BISHOP v. WOOD

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Argument of Norman B. Smith

Chief Justice Warren E. Burger: We will hear arguments next in 1303, Bishop against Wood.

Mr. Smith, you may proceed whenever you are ready.

Mr. Norman B. Smith: Mr. Chief Justice and may it please the Court.

I am Norman Smith from Greensboro, North Carolina, the counsel for petitioner in this case.

Petitioner is a former member of the Marion North Carolina Municipal Police Force.

He was dismissed on March 31, 1972 after nearly three years of uninterrupted service as an officer.

He had achieved permanent employee status after successfully completing a six-month probationary period.

Certain aspects of the Marion personnel ordinance relate to discharge procedure, which I will discuss in a moment, and certain reasons were given to Mr. Bishop for his discharge, which I shall also discuss presently.

This suit was instituted in the United States District Court for the Western District of North Carolina alleging wrongful discharge without notice and hearing.

Cross motions for summary judgment were filed.

The District Court granted the respondent’s motion.

The matter was brought to the United States Court of Appeals for the Fourth Circuit where a 2:1 carrying panel decision was in the respondent’s favor and it was reheard en banc and affirmed by an equally divided Court.

This petition was granted and, now, the case is here.

The case, we think, is very critical and that it involves applications of principles announced by this Court in Board of Regents versus Roth and Perry v. Sindermann, as further explicated in Arnett versus Kennedy.

First of all, we contend that the petitioner had property rights grounded in statute which gave rise to procedural--

Justice William H. Rehnquist: Mr. Smith, let me call your attention on page 19 of your petition for certiorari, a part of Judge Jones’ opinion in the District Court where he says in about the third paragraph on that page that the page, that one little sentence paragraph.

“It further appears that the plaintiff held his position at the will and pleasure of the city.”

I read that as an interpretation of local ordinance and the state law that was affirmed by the Court of Appeals.

How do you get around that in view of the language in Roth and Perry that these kinds of things arise as a matter of state law and are regulated by state law?

Mr. Norman B. Smith: I do not think this case has said that a United States District Judge is a Court of last resort as far as determining what state law is and--

Justice William H. Rehnquist: But, here, you have got the District Judge in North Carolina who is presumably a North Carolina practitioner before he took the bench.

You have got a panel of the Fourth Circuit which deals with North Carolina who are all much more regulated than we do.

Are you asking us to second guess those two Courts on what Carolina law is?

Mr. Norman B. Smith: The record is before the Court and we submit there is nothing intuitive about North Carolina law that it is written and whatever it applies is here and we think the Oral Court is manifestly wrong on the record of this case.

Justice William H. Rehnquist: But do you do want us to reach a contrary result on the question of North Carolina law as to that reached by Judge Jones?

Mr. Norman B. Smith: Absolutely, we think there is nothing in the record that supports his conclusion that petitioner held his position at the will and pleasure of the city.

The Court of Appeals wrote no opinion on the matter.

The only opinion written by the Court of Appeals was Judge Winter’s, in my judgment, compelling a dissenting opinion.

Four out of the seven judges in active service would have favored my position.

Now, the statute in question--

Unknown Speaker: Before you leave that point, the respondent’s brief cites a couple of North Carolina cases at page 11 of their brief.

Mr. Norman B. Smith: Yes, sir.

Unknown Speaker: In which they say they stand for the proposition that the contract is terminable at will.

You did not discuss those cases in your reply brief.

I wonder if you plan to discuss today.

Mr. Norman B. Smith: If Your Honor will please, our view those of cases as having to do with private employment and employment in the absence of one; a personnel ordinance, such as we have here, or anything analogous to it in the way of contract and, two, in the absence of a fixed probationary period with a maturation into a permanent employment classification and, thus, I feel the cases just deal with a common law of employment in the absence of agreement and ordinance to the contrary and are not controlled.

Unknown Speaker: On the basis the statute is giving your plan some kind of--

Mr. Norman B. Smith: Primarily, yes, sir.

The statute and practices of the city.

Chief Justice Warren E. Burger: Mr. Smith, is it customary for the Fourth Circuit in the 4:4 affirmance by an equally divided court for some of the judges to write as the dissenting opinion of--

Mr. Norman B. Smith: If Your Honor please, the dissenting opinion was produced by Judge Winter when there was a hearing panel of three.

No opinion came out of the 4:4 decision.

We assume that Senior Judge Bryan was consistent.

Chief Justice Warren E. Burger: When the en banc hearing was granted that washed out everything that had gone before in the panel, did it not?

Mr. Norman B. Smith: I presume so.

Nonetheless, I think Judge Winter’s opinion is very persuasive simply because of Judge Winter’s reasoning and I think that it should be regarded by the Court as being correct.

The ordinance in question, it is very brief and I thought I would read it.

A permanent employee whose work is not satisfactory over a period of time shall be notified in what way his work is deficient and what he must do if the work is to be satisfactory.

If a permanent employee fails to perform up to the standard of the classification held or continues to be negligent, inefficient, or unfit to perform his duties, he may be dismissed by the city manager.

To us, it is very clear that this ordinance establishes four causes for dismissal.

One: work not up to standard, two: negligence, three: inefficiency, four: unfitness for duty.

And, next, we think it is very clear that this ordinance establishes certain prerequisites to dismiss procedural prerequisites.

One, that there must be a notification of the deficiency and, two, a continuance of the performance in a deficient manner and, three, a statement of explanation.

Unknown Speaker: Now, that, you in fact read into the language that you read to us.

Would the part of the ordinance, the last sentence of it, that you did not read to us rather cast in some question what you read between the lines because it explicitly says what a discharged employee shall be entitled to.

Would that not indicate he is not entitled to anything else?

Any discharge employee shall be given a written notice of his discharge setting forth the effective date and reasons for his discharge if he shall request such a notice.

Mr. Norman B. Smith: That is correct, sir.

We think that is an additional procedure that has to be undergone and I will undertake to discuss in a moment.

I could now, if the Court wished.

Why we feel that the very minimal procedures set forth in Section 6 are not binding in the determination of the substantive rights that are created by that Section.

I feel that, at least the six justices of this Court in the Arnett case would so hold.

Now, the respondent concedes at page 10 in their brief that the ordinance is mandatory as to notification.

This concession is very important.

They say it is mandatory as to notification of a deficiency in performance.

Unknown Speaker: In any event or only if requested by the--

Mr. Norman B. Smith: No, I am not talking about the police discharge notice.

I think, I am interpreting the respondent’s brief correctly.

On page 10, first sentence, “although the ordinance is mandatory with respect to notifying employees of areas of deficient performance, it is merely permissive as to their dismissal for failure to perform.”

So, the mandatory provision conceded by the respondents is that requiring the pre-discharge notice.

In other words, the notice that must be followed by an opportunity to reform and demand one’s conduct.

The District Court assumed, on 15 of the certiorari petition opinion, that the ordinance had been fully complied with.

Of course, we think that assumption is manifestly incorrect for reasons which we will state in a moment.

But once it is established by the concession made by the respondents and by the assumption of the District Court that it is necessary to comply with certain procedures before terminating a public employee’s employment then we think the property rights are confirmed.

The property rights that bring due process considerations into play are confirmed.

We have an alternative argument which I will rely upon the briefs and will not take the Court’s time.

The fact alone that this employee was classified as a permanent employee after six months probationary service, that, alone we feel gave him a property right to which the Fourteenth Amendment --

Chief Justice Warren E. Burger: (Inaudible)

Mr. Norman B. Smith: Yes, Your Honor.

Thank you, sir.

Chief Justice Warren E. Burger: You may continue, Mr. Smith.

Mr. Norman B. Smith: Thank you, Your Honor.

May it please the Court.

I would like now to turn to the Fourteenth Amendment liberty interest that we feel are identified in this case in which we think provide an equally alternative basis for procedural due process requirements.

At the time of the discharge, the chief and the city manager refused to discuss their reasons with petitioner as to why he was being let go.

Later, upon request and in accordance with the ordinance that we have cited, a written statement of reasons was furnished stating that petitioner’s work had been unsatisfactory and that he had refused to attend certain schools.

Of course, the petitioner takes exception to these and says that these statements are false.

Justice William H. Rehnquist: Was this furnished to petitioner in private, more or less, just by a letter or was it publicly announced?

Mr. Norman B. Smith: It was furnished privately in a letter, if Your Honor please.

The ordinance says that one may ask for written reasons and the petitioner did so and they were furnished.

Unknown Speaker: And at the petitioner’s request?

Mr. Norman B. Smith: Yes, Your Honor, and later on when--

Unknown Speaker: Be it public record?

Mr. Norman B. Smith: Well, under North Carolina law, I am inclined to think they would.

We have a very broad public records statute which is not mentioned in the brief but it has only very narrow exceptions and, without going back and reading it, my inclination would be to say that, yes, this would be a matter of public record.

Unknown Speaker: Is the record available to some new employer if he sought employment after his discharge here?

Mr. Norman B. Smith: Yes, sir, certainly.

Unknown Speaker: There is no prohibition against showing it?

Mr. Norman B. Smith: None whatever.

Unknown Speaker: No requirement that it be shown?

Mr. Norman B. Smith: No requirement that it be shown except pursuant to our public records law and I am inclined to think it would be available.

The public records law is very explicit and quite simple and quite short, and I am just sorry I do not have the citation in my mind.

It is relevant but it, some way or another, did not get into the briefs.

Unknown Speaker: Mr. Smith, while I have you interrupted.

Mr. Norman B. Smith: Yes, sir.

Unknown Speaker: I gather you make this argument as a reason for reversal apart from the finding of the District Judge that he was not a permanent employee even if he were only a temporary employee.

Mr. Norman B. Smith: Precisely, even if he were only probationary or temporary or did not have any property interest, clearly, if his liberty interest was of a constitutional magnitude, he would be entitled to procedural due process.

Unknown Speaker: Because of the nature of the reasons given at his request why--

Mr. Norman B. Smith: Well the initial reasons, no, Your Honor.

The initial reasons are not, I think, of the kind that would require that unsatisfactory work, refusal to attend schools.

At least, I do not argue that they are sufficient.

Perhaps some would, but later when this action was brought in District Court, the Chief of Police under oath, by affidavit, gave his real reasons for discharging petitioner.

These were much more serious and did implicate the liberty interest of the petitioner.

Justice William H. Rehnquist: So it was only at that stage, you say, that the liberty interest was implicated?

Mr. Norman B. Smith: It was only then that it became disclosed to us, but we must assume that the Chief of Police was telling the truth under oath when he filed his affidavit and we must further assume that he has extra judicial statement not under oath was false, or else he would have been committing perjury.

Justice William H. Rehnquist: Then that leaves you in this position.

There was nothing implicated of liberty interest at the time of the discharge or even in response to petitioner’s request for a letter.

It was only when you sued them that this came out as a legal defense in their eyes.

Do you think that is in the same posture as if they had simply announced it without any lawsuit?

Mr. Norman B. Smith: I think whenever one reasonably suspects that his liberty interest have been violated, he can go to Court and ask the person who fired him, under oath, to say what the reasons were.

Justice William H. Rehnquist: But if your liberty interest has not been violated at the time you file a lawsuit and the violation occurs only as a result of another party’s pleading to the lawsuit that you brought against him, do you think that is on the same pleading as if they publicly announced it at the time of discharge?

Mr. Norman B. Smith: Well in response to that, Your Honor, it is well known that a lot of times employers will not be candid with employees to their face and say the reasons but it must be assumed, I think, that for prospective employers and others who inquired about petitioner’s conduct I think it must be assumed that the chief would have given these real reasons.

Justice William H. Rehnquist: But is there any evidence that he did, in fact, give them to anybody else before the lawsuit?

Mr. Norman B. Smith: No, sir, there is none.

Chief Justice Warren E. Burger: You are confusing me a little now, Mr. Smith.

What about that private letter?

Do you claim that placed some kind of a stigma on him?

Mr. Norman B. Smith: I think it could be argued there that it did, but in canter, I am not satisfied that it did.

It said unsatisfactory work and refusal to attend schools.

I am hesitant to say that that rises to a liberty interest.

Of course, I would not argue with a majority of this Court if they would have not thought otherwise because that would be a very favorable result, but I am unable to argue that in good conscience.

Unknown Speaker: Mr. Smith, what in the affidavit do you contend affected his liberty interest?

Mr. Norman B. Smith: Well, there were four things: disobedience of orders, insubordination, causing low morale, and engaging in conduct unsuited to an officer.

These are on pages 32-34 of the appendix.

And these of course, I think, clearly rise to the level of liberty interest.

You are saying that a person is deliberately disobedient.

He is insubordinate.

He is causing low morality and engaging whatever it is in conduct unsuitable to an officer has a certain moral tinge to it, I think.

Now, I think it would be terribly unjust to allow the earlier and now admittedly false reasons to control.

I think the true reasons ought to control and I think it ought to be assumed that prospective employers and others who inquired were given the true reasons--

Justice William H. Rehnquist: But there is no evidence in the record that any prospective employer did inquire, is there?

Mr. Norman B. Smith: No, there is no evidence.

Of course, this case comes up on cross motions for summary judgment and, presumably, if we go to trial this is one of the issues that would be explored.

Clearly, it is a relevant and an important issue.

Justice William H. Rehnquist: Did you have an opportunity to do any discovery?

Mr. Norman B. Smith: We engaged in very limited discovery and, I must say, that is one line of discovery I did not pursue.

Justice William H. Rehnquist: Are you not supposed to think about it at the time it is in the District Court rather than the time it is up here?

Mr. Norman B. Smith: Yes, sir, I concede that neither I or any other lawyer can think of everything in order to be thought of at the trial level and I feel that there are ample reasons for remanding this case for a determination on the merits and that this is one of the things that would come out in the end.

Unknown Speaker: Arnett v. Kennedy have cited to the Court of Appeals in connection with the en banc request?

Mr. Norman B. Smith: The Arnett case I believe, Your Honor, had not been decided at the time en banc consideration was granted.

It had just been decided when we argued the case en banc.

It was not cited, as I recall, in either of the briefs.

I do recall--

Unknown Speaker: You do not recall the oral argument?

Mr. Norman B. Smith: I do recall Judge Russell asking some questions about the Arnett case and I do recall that I was not, at that time, very able to deal with his questions because the case was very new.

Justice William H. Rehnquist: Well, it was reheard en banc, was it not?

Mr. Norman B. Smith: That is right, Your Honor.

Yes, sir.

Unknown Speaker: It was actually argued.

Mr. Norman B. Smith: Yes, sir, it was.

Unknown Speaker: It was actually argued and you think Arnett was or was not cited?

Mr. Norman B. Smith: Arnett was cited in oral argument.

The record would not show that but the recordings of the oral argument in the Fourth Circuit would.

It was discussed in oral argument.

Unknown Speaker: It cited Arnett even on the petition for certiorari.

Mr. Norman B. Smith: My memory is in, but if Your Honor says so, I assume it is great.

Of course, we did rely on Arnett in our brief.

I do feel that this clearly comes under Roth and Sindermann, and that is the reason we are here.

I think that those cases should control the outcome of this case.

Now, as to whether a mere --

Unknown Speaker: Could be viewed the same that under state law, even if you could only be fired for a cause, that nevertheless by failing to provide any procedure other than notice and reason that that define the procedural entitlement of the employee.

Mr. Norman B. Smith: Yes, sir.

Unknown Speaker: And that under state law, that is all he is entitled to.

Mr. Norman B. Smith: Well, do you think that stands under Arnett.

According to Your Honor’s opinion, six members of the Arnett Court and I suppose five members of this Court would hold that once the property or liberty interest is defined by state law that the procedural requirements are constitutionally defined and are not defined by state law.

That is my reading of the opinions in Arnett, and we feel quite strongly that this is so that while state law, of course, creates certain rights, it is the Fourteenth Amendment, Due Process Clause that determines how these rights will be adjudicated and how they will be determined in the administrative process.

So, we say that the full range of rights from Goldberg versus Kelly and other cases, in other words, a trial type hearing is what is required once the liberty and property interest of constitutional magnitude are identified.

The respondents have shown no pressing circumstances such as those present in a prison disciplinary situation or a public high school disciplinary situation that would require any truncating of the due process requirements or any shrinkage of it.

We think that there is ample time and proper place when an employee is to be deprived of a job to which he has a Fourteenth Amendment entitlement.

We think there is time and place for a due process hearing to be held.

Clearly, this was not done in the present case.

Now, even if one were to look at the plurality opinion in Arnett and take the position that whatever source of the property interest at stake, that should also be the source for the procedural requirements even if one were to take that view, a view which I submit cannot be taken, still the respondents are deficient and were in violation of petitioner’s rights.

In the first place, he was never notified of any deficiency in his work, at least on summary judgment that must be taken because that was petitioner’s evidence, although it was in dispute.

Secondly, the written statement did not contain the true reasons for discharge.

They contained false reasons.

So, we feel that the very procedures outlined by the ordinance were not adhered to and clearly--

Unknown Speaker: Are you saying they are false or they were just not a complete statement of the reason?

Mr. Norman B. Smith: Well, it would be--

Unknown Speaker: False?

Mr. Norman B. Smith: It would be charitable to say that they were not complete, if one asked for a list of all reasons that he is terminated and he is told that he is terminated because of unsatisfactory work and refusal to attend schools, and later on he finds out that he has been terminated for all these things that implicate his morals and his--

Unknown Speaker: Well, are all those detailed things no more than specific ingredients of the generic reason of unsatisfactory work?

Mr. Norman B. Smith: I do not think so, Your Honor.

I think one can be terminated for unsatisfactory work and get along and it probably does not give rise to a liberty interest, but if the unsatisfactory work consists of deliberate refusals to obey, or insubordination, hostility, all of these sorts of things--

Unknown Speaker: There is a stigma that unsatisfactory work is not.

Mr. Norman B. Smith: Precisely.

Unknown Speaker: My question is would they not be subsumed under the generic reason of unsatisfactory work?

Mr. Norman B. Smith: Well, I--

Unknown Speaker: I am suggesting only that perhaps the responses were not mutually inconsistent but one was just a little particular, so to speak, and the other was a more generic reason.

Mr. Norman B. Smith: Well, it is conceivable.

I view them as being a change of approach and I view them as the Police Chief coming out with the real reasons and reasons which are basically inconsistent with those first disclosed, but they could be regarded as--

Chief Justice Warren E. Burger: Are these set of reasons false?

Mr. Norman B. Smith: I think so, if Your Honor please.

I think such a material difference makes it clearly incomplete and, in my view, false.

I do not think the falsity of the first set is necessary.

I think the incompleteness suffices, if those reasons which were not disclosed are liberty-implicating reasons or reasons which carry stigma and tend to degrade the petitioner’s good name, reputation, and honor.

Justice William H. Rehnquist: Well, under your theory, supposing you have a Sindermann type case, where the plaintiff sues claiming a guarantee of some sort of tenure plus a deprivation of First Amendment rights.

He was fired for reason impermissible under First Amendment, and no reason is ever furnished at all for his discharge.

He is simply discharged and nothing more is said.

And then at the hearing on the motion for summary judgment of the case, in order to rebut the First Amendment argument made by the plaintiff, the respondent employer sets forth the real reasons that he discharged you which had not been made known to anybody up to now.

Do you think that at point, the employee has an additional claim based on a deprivation of a liberty interest because some of the respondents followed the law?

Mr. Norman B. Smith: Yes, sir.

I think if the real reasons are stigmatizing that that brings the right to a hearing into play, I do not think that the employer should be allowed to benefit or to be shielded as a result of either his falsehood or his inaccuracy of his first description.

I think that is manifesting unfairly.

Justice William H. Rehnquist: It never would have come out unless the employee had brought a lawsuit.

Mr. Norman B. Smith: I certainly believe that, Your Honor and I think whenever and however it comes out, if it comes out in such a way as to come within the test set up in Perry and Roth, I think he needs to be accorded his rights.

Unknown Speaker: I rather thought that Perry and Roth, it was Perry specifically, that held that if government, the state or federal, terminated an employee upon the purported ground of some stigmatizing reasons such as you are being fired because you embezzled money, that the termination upon that purported and publicized ground is what made it a colorful liberty interests and that what entitled that employee to a hearing to show that although he might have been terminated he did not embezzle the money but here, as my brother Rehnquist suggests, you do not have that situation to describe.

You do not have a termination of employment upon any purported stigmatizing ground according to your own submission.

Mr. Norman B. Smith: But you have an employer who is covering up and--

Unknown Speaker: And at that point that you brought your lawsuit.

Mr. Norman B. Smith: When you have employer who is covering up and concealing the truth and you think he is and you bring him into Court and you get him to tell the truth, I think you ought to be able to benefit by whatever the truth is.

Unknown Speaker: If that is the truth, then that is the end of it.

The only purpose of the hearing is to show that it is not true.

Mr. Norman B. Smith: I am talking about the true state of the employer’s mind, the true reasons the employer had, and of course, the due process hearing would determine whether they are in fact true, and we most emphatically deny that any of these charges are true as is set forth in the record.

Justice William H. Rehnquist: What motive does an employee have, he was given no reason for his discharge, to sue his employer in order to induce his employer to libel, really which is what you are saying that he is doing?

Mr. Norman B. Smith: If he feels he is being terminated because of his liberty interest, I submit that that is a perfectly valid reason for him to go to Court.

Unknown Speaker: He has been by definition under Sindermann if that was not the reason given.

Mr. Norman B. Smith: Well, he thinks that is, although that is the reason, it is not but why should he not be permitted to go into Court and have the parties tell the truth about the situation.

I feel that it would be just unjust to hold that.

One should not be bound by what he says is the truth in Court.

I see my time is almost run out and I will save whatever remaining time I have for rebuttal if I may.

Thank you.

Chief Justice Warren E. Burger: Mr. Burgin.

Argument of Charles E. Burgin

Mr. Charles E. Burgin: Mr. Chief Justice and may it please the Court.

I begin my presentation to this Court with an assumption.

I am here in behalf of the City of Marion and its two officials who were sued in their representative capacities under the Civil Rights Act and under the amount in controversy statute 28USC1331.

The first assumption that I make is about the reply brief filed by the petitioner.

The petitioner has now conceded that the city cannot be reached under 42USC1983 and this case.

The second concession that the petitioners made in this reply brief is that the state of the record, at this point, is not sufficient for a proper determination of whether or not jurisdiction exists under 28USC1331 and, unless the Court has some questions with regard to those two matters, and I shall attempt to confine my discussion of the case to other portions of the case.

May it please the Court, Mr. Bishop, the petitioner in this case was hired as a policeman by the City of Marion in June of 1969.

At the time he was hired, there was no personnel ordinance.

This personnel ordinance that we are now talking about was adapted on April 4, 1970, some-10 months later.

The petitioner was discharged after having been employed for two years and ten months.

He was discharged on March 31, 1972.

He, then after, brought suit against the city and he brought suit against the two officials in their representative capacities.

Now, we made the point about that in our brief and we have, from the very start of these proceedings.

Before I get into that, I have the permission of my brother, Counsel here to advise the Court of two more facts.

The Chief of Police, one of the respondents of this case, Mr. Wood was disabled by a stroke and is no longer employed by the City of Marion.

He seized working on November 17, 1972.

The other respondent, the City Manager, left the City of Marion on November 30, 1972 and has taken a position as City Manager with another city in North Carolina.

Unknown Speaker: You represent these two individuals, I take it.

You are their attorney nevertheless.

Mr. Charles E. Burgin: Yes, Your Honor.

Yes, sir.

We have contended in part one of their brief that because this suit has been directed against the municipality and against two of its officers and their representative capacities, that the Federal District Court had no jurisdiction under 42USC1983 by its jurisdictional counterpart 28USC1343.

We have contended throughout and we do still contend that this suit is not only informed but is in substance against the city, and that these officials who are named, the City Manager and the Chief of Police, are named only in a nominal capacities as representatives.

Justice William H. Rehnquist: What do you mean nominal capacity as representatives?

Mr. Charles E. Burgin: That they were the agents of the city, Your Honor, they carried out the provisions of the ordinance.

They are named to get to the city.

Justice William H. Rehnquist: Well, but if you take Monroe against Pape, a case like that where they held you could not recover against the City of Chicago, this Court held.

You could, I take it, recover against the individual policeman in that case.

I would think in your case, although you could recover against the city, you could recover against the named individuals if they were city officials.

Monetary damages are sought, as I understand the complaint.

Mr. Charles E. Burgin: Your Honor, we take issue with that point.

We think that monetary damages are not sought.

The Chief of Police, Your Honor, with the--

Justice Thurgood Marshall: I would assume this suit, whoever filed it.

Mr. Charles E. Burgin: Well, the--

Justice Thurgood Marshall: Who filed the affidavit?

Mr. Charles E. Burgin: The Chief of Police and the City Manager.

Justice Thurgood Marshall: Do you say they are not responsible for that?

Mr. Charles E. Burgin: They are responsible for the affidavits, yes, sir.

Justice Thurgood Marshall: They are responsible for firing him.

Mr. Charles E. Burgin: They are responsible for firing him only in the sense that they were acting in a representative capacity as only the city could have.

They carried out the provisions of the ordinance which was their duty to do so.

Justice Thurgood Marshall: To fire him?

Mr. Charles E. Burgin: Yes, sir.

Justice Thurgood Marshall: Are you saying he can call his representative capacity when you are suing them for damages for firing him and I understand the petitioner’s position to be that what he said in that letter might be liable?

Mr. Charles E. Burgin: Well--

Justice Thurgood Marshall: The city would not be responsible to be directly --

Mr. Charles E. Burgin: For the lie?

Justice Thurgood Marshall: Yes.

Mr. Charles E. Burgin: No, sir, if there was in fact a liable -

Justice Thurgood Marshall: But if there was, who would be liable?

Mr. Charles E. Burgin: Well, the--

Justice Thurgood Marshall: They will be liable, would they not be?

Mr. Charles E. Burgin: Absolutely, in his individual capacity.

Justice Thurgood Marshall: But he is not even in this case.

Mr. Charles E. Burgin: He is not in this case in his individual capacity.

Your Honor, to get back to your question, Justice Rehnquist, damages against these individuals as individuals, we contend, are not requested.

Justice William H. Rehnquist: Well, Mr. Burgin, in Judge Jones’ opinion on page 12 of the petition for writ of certiorari, the first paragraph of his opinion says, referring to the petitioner, he seeks an order requiring the defendant to reemploy him and a monetary award of damages consisting of his wages from March 31 ’72 to the date of judgment.

Mr. Charles E. Burgin: Yes, Your Honor.

Justice William H. Rehnquist: Will you not regard that as a prayer for damages?

Mr. Charles E. Burgin: No, Your Honor.

I regard that as a prayer for back wages.

I think that the petitioner regards it thusly also because in his brief, and we have put this in our brief and the petitioner’s brief.

On page 6 of petitioner’s brief, he states that he is seeking reinstatement and back pay.

Justice William H. Rehnquist: What is the difference between back pay or back wages and damages in a case like this?

Mr. Charles E. Burgin: Well in our mind, there is a great deal of difference.

Back pay can only come from the city.

Justice William H. Rehnquist: Well, that may be true but Judge Jones opinion talks about damages, as I take it, if one of the individual defendants in this case wrongfully and unconstitutionally fired the petitioner he might be liable for damages even though he, not being the city, could not pay “wages.”

Mr. Charles E. Burgin: That is correct.

Unknown Speaker: Damages would be measured by the loss of pay.

Mr. Charles E. Burgin: That is right but we say, if Your Honor please, that that is not what they are asking for.

That the word “damages” is not controlling, that the word “back pay” is.

They do not say damages in form of back pay.

They say damages consisting of the back pay.

Unknown Speaker: In any event, I hope you are going to save sufficient time to argue the merits.

Mr. Charles E. Burgin: Yes, Your Honor.

I will get to the merits at this time.

I simply point out one case in support of our position which we think is that the principles enunciated in the case are in support of the principles which I have just stated and that was a case decided by this Court in 1949, Larson versus Domestic Foreign Commerce Corporation in 337US682, in which it was stated that the actions of an officer if not in conflict with the terms of his valid statutory authority or the actions of the sovereign.

With regard to part three of our brief, the question of whether or not this policeman had a property interest, we start with the premise of the Federal District Court which we think is a correct premise that the respondents complied with this ordinance and applicable state law in discharging Mr. Bishop.

We say that the course that--

Unknown Speaker: Would it apply to the state law in response to a request to give the reasons for discharge, the city said they did not have any?

Mr. Charles E. Burgin: Yes, sir, I think it would.

Unknown Speaker: So that you could be fired at will without a cause at all.

Mr. Charles E. Burgin: Yes, sir.

Unknown Speaker: Under the Fourteenth Amendment?

Mr. Charles E. Burgin: Yes, sir.

Unknown Speaker: Then that is the end of the case.

Mr. Charles E. Burgin: I think so.

Yes, sir.

Unknown Speaker: The District Court cannot apply it, employees maybe fired at will?

Mr. Charles E. Burgin: I think yes, sir.

I think there is no question in my mind that that was the meaning and the intent by the words used by the District Judge.

Unknown Speaker: What if, in response to the request that says that you required for inefficiency.

Mr. Charles E. Burgin: Inefficiency?

I think, if Your Honor please, that that is something that does not rise to the level of a protected constitutional property interest and it is something that should be handled purely and simply by the supervisor.

Unknown Speaker: What if the answer was you were fired because you are habitually negligent?

Mr. Charles E. Burgin: I still say that that has no more implication than inefficiency.

If Your Honor please, I know you alluded to that weird thing in the Arnett case.

I think this is a case somewhat like that.

I think the principles would apply here.

I think you also alluded in the Arnett case to an 1856 case Ex parte Secombe in which employment was conditioned upon maintaining proper respect for Courts and Court officials.

And, we say that this man was discharged unsatisfactory work.

Satisfactory work would be on a par with satisfactory respect that was to be paid to someone.

Mr. Bishop has maintained throughout this proceeding, as I understand, his contentions that he had a property interest in his job because, number one: he was a permanent employee, number two: that during the entire term of his employment no other policeman on a 17-man police force had been discharged, and number three: because he reasonably believed that he would not be discharged.

Now that, I understand from the pleadings in the case and from the briefs that they have filed, is his position.

We say that North Carolina law disposes of his strongest argument in that respect, his strongest argument being the fact that he was a permanent employee.

Our law in the State of North Carolina holds that permanent employment without more means nothing more than an indefinite general hiring power which may be terminable at the will of either party or irrespective quality of performance.

We say that Mr. Bishop had no more than a subjective expectancy that he would continue to be employed and that that is not protected by a procedural due process of the Fourteenth Amendment.

With regard to the liberty interest, we have maintained that the statute was followed and the District Court Judge, on page 15 of the petitioner for writ of certiorari, states there is no contention that the provisions of this article were not complied with by the defendant.

Unknown Speaker: What is the answer to the claim of deprivation of liberty?

Let us say the statute provided that an employee could be discharged only on the basis of gross dishonesty or immorality and let us assume that that employee was terminated on the basis that he had embezzled some money and that would be, therefore, grossly dishonest.

That would be unscrupulous accord with the statute but it still might deprive him of a liberty interest that would entitle him to a hearing to see whether or not he had been.

In other words, following the statute does not really fully respond to a claim of deprivation of liberty without due process of law, does it?

Mr. Charles E. Burgin: I concur in that statement completely but I do say that we had, in discharging him, implicated his liberty in no way.

Unknown Speaker: Different point?

Mr. Charles E. Burgin: Yes, sir.

I think that the time to determine whether or not a liberty interest is implicated is at the time of his discharge.

Well, I do not think that the reasons for discharge implicated his liberty in any manner, and I point out to the Court this fact.

When Mr. Bishop was discharged and at his request, he was given a letter setting forth those reasons.

Now, he had that letter in his possession and if he wanted to show it to a prospective future employer he very well could.

And the public record statute, I believe Mr. Jones’ statute is 33, would give any prospective future employer the right to see that.

Unknown Speaker: Getting back to Mr. Justice Stewart’s question, if in the judicial proceeding rather than as the Police Chief testified, really, we discharged him because of embezzlement, you would still say that there had been no invasion of liberty interest.

Mr. Charles E. Burgin: Absolutely, yes, Your Honor.

I would say there had been no invasion of his liberty.

Unknown Speaker: But because they did not tell him the truth when they discharged him for unsatisfactory work.

Mr. Charles E. Burgin: Well, Your Honor, respectfully I think that that may be an assumption.

Unknown Speaker: I am putting you a question, a hypothetical.

Mr. Charles E. Burgin: Excuse me.

Unknown Speaker: They gave him the letter they gave him.

Mr. Charles E. Burgin: Yes, sir.

Unknown Speaker: But the fact the Chief testified on the judicial proceeding that that was not the reason, the real reason was he was an embezzler?

Mr. Charles E. Burgin: I do not think, if Your Honor please, number one: because it is a judicial proceeding, number two: because it would have been brought by the petitioner that the liberty interest would be implicated in that case.

I think the liberty interests are implicated and I cannot recall but I believe there is some language in the Roth case or Sindermann case or maybe the Arnett case that at least implies that the time of discharge is what is important.

If, at that time, his liberty interest were implicated that is one thing.

In this case, they were not.

Unknown Speaker: There are a lot of rumors around town that he had embezzled funds then the Police Chief takes hold of the situation.

Then the Police Chief discharges him with a letter which simply says he is discharged for unsatisfactory work.

Mr. Charles E. Burgin: There would be no difference in that hypothesis, Your Honor, than the one you posed earlier, in my mind.

Unknown Speaker: After the new ordinance was passed, his termination occurred, was it 10 months?

Mr. Charles E. Burgin: About two years, a little over two years.

The ordinance was adapted in April of ’70.

He was terminated in end of March ’72.

Unknown Speaker: Do you say that his rights, his situation, is different from that of a person employed on the same job after the ordinance was passed or are they in the same boat?

Mr. Charles E. Burgin: No, Your Honor, I would say that I have not contend that below this Court, I would not contend that Mr. Bishop is not a permanent employee and that the situation would be the same with regard to the hypothesis that you put to me, if the two individuals had passed the six-month period.

Unless the Court has some further questions of me, that would conclude my presentation.

Chief Justice Warren E. Burger: Very well.

Mr. Smith.

Rebuttal of Norman B. Smith

Mr. Norman B. Smith: If Your Honor please, I did save some time but I have no particular comment I wish to make.

I think I have covered the points in the opening argument unless there are any remaining questions.

We thank the Court.

Unknown Speaker: Under the ordinance, the city need not have any cause for discharge at all.

Mr. Norman B. Smith: I just think he is plain wrong.

I think you can look at the ordinance and see that you have to fall into one of four categories before you can be discharged.

Unknown Speaker: The Judge said that the employee may be discharged at will?

Mr. Norman B. Smith: The Judge is just wrong.

He is not reading the statue or not reading it correctly, but it just seems to me that any way--

Unknown Speaker: He did not say that he could be discharged without cause.

He said he could be fired at will and could mean there was only notice without a hearing.

Mr. Norman B. Smith: I presume that with “at will” and “without cause” is the same thing.

It would be wrong to think that one had to have cause to discharge someone and then say you can do it at will anyway.

That would negate the force of the cause.

Unknown Speaker: Without notice.

Mr. Norman B. Smith: I suppose that is a possible construction but none of this ordinance.

Anyway you turn this ordinance it says that there must be one of--

Unknown Speaker: If the Judge said that, why are we here?

Mr. Norman B. Smith: Your Honor, I respectfully contend he is wrong and that Judge Winter is right that this Court ought to reverse.

Work not up to standard, negligence, inefficiency or unfitness have to exist.

Unknown Speaker: I assume, on your reading of the (Inaudible), I take it that you would say that if we agreed with him that you will lose?

Mr. Norman B. Smith: I think if you agreed with everything he said in that opinion, I would lose but--

Unknown Speaker: On the liberty.

Mr. Norman B. Smith: He said that the liberty interests were not implicated.

He covered the whole thing.

He just did not do it right.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

The case is submitted.