the privileges to granted some government employees beyond what the constitution requires may not always have to be granted to other employees.

That is not the thrust of our case though.

Our case is briefly that the present procedures to be placed on the government, would cost the government very little.

Now, I would like to turn briefly to count two which is the Free Speech Count.

Our contention is very briefly that 5 U.S.C. 7501 which states that a person may be fired or any statement which interferes with the efficiency of the government is vague and overbroad.

As I read the statute in the legislative history, this was never Congress’s intent.

The Lloyd-La Follette Act was never meant to license the Civil Service Commission to punish persons because of their off duty speech.

Rather the history of The Lloyd-La Follette Act is that the Congress meant to stop an executive branch intrusion into the Civil Service employee speech.

The fact is that the -- it was a reaction to Gag rules which punished federal employees for criticizing their superiors.

This is precisely the case here and this is precisely what the Lloyd-La Follette Act was meant to stop, not to start.

Chief Justice Warren E. Burger: Mr. Barnhill, if will it help you, and we will add a few minutes.

We’ve taken a lot of your time in Mr. Friedman’s questions.

We’ll add a few minutes to your argument.

Mr. Charles Barnhill, Jr.: Thank you, Your Honor.

Chief Justice Warren E. Burger: I will give you about six, seven minutes, eight minutes more.

Mr. Charles Barnhill, Jr.: Thank you.

Unknown Speaker: Of course, a claim that the discharged violated the Lloyd-La Follette Act is not the one that you can raise before the three-judge District Court is it?

Don't you have to pursue that through the Civil Service Commission and then appeal from the Civil Service Commission?

Mr. Charles Barnhill, Jr.: That is correct, but I believe that the rule of this Court is a person who is potentially affected or affected by a statute or regulation which regulate speech is free to bring that matter to the Court before any adjudication of the facts of what he actually said.

And that is exactly what happened here but Mr. Kennedy and a number of other OEO employees brought this case to the Court’s attention after Mr. Kennedy was fired on the basis of this vague and overbroad statute.

I might add that the Civil Service Commission in reading the Lloyd-La Follette Act to proscribe off to the speech has not only worked across purposes to Congress’s original intention.

It has also ignored relevant judicial admonitions.

In 1968 in the case of Meehan versus Macy, the Court stated that the Civil Service Commission should go back to its drawing boards and come up with some narrow and precise regulations.

That invitation was never accepted and we are left with the statute that stands now.

With respect to its vagueness, I can only say that the three judges below had no difficulty in finding it unreliable guide to regulate speech.

Chief Judge Reynolds in the Eastern District of Wisconsin also when faced with a similar efficiency standard on a state level had no difficulty in finding it vague and unreliable.

Finally, the Administrative Conference of the United States has termed it an open invitation to arbitrary action.

It seems to me that these judgments cannot be ignored and they certainly -- it certainly go against the government’s contention, this standard is somehow a reliable guide to the ordinary civil servant.

Unknown Speaker: Mr. Barnhill?

Mr. Charles Barnhill, Jr.: Yes Sir.

Unknown Speaker: Are there any limits to the argument you are now making -- let us assume for the moment that an employee did charge his superior falsely with accepting a bribe.

Let’s assume further since you mentioned off duty, that this were done off duty, would that justify discharge or would you consider that his right of free speech would entitle him to do that?

Mr. Charles Barnhill, Jr.: Well, Your Honor, I am not here concerned with what is the line drawing element, what is the border line element.

What I am saying is if that kind of -- somebody knowingly states a false fact, a serious enough about his superior, he probably could be fired if there was a statute of regulation narrow enough which told them that kind of conduct would be proscribed.

You have to have some kind of rule so employee knows what he can say.

Chief Justice Warren E. Burger: So, do you suggest that government employees, now, under the present act and regulations do not understand that they can’t charge their superiors in that way?

Mr. Charles Barnhill, Jr.: Well, cannot knowing they charge their superiors falsely?

Chief Justice Warren E. Burger: No.

Mr. Charles Barnhill, Jr.: But that is not the facts of this case Your Honor but the facts are to the contrary.

Unknown Speaker: Well, I gather what you arguing Mr. Barnhill is whatever may be the reach of a properly drawn statute to reach the conduct of this fellow or someone in hypothetical Mr. Justice Powell gave you, following a Gooding analysis, he has standing because --

Mr. Charles Barnhill, Jr.: Correct.

Unknown Speaker: -- this reaches more than that kind of speech.

Mr. Charles Barnhill, Jr.: That is correct, irrespective of what he said.

As I understand it that rule has not been retreated from in the two cases cited by the government in their brief dealt with conduct not speech.

Chief Justice Warren E. Burger: Mr. Gooding was not government employee, was he?

Mr. Charles Barnhill, Jr.: Well, no Your Honor, he was not.

I do not believe there is any distinction though in the standing of a person to raise a case and depending on whether or not they are government employee.

There are of course other restrictions but I do not read that to be one of them.

Chief Justice Warren E. Burger: But we are talking in this case now about the procedures which lead to his interim suspension on the discharge.

Mr. Charles Barnhill, Jr.: Right.

That’s one of the issues, yes.

Chief Justice Warren E. Burger: That is quite a different context from the Gooding Case, isn't it?

Mr. Charles Barnhill, Jr.: That is correct but that -- solely relating to the vagueness of the statute which is count two in our complaint.

I think the analysis remains the same as in Gooding.

Unknown Speaker: More accurately, I guess the overbreadth.

Mr. Charles Barnhill, Jr.: What?

Unknown Speaker: More accurately, the argument based on overbreadth?

Mr. Charles Barnhill, Jr.: That’s correct, that’s correct.

Like I said almost everybody who has had an occasion to analyze this in detail said that it’s an invitation to arbitrary action.

And as I read the government’s position in this instance, the government says that any speech which interferes with efficiency of the government is proscribed under the present statute.

That seems to sweep within it truthful criticism that may impede the government’s processes.

I do not believe that to be the opinion of this Court.

I do not believe that efficiency overrides truth in free speech.

I do not believe there is any such opinion.

Finally, as I understand the government’s attack our speech argument, it is that Mr. Kennedy somehow is a hard core violator in the terms of this Court from the Browder case.

The Browder case was concerned with conduct, not speech.

Additionally, there is no hard core in this statute to violate.

The statute is one vague anomalous statute.

There is no theories or false system of regulations which implement the statute.

In fact, of you start to say, there is not one regulation, that was in fact an OEO at that time of statute was intervened being which implemented the statute as with respect to free speech.

The government’s assertions that there were such regulation has depend upon the Purpose Clause of certain OEO regulations and depend upon a regulation which is laid with conduct, not speech.

And I believe that is the government’s failure to discern that there is a difference between conduct and speech which causes this problem.

There is a difference and I believe it is been apparent in this Court.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Barnhill and you have about three minutes Mr. Friedman.

Rebuttal of Daniel M. Friedman

Mr. Daniel M. Friedman: Thank you Mr. Chief Justice.

As a specific OEO regulation which we have quoted in pages 42 and 43 of our brief which states that employees should avoid any action which might result or give the appearance of and, I quote, “affecting adversely the confidence of the public in the integrity of OEO and the government.”

while the regulation does not in terms refer to speech.

It seems to us that action is a broad enough phrase and certainly I find it where there is amazing -- the suggestion that there is an absolute immunity, a government employee can say anything he pleases under this statute.

And because of speech, he is somehow not subject to discipline.

That is what the Court of Appeals and the District Court has held in this case.

Now, the claimant’s been -- the suggestion was made by Mr. Justice White that perhaps this thing involves a denial of liberty and this is distinguished from property.

I think the answer that the liberty, any liberty here is the fact that he is branded if you want to call that as a man who has done bad things and maybe difficult for him to find a job.

He can fully protect himself on that aspect of the case certainly through the hearing that will subsequently be conducted before the Civil Service Commission.

Unknown Speaker: Why is the hearing been denied? Been delayed, excuse me.

Mr. Daniel M. Friedman: The hearing Mr. Justice has been delayed because of the pendency of this case.

Now, I could say that I understand, I had this morning checked with the Chicago Office of the Civil Service Commission where the hearing would be held and I was told that in fact the hearing has been terminated because of the fact that Mr. Kennedy is now back on payroll.

But the hearing was delayed but if things had proceeded normally, the hearing would have been held and Mr. Kennedy would have had an opportunity to try out before the Civil Service Commission, all of these defenses which he now asserts exist to the charges made against him.

I would just like to respond the contention that was made that in the answer, Mr. Kennedy file to the proposed discharge that he denies all of these facts.

That is set forth at page 62 of the appendix and there is no denial of the fact.

The only statement is that Mr. Kennedy is entitled to a fair and impartial hearing filed prior to any adverse action being taken against him.

The thing then summarizes what Mr. Kennedy believes the hearing should consist of and that says the present adverse action procedure fails in substantial ways to provide all these rudimentary elements required for a due process hearing that therefore, the proceedings are invalid and null and void.

This is not a denial, this is –-

Unknown Speaker: He does say it that the Court might have found it that conversations for which he is being punished are inaccurately set forth in the adverse action.

Mr. Daniel M. Friedman: That Mr. Justice is with respect to the second set of charges.

That it seems to me is in response to the contention that this is a denial of his rights of free speech thing.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.