GILBERT, PRESIDENT, EAST STROUDSBURG UNIVERSITY v. HOMAR

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Argument of Gwendolyn T. Mosley

Chief Justice Rehnquist: We'll hear argument first this morning in Number 96-651, James E. Gilbert v. Richard Homar.

Ms. Mosley.

Mr. Mosley: Mr. Chief Justice and may it please the Court:

The issue presented in this case is whether due process requires a public employer to provide a hearing in every instance before suspending one of its employees without pay.

The Third Circuit held that a Loudermill-type hearing providing for hearing and a notice to be heard must be given to an employee in every case before suspending him without pay, regardless of the reasons for the suspension, regardless of the governmental interests involved, regardless of the purpose to be served, no matter... regarding the substantial assurance of reliability, regardless of the duration of the suspension.

We think this is wrong.

We think that the better rule is that which was announced in Mallen.

In Mallen, the Court said an important governmental interest accompanied by substantial assurance that the deprivation is not without basis may, in limited circumstances, justify the postponement of a hearing until after the deprivation.

What we are asking for here is for the Court to make explicit what was suggested in Mallen, that the university's interest in the prompt removal of a police officer arrested for drug-related charges justified Mr. Homar's suspension without a hearing and without pay.

Unknown Speaker: So you would--

--Ms. Mosley--

--Excuse me.

--it was my understanding that the Third Circuit wasn't saying you must have a full dress hearing, just give the officer an opportunity to say why he shouldn't be payless during the suspension period, just an opportunity, I think the words were, to tell his side of the story.

Mr. Mosley: Yes, Your Honor.

In this case, we're suggesting that such an opportunity would be useless.

In this particular case, we have... in this particular case, we have a police officer who was arrested on very serious charges, and that particular arrest itself required prompt action, just as in Mallen the Court said that the mere fact of the arrest is enough to undermine the public confidence and the public trust.

Unknown Speaker: Well, the problem, Ms. Mosley, is not apparently on whether the suspension can occur.

I don't see either side disagreeing that under these circumstances the officer can be suspended.

I guess it really turns on whether there should have been some opportunity promptly to discuss the pay situation during the suspension, right?

I mean, that's what we're really talking about, not whether there can be a suspension, because I guess your opponents agree there could be.

Mr. Mosley: Yes.

In our case, however--

Unknown Speaker: And in this case, we've never had a determination on the facts.

I guess it turned out that the charges were dismissed very promptly, but there was no opportunity to discuss the pay situation for a while.

Mr. Mosley: --That's right.

What we're saying is that there are important interests furthered by his prompt suspension and his prompt suspension without pay.

The government had important interests at stake here, not just the interest in promptly removing a police officer following his arrest on drug-related charges, but there was the interest in maintaining the public's confidence in the integrity of the police force and the police officers' confidence in the integrity of the police force.

Unknown Speaker: So you do not apply this to every State employee.

Mr. Mosley: With respect to the arrest on a felony charge, we're saying that the arrest, or that the suspension would be without pay, but we're suggesting--

Unknown Speaker: So it's with respect to all employees, or just police officers?

Mr. Mosley: --With all Commonwealth employees.

Unknown Speaker: Well, is the suspension automatic?

I mean, it seems to me that one of the things I think we're arguing about in this case is whether you're really applying this regulation, and the regulation that you set out on page 3 of your brief makes the suspension automatic on arrest.

There doesn't seem to be a substantive objection to the regulation as such, so if it's this regulation which is being applied, then the only real issue of fact would be, was the person arrested or charged or not?

Mr. Mosley: Correct.

Unknown Speaker: And yet if I understand what the other side is saying, they're saying that really isn't the standard that they apply, that in fact it's... number 1, it's not consistently applied.

Number 2, if it had been alone what was being applied the individual would have been reinstated when the charges were dropped, and he wasn't, and so they're saying that the real issue in the case is... or in the case of a suspension is not whether there was an arrest or charge, but something to do with the merits of the arrest or charge, and if the latter point is true, then there really is a lot more to talk about at a hearing than the mere fact of the arrest or not.

Could you comment on that issue?

Mr. Mosley: Yes, Your Honor.

What we're saying is at the point of time when the suspension was made, there was only one issue, and that issue was, was there an arrest, and was the nature of the charge a felony, and--

Unknown Speaker: And you apply the regulation to everybody, and so far as you know, are there any exceptions in the sense that the inquiry might have been more far-ranging, or there might have been a... an exercise of discretion on the part of the suspending authority?

Do you know of any such instances?

Mr. Mosley: --As far as I know, Your Honor, there is no discretion, and that this particular regulation is applied in every instance involving an arrest of a Commonwealth employee for a felony.

Unknown Speaker: All right.

Now, if... I'm sorry.

Go ahead.

Mr. Mosley: Well, the only issue then is, does the employee's charge or arrest fall within that regulation, and--

Unknown Speaker: All right, but if that is so, and that is the standard, why wasn't he simply reinstated when the charges were dropped?

Mr. Mosley: --Your Honor, that particular issue simply doesn't appear to have been addressed.

It was not addressed by Mr. Homar.

It was not addressed by the district court, and it wasn't addressed by the Third Circuit.

Unknown Speaker: But neither was this regulation that you're relying on.

That sort of comes in... it's barely there until your brief in this Court, and the deposition of, what was his... Mr. Levanowitz?

Mr. Mosley: Yes.

Unknown Speaker: --said that he used it not as a law but as a guide among other guides, so it doesn't sound like it follows like the night the day.

At least that wasn't how the personnel supervisor conceived it.

He thought it was just one of the guides he had.

Mr. Mosley: Well, we understand that Mr. Levanowitz from his deposition testimony certainly should be understood as saying that that was one of the things that he considered.

However, insofar as he's suggesting that he has discretion, he was merely wrong.

And also, we're saying that although we did not place a great deal of emphasis on the existence of the Governor's code, that is certainly referred to, and that particular aspect relates only to the issue of the value of additional process.

That is the point of having that particular code of reference, or a code of conduct in the case.

What we're suggesting is, in the balance, when you talk about the various factors that you're considering, one of those factors is, what is the value of having any additional process?

What is the value of having the employee come in and say anything--

Unknown Speaker: Well, but you don't have a balance, because you began by telling us that this was a police officer and that that's important, and I can understand that.

Mr. Mosley: --Right.

Unknown Speaker: But you say it applies across the board to all employees.

That's the rule you're defending.

Mr. Mosley: Well, no.

What I'm suggesting is that we have a rule, and there's no discretion, so as to that element of the balance--

Unknown Speaker: May I just make it clear?

You are saying that the rule you want us to adopt is that there is an across-the-board rule that is... that meets constitutional requirements for a State to suspend any employee who is charged with a felony without a hearing and without pay.

Isn't that your submission?

Mr. Mosley: --What I'm suggesting, Your Honor, is that where there's an important interest, and there's some assurance that the reason for the action taken is not without basis, and there's a need for prompt action, then the court may, in those instances, suspend without--

Unknown Speaker: You mean the State may.

Mr. Mosley: --The State may suspend without pay.

Unknown Speaker: So then you're not arguing for the broad rule that I suggested at the outset of my question.

Mr. Mosley: No.

Unknown Speaker: You don't need to defend a rule across the board, I take it.

Your position here could simply be limited to police officers.

Mr. Mosley: It could be, because clearly the removal of a police officer on charges such as were involved here is a very important issue.

However, we're not suggesting that the interests implicated by some other employee might not also raise very fundamental, compelling interests to warrant his or her suspension without pay as well.

What we're suggesting is that there... we're not really arguing for a new rule, or the announcement of any new kind of approach in these types of cases.

What we're saying is that the rules that have been in force, such as the Mathews balancing test, and the rule that was announced in Mallen, are adequate to deal with this particular situation.

Unknown Speaker: Well, if you're going to have a case-by-case rule for every employee, depending on who he or she is, you might as well have a hearing.

Mr. Mosley: Well, Your Honor, one of the reasons that we're suggesting that there would not have been a need, or there would be no value, is that it really does depend on what the purpose or the function of the action is.

We're saying that there's nothing new with respect to saying that due process is a flexible concept.

There is no rule that fits every single situation, and that in fact the Court has suggested in Mallen, or in Mathews and other cases that there is a balancing.

There is a balancing in every single situation.

Unknown Speaker: What we want to... I mean, what we want to know is whether in this case there should have been a hearing or not.

Mr. Mosley: Right.

Unknown Speaker: And let me suggest an argument to you and get your response to it.

The argument would be this.

If you had a regulation that provided every employee shall be suspended upon arrest, suspended without pay upon arrest, and you applied that across the board, and that regulation as such was not attacked as somehow being unconstitutional, then you would have an argument to the effect that look, the only issue is whether there was an arrest or not, and there's not likely to be a mistake about that.

Or if you had a regulation that said, every police officer shall be suspended upon arrest, you could make the same argument.

The only question is whether there's an arrest.

But if, in fact, this regulation, which seems to cover everybody, does not in fact cover everybody, then, at least, it seems to me there... or the argument would run that in any given case an employee could say, look, it shouldn't apply to me.

You apply it to some, you don't apply it to others, regardless of what it says on its face, and it shouldn't apply to me, and that's a much... I suppose a much more complicated issue than whether there was an arrest or not.

If that's the issue, there would be a good reason for having a pre-suspension hearing.

What is your response to that?

Mr. Mosley: My response, Your Honor, is that there are no facts in the record, or there are no facts of which I am aware, that suggest this particular regulation does not apply in every instance when there's been an arrest of a Commonwealth employee and a charge of a felony.

In that particular case, the inquiry is the same.

It is whether--

Unknown Speaker: So you are going to defend it on the grounds that it does apply to everybody.

Mr. Mosley: --It does apply to everyone.

It does apply to everyone, so the inquiry at the point of consideration of what to do once you receive that information is, you know, is this a Commonwealth employee, has there been a formal charge, and is that charge a felony?

Unknown Speaker: Had there been no Governor's code, you would lose.

Is that... then you're relying on the Governor's code as the reason why there should be no opportunity to tell his side of the story?

Mr. Mosley: No, we're not, Your Honor.

What we're suggesting is, as I've stated, is there is a balancing.

There has to be an important governmental interest which we do have here.

We do have reliable information which would be supported by the State police arrest of this person, so there's no suggestion that the action taken is baseless.

Unknown Speaker: Then what use is the Government code?

I'm really... I'm having a hard time understanding what use you're making of that.

Is it your position that the Government... that the Governor's code makes it unnecessary to have a hearing, because it applies universally, however, you concede that in some cases that may be unconstitutional?

Is that your position?

Mr. Mosley: No, I don't think that I'm conceding that in some cases it could be unconstitutional.

Unknown Speaker: So you're--

Mr. Mosley: What I'm suggesting is that the value or the purpose of our reliance on the Governor's code is to suggest there is no discretion, so there's no need for any hearing.

Any... there's no point in dispute at that time.

Unknown Speaker: --So you are defending the proposition that it is constitutional to fire, or to suspend without pay, any State employee upon his or her arrest for a felony?

Mr. Mosley: What I'm--

Unknown Speaker: Because that's what the Governor's code says.

If you're arrested for a felony, you're suspended without pay.

Mr. Mosley: --What I'm suggesting--

Unknown Speaker: And you say that is constitutional with regard to all State employees?

Mr. Mosley: --What I'm suggesting is, that regulation relates to all employees, but there are other factors in the Mathews balance that must be considered--

Unknown Speaker: Okay, so--

Mr. Mosley: --in addition to whether or not--

Unknown Speaker: --That comes back to my original question.

Mr. Mosley: --Right.

Unknown Speaker: It applies to all employees, but you say it may not be constitutional as to some of them.

Is that what you're saying?

Mr. Mosley: That's correct.

What I'm suggesting is that element, that factor, that... the factor on which that particular regulation bears some interest may not require the same result, given that the governmental interest involved, the need for prompt action, for instance--

Unknown Speaker: So why shouldn't he have the opportunity to argue that this is one of those cases in which it would be unconstitutional to apply the Governor's code?

Mr. Mosley: --Well, we've stated that the interest of the Government in getting this person off the campus cannot be challenged, it's very important, and that we don't see that there's a dispute to that.

Unknown Speaker: Is it so important that he shouldn't have an opportunity just to say, it was the wrong place, the wrong time.

I was totally innocent.

I was visiting a friend.

And then they could make a determination based on the police chief's experience with this man, but here he was just told, you will be payless.

Mr. Mosley: Well, there are two aspects to that.

The one is, what is the value?

If the triggering event is his arrest, and his arrest on a felony charge, there's no dispute to that, and Mr. Homar has never disputed that.

Unknown Speaker: But the value is, he could say to his immediate boss at the university, look, I was visiting a friend.

I had no idea of this.

There was no warrant for my arrest.

There was no judicial officer who found probable cause.

It was the wrong time, wrong place situation.

Then he could be believed or disbelieved, but at least he would have had a chance to tell his story.

Mr. Mosley: We're suggesting that it's not even the credibility of this police officer that's important at this point.

The governmental interest in having his prompt removal is in protecting the public's confidence in the integrity of the police force.

Unknown Speaker: May I--

Mr. Mosley: We're suggesting that is what requires the promptness of the action.

Unknown Speaker: --May I ask a question--

Mr. Mosley: Yes.

Unknown Speaker: --about the meaning of the regulation on which you rely?

Do you read that as requiring that the suspension continue as long as the charges remain outstanding, or would it be within the superior's authority to interview him, find out the facts, and say this is obviously a mistake, I'm going to put you back on the payroll?

Would the regulation have permitted that?

Mr. Mosley: We're suggesting that insofar as the suspension was based or triggered by the arrest, and on a felony charge, that it would be of no value to have a hearing prior--

Unknown Speaker: I understand that.

My question--

Mr. Mosley: --Prior--

Unknown Speaker: --My question is, what does the regulation mean with regard to the authority of the supervisor to reinstate the man before the criminal charges are dismissed?

Would the supervisor have that authority?

Mr. Mosley: --The regulation does not speak to that and does not preclude that.

Unknown Speaker: It does not preclude that.

Mr. Mosley: It does not preclude that.

However--

Unknown Speaker: So that a hearing might have been valuable.

Mr. Mosley: --It... we don't think that the hearing would have been valuable on the question... in this particular case, the criminal charges were dismissed, so at that point we must concede, and there is nothing in the record to suggest why this was not done, that there may have been some value in having a hearing once those criminal charges were dismissed.

But on the issue that we are here--

Unknown Speaker: But I don't understand why it might not have been valuable even before they were dismissed if the supervisor would have had authority to reinstate him knowing the full story.

Mr. Mosley: --The... we're not suggesting that the supervisor would have had full authority to reinstate prior to the resolution of the criminal charges, and if that was your question--

Unknown Speaker: You told me a moment ago he did.

Mr. Mosley: --And if that's... if... I--

Unknown Speaker: Which do you think is the better view of the regulation, he did or did not have the authority?

Mr. Mosley: --I do not believe that the regulation gave him the authority to have a hearing and reinstate prior to the resolution of the criminal charges.

If the purpose and the reason for the suspension was his arrest on criminal charges and a felony.

Unknown Speaker: Even if the charges remain pending for 3 or 4 weeks, and even though the supervisor was convinced that they were going to be dismissed, he still had to keep him off the payroll.

That's your view of the regulation.

Mr. Mosley: That's my view of the regulation regarding the whole point of the hearing, or the inquiry at that time.

As we have stated Mallen, in... the Court in Mallen suggests just the mere fact that there's been an arrest itself is sufficient to threaten the public's confidence in the police force.

What we're saying here is that--

Unknown Speaker: Thank you, Ms. Mosley.

Ms. Hubbard, we'll hear from you now.

Argument of Ann Hubbard

Mr. Hubbard: Mr. Chief Justice, and may it please the Court:

Under the Third Circuit's per se rule, any public employee who is suspended without pay in advance of a hearing is entitled to seek money damages for a constitutional violation.

This is contrary to the Court's precedents, and could impair the Federal Government's interest in needed flexibility in employment matters.

Because of deficiencies in the record, however, we believe the Court should reject the Third Circuit's rules, vacate its judgment, and remand the case for further proceedings.

I'd like to focus first on why Mallen and Barchi tell us that a government may, in appropriate circumstances, suspend an employee without pay and in advance of the hearing.

Unknown Speaker: I take it, then, the rule you're going to submit to us is that it depends on the nature of the employee and the work that the employee does.

Mr. Hubbard: Under Mallen and Barchi, and as well under Mathews, you have to identify the government interest in prompt action.

Unknown Speaker: So does the government... the government does not have an interest in suspending any employee who's been arrested and charged with a felony without a hearing and suspending without pay?

Mr. Hubbard: We think it's an easier case to say that you could do it with a law enforcement officer.

Unknown Speaker: I know that.

That's why I'm asking.

[Laughter]

Mr. Hubbard: It's unclear.

I'm not sure why the... that would be defensible.

Unknown Speaker: And is there a difference between the suspension of duty, performance of duty and the deprivation of pay?

Mr. Hubbard: Generally--

Unknown Speaker: Might there be a different balance between the two?

Mr. Hubbard: --Yes, Justice O'Connor.

Generally, if the government suspends an employee with pay it does not implicate a protected property interest, so you would not have to go through this balancing test.

We think Mallen and Barchi are properly understood--

Unknown Speaker: Why does the government have to give somebody a paid vacation if they've been charged with a felony?

Mr. Hubbard: --It doesn't if it can satisfy the Mallen and Barchi test that it had a compelling interest or adequate interest to suspend them.

Unknown Speaker: How does the government show this compelling interest, other than if it's not a policeman, if it's a groundskeeper?

Mr. Hubbard: I think it would be harder with a groundskeeper.

I mean, this Court has already identified other circumstances... if it's a bank director accused of fraud.

If there's a public safety concern.

Unknown Speaker: That was a private individual.

I mean, it's different when the government as regulator is knocking a private individual out of his private job.

Can't the government have a policy and, indeed, don't many governments have such a policy, we do not employ felons, and if there's any suspicion of somebody being a felon, you're off the payroll until that suspicion is eliminated?

Why isn't that a reasonable rule?

I don't care if you're a police officer or not.

Mr. Hubbard: It may well be, Justice Scalia.

I'm not here to defend the Governor's code in all of its applications.

What I'd like--

Unknown Speaker: Of course, if you continue paying the charged felon, can the government get the money back?

What do you do bring a lawsuit to get back the money you've been paying after the person is finally convicted if you continue paying the salary?

How much would it cost you to bring a lawsuit to get back the pay that you... I mean, it seems to me there's a substantial government interest there, isn't there?

Mr. Hubbard: --Justice Scalia, you have identified one of the primary problems with the Third Circuit rule.

The effect of the rule is that even if the Government constitutionally can suspend you, it constitutionally is required to pay you in all instances, and we think this is not compatible with the Court's precedents or, indeed, with our basic understanding of the employment relationship.

Unknown Speaker: One of the benefits of the Third Circuit's rule, and one of the benefits of the contrary rule... either you can suspend without pay, or... is that it avoids all the kind of building castles in the air and factual analyses that you don't know when the supervisor first confronts a situation... if he has to go through some Mathews balancing test every time, it's not very workable in the real world.

Mr. Hubbard: That's correct, Mr. Chief Justice, and we believe that where there's any doubt about which way the balance would tip, the prudent employer can protect itself by suspending the person with pay for the time necessary to decide whether or not further action is warranted.

Unknown Speaker: By suspending the person with pay.

So you're saying that the presumption should be that you can only suspend with pay, unless there's no... unless the Mathews balance is undoubtedly in favor of the State.

That's the rule you propose?

Mr. Hubbard: No, Justice Kennedy.

We're saying that the employer always has the option to dispel any constitutional doubt by suspending the employee with pay, but if the employer concludes that this is one of those cases that falls within Mallen and Barchi and it is permissible to suspend the employee without pay, then if that determination is correct, it should not be liable for damages.

Unknown Speaker: Well, if you can't tell us whether the cases are easy or hard, how is the employee's supervisor to do it?

I mean, it's--

Mr. Hubbard: We think there... it is the nature of a balancing test that there will be hard cases, and--

Unknown Speaker: --May I just interrupt... I don't mean to interrupt you.

I guess I have, but--

[Laughter]

But just pursuing the Chief Justice's point for a moment, if you took the Third Circuit's rule and said that's the law, you can't take his pay away until you at least give him an opportunity to give his side of the story, he can... you can do that in a day or two, so it may be that only a day or two's pay is at stake in this huge constitutional fight, because if you called him up and said, hey, Joe, what happened, and he tells you his story, he says, I'm sorry, that's not enough, you're arrested, you're off the payroll.

Mr. Hubbard: --That's very often the case, Justice Stevens.

This is the minimal Loudermill hearing, and it would not in most cases be so burdensome to call the employer in.

Unknown Speaker: So we're not talking about indefinite pay.

We're talking about pay for the 2 or 3 days that's necessary in order to give the fellow a chance to tell his side of the story.

Mr. Hubbard: That's absolutely correct, but we do believe that if this is a Mallen Barchi case and the government was justified in suspending him without a hearing, even during that period between the suspension and the hearing, if the suspension was lawful in that he was given all the process he was due, the employer is not constitutionally required to pay him.

The nature of the property right at issue here is the right to continue to work and to earn a living.

Unknown Speaker: Ms. Hubbard, you went through a lot of ifs, and I... following up Justice Stevens' question, if the employee is arguing all I want is a chance to tell my side of the story, all that's involved... all that's at stake for the government is a couple of days, at most, of my pay, why doesn't any balance work in favor of the employee?

The government can take him out of the job, and the only question is the pay for a couple of days.

Why doesn't the employee win on that kind of balance?

Mr. Hubbard: It might well, but in the balance that you're proposing, you're positing 1 or 2 days' pay.

In other cases it may take longer to resolve the issue, as in Mallen or Barchi, for instance.

Unknown Speaker: But if you say the only process that's due is a chance to tell his side of the story, period, no full evidentiary hearing.

That can come later.

Mr. Hubbard: Right, but there may be government justifications for having to postpone even a Loudermillstyle hearing for a week or two, and we're just saying that the Court needs to use its framework for balancing those questions.

Unknown Speaker: Have you come across anywhere... I'd be quite curious.

The last time the Court said that kind of thing was I think in Goss v. Lopez, wasn't it, where they said, all it is you just give the student a chance to tell his side of the story before you suspend him.

Well, how is it worked out?

I mean, it seems to me--

Mr. Hubbard: From the Federal Government's perspective--

Unknown Speaker: --Yes.

Mr. Hubbard: --it's worked out very well.

Unknown Speaker: And so basically school districts don't feel inhibited in suspending children?

Have there... have you come across anything--

Mr. Hubbard: Oh, I'm sorry, Justice Breyer, I can't--

Unknown Speaker: --that says whether school districts do or do not--

Mr. Hubbard: --I can't speak for the school district.

Unknown Speaker: --You haven't found it.

Have you found anything... in working on this, it's such a close analogy that I'd be awfully curious if you found something, and the answer is you haven't.

You don't know.

Mr. Hubbard: No, sir, I haven't.

Unknown Speaker: You have a closer analogy that you were just about to bring up, how the Federal Government works.

It has these hearings within a week, right?

Mr. Hubbard: Right, and the general practice with the Federal Government is to suspend employees with pay.

The one... assuming that the employee is a nonprobationary employee, and unless there are national security issues at stake, we do suspend with pay.

Unknown Speaker: It's only money for the Federal Government, and the Federal Government can print more.

[Laughter]

States and municipalities can't.

They have--

Mr. Hubbard: I... that is one factor.

There could be--

Unknown Speaker: --They have an automatic budget-balancing requirement.

[Laughter]

Mr. Hubbard: --I prefer to say that the Federal Government is just--

Unknown Speaker: You think that's a factor, that there's a difference in the Federal Government and the State?

Mr. Hubbard: --It could be if there were a circumstance that--

Unknown Speaker: The fact that the Federal Government has more money, that's a factor that we tell the Third Circuit it has to start weighing?

Mr. Hubbard: --If I may, Justice Kennedy, one factor could be fiscal constraints.

For instance, if a university could demonstrate here that it could not both pay Mr. Homar's salary and pay a substitute during that interim, there could be a public safety concern.

Unknown Speaker: You know that it's not going to be able to show that for a 3-day suspension.

Mr. Hubbard: I think that's the exceptional case, but there may be room for fiscal constraints--

Unknown Speaker: And it might be a 2-week situation rather than a 3-day situation.

Mr. Hubbard: --That's correct.

With my time remaining... oh.

Unknown Speaker: You can say goodbye.

Thank you, Ms. Hubbard.

[Laughter]

Mr. Fareri.

Argument of James V. Fareri

Mr. Fareri: Mr. Chief Justice, and may it please the Court:

I'd like to begin by speaking about this Governor's code of conduct that is so heavily relied upon by the Commonwealth in this case.

It was not brought up or even raised until this case got to the Supreme Court.

If you look in the joint appendix, Mr. Levanowitz testified that he did not even feel that he was obliged to follow the Governor's code of conduct.

I would submit to you that the Governor's code of conduct is not even relevant for the determination as to what quantum of due process should have been afforded Mr. Homar under these facts.

Unknown Speaker: Well, maybe we should leave that issue for the circuit or the district court on remand.

If we were to do that, let me ask you what your answer to this question would be.

If we assume that the Governor's code of conduct requiring the automatic suspension at least applies to all law enforcement officers and should be, by its terms, enforced, then the only issue would be in a given case whether, in fact, there had been an arrest or a charge.

Under those circumstances, do you believe that a pre-suspension hearing is necessary if pay is not to be continued during the suspension?

Mr. Fareri: If pay is not to be continued, yes, Your Honor, because that would be an issue, as to whether or not the individual can continue to receive his pay.

Unknown Speaker: Well, but the issue would turn solely on the question whether there had been an arrest or a charge, and is that the kind of issue upon which there is a sufficient risk of error to require the pre-termination, the pre-suspension hearing?

I mean, there's a pretty good argument that that issue is so simple, it's so unlikely that there is going to be a mistake about that, that it really would be justified to say no, the hearing could take place afterwards.

Mr. Fareri: I would concede that if the Governor's code of conduct is in the case and it is supportable and it is constitutional, then I would agree with you, Justice Souter, on that point.

It is our position in this case that the general rule crafted by the court of appeals below is fundamentally correct.

However, the Court need not reach that.

It need not reach the issue of the propriety of such a rule in order to affirm the holding below.

Rather, the result reached below may be obtained by applying the three Mathews factors to the facts of the case, and I'd like to go over those with the Court now.

The first Mathews factor is an assessment of the private interest that would be affected.

In this particular case, I would submit that there is a very strong private interest that Mr. Homar had of continuing his employment.

The Court has recognized in many cases in the past such as the Loudermill case, then the Mallen case, that an employee has a great private interest in continuing with their employment and continuing to receive their wages.

Unknown Speaker: Well, I suppose how significant that interest is would depend certainly upon, you know, how many other funds the individual has.

I mean, if this individual is independently wealthy and is just being a police officer for fun, I suppose it wouldn't be very important, would it?

Mr. Fareri: That's correct, Your Honor.

I--

Unknown Speaker: Do we know how much money he had in the bank?

Is that the kind of factor we ought to take into account?

Mr. Fareri: --I don't think so, Your Honor, because a wage earner, I think you can make certain presumptions about somebody who is earning a wage.

I think it's a fair presumption--

Unknown Speaker: He doesn't have any money in the bank?

Mr. Fareri: --I don't know whether he had--

Unknown Speaker: No, I mean, is that the presumption you can make?

I know--

Mr. Fareri: --I think the presumption--

Unknown Speaker: --I know a significant number of wage earners who could, you know, support themselves for quite a while.

Mr. Fareri: --I think in one of the amicus briefs, Your Honor, there's a study that indicates that approximately a third of all wage earners in this country now live essentially from paycheck to paycheck.

Unknown Speaker: Well, isn't there something to be said for a rule that's more or less automatic, rather than requiring the supervisor to sit down in each case and read a study like this that says a third of these people... and trying to figure out whether this employee was in that third or not, for either saying that with respect to a police officer you can suspend upon arrest without pay or perhaps, as the Third Circuit says, you can't suspend.

There are just a great deal of transactional costs in this balancing test.

Mr. Fareri: Mr. Chief Justice, I couldn't agree with you more.

That's why we think that the rule crafted by the Third Circuit is correct.

You cannot engage in a Mathews balance in each and every case.

As you indicated, that is completely unworkable in the real world.

Unknown Speaker: Mr. Fareri, the... that rule, the automatic rule that there must be some opportunity to tell his side of the story, it isn't entirely clear to me what is entailed, how much it costs the State.

So for example, if the position is, the State says, you've been arrested.

You've been charged.

Does the State have to do anything more at that point?

They could say, now tell us your reason, but you told us that there has to be a notice.

He did have notice.

A reason... is the reason... is it an adequate reason for the employer simply to say, you've been charged, and then, okay, you have a justification.

Tell us.

Is there anything more... is there any more process that's due the employee than what I just described?

Mr. Fareri: I think what you're describing, Justice Ginsburg, is a Loudermill-type process, and we are not arguing that the employee is entitled to anything more than that.

What we're talking about in this case is something... it couldn't be any more simple.

Notice... notice of the problem, and an opportunity to say, I'm innocent.

This gentleman did not have even that simple process in this case.

Unknown Speaker: No, but I thought the question was not whether he's innocent, but whether he's been charged.

Suppose you have a State that simply adopted that rule.

If you were charged with a felony, you will be suspended without pay, period.

So the only issue before the supervisor is, have you been charged with a felony?

Do you need a hearing for that?

That's a matter of public record, it seems to me.

Mr. Fareri: Given... if you take the Court's premise that that rule is valid--

Unknown Speaker: Right.

Mr. Fareri: --Then--

Unknown Speaker: Then you wouldn't need a hearing.

Mr. Fareri: --Then you wouldn't need a hearing.

Unknown Speaker: So you are arguing it is invalid to have a blanket rule that if you're a State employee charged with a felony you will be suspended.

You cannot do that.

Mr. Fareri: I think that's invalid, and additionally I don't think that's applicable in this case, for the reasons I indicated previously.

Unknown Speaker: Well, that's a seperate question, for which we might have to remand, but assuming that that is the State rule, you say you're suspended without pay when you're charged with a felony, that rule would be unconstitutional.

Mr. Fareri: That's my position, yes.

Unknown Speaker: Well, Mr. Fareri, you do acknowledge, do you, that the State can have a blanket rule for law enforcement officers, that if the law enforcement officer himself or herself is arrested for or charged with a felony, that the duties of that officer can be immediately suspended subject to a prompt post suspension hearing.

You agree with that.

I'm not talking about pay.

Mr. Fareri: I would agree with that, Your Honor.

Unknown Speaker: Just the duties.

But you want a different rule invoked if the suspension is without pay.

Mr. Fareri: That's correct, Your Honor.

Unknown Speaker: Subject to a prompt post--

Mr. Fareri: Absolutely correct.

Unknown Speaker: --I thought you gave me a different answer.

I thought in the simple case that I put, in which the only issue is whether a law enforcement officer had been arrested or charged with a felony, that in that case, even though there would be a suspension without pay, the issue was so simple that there was no... and the risk of error so slight that there was no need for a pre-suspension hearing.

Did I misunderstand you?

Mr. Fareri: I think, Justice Souter, that my answer was given assuming that that rule was valid--

Unknown Speaker: Right.

Right.

Mr. Fareri: --That if you're arrested then you would be suspended.

Unknown Speaker: Okay.

But you just answered that you say that would be unconstitutional.

In your colloquy with Justice Scalia--

Mr. Fareri: I believe so.

Unknown Speaker: --I believe you said that it would be unconstitutional, that that would be the rule, but in response to Justice Souter's question as well I suppose you'd have to say, no, it's not enough.

It would satisfy the rule, but it wouldn't satisfy the Constitution.

Mr. Fareri: That's correct, Your Honor.

Unknown Speaker: Did you ever charge, or did your side ever charge in this case that the rule was substantively unconstitutional?

Mr. Fareri: Well, we didn't, Your Honor, because the rule was never raised until I'm standing here right now.

Unknown Speaker: I see.

You just didn't know that that was--

Mr. Fareri: The rule has not been raised in any past pleadings, in any past briefs.

The first time that it was raised was in the brief to this Court.

Unknown Speaker: --Well, how about your brief, your red brief in this Court?

Did you challenge the rule as unconstitutional there?

I had not understood the brief to take that position.

Mr. Fareri: We didn't, Mr. Chief Justice, the reason being, again, we feel strongly that the rule is not in the case, because the personnel director himself testified that he did not rely on the rule.

And additionally, as one of the members of the Court indicated when they were asking counsel for the State a question, after the... all charges were dismissed, and all charges were dismissed 6 days after his arrest for insufficient evidence after a preliminary hearing, the human resources director continued on with his suspension for a period of 23 days, during which Mr. Homar did not receive his pay.

Now, if they're going to rely on that rule, why didn't they lift that suspension and reinstate him after all charges were dismissed?

They did not do that.

Unknown Speaker: He did eventually get pay.

Was that prompted by anything other than the goodness of the university's heart?

Was there any union involvement in getting him that pay?

Mr. Fareri: The union was involved, Your Honor.

Unknown Speaker: Is this a bargainable subject, the... what will happen to an employee when there's a charge of misconduct?

Mr. Fareri: There's... the collective bargaining agreement is not in the record, but I can tell the Court that that does provide for a grievance process.

Unknown Speaker: Can I go back to the... what I think is your main argument?

I take it Judge Serokin wrote, a governmental employer may not suspend an employee without pay unless the suspension is preceded by some kind of pre-suspension hearing.

He means never, all right?

Mr. Fareri: Yes, Your Honor.

Unknown Speaker: Okay.

So I would like to know whether there aren't some circumstances where you could suspend him without a preceding hearing.

A bank guard at Fort Knox robs Fort Knox and is charged.

We're not sure, but he's charged formally.

A teacher, State university, sexually assaults a student and is charged.

A policeman is a major drug dealer and is charged.

The authorities say, there's a charge.

We therefore have probable cause to think he did it.

We will give him a prompt post suspension hearing where he can say everything within one pay period and give him his money back unless we think that he really is guilty.

Okay?

Now, what's wrong with that?

The reason they want to do it is because they think it's impossible to run a police force, a university, or Fort Knox with people like that having been charged on the payroll doing their job.

Mr. Fareri: The--

Unknown Speaker: And if you say, oh, just don't pay them, they laugh at that and say, what do you mean?

If we send him a paycheck it's a paid vacation.

Of course the taxpayers want to have people who are paid at work doing something.

Now, that's the argument, and I want to hear your response.

Your Honor, I think even in those circumstances where it's absolutely clear that there's been some wrongdoing on the part of the employee that there is always a value to the pre-suspension process.

And I think the reason there should be pre-suspension process is because the wage earner's interest in his employment is so critical and so important, and sometimes a matter of being able to support himself and his family, and the skin off the nose of the government, so to speak, is so slight, because what we're talking about is a Loudermill process, that I would argue that you should have a pre-suspension process even in those types of cases that the Court--

--Suppose the employee doesn't ask for one?

Suppose in one of Justice Breyer's hypotheticals that the employee does... who has the burden... I take it that you're saying that in every case the employer must take the initiative, even if the employee didn't ask to have any kind of pre-deprivation hearing.

Is that so?

Mr. Fareri: --I would say yes, Justice Ginsburg, because I think there are some employees who probably aren't sophisticated enough to ask for one, and I think because the governmental employer is in the position of running the workforce, that that should be their obligation to provide one.

Unknown Speaker: And that was this case, wasn't it?

This... Homar did not ask... he said, am I suspended, but he didn't ask if he could have a hearing.

Mr. Fareri: That's correct, and that exemplifies what I'm saying.

I don't think he had the knowledge to know that he was even entitled to that, and he didn't understand what his rights were until after he consulted counsel, which was sometime after that.

Unknown Speaker: Could I follow up my question with--

--Mr. Fareri, I guess there are two really separate questions here.

One is whether you need a pre-deprivation hearing, and the second one, and I'm not sure what your answer to this is, whether you can continue the deprivation until the charge is dropped or resolved.

In other words, it's no big deal I suppose if you say you can suspend without pay but you have to provide a prompt post-deprivation hearing, which means in 2 or 3 days he gets a hearing.

That's not the State's position.

As I understand the State, the State's position is, we don't have to provide a hearing until the felony charge is resolved either up or down, which is really not a prompt... I mean, depending upon how promptly the felony is disposed of.

What is your position on the latter question?

Mr. Fareri: On whether or not the post suspension process would satisfy in lieu of--

Unknown Speaker: Yes.

Yes.

Mr. Fareri: --the pre-suspension process?

Unknown Speaker: Yes.

You're arguing, I take it, that you need a prompt... not only do you need a prompt post deprivation hearing, even if you provide the hearing 2 days after the suspension, you would still say the suspension is bad.

You cannot suspend at all without pay until you have a hearing first.

Mr. Fareri: That's correct, Your Honor.

Unknown Speaker: And you wouldn't be satisfied with saying you need a prompt hearing afterwards, so you'll only be docked for 2 days.

Mr. Fareri: That's correct, Your Honor, and the reason is--

Unknown Speaker: Two days isn't that much.

Mr. Fareri: --Well, but it's--

Unknown Speaker: This guy's in the wrong job if he can't live for 2 days without... you know.

Don't you think?

Mr. Fareri: --Your Honor, the cost to the government is so slight, and again, the interest of the employee is so great.

Unknown Speaker: But I thought this Court reached that decision in Mallen.

I mean, we upheld an immediate suspension and permit post deprivation hearing.

Mr. Fareri: There are some different facts in Mallen, Your Honor.

For instance, in Mallen there was a grand jury indictment.

In this case what you have is a search incident to an arrest.

My client happened to be--

Unknown Speaker: Well, you want us to draw a different line between somebody who has... is indicted by a grand jury as opposed to somebody who's arrested based on probable cause?

Mr. Fareri: --No, Your Honor.

I think that a bright line... a bright line rule should be drawn.

However, that... I'm just bringing that factor up over--

Unknown Speaker: Where would the rule leave the Mallen situation in your view?

Mr. Fareri: --I think, Your Honor, that the rule takes... the rule would take into account the very important interests of the employee in continuing with his wages as recognized by--

Unknown Speaker: Well, but I... how would your rule deal with the Mallen situation?

I mean, which we have said was permissible?

I take it your rule would allow it to be permissible.

Mr. Fareri: --Well, Mallen does not... again, Mallen does not deal with the governmental employer either, as in this case.

Mallen is a Federal regulation--

Unknown Speaker: Well, wouldn't it be a fortiori?

If the government can require someone to step aside who is in a... simply in a regulated business, ought it not to be a fortiori with a government employee?

Mr. Fareri: --Well, with... the issue with the government... governmental employer that you don't have where there is a regulation of private business is the issue of the pay.

The government does not have an interest in whether or not the employee would continue to be paid where there's private regulation.

Unknown Speaker: Are you saying... it was the bank that decided not to pay him.

The only thing that the Government required was the suspension.

Mr. Fareri: The regulation--

Unknown Speaker: All right.

That's--

Mr. Fareri: --didn't speak one way or another to the pay, and I think the decision may even indicate that that was left to the bank, and there's nothing in the case that indicates whether or not the suspension was with or without pay.

Unknown Speaker: --That's exactly the... what I was trying... I'm quite... I'm trying to focus on something with my question, which is, you responded with the answer it's a slight governmental interest, and that's the point that I'm uncertain about, and would like you to follow up on.

The contrary, I take it, would be, what are you talking about, slight?

If we have to keep people on the payroll who have done and been charged with serious crimes such as I've mentioned, we can't do that as a practical matter.

People will think we're giving them paid vacations.

That's A.

B is, slight?

Let's look at what happened after Goss.

People get mixed up in applying these things and they think they have to give students tremendous full hearings with lawyers before they can even kick them out of class.

Now, I don't know if what I've just said is accurate.

It may be false, but that's why I want your response--

Mr. Fareri: Well, Your Honor, I think--

Unknown Speaker: --to those two separate things, one, in administering complicated things like separating pay from suspension, everything gets mixed up and before you know it they cannot... they feel, the school districts, that they can't really suspend a child without a tremendous full-blown hearing, even though that's not what the Court said.

That's A, and B is what you'd call confidence in the public service in not giving people paid vacations for a month when they've been charged by grand juries, or arrests for serious crimes.

Those are the two things, that what you said slight, so I'm trying to say, is it slight?

Mr. Fareri: --Your Honor, it is slight, because we're not talking about keeping somebody in pay status for a period of a month.

You're talking about at most a week, maybe even less than that, until they would get a Loudermill-type process.

On the second point, to the extent that there's confusion--

Unknown Speaker: Well, excuse me.

That's not what the State says.

I mean, the State says they're entitled to keep him off the rolls until the charge is resolved.

I mean, that may be more... you're saying the whole thing comes to an end as soon as the hearing's provided.

The State says no, not only don't I think I have to provide a hearing promptly, I don't have to provide it during the whole period that the person is still under charge.

That's a long time.

Mr. Fareri: --I think the State is wrong, Your Honor.

I think that the individual has a constitutional right to be heard sooner than the period of time it may take for that criminal charge to be adjudicated.

Thank you.

Unknown Speaker: Thank you, Mr. Fareri.

Mr. O'Duden, we'll hear from you.

Argument of Gregory O'Duden

Mr. O'Duden: Mr. Chief Justice, and may it please the Court:

Let me begin if I may by discussing the issue of what governmental interests are at stake in the situation that we face in this case.

We think that the Court's cases are quite clear that in order to satisfy its burden of denying somebody a pre-deprivation hearing the government has to show that there is a significant administrative burden, and the argument that we hear today is really a general argument that suggests that, as Justice Breyer put it, we can't do this because if we do the public will be outraged.

We don't denigrate or trivialize the argument that's made by the State, but we think that the long experience of the Federal Government's practice defeats the argument, because the fact of the matter is, the rule that we advocate here today has been the routine practice for many, many years, and there has been no suggestion at any point that the public has in any way been outraged.

Justice Scalia, are you--

Unknown Speaker: No.

I was just going to say, how's the Federal budget doing?

[Laughter]

Mr. O'Duden: --The Federal budget isn't doing well, Your Honor, but I can assure you it's not because people are being given Loudermill-type hearings, and I think it's also important--

Unknown Speaker: A million dollars here, a million dollars there--

Mr. O'Duden: --No, I don't think it translates into that at all, and I think there's one other important thing to be kept in mind here.

If an erroneous decision is avoided, what does that do?

That saves the government money, because it means that in that situation the employer doesn't have to go out and hire a substitute, and it doesn't have to expend the resources to train that substitute and, of course, it also means that it avoids what could be the very significant cost of having to pay that employee back pay.

Unknown Speaker: --If it is in fact in the government's best interest to do that, presumably the government will do that without being told that the Constitution requires it.

Mr. O'Duden: Well, I wish the world were that simple, Your Honor.

I think that the Court recognized in Goss v. Lopez that notwithstanding the good intentions of those who are in a position to impose discipline, it often doesn't work out that way, and that's why we have the Constitution, to defend citizens, to defend employees from deprivations of their property.

Unknown Speaker: It's not a... I don't think it's a good constitutional argument to say this is really not only in the employee's best interest but in the employer's best interest, too.

Mr. O'Duden: Well, Your Honor--

Unknown Speaker: The employer presumably can look out for his own best interest.

Mr. O'Duden: --The reason that we're talking about the employer's interest at all is, of course, we're faced with having to deal with the Mathews test, and therefore we're having to respond to the government's assertion that their interests are somehow compromised by giving somebody a pre-deprivation hearing.

I think it's important in looking at this case for all of us to keep in mind what the due process framework here is.

Unknown Speaker: Well, what... let's keep in mind what the suspended person here would argue at the hearing.

What would you expect him to argue at the hearing?

Mr. O'Duden: In this situation, I'm putting aside the issue--

Unknown Speaker: I was not indicted?

Mr. O'Duden: --I'm putting aside the issue... well, he wasn't indicted.

I'm putting aside here the issue of the Governor's code.

He could say that he was at the wrong place at the wrong time, that he wasn't guilty, that he was innocent.

Unknown Speaker: No, but the response to that is, we have a policy that all State employees, or at least police officers, will be suspended if they're under indictment.

We do not want indicted police officers walking around enforcing the law, and since they're not going to be walking around enforcing the law, we're not going to pay them.

That seems pretty reasonable to me.

Mr. O'Duden: Well, of course, that's not the policy that we're talking about in this case, Your Honor.

What we're talking about here is a code, as my--

Unknown Speaker: All right, but's assume it is.

I mean, that--

Mr. O'Duden: --Okay.

You're moving now to a hypothetical situation.

Unknown Speaker: --Right... well, maybe, maybe not, but we can let the lower court resolve it.

Assuming it's a policy that at least police officers will be suspended without pay if they are under indictment, what would the hearing have consisted... you know, what good would the hearing have done here?

Mr. O'Duden: If... assuming that were the policy, that your hypothetical is true, one of the things that he could have argued is that the policy was unconstitutional.

He could have made that argument to the decisonmaker.

Unknown Speaker: Let's assume it's constitutional.

Does he have any other argument?

Mr. O'Duden: Well, in essence what your hypothetical sets up is a situation where there is no point to the hearing.

Unknown Speaker: Right.

Well, I'm--

Mr. O'Duden: Okay, and you're assuming that it's constitutional--

[Laughter]

So you're talking all of the arguments out of the employee's hands.

In that case, obviously, there is no--

Unknown Speaker: --Well, Mathews v. Eldridge hearings are not to determine what's constitutional or not.

They're to determine what the facts are under a balancing test.

Mr. O'Duden: --That's right, Your Honor.

Unknown Speaker: And if we hypothesize that it's an adequate and defensible interest for the government not to have police officers who are under criminal charges enforcing the law then it is constitutional, so I think you're avoiding the question when you say what the hearing is going to establish.

Mr. O'Duden: No.

I think I said that if those were the facts, then there would be little point to the hearing at all.

In fact, there would be no point to the hearing.

But I do want to emphasize that those are not--

Unknown Speaker: Well, so then you have to say that it's unlawful for the State to have the policy of suspending officers that are under criminal charges.

Mr. O'Duden: --Ultimately he would be reduced to making that kind of argument.

Unknown Speaker: No, you mean suspending without pay... without pay.

Mr. O'Duden: Suspending without pay, yes.

Unknown Speaker: It's an argument you're perfectly willing to make.

I mean, you think that that's the case, that it is unconstitutional to suspend--

Mr. O'Duden: Yes, given the fact... given what this Court has said about the significance of the fact of an arrest.

Unknown Speaker: --Certainly a supervisor isn't in a position to make any intelligent, informed decision about whether a policy is constitutional or not.

I mean, we're talking about this very quick telephone call and the guy at the other end says, of the telephone says, your policy's unconstitutional.

[Laughter]

Mr. O'Duden: Well, in this situation, where the code calls for a suspension to the extent practical that may well give the supervisor pause before he goes ahead and imposes that action.

Unknown Speaker: Well, you're... I take it that... I don't want to put words in your mouth... that you're saying there's no circumstance in which simply phoning the person before suspending him without pay and to say, is there some exceptional circumstance, is there something to your side of the story, you're saying that that's always required.

Mr. O'Duden: I'm sorry--

Unknown Speaker: It could be very simple.

It could be very simple, a telephone call, what's your point... what's your point of view.

Is that--

Mr. O'Duden: --That's right.

Unknown Speaker: --That's basically what you're arguing.

Mr. O'Duden: Yes, Your Honor, that is.

With respect to the Mallen case, since that has come up here, I do want to emphasize in my remaining moments that Mallen does not reach the issue that is presented here.

Mallen obviously turned on the Court's very real concern about there being an actual government interest that was going to be jeopardized, namely, public confidence in the banks, the concern about protecting bank depositors.

There was a congressional finding on--

Unknown Speaker: Well, there's a much greater interest, of course, in assuring the public that their police officers are not indicted for felonies.

Mr. O'Duden: --There is a public interest--

Unknown Speaker: I think the policy is at least as great, if not significantly greater than in Mallen.

Mr. O'Duden: --Your Honor, as the Solicitor General points out, that interest is addressed by removing the employee from his duties.

It does not follow from that, however, that the State has established an adequate justification to deprive that employee of his pay.

That is a separate matter, and those justifications that are asserted here by the government do not justify its summary deprivation of the employee's pay.

Unknown Speaker: Mr. O'Duden, is this something that a union could bargain about with the public employer, say, now we want to have a code.

You can suspend people, of course, but you have to have some kind of hearing before you take away their pay.

Mr. O'Duden: Yes, and in fact the record here does show that the employee here did in fact grieve under the collective bargaining procedures his suspension, and that is yet another fact that belies the petitioner's last-minute argument here that this code is actually binding.

We think it's very clear, based on the undisputed record in this case, that this Governor's code was in no way binding on the petitioners.

It obviously wasn't binding on the decisionmakers, and the university's own rules of conduct, if I may make one final point, they provide that before a person is to be suspended, he is to be given an opportunity to be heard in his defense.

That again is in the recbrd of this case, Your Honor.

Unknown Speaker: But if this is a bargainable subject, then I take it what you're asking for here is to say the Constitution takes care of it, the union doesn't have to bargain for it, so the union can bargain for other things, because the Constitution will require in every case some kind of hearing before pay is removed.

Mr. O'Duden: I'm sorry, I'm not sure that I follow--

Unknown Speaker: You answered my question--

Mr. O'Duden: --Okay.

Unknown Speaker: --earlier that a union could bargain with a public employer not to take away people's pay without some kind of hearing.

Now, what I'm saying to you is, if the Due Process Clause does that job, then the union doesn't have to bargain for it.

It can bargain for something else.

Mr. O'Duden: That's quite right.

It puts it in the position of being able to focus on whatever post-deprivation procedures may be warranted.

It would mean that it would not have to bargain for those pre-deprivation rights.

That is quite correct, Your Honor.

Unless there are further questions--

Chief Justice Rehnquist: Thank you, Mr. O'Duden.

The case is submitted.