Cases by Issue - Government Employees

LaChance v. Erickson - Oral Argument

Fri, 09 Jan 2009 14:50:05 +0000

Case:

LaChance v. Erickson

Media File:

96-1395_19971202-argument.mp3

Related Transcript:

1997_96_1395_argument.xml

Transcript:

Argument of Seth P. Waxman

Chief Justice Rehnquist: We'll hear argument next in Number 96-1395, Janice LaChance v. Lester Erickson.

General Waxman.

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

Each of the six Federal employees in this case engaged in sanctionable employment-related misconduct and then knowingly and intentionally falsely denied the misconduct when questioned by agency investigators.

The court below held, however, that as a matter of constitutional due process the Government, as employer, may not charge these employees with both misconduct and lying about the misconduct.

Indeed, the court went beyond that to hold that an employee's deliberate falsification may not even be considered in determining the penalty for the separate underlying misconduct.

There is nothing whatsoever in the Due Process Clause or anywhere else in the Constitution, for that matter, that prevents a Government agency from sanctioning an employee who deliberately lies in response to questions about employment misconduct, whether or not the employee is also sanctioned for the misconduct itself.

When the Government acts as an employer, it has the right to demand that its employees respond honestly to work-related questions and to sanction them if they do not, just as all other employers do.

Indeed, the Government has more reason to demand honesty from its employees, as they employ... as they enjoy a public trust.

As this Court held in Lefkowitz v. Cunningham, the Government has a compelling interest in honest civil service.

The holding of the Federal Circuit in this case imposes profound anomalies and perverse incentives.

Wrongdoers who tell the truth are required under this holding to be punished just as severely as wrongdoers who then knowingly and intentionally lie about their misconduct when questioned by an investigator or a tribunal.

An employee who is questioned about wrongdoing can be punished for lying about it if he didn't do any wrong, but if he did do wrong and lies about it, he can't be separately punished for lying about it.

Under the Federal Circuit rule, a rational employee questioned about wrongdoing will always lie, since it's cost-free and perhaps he will fool or dissuade the agency.

He would be irrational to 'fess up and, indeed, I think it's fair to say that the consequences, that the rationale of the Federal Circuit's decision in this case goes beyond just what the individual agency can do and presumably would also prevent the Government in its sovereign capacity from making the false statements 1001 or, if their statements were under oath, for perjury.

So we submit that the decision of the Federal Circuit in this case, which doesn't follow any decisions by this Court or any decisions by any other Federal court, is simply wrong as a matter of constitutional law.

Unknown Speaker: General Waxman, just for purposes of discussion and not to indicate my view on what the Court's likely to do in the preceding case, but let's assume we recognize an exculpatory no doctrine, does that have any spillover effect in this situation?

Mr. Waxman: Boy, the only spillover effect it could have, Justice O'Connor, would be if you found an exculpatory no doctrine required as a matter of constitutional law, because the argument in favor of the exculpatory no doctrine in every court that has adopted some form of it has done so as a matter of statutory construction, trying to define what Congress could have intended.

There's no statute at issue in this case that that could be read into.

Unknown Speaker: I guess as a practical matter the consequences of lying about the situation, if you're correct in this case, are often more severe than the underlying malfeasance.

Mr. Waxman: It may--

Unknown Speaker: I would assume that could often be the case.

Mr. Waxman: --That could often be the case, and--

Unknown Speaker: I suppose the moral of that is don't lie.

Mr. Waxman: --That's the moral that we hope people will derive from the long line of cases in which this Court has held that even where there are important constitutional guarantees at issue, for example, in... under the self-incrimination clause, there is never a license to lie.

Here, of course, the self-incrimination clause is not even in play.

Unknown Speaker: Is there any concern about the conduct on the part of the agent, because most of these interviews are on a one-to-one basis, so is that perhaps what's reflected in this, that if you had a written record or... and the person, the employee when confronted lies, that's one thing, but if it's just an oral translation, how can you be sure that the one who's doing the interview isn't dissembling?

Mr. Waxman: Well, a couple of answers.

First of all, in a number of the cases that are collected in this... before this Court, the false statements were written.

That is, the employee was given a list of questions, or a series of questions and provided written answers.

In other instances, the employees either repeated or made their lies after they were put under oath, so you can't characterize the Federal Circuit's decision in this case as somehow limited to an informal oral question by an investigator.

But even if you could, that might go to the question of whether the agency could establish by a preponderance of the evidence that the individual employee had knowingly and with intent to deceive given a false statement.

That is, it may make it more difficult for the agency to establish that the misconduct had occurred, but as a constitutional matter, I wouldn't think that any a priori rule would be appropriate.

Unknown Speaker: Was the... did the Federal Circuit in this case rest its holding on any statutory ground, or was it a purely constitutional holding?

Mr. Waxman: It is a purely constitutional holding.

The only statute that's really... it's not even at issue in this case.

I don't even think that the Federal Circuit cited the statute, although I may be mistaken... is 5 U.S.C. section 7513, which provides that an agency may take action against an employee for misconduct

"only for such cause as will promote the efficiency of the service. "

And one of the things that the agency has to establish by a preponderance of the evidence is not only, of course, that the misconduct occurred, but that there is a nexus between the sanction that the agency has imposed and

"the promotion of the efficiency of this... of the service. "

That's required both in the statute and by a decision of law.

Unknown Speaker: As I understand this panel of the Federal Circuit, they were following a precedent already set, and all these MSPB cases nowadays do go to that one circuit.

Was there any procedure that might have been used to get the court to sit en banc and perhaps reconsider the precedent that was relied on in this case?

Mr. Waxman: I... sure.

We can ask that... the Federal Circuit to reconsider any panel decision en banc.

The earlier precedent that you're referring to, a case called Grubka--

Unknown Speaker: Yes.

Mr. Waxman: --I must say that although several panels of the MSPB itself in several instances in these cases felt that the result that was ultimately reached by the Federal Circuit was dictated by Grubka, but there are other... there were other MSPB decisions that basically distinguish Grubka.

I'm not certain, but I believe that we did ask the Federal Circuit at least in this case to reconsider this panel decision en banc.

I don't know whether we did in Grubka or not.

Frankly, I think it's reading a lot into Grubka to conclude that Grubka dictates the result that was reached by the board and the Federal Circuit in this case.

That was a highly unusual case which is and was distinguished by the MSPB subsequently on what I think are reasonable grounds.

Unknown Speaker: There was one curiosity in the Federal Circuit's opinion.

That is, they seemed to draw a line between... they said if it's at the investigative stage then the employee could be punished.

Was the--

Mr. Waxman: They did say that, but it's a little bit curious because all six of the employees in this case were alleged and proven to have made... to have lied during the investigative stage.

Now, some of them also lied during the "administrative stage", but one of the curious things about the Federal Circuit's decision is that in dicta it does say, well, of course due process wouldn't in any way protect lying at the investigative stage, but that's exactly what happened in each one of these cases.

If there are no further questions, I'd like to reserve 10 minutes for rebuttal, if I may.

Unknown Speaker: --Very well, General Waxman.

Mr. Marth, we'll hear from you.

Argument of Paul E. Marth

Mr. Marth: Thank you, Mr. Chief Justice, and may it please the Court:

If the Court accepts the Government position in this case that the Federal Circuit created a broad constitutional right to lie, then the respondents lose, because there is no such right, this Court has adamantly over the years asserted that there is no such right, and the respondents are not advocating that right in this case.

If, on the other hand, this Court finds that the Federal Circuit narrowly tailored a right to protect the employee's meaningful right to respond to the charges, then the respondents should prevail.

Unknown Speaker: Did you tell us that the question presented was not presented in your opposition to the petition, because the question presented surely says what you say is not at issue here, whether the Due Process Clause precludes a Federal... the Due Process Clause precludes a Federal agency from sanctioning an employee for making false statements to the agency regarding allegations that the employee had engaged in employment-related conduct.

I mean, that's what I thought we were here to talk about, and you're saying it is not.

Mr. Marth: No, Your Honor, I'm not saying that.

I'm saying that--

Unknown Speaker: Oh.

I thought that's what you said.

Mr. Marth: --that the Government in its brief and in its argument has characterized this as a broad constitutional right to lie, whereas it's the respondents' position that the Federal Circuit said, in a very narrowly tailored situation, to protect an employee's meaningful right to respond, an employee can deny misconduct and put the Government to its proof.

Unknown Speaker: Okay.

I see.

You're--

--the Constitution required that.

Mr. Marth: Your Honor, I disagree with General Waxman with regard to that issue.

The court of appeals relied on and quoted 5 U.S. Code 7513(b), which is the provision which gives... and I believe that's on page 11a of the appendix... which gives the employees certain rights when charges are brought against them, and that includes the right to counsel, the right to a detailed statement of the charges, a right to have a period of time of a minimum of 7 days to respond to those--

Unknown Speaker: And was that denied to these respondents?

Mr. Marth: --That was not denied, but what the court of appeals was saying, Your Honor, was that the meaningful right to respond and the meaningful right to have those rights was denied because early on before those rights were ever given, they were... in effect could be... if an employee was forced to respond affirmatively to the Government charges of misconduct, that that subsequent meaningful right was denied.

Unknown Speaker: Well, if it was simply an interpretation of the statute, why did the court of appeals refer to the Due Process Clause?

Mr. Marth: Well, the Due Process Clause comes in because the court of appeals found that there was a risk of erroneous deprivation in this case of those subsequent rights if an employee was forced to respond without a... an opportunity to deny the misconduct at the early stage.

Unknown Speaker: Let me ask my question again, then.

I thought I had an answer, but then... then you go back and said the same thing again.

Do you agree that the question presented here is whether the Due Process Clause requires the outcome?

Mr. Marth: Certainly, but the Due Process Clause, Your Honor, is based on property rights, and the property rights come from the statute.

Unknown Speaker: Well... okay.

And what in your opinion, Mr. Marth, is the case from this Court that most closely supports the result, the constitutional result reached by the court of appeals here?

Mr. Marth: Well, Your Honor, this Court has never, to my knowledge, dealt with this issue in a Federal employment context, where they have looked at the issues in the context of Federal employment.

I'm not aware of any case where this precise issue has certainly come before the Court in the past.

Unknown Speaker: Well, even if the precise issue hasn't, what is the constitutional decision from this Court that most closely supports your position?

Mr. Marth: Well, in Garrity v. State of New Jersey this Court said that officers who are given the choice of either answering questions or losing their jobs had their Fourteenth Amendment rights violated, and the statements they gave were not voluntary and could not be used against them.

That's probably the closest case, although certainly that is--

Unknown Speaker: There's no question of using the statements here against these people in some other proceeding, is there?

Mr. Marth: --You mean, whether or not these statements could be used in another proceeding?

Unknown Speaker: Yes.

Mr. Marth: Your Honor, I would... or, Chief Justice, I would say that there is no prohibition against using those statements in another context, but--

Unknown Speaker: The Government isn't trying to use them... the Government isn't trying to obtain a criminal conviction by using these statements in some sort of a criminal proceeding, is it?

The statements were just used in the proceeding in which they were given.

Mr. Marth: --That's correct, Your Honor, but the employees certainly did not know that, and there are several employees in this case, Barrett and Roberts, for example, who could have been charged with taking Government property, misappropriation of Government property, Ms. Kye in this case, who could have been charged with some kind of credit card fraud or abuse, and these employees, when they're brought into the investigation stage, are not told by the Government whether or not criminal consequences are contemplated.

Unknown Speaker: But no criminal consequences resulted in these cases.

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

Unknown Speaker: Now--

--Mr. Marth, you're drawing a large distinction between the public and private sector, and as I was reading your arguments I was thinking, in the case that we just heard, it's something that can only be between a Government and its citizens, but here we have an employment setting.

Employees lie to private employers like they do to public employers, so it seems to me you're extracting from due process a right for a public employee that surely does not exist in a private employer.

If that employer is lied to he can say, I don't want dissembling employees on my staff, goodbye.

Mr. Marth: Well, Justice Ginsburg, you've pointed out a real distinction between the Federal and the private sector, and that is that in the Federal sector an employee has absolutely no right to refuse to answer.

In the private sector there's no compulsion upon an employee to have to answer the question, but the Federal Circuit and the Merit Systems Protection Board have held that in any type of investigation an employee does not have a right to refuse to cooperate, so--

Unknown Speaker: Oh, but that simply means that if the employee refuses there will be consequences for refusal.

In each instance, they're... it seems to me, they're in the same position, aren't they--

Mr. Marth: --That's correct, Your Honor--

Unknown Speaker: --public and private?

Mr. Marth: --Your Honor, and even this case, Ms. Kye, one of the charges against her was that supposedly she failed to cooperate in the investigation, so you're correct that an employee is put to a dilemma.

Unknown Speaker: And that's a separate charge from--

Mr. Marth: That's a separate charge.

Unknown Speaker: --the charge that she in fact lied.

Mr. Marth: That's separate from that charge, yes, Your Honor.

Unknown Speaker: That's right, yes.

Now, the Federal Circuit seemed to try to draw some line between the types of statements that it's doctrine would apply to.

Mr. Marth: That's correct, Justice O'Connor.

They made it very--

Unknown Speaker: It's a line I don't understand, but is it one you espouse?

Mr. Marth: --It is one we espouse, and the Merit Systems Protection Board has had no difficulty applying that line, and we contend that that line is no more difficult--

Unknown Speaker: What is the line?

Mr. Marth: --The line is that... the difference between denying the charges, a simple denial of the charges versus telling false tales or creating a story to cover yourself.

Unknown Speaker: Well, in the case of the employee, Ms. Kye, she asserted that she had lost or torn up her Government credit cards, and yet that is not treated as a false statement.

How do you draw the line there?

Mr. Marth: Your Honor, basically the elements of what the Government had to prove in her case was that she had misused her credit card.

The denials in effect were, no I did not misuse my credit card, so that's where the court of appeals came down.

They said that when you look at the material facts that are elements of the charge, in this case, did you misuse your Government credit card, she denied it.

Unknown Speaker: Yes, but she said... she went beyond that.

She said, I lost it.

I tore it up.

Mr. Marth: And she also attempted, Your Honor, to correct that later on, and when she attempted to correct it, and that's one of the risks here, that when that employee attempted to correct it she was charged with falsifying evidence and her entire credibility--

Unknown Speaker: Which, indeed, she had been doing.

That's a risk that she--

[Laughter]

A risk that materialized because of her own conduct.

Mr. Marth: --Yes, Your Honor.

Unknown Speaker: So what's wrong with that?

Mr. Marth: Well, the danger here that if an employee... for example, in a couple of these cases they were asking questions, in Ms. Walsh's case about some conduct that occurred 3 years before, and in the Barrett and Roberts case they were asking them how were they spending a 2-hour period 14 months before.

So if an employee who answers, and blurts out an answer... when the Government asks, for example, in Barrett and Roberts, were you working on Government business on June 8, 14 months ago, between the hours of 1:30 and 3:30, they say, yes, we were.

Well, you know, the risk is that then when they check their records, or have other opportunities to look back, they may find that indeed that that was not what they were doing 14 months before.

Unknown Speaker: Well, doesn't there have to be intentional misrepresentation?

Doesn't the Government have to show it's intentional?

Mr. Marth: Well, yes, Your Honor.

Unknown Speaker: Well, doesn't that solve that problem?

Mr. Marth: Well, the problem is the chilling effect on an employee of denying--

Unknown Speaker: Chilling effect on lying.

Mr. Marth: --Chilling effect on denying misconduct.

As both Justice Kennedy and Justice O'Connor have pointed out in the former argument, what you have here is, for examples, if somebody comes up, an investigator says, were you 5 minutes late to work, and you say, no, I wasn't 5 minutes late to work, well, suddenly what was a 5-minutes-late-to-work charge, which may involve a slap on the wrist, maybe even a written reprimand, now becomes a removable offense.

Unknown Speaker: Yes, but that's because it's a more serious thing to do.

It's just... a cover-up is almost always more serious than the underlying offense.

Look at the Alger Hiss case.

They asked him in 1951 or '50, whenever the trial was, about things that happened in 1937.

The statute of limitations on the substantive offense had run, so he was just found guilty of perjury, so lying can produce an offense where there was none before.

That's what Congress has said.

Mr. Marth: Your Honor, but here Congress has said that employees, when they're going to be disciplined, have certain rights, and the issue is, are those rights to a meaningful opportunity to defend affected when... before those rights are ever given, and here you have... I think it's important to understand the context.

For example, in Mr. Erickson's case, the initial decision indicated that he was put into a room and questioned and told to fill out certain answers to questions.

He asked for counsel.

He was denied it.

He asked to leave the interview room.

He was denied it.

He put down that he felt that he was under duress and loss of his job if he responded, so what meaningful opportunities does he have subsequently to respond when he has been under all this pressure and coercion early on to respond to the Government's investigation?

Unknown Speaker: But even this case, how does it fit with what the Federal Circuit said its narrow holding was, that as it said, that false statements made during agency investigations may properly be subject to falsification or similar charges?

Why wasn't what went on part of an investigation?

Why doesn't... shouldn't we read what the Federal Circuit says the law is, apply it to that fact, and doesn't... that person doesn't come within this decision.

Mr. Marth: Your Honor, that's the one point I agree with General Waxman on.

I don't know how the court of appeals could say that in light of these facts, unless the court of appeals was saying, when you begin to focus an investigation on a particular respondent similar to a criminal context, certain rights attach.

Unknown Speaker: Well, but this seems to say just the opposite.

It says, of course, when they... during the investigation they may be subject to--

Mr. Marth: Well, I mean, there's no question that these questions were given during the investigation, but what is evident is that the investigation had focused on the individual respondents in this case.

For example, in Ms. Walsh's case, the investigator came and said, we have talked to 10 people, and we have statements showing that basically you've lied to us, or that you are guilty of this misconduct, and you better get your answers right, because if you don't get your answers right, we've got other penalties that we can institute.

So you're right, Your Honor, that the court of appeals used that phrase about an investigation, and the only way that I can reconcile that phrase is in terms of the fact that the investigation had now focused to the point on these respondents that they were in effect the persons that were going to be put to the charges on.

Unknown Speaker: --Mr. Marth, can I... let me express what... the trouble I have with your presentation.

You're relying on the Due Process Clause which prevents the deprivation of life, liberty, or property without due process, and your claim here is that the property of this job, this Federal job is unfairly taken away unless the individual is allowed to make misstatements during the administrative proceeding that would result in taking it away.

Mr. Marth: Not exactly, Your Honor.

In terms of the administrative proceeding I'm not taking the position that anyone at a Merit Systems Protection Board hearing has a right to lie.

In fact, we're saying specifically to the contrary.

Unknown Speaker: Just in the investigation.

Mr. Marth: Just in the investigation prior to the meaningful rights that Congress has given in 5 U.S. Code section 7513.

In other words, when these persons were all questioned they had not been told that they had a right to a lawyer, they had not been told that they had a right to see the charges against them, they were not given any adequate time to respond to the charges.

They were basically put in a room and said, respond now.

Unknown Speaker: Once the proceeding starts, however, you agree that there's no such--

Mr. Marth: I agree, Your Honor.

Unknown Speaker: --No such right.

But were they told that what you're about to say is important, and if you lie you are subject to criminal liability, or the equivalent?

Mr. Marth: I don't think the record is clear on that, Your Honor, Justice Breyer.

As far as I can tell, the employees were not told anything about that.

Unknown Speaker: I mean, what I... the difference between this case and Alger Hiss illustrates the point that when a person commits perjury he is put under oath.

It is made clear to that person how important what he's about to say is, and what will happen to him if he lies.

People when they're not under oath say all kinds of things.

I do.

You may.

I mean, I try not to lie.

[Laughter]

I wouldn't like to call my wife in to say, in minor matters I... you know, you say... well, my goodness.

So there is a problem, but I don't... I see a problem, and to that extent I understand your point.

But what I don't see is how to solve that problem within the context of the law that we're arguing about, and if you can find a way to do that, I would be interested.

Mr. Marth: Well, Your Honor, one thing, of course, that would solve the problem would be that there would be no investigation questions to a given employee who's under charges until they're given--

Unknown Speaker: Yes, yes--

Mr. Marth: --Until they're given their rights.

Unknown Speaker: --I mean a legal route within the framework of the law we are discussing.

Mr. Marth: Well, the legal framework, Your Honor, as I understand the court of appeals decision and what we're advocating here is that for the meaningful rights to apply, an employee has to be able to deny the misconduct, similar to a not guilty plea, and put the Government to its proof.

Unknown Speaker: Well, but we're not dealing here, are we, with criminal charges as such.

They may have done things that could result in criminal charges, but that's not what happened.

We're talking about whether there should be some employee sanction imposed for what they did.

Isn't that right?

Mr. Marth: Well, not only an employee sanction, but a--

Unknown Speaker: Isn't that what we're talking about?

Mr. Marth: --We are talking about a double sanction, yes, ma'am.

Unknown Speaker: And this Court has never imposed some kind of Miranda rights scheme in the context of looking into employee malfeasance or misfeasance, have we?

Mr. Marth: No.

No, Your Honor, you have not.

Unknown Speaker: But you would want us to impose something like that.

Mr. Marth: No, Your Honor.

What we're ask... we're not asking necessarily that employees be told anything, I think as Justice Breyer indicated, perhaps maybe give employees some kind of warning before they could be questioned.

Unknown Speaker: A Miranda-type scheme for--

Mr. Marth: Right.

Unknown Speaker: --employees.

Well, I think you might have a hard time persuading us that we ought to extend that--

Mr. Marth: No, I'm not advocating that.

I understood Justice Breyer might be--

[Laughter]

Unknown Speaker: --But that's not this case.

Mr. Marth, maybe you agreed too quickly that Justice Breyer had a problem.

I mean, Justice Breyer said he tries not to lie.

Were your clients trying not to lie?

Mr. Marth: Well--

Unknown Speaker: I thought if they were trying not to lie, nothing could happen to them.

Mr. Marth: --Well, the risk is that something could happen to them, Your Honor, and... Justice Scalia.

Unknown Speaker: The risk is that something could happen to them if it were proven that they were not trying not to lie.

Mr. Marth: Well, for example, in Ms. Walsh's case--

Unknown Speaker: I mean, life is tough.

We all have to, you know, live in some risk, but--

Mr. Marth: --In Mrs. Walsh--

Unknown Speaker: --that can't be eliminated.

Mr. Marth: --I'm sorry.

Excuse me, Your Honor.

In Mrs. Walsh's case the administrative judge that heard the case found that she did not lie, and when it got to the MSPB they found that she did lie, so there's the risk of credibility determinations here becoming... raising what is a simple minor offense up to a removable offense.

Unknown Speaker: But the MSPB ruled in favor of these employees, as I understand it, right?

Mr. Marth: That's correct.

Unknown Speaker: And was affirmed.

So wouldn't that same MSPB, as policer of this, be able to make distinctions between the employee who came across as terribly nervous and just tripped up a little, and say, that one, firing is too much for that, and then take the one who's deliberately trying to put the investigators off the track and say... make the penalty fit the crime.

You do have a policer in here independent of the agency, and that is the MSPB.

Mr. Marth: We do have a policer for some Federal employees, Your Honor, but not for all.

Postal employees, for example, unless they're in management, or unless they're veterans--

Unknown Speaker: We're dealing with a case that comes to us through the MSPB.

Mr. Marth: --Right, but I think it's important, though, if we're looking at due process rights available to the entire Federal workforce, that the Court understand that not all employees have a right to get that independent decisionmaker.

For many employees that final decisionmaker is the agency official that decides the case.

Unknown Speaker: I take it under your scheme if there's suspicion that a credit card has been misused and the supervisor said, I'd like to talk to you about this credit card problem, the employee has a right to say, I decline to make any statements on that unless you want to bring charges.

Mr. Marth: An employee can certainly do that, and the agency has the right to bring charges.

Unknown Speaker: Can the agency separately charge for noncooperation--

Mr. Marth: Yes.

Unknown Speaker: --and failure to answer?

Mr. Marth: Yes.

They did in this case.

Unknown Speaker: Well, but not under your scheme.

Under your scheme, the employer... the employee has a right to in effect be silent.

Mr. Marth: I don't believe I was ever advocating that, Your Honor.

Unknown Speaker: Oh, you would never give them a right to be silent, only to lie.

[Laughter]

I mean... but that will be the scheme you come up with.

He can be prosecuted if he says, I'm sorry, I don't want to answer, and then he can be removed for failing to cooperate.

If he had only lied, he would have been okay.

[Laughter]

Isn't that what we end up with?

Isn't that the logical position you're arguing, or are you saying they should also have a right to be silent?

You have a choice, to lie or be silent, either one.

Mr. Marth: Well, either one, they're subject to potential penalties.

Unknown Speaker: Is the penalty the same for simply saying, I don't care to discuss it, as it is for lying?

Mr. Marth: I am not sure on the table of penalties, Your Honor, whether or not the refusal to cooperate in an investigation is a removable offense or not, so I cannot answer that question.

Unknown Speaker: But you're not denying that it's permissible to remove the employee for failure to cooperate?

You don't deny... you don't assert that there's a constitutional--

Mr. Marth: No, but that--

Unknown Speaker: --prohibition, do you?

Mr. Marth: --No, but that puts the employee in the difficult situation where they're... where they're questioned, again, before they're given those meaningful rights that Congress has given them, that the issue is, at that point, what do they do?

Do they lie, do they do a simple no, which is what the Court found happened in this case.

Again, I mean, it's important to... for this Court to understand that King v. Erickson specifically said, there's no right to lie or to affirmatively mislead an agency engaged in investigation.

They said, merely they had a simple right to deny the charge, and that they did not have a right to tell tall tales, to tamper with evidence, to falsify records... they came down with a--

Unknown Speaker: Well, certainly it would mislead, if you're asked a question, did you misuse the credit card, and you say no, I didn't, when in fact you did.

That surely misleads if anything does.

Mr. Marth: --Well, I guess there is that issue of whether or not a simple denial is misleading, or whether to mislead or to deceive the Government requires some kind of more affirmative misconduct.

Unknown Speaker: Well, it's hard for me to see how the... you know, you could say perhaps a spinner of tall tales would dig their own grave by making extravagant statements that were easily refutable, whereas perhaps a simple no would be less easy to identify as perjurious.

Mr. Marth: Your Honors, we would contend that the due process concerns in this case with regard to risk of erroneous deprivation, basically that there are six potential risks to the employees in these... in this case.

First, there is the chilling effect stemming from the seriousness of the charge, which we've already talked about.

Secondly, an employee who is not represented during this process risks being coerced when questioned.

Unknown Speaker: Mr. Marth, may I just ask you one question about the relationship of the prior decisionmakers?

Did the MSPB get this rule from the Federal Circuit's prior decision, or did it originate with the MSPB?

Mr. Marth: The Federal Circuit in Grubka came up with the proposition to begin with that a person always has the right to deny a charge and put the Government to its proof.

Unknown Speaker: So it wasn't MSPB as... MSPB was not the originator.

Mr. Marth: That's correct.

Unknown Speaker: I didn't understand that your theory was risk of erroneous deprivation.

I thought what you were concerned with was a very sound and justified deprivation, and that's why the person would be allowed to lie a little bit of the way at the beginning so that he would be able to make a more effective defense later on without having given things away.

Mr. Marth: Well, Your Honor--

Unknown Speaker: Isn't that your theory?

Mr. Marth: --Yes, Your Honor, but the risk comes from requiring an employee at that early stage in effect to give up or minimize his later meaningful rights.

Unknown Speaker: Yes, but it's not a risk of erroneous deprivation.

Mr. Marth: Well, if he is required to respond with more than an exculpatory no in effect at that time, then there is that risk that his later rights would be deprived of him, deprived of him from a meaningful point of view.

Unknown Speaker: Well, it's a risk that his later rights will not protect him from a justified deprivation.

Isn't that it?

You're saying if he can't lie, and he doesn't remain silent, and he had to tell the truth, he wouldn't have much of a case later on.

That's your concern, isn't it?

Mr. Marth: No.

My concern is that before a person has a right to see an attorney, before they have a right to review their own records, before they have a right to look at the Government charges, it risks the deprivation of those rights if the agency can come in and question the employees and the employee does not have a right simply to deny the misconduct until he gets those rights.

At that point, any right to deny the misconduct stops, but it's only after he gets the meaningful rights protected to that employee by the Government would his rights continue.

Thank you.

Unknown Speaker: Thank you, Mr. Marth.

Mr. Waxman.

Rebuttal of Seth P. Waxman

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

Mr. Marth may be simply have misunderstood or not know what the facts are with respect to the other five employees before this case, but he surely knows what the facts are with respect to his client, Sergeant Erickson, who was not put in a room and told he had to answer a series of rapid-fire questions.

The record in this case reflects that Mr.... that Sergeant Williamson at 7:20 in the morning signed a Kalkind statement acknowledging that he has... may be asked to provide answers to questions: I've been advised that I have a right to remain silent, but that I may be subject to disciplinary action for failure to answer material and relevant questions.

I've been further advised that the answers I give to these questions, or any evidence gained by reason of my answers--

Unknown Speaker: But Mr. Waxman, that... none of that was necessary.

Mr. Waxman: --It was absolutely not necessary.

I just don't want this Court to be under the misimpression that this man was somehow treated unfairly, 3 hours later--

Unknown Speaker: But even if he was put in a room and asked a bunch of rapid-fire questions, it seems to me we've got the same answer under--

Mr. Waxman: --That's... that's right.

He could simply have said, I don't remember, or I'd like to take time to think about it, or he could have confessed, and that was the case with respect to all--

Unknown Speaker: --Which is I suppose what he should have done, right?

Mr. Waxman: --We have as an... the Government as an employer has the right to ask that they do that, even if we had been "unreasonable" and put him on the spot and said, look, we're investigating this Mad Laugher incident, and were you... do you or do you not know anything about that, but none of the cases before this Court are anything approaching that.

Ms. Walsh, who supposedly was asked on the spot to talk about events that happened 3 years before, was accompanied by an attorney, made a long, discursive statement in response to questions, and there was a transcript.

She could easily have said, I don't remember.

It was a long time ago.

She gave a whole false story about a long relationship she had.

You are right.

It does not matter as a constitutional matter.

I just wanted the record to be clear with respect to this case.

Unknown Speaker: In fact, I don't suppose she could even say I don't remember, if she really did.

Mr. Waxman: That's... that's right, and the problem that Justice Breyer was suggesting that some people may have with the potential for abuse I think is dealt with very adequately by Congress and by the Office of Personnel Management in the relevant stat... provisions of the Civil Service Protection Act and the implementing regulations.

In 5 U.S.C. section 2301, that is the statutory provision that enunciates the merit systems principles, it states, among other things, that as a matter of statutory law all employees and applicants for employee... employment should receive fair and equitable treatment in all instances of personnel management, and it goes on.

Unknown Speaker: Is this... this is a minor... but I mean, it... point, but it's crucial, I guess not necessarily to whether you win or lose, but I'm still worried about whether this is a constitutional or a statutory case, and the language on 12a, you see, they say, the question before us is whether doubling up a misconduct charge, et cetera, deprives the employee of the due process that the statute intends, and then they talk about Federal law throughout the rest of it, and they've got the Constitution in there quite a lot, but I... maybe it's the same answer.

I don't know.

But is this... what do you think about that language?

Mr. Waxman: There is simply no doubt that the Federal Circuit was ruling as a matter of constitutional due process.

It says so over and over and over again.

When you get to the--

Unknown Speaker: Mr. Waxman, you would not be happy, I don't suppose, with a decision that says we find no constitutional basis for this decision, but we leave open the question whether it's commanded by the statute.

Mr. Waxman: --I don't think there would be any basis whatsoever... that would be the most muscular interpretation of the statute imaginable.

I don't think there would be any basis for it, but--

Unknown Speaker: You think it's more muscular than the interpretation of the Due Process Clause?

Mr. Waxman: --Well, that's... you mean by the court below?

Unknown Speaker: Yes.

Mr. Waxman: That's rather--

Unknown Speaker: We've muscled that around before, right?

[Laughter]

Mr. Waxman: --That's rather muscular.

We'll take it, whatever this Court's judgment is.

The question presented is a constitutional one.

I think the reason that there's no statutory question in this case is that there simply is no statutory provision to which this claim could be attached.

Unknown Speaker: Well, he... they've attached 7513 and to the list in 7511 and they say, for the efficiency of the service, and then they list all these rights and they say, well, obviously, this means that you have a right to say no, and certainly during the hearing, and since you must have a right to exculpatory no during the hearing itself you have this reading.

Yes, it's muscular.

[Laughter]

Mr. Waxman: It's... look, it's not how... it isn't how the Government has read the opinion, but it would be wonderful if the Court could so read the opinion and then hold that even as a matter of statutory construction it simply cannot be that as an a priori matter it doesn't promote the efficiency of the service to sanction employees who deliberately and intentionally lie to their employers.

We haven't read it that way, but if the Court feels that it could, we'd embrace it.

If there are no further questions, we'll submit.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Waxman.

The case is submitted.

Unknown Speaker: The honorable Court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Gilbert, President, East Stroudsburg University v. Homar - Oral Argument

Fri, 09 Jan 2009 14:50:07 +0000

Case:

Gilbert, President, East Stroudsburg University v. Homar

Media File:

96-651_19970324-argument.mp3

Related Transcript:

1996_96_651_argument.xml

Transcript:

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.

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Ncaa v. Tarkanian - Oral Argument

Sun, 06 Feb 2011 03:44:57 +0000

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Ncaa v. Tarkanian

Media File:

87-1061_19881005-argument.mp3

Related Transcript:

87-1061_19881005-argument.xml

Transcript:

ORAL ARGUMENT OF REX E. LEE ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument first this morning in Number 87-1061, National Collegiate Athletic Association v. Jerry Tarkanian.

Mr. Lee, you may proceed whenever you're ready.

Mr. Lee: Mr. Chief Justice, and may it please the Court, the question in this case is whether the National Collegiate Athletic Association's enforcement of its own standards, among its own members, is state action for Fourteenth Amendment and Section 1983 purposes.

In the early 1970's, the NCAA began an investigation of certain alleged practices at the University of Nevada at Las Vegas, some of which involved its basketball program.

As is the case with all NCAA investigations, the primary responsibility for the investigation rests with the University, and both the University and the Association conducted their own investigations.

The Association's counsel ultimately affirmed some 38 of its Infractions Committee's findings of violations, 10 of which involved the Respondent, who had become the head coach after the time that the Association first received complaints about UNLV.

As part of the prescribed remedy, UNLV was directed to show cause why three persons should not be suspended from coaching and any involvement with intercollegiate athletic activities.

Those three persons were the former head coach, the Respondent, and an assistant coach.

As for the former coach, the suspension was to be permanent, and as to the other two, the suspension was to be for two years.

Unidentified Justice: The suspension from what, Mr. Lee?

Mr. Lee: From coaching, and from all involvement in booster activities and other intercollegiate activities.

It would not have affected his University appointment.

Unidentified Justice: So the NCAA said in effect to UNLV,

"You must suspend so-and-so for a certain period of time? "

Mr. Lee: Not quite.

What it said was... it was an order to show cause why they should not do so.

And that is an important point, actually, Mr. Chief Justice.

Pursuant to that order to show cause, the President of the University assigned a Vice President as hearing officer, who held a hearing and then as a result of that hearing identified for the President three options that were available to the University, and according to the Hearing Officer's recommendation, those three options were the following:

The first was that the university could impose the recommended discipline, which would involve the two-year suspension.

A second was to refuse to do so, and according to the Hearing Officer, this ran the risk that the NCAA might impose other sanctions, some of which might be more severe.

And the third was to withdraw from NCAA membership.

Faced with those choices, the University opted to impose the suspension, which has never been carried out, because of an injunction which was ultimately affirmed by the Nevada Supreme Court, whose state action holding is now before this Court for review.

The Respondent does not contend... nor could he... that the NCAA itself is a governmental entity.

Rather, his argument--

Unidentified Justice: Mr. Lee, did the injunction run against he NCAA, as well as against UNLV?

Mr. Lee: --It ran against UNLV.

Unidentified Justice: Well, then how did NCAA get in the case?

Mr. Lee: Initially, they were not.

The case went up to the Nevada Supreme Court a first time, and the Nevada Supreme Court held that the NCAA was an indispensable party... so it was back, the NCAA was joined, and then it went up a second time.

Unidentified Justice: And the Nevada Court made that at the instance of the Association?

Mr. Lee: Appearing as amicus, that is--

Unidentified Justice: Who said that they were an indispensable part.

Mr. Lee: --That is correct, that is correct.

But we were not joined, initially.

We contended that we should be, and ultimately the Nevada Supreme Court agreed with us on that issue, the first time.

Unidentified Justice: But why did you contend that NCAA was indispensable, Mr. Lee?

Mr. Lee: Well, because the judgment that would ultimately come out of the court would necessarily have an important effect... after all, it was our determination that that was the appropriate remedy for the violation of our rules.

Unidentified Justice: Well, it's a little strange to be arguing in a way that NCAA was a necessary party to the action, and yet should not be considered in any way as State actor.

Is there any tension there?

Mr. Lee: No, no, I think not, because of what this Court said in 1982 about what are the standards for determining state action, and they are not the same standards as for determining whether a party is indispensable.

And those two... there are two requirements, that this Court announced in Lugar v. Edmonson Oil.

The first is that you look to the substantive rule that is being enforced in the particular case and inquire into whether that rule has its source in some State authority.

The second is whether there is sufficient interlinking, intermeshing, between them.

Unidentified Justice: Do you think that Lugar was intended to be the definitive statement of how we determine state action in all cases, even those of perhaps delegation or joint participation?

Mr. Lee: Well, of course, Justice O'Connor, you know much about... much more about what the Court had intended.

Unidentified Justice: Well, you're arguing that that is now the definitive rule.

I'm not sure that I can read Lugar that way, and I'm not sure whether those tests should be applied in all situations of delegation.

Mr. Lee: In our argument, is that they should.

Maybe not or its face... it appears to say all cases, and it announced two requirements, and it said that the difference between the two requirements are demonstrated... is demonstrated by two of the Court's landmark cases.

Moose Lodge, which demonstrates the rule of decision, or the rule of conduct, requirement, and Flagg Brothers, which demonstrates the State actor requirement.

And both of those, of course, reach far beyond the context in Lugar, and far beyond the context in this case, and therefore in our view it is a general rule.

But you don't have to go that far... excuse me.

Unidentified Justice: Well, what if NCAA said, for example, we want drug testing of all participating athletes on a regular basis, and you either do that, or you run the risk of the school being dropped out of the NCAA.

Now, is there any... do we have exactly the same kind of an issue that we have here?

Mr. Lee: Not quite.

If, as I suggested, the first line of defense, Lugar applies across the board for all cases, then it would be the same.

But I... in any event, those two tests, and particularly the first one, ought to apply in a case such as this, and here is why.

Even if it is not the principled, of the two-part, across the board test in all cases that we take, at the very least, when the sole issue in the case is whether a particular rule of conduct has been violated, as it has in this case... the NCAA's standards for eligibility and recruitment... then, at the very least when that's the sole, ultimate issue in the case, then one of the relative inquiries, on a case-by-case approach... one of the most important inquiries... ought to be whether the rule of conduct in that particular case had a governmental source or a non-governmental source.

Unidentified Justice: Well, Mr. Lee, how did the rule become applicable to Mr. Tarkanian?

Sure, it's an NCAA rule, but it also becomes a school rule--

Mr. Lee: No--

Unidentified Justice: --because they joined.

They're a member.

They say,

"we agree to abide by the NCAA rules. "

Mr. Lee: --That's correct.

Unidentified Justice: So this is now the rule for the institution.

Otherwise, how did Tarkanian... how did he get in trouble with the University?

He violated one of their rules.

Mr. Lee: Yes.

The NCAA is composed in part of public universities and in part of State universities.

But it cannot be the rule, I submit, simply because you have some State universities and some private universities, that it thereby becomes, that it thereby becomes--

Unidentified Justice: Well, then, you don't... do you find something erroneous in what I said, that it became a University rule when the University joined and said "We agree"?

Mr. Lee: --It really was not a University rule.

It remained--

Unidentified Justice: Well, if it wasn't, how did they have the nerve to suspend Mr. Tarkanian?

Mr. Lee: --They have the nerve to suspend Mr. Tarkanian because they decided on the basis of their exercise of their own judgment that of the three options available to them, that was the one that was preferable to them.

It was not the NCAA that suspended Tarkanian.

Unidentified Justice: It certainly wasn't.

It was the University.

Mr. Lee: That is correct.

Unidentified Justice: For violating its rule.

Mr. Lee: No, for violating... the University suspended Tarkanian not for violating its rule, but rather because it determined that, of the three options that were available to it, as a result of the order to show cause, the one that was most in the University's interest was the option to impose the recommended, the recommended suspension.

Unidentified Justice: Even if they did... even if the University suspended him for violating a University rule, that might make the University a State actor, but I don't know why that makes NCAA a State actor.

What relief does the Nevada court grant against the NCAA?

Mr. Lee: The relief was against the University and not against the NCAA.

Unidentified Justice: Well, what business has the NCAA got here?

Well, there's an injunction against the NCAA for taking any action against the University.

Mr. Lee: That is correct.

Unidentified Justice: Well, then, there was relief granted.

Mr. Lee: Well, excuse me, in that sense there was.

That is correct.

Unidentified Justice: The NCAA is prohibited from taking any action against UNLV.

Mr. Lee: That is correct.

Unidentified Justice: And you also have to pay its fees, don't you?

Mr. Lee: Ninety percent of them, 90 percent of the--

Unidentified Justice: Mr. Lee, I'm a little confused about what was the basis for the firing here.

It seems to me if the man has an employment contract with the University, the University can't say we're firing you for breaking somebody else's rules.

He must have violated some rule that was imposed by virtue of his employment with the University?

Mr. Lee: --The rules that he violated were the NCAA's rules of eligibility and recruitment.

Unidentified Justice: Well, how did they become applicable to him?

I assume they became applicable to him through his employment contract with the University.

Mr. Lee: They became applicable to him only because the NCAA prescribed

"We have determined that these violations have occurred. "

And the University was ordered to show cause why as a result of those violations he should not be suspended.

But it was the University--

Unidentified Justice: But he must have had an obligation to someone not to commit those violations.

To whom did he have that obligation?

Mr. Lee: --Yes, he had an obligation to his University, in the sense that the University was jointly responsible with the NCAA for seeing to it that they did agree that they would enforce those rules.

But my point is this: that if you take seriously what this Court said in Lugar, about looking to the source of the substantive rules, this is the classic case in which, in which that requirement applies.

If you look to all of the factors that might enter into whether there is or is not state action, the only issue in this case, at the end of the day, the only substantive issue, is whether the rules, some rules have been violated.

Those rules are the eligibility rules that have been set by the University, that have been set by the NCAA, and which have become the University's rules only in the sense that the University is one of those members.

But the University did not have to dismiss him.

There were other options that were available to them... and particularly, particularly in a case where the only issue, the only substantive issue, is the issue whether or not particular rules have been violated, then the source of those rules ought to be relevant to the state action issue.

Unidentified Justice: Take action against him.

Mr. Lee: Excuse me?

Unidentified Justice: The University decided to suspend him.

Mr. Lee: That is correct, but that was--

Unidentified Justice: And they decided, well, this is one or our rules, that we're going to insist he abide by.

Mr. Lee: --This case in that respect, Justice White, really follows a fortiori from this Court's holding in Blum v. Yaretsky.

In that instance, what you had was a decision to transfer patients from a lesser-care facility... excuse me, from a higher-care facility to a lesser-care facility.

And the decision was made... the rule of conduct, or the rule of decision in that particular instance, if you will, was made by private individuals.

But once those private individuals, the doctors, made that decision, it had an effect on important Governmental interests.

The Governmental decision as to how to treat these individuals, the Medicaid program is a Governmental program, but the relevant decisions were in effect made by the private entities... including the amount of money that would be spent by Government.

Nevertheless, what this Court said was that all the Government had done was to respond to those private decisions, and that is exactly what we have in this instance.

You have the NCAA having set its rules, and its members then responding to the termination of those rules violations, and that we submit, under Blum v. Yaretsky and under Lugar, is not state action.

Unidentified Justice: You have a State arbitrator who says that there are three choices, but that the only viable choice is to allow the University's delegation to the NCAA of the power to act as ultimate arbiter of these matters.

And the President of the University adopts that determination.

These are State officials who announce that the NCAA must be the ultimate arbitrator.

Do we not give some deference to that conclusion by the State officials as a matter of State law?

Mr. Lee: As a matter of State law, of course you give deference to them, Justice Kennedy.

But the issue here is whether the state action rules, which are of course constitutional determinations, and interpretations of Section 1983 by this Court... and what the State did in that instance was simply to determine, yes, we became members of the NCAA.

When we become members of the NCAA, we determine that we will abide by their rules.

But they also identified that they had other options.

Unidentified Justice: Were their conclusions correct?

Was the arbitrator correct in what he identified as alternative two?

Mr. Lee: Yes, I think he was... yes, he was.

Alternative two was that they could have said no, and they could have... then other sanctions would have had to be--

Unidentified Justice: He was correct that the University's only real option was to recognize NCAA as the ultimate arbiter?

Mr. Lee: --Well, I don't know that he identified that as the only real option.

It was his recommended option.

But the... I think this point should be made very clear: UNLV did not have to fire Tarkanian.

That was their decision, their option, and they made it from a choice of those three.

Moreover, this first requirement that the Court established in Lugar, in any event, is absent in this case, and regardless of how far it extends, it should be applicable in a case, in a case such as this.

I think that key to decision is to draw a careful decision... excuse me, draw a careful distinction between what the NCAA did on the one hand, and what UNLV did on the other hand.

Unidentified Justice: Mr. Lee?

Mr. Lee: Yes?

Unidentified Justice: Let me return for a moment to this line of questioning... what does Mr. Tarkanian lose if you win here?

Mr. Lee: Well, that is... we believe that if we win, this Court, pursuant to the exercise of its equity powers, does have the authority simply to dissolve the injunction.

Unidentified Justice: Even the injunction against UNLV?

Mr. Lee: Well, we believe that is basically what happened in Moose Lodge, and that this Court would have the authority to do that.

But that is not a central part of our case, and the Court... in the event that the Court disagrees, then that is basically UNLV's problem.

Because this will be the status of the case in the event that--

Unidentified Justice: So what does Mr. Tarkanian lose, if you win?

Mr. Lee: --At the present time, he has an injunction against UNLV that--

Unidentified Justice: And there's no reason that he won't keep on having that, even if you win here.

Mr. Lee: --And in that event... in the event that that happens, then here will be the status of the case.

There is still outstanding an order to show cause applicable to the University of Nevada.

And at that point, there will still be three options available to the University of Nevada, except that the third one will have changed.

And the third one will be to go back to the Nevada State Supreme Court, to go back to the Nevada court, and attempt to persuade them that the injunction should be dissolved because it was based on a premise which the United States Supreme Court has now declared to be faulty.

Unidentified Justice: If you win, it means that... you represent the NCAA, I take it?

Mr. Lee: Yes.

Unidentified Justice: You want the injunction against the NCAA dissolved?

Mr. Lee: That is correct.

Unidentified Justice: And if that's dissolved, it means you can take action against the University.

Mr. Lee: That is correct.

Unidentified Justice: And you may or may not?

Mr. Lee: That is correct.

Unidentified Justice: But the University isn't a party here.

Only Mr. Tarkanian is a party.

Mr. Lee: That is right.

The University is not a party to the action before this Court.

And as a consequence, it will be just as Justice White said.

We can then take action against the University.

Unidentified Justice: Mr. Tarkanian, in Mr. Tarkanian's suit, he got an injunction issued against the NCAA.

Mr. Lee: That is correct.

And that, of course, can be dissolved.

And in the event that that happens, then the University--

Unidentified Justice: Was it at his request that that court enjoined the NCAA from doing anything to UNLV, or was it at [= UNLV's] request?

Well, they weren't a party.

Mr. Lee: --Excuse me?

Unidentified Justice: The University wasn't a party, was it?

Mr. Lee: Yes, the University was a party, but they did not appeal to the Nevada Supreme Court, they did not appeal to the Nevada Supreme Court.

But there will still be an outstanding order to show cause pending... the NCAA's order to show cause, pending against the University of Nevada.

And they will then still have the same three options, except that the one option will now be modified because they will either have to go back and attempt to persuade the Nevada courts that the injunction was--

Unidentified Justice: Why isn't this case just moot, if Mr. Tarkanian can't win anything?

Mr. Lee: --Well, it isn't moot for two reasons.

Because in the first place, we do have the matter of the attorney's fees.

Unidentified Justice: But if the only outstanding question is fees, does that keep a case alive?

We've said costs don't.

Mr. Lee: Well, I would hope that $200,000 does.

And I would think that the fee certainly does.

But in addition, more importantly--

Unidentified Justice: But on the fee point, Mr. Lee, isn't it true that the only justification for the fees was the 1983 action, which in turn depends on the state action?

Mr. Lee: --Yes, and that's--

Unidentified Justice: And that's why no matter what we do, we have to decide that.

Mr. Lee: --And that, of course, is more important, is even more important than the fees itself, because you do have, you do have an outstanding determination by a State supreme court that this area of individual freedom, which is guaranteed by the limitation of the state action doctrine, as the Court said in Lugar, has been withdrawn from the NCAA, and its ability to conduct its investigations in the way that it sees as in its best interests has been severely curtailed.

Let me just say that there are, in addition to the legal reasons that neither one of the Lugar tests, neither the rule of conduct issue nor the joint participation issue has been satisfied in this case.

There are good reasons why the state action rules should not apply to the NCAA's enforcement of its own rules among its own members.

This Court said four years ago that the NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports, and there can be no question but that it needs ample latitude to play that role.

This is the classic case that illustrates both that critical role and why it needs ample latitude in order to carry it out.

The procedures that it follows place principal responsibility, or divide the responsibility for enforcement, as between the two.

It is not a strictly adversarial kind of procedure.

What the NCAA has concluded over the years is that it can best be done by a combination of cooperation and adversarialness.

And the accomplishment... that ample latitude that this Court observed that the Association needs to carry out its critical role... will be aided by leaving this area of associational freedom continually available to the NCAA so that it can make its own judgments as to how best to carry it out.

The key to decision, I submit, to this case, is to distinguish rather carefully between what the NCAA does on the one hand and what the University did on the other.

What the NCAA did was to set its own standards for conduct.

Because they were the NCAA's standards and not the University's standards, the first of the Lugar requirements has not been satisfied.

Unidentified Justice: But didn't the University make those standards its own by contract?

Mr. Lee: Well, I think not, and I think that to say that, to characterize it in that way, Justice O'Connor, really does violate the spirit of what I think to be not only Lugar, but also this Court's more recent pronouncement in the area, which is West v. Atkins, in which those two requirements were repeated.

As the Lugar opinion says, they really aren't the same.

They are two separate requirements.

And especially in a case where the only substantive issue at the end of the day is whether rules have been violated, you ought to ask,

"where do those rules come from? "

Those are not UNLV's rules, they are the NCAA's rules.

They are UNLV's rules only in the sense that UNLV is a member of the Association.

But the Association itself is a private entity, and they are, the Association is, the source of the rules.

What the University did was, what the NCAA did not do, was to make the decision, was to suspend Tarkanian.

All the the NCAA did in this respect was to determine that its standards of conduct had been violated, that its conditions of membership had been violated, and then it was the University that exercised its choice among three options available to it.

For two independent reasons, therefore, we submit that the judgment of the Nevada court should be reversed.

Mr. Chief Justice, I'd like to save the rest of my time for rebuttal.

Unidentified Justice: Thank you, Mr. Lee.

We'll hear now from you, Mr. Lionel.

ORAL ARGUMENT OF SAMUEL S. LIONEL ON BEHALF OF THE RESPONDENT

Mr. Lionel: Mr. Chief Justice, and may it please the Court, I'm looking at page three of our brief here, and I'm reading from the NCAA enforcement program.

Among other things, it says,

"The enforcement procedures are an essential part of the intercollegiate athletic program of each member institution. "

Thus, when the University became a member of the Association, its enforcement procedures became a part of its athletic program.

Not only that, by becoming a member, the University agreed to abide by the Constitution, the bylaws, the rules, the interpretations of those rules, and the policies of the NCAA.

Unidentified Justice: There is a question that there was state action in the case in the sense that the University is a state actor, and it did the suspending.

But why is the NCAA a state actor?

That's the question.

Mr. Lionel: The NCAA is a state actor because the University delegated to the Association the right to make the disciplinary standards and determinations and have a rule of conduct, as it did here... and that comes clearly under the Lugar, the delegation... there's delegation under the first prong, Mr. Justice.

Unidentified Justice: So this is a sort of a joint action case?

Mr. Lionel: Absolute, in our view, yes.

Unidentified Justice: Do you say the University delegated to the NCAA, or the NCAA delegated to the University?

Which?

Mr. Lionel: No, the University delegated to the NCAA the right to set the standards, disciplinary standards, with respect to State employees involved in the athletic program, and to make determinations as to whether there were violations of those standards, and to impose penalties against State employees for their claimed violations of these standards.

Unidentified Justice: Well, did the University delegate to the NCAA the authority to make the final decision as to whether someone should be suspended or not?

Mr. Lionel: Yes, it did, and that is exactly what happened here, because the NCAA said that Coach Tarkanian would be, should be suspended for two years, and the Hearing Officer, who held a hearing under the procedures contained, under the NCAA enforcement procedures adopted, said that this is what you are, we are contractually compelled, to carry out that sanction and recommended to the President of the University that it be done.

And the President of the University within two days wrote to Mr. Tarkanian and said,

"We have... I have no alternative, we must... are contractually bound to follow the penalties of the NCAA, adjudged by the NCAA, and you are therefore suspended for two years. "

Unidentified Justice: When you say contractually bound, what... is there a term of years to a membership in the NCAA?

Mr. Lionel: I'm not aware that there is.

Unidentified Justice: And is there some liability, some financial liability, if you pull out?

Mr. Lionel: There is no direct financial liability.

Unidentified Justice: Then how can you say you are contractually bound?

The fact is, they could have repudiated the contract at any time.

Mr. Lionel: But--

Unidentified Justice: And said,

"We do our own hiring and firing. "

"We don't like this particular decision and, therefore, we will no longer be part of the NCAA. "

Mr. Lionel: --But as the record indicates, the NCAA is the only game in town.

If a university wants to engage in major athletics, it must be a member of the NCAA.

If it is not, it cannot engage in major athletics.

Unidentified Justice: This was an adhesion contract?

The State of Nevada has been subjected to an adhesion contract, is that it?

Mr. Lionel: Well, that's actually what happened in this instance here, but that is the only game in town.

And as a matter of fact, what happened here, is initially Coach Tarkanian sued only the University, and obtained an injunction.

The University was requested by the NCAA to appeal that, which it did, and then the NCAA filed an amicus brief taking the position that it was an indispensable party because the injunction against the University impaired the right of the NCAA to enforce the penalties which it had judged under its program.

In that amicus brief, it said the following: that the University was bound by contract to abide by the NCAA penalties.

Unidentified Justice: Even if it wasn't bound, even if it could just have said,

"Sorry, we're not going to suspend Mr. Tarkanian. "

Even if contractually they could have done it, they didn't.

They said, they did just the reverse.

They said,

"We will abide by that rule. "

Mr. Lionel: Yes, they did.

And in any, almost every state action, there is an option on the part of the state actor and on the part of the State.

When the state fires somebody, and there may be a constitutional violation involved... the 1983 case... they could not have fired that person.

There is always an option.

Unidentified Justice: Well, the record looks like the University basically agreed with Mr. Tarkanian here, and did not want to fire him, and didn't agree with the NCAA's assessment of the facts, and chose not to appeal the State court decision that said the University couldn't fire... couldn't suspend him.

And it looked very much like the University is not acting jointly, in a sense, in that sense, with the NCAA.

It basically took Mr. Tarkanian's view of the thing.

Mr. Lionel: I submit that that, Justice O'Connor, is not really what happened here.

Under the rules, the University was supposed to cooperate when charges were filed... and they did.

They investigated it as they were required and filed everything that was filed, participated in the hearing.

There was nothing in the rules that say that the University must lay down and agree with everything the NCAA did.

They filed charges, and they admitted some of those charges, and in some cases they did not admit those charges.

And the Committee on Infractions made a determination, and then they said that Coach Tarkanian, the University should suspend Tarkanian for two years.

And when it came back, the hearing Officer said that the basis for those findings and the sanctions appeared to be clearly in doubt, and the due process that was followed was somewhat suspect, but we are contractually compelled, and therefore you should do it, Mr. President.

Mr. President said,

"We have no alternative. "

"We will do it. "

"We will say that there was joint participation at all times. "

It is true that the University did not agree with what happened.

Unidentified Justice: Mr. Lionel, are we bound by the ruling of the Nevada court that the NCAA is a party and has to be a party?

Is there nothing we can do about that?

Mr. Lionel: Justice Marshall, it would appear that is a... may very well be law of this case, particularly when it came into being at the instigation of the Association.

This case was over, we thought, many years ago, until they filed that petition to... the amicus brief.

Unidentified Justice: The amicus brief determines what we shall do?

Mr. Lionel: I may have to withdraw.

I would assume this Court can do what it wishes in this case here.

[Laughter]

Unidentified Justice: No, I don't mean not, no, I don't mean that.

I mean it seems to me that this is a crucial point, and I just want to know am I bound to recognize it?

Mr. Lionel: It would seem to me that one could very well say that the Association should not be committed at this time to say that we claim that we were indispensable, this case has gone on for years only because the Court agreed that we had rights to protect at that time.

Now we're saying we should not be a party.

I think, arguably, it could be estopped from taking that position.

We have been troubled by that.

Unidentified Justice: I thought that's what you were saying all along--

--Mr. Lionel, in looking at our cases... although they're not all easy to reconcile... there does appear to be one common theme.

And that is, is that the entity in question must be held to be a state actor, or there is no relief... Mrs. Marsh and the company town, the Eagle coffee shop, the Lugar case.

Here, the State remains a party, it remains responsible.

It remained obligated to Tarkanian, not to discharge him.

Why is it necessary for the NCAA to be in the suit for any meaningful relief to be given to your client?

Mr. Lionel: If the NCAA is not enjoined from proceeding against the University, and to take steps which might ultimately throw the University out of the NCAA, the victory of Mr. Tarkanian is a hollow one, because there will be no basketball program anymore.

He will have nothing to coach.

He will not be able to get a job coaching college athletics because of what has happened in this particular case.

The rules say that before any University hires someone as a coach, they should check to see what his history may have been with respect to any claimed violations against the NCAA.

And I submit under those--

Unidentified Justice: Well, did he claim a reputational interest in this case?

His argument is that he wants to keep his job, and he won that argument.

His argument is he wants to keep his position, and he won that argument.

The University is there, it's a responsible entity.

It's subject to the jurisdiction of the Court for all of the relief that he sought.

And so it seems to me that under our cases, there's no necessity for finding the NCAA to be a state actor.

Mr. Lionel: --I would say, I would say he, his... as I pointed out, he would have no victory, and not only that, whether or not... certainly he has in our view a 1983 cause of action, because the NCAA is a joint participant--

Unidentified Justice: But you never asserted that in the Nevada courts.

You didn't sue the NCAA.

Mr. Lionel: --Well, what happened was, we amended the complaint after the reversal and remand, so the NCAA could then become a party.

We amended it, and stated a 1983 claim against the NCAA.

So this present complaint is against both the University and the NCAA, stating claims under 1983, and the courts below found... the trial court found that there was a 1983 case against both.

Only the NCAA did appeal to the State court, and is here.

But there clearly is a claim, and our position is that there is such a claim... that the NCAA is a joint participant, that the NCAA under West v. Atkins was delegated these disciplinary rights over a State employee... and we say we are a stronger case than West v. Atkins.

In West v. Atkins, you find a delegation, and you find a deferral by the State.

In this case, there is a delegation.

There is a deferral by the State, and then the State afforded the NCAA significant assistance in saying to Tarkanian, "You are now suspended".

So, this is a stronger case than that.

Unidentified Justice: May I ask a question about your delegation thought?

Am I correct in believing that the rules that the NCAA enforces are in effect minimums, that say you can only pay a player so much?

But the Nevada University could impose stricter rules without violating its obligations to the NCAA, couldn't it?

Mr. Lionel: I'm sure that's true.

Unidentified Justice: So it hasn't really delegated the rulemaking power, it merely said our rules will be at least as strict as those that you prescribe.

Mr. Lionel: But the delegation is broader than rulemaking power and standards, creating standards.

But the NCAA, under the delegation, was permitted to have investigations, hearings, and make determinations.

Unidentified Justice: That were not binding unless the University agreed to abide by them.

Mr. Lionel: The University did, and that's exactly what the NCAA said in its amicus brief, when it sought intervention.

And it said further--

Unidentified Justice: Well, let me just be sure I understand you.

For your delegation argument, you're not really relying on the fact that they delegated rulemaking power, but rather that they delegated enforcement power, is that it?

Mr. Lionel: --Yes.

Unidentified Justice: So who made the rules would really not be critical to your case?

Mr. Lionel: That's correct, but in fact they were their rules, and which became part--

Unidentified Justice: Nevada did not make them any stricter than they had to?

Mr. Lionel: --That's correct.

Unidentified Justice: But you're saying that the NCAA had the authority to discharge or suspend the Nevada coach?

Mr. Lionel: Yes.

As a matter of fact, the rules which are set forth in our appendix indicate--

Unidentified Justice: They did not have an option to withdraw from the NCAA?

Mr. Lionel: --Not a realistic option in any way.

Unidentified Justice: But they had a legal option, didn't they?

Mr. Lionel: Just as the judge in Dennis v. Sparks had a legal option not to accept the alleged--

Unidentified Justice: Well, let me give you this example.

Supposing United Airlines tells O'Hare Airport in Chicago that we won't land here anymore, because we think your airport manager is doing a sloppy job of turning on the lights, or something like that, at night.

They just say, we won't do it.

And O'Hare says, well, we can't operate without United, so we'll fire him.

Would United become a state actor because they have enough economic power to insist on that kind of result?

Mr. Lionel: --The mere... if you--

Unidentified Justice: You want to try to say no.

[Laughter]

Mr. Lionel: --It's a gray area.

One can always see a situation where someone can have enough economic power to do something.

Unidentified Justice: That's what you're saying this association has.

And I give you another example of the same degree of economic power, and you seem hesitant to say it's state action.

Mr. Lionel: If there is sufficient economic power to affect them, then I would say--

Unidentified Justice: So, any time a private entity can, as a condition of doing business with a public entity, insist on something, why, that private entity is a state actor?

Mr. Lionel: --There's a big gray area in there, and I'd like to--

Unidentified Justice: I don't know if it's all that gray.

Mr. Lionel: --I can see a situation where an alumnus of the University would come to the President and say,

"I'm the biggest... I give you, donate more money than anybody else, and I will give you an additional $10 or $ [= 15] million if you fire somebody there. "

And I would say that gets pretty close to saying that person could be a state actor, if that person is fired without due process of law.

I would say that person might be a joint participant.

Unidentified Justice: Well, what about it, say, Chrysler Motors has a plant in Wisconsin, and isn't satisfied with the way it's working?

So it wants to move that plant out of Wisconsin, but it says,

"Okay, we'll negotiate with the legislature. "

"If you'll revise certain laws, thus and so, and do thus and so, we won't move out. "

Now, does that make Chrysler a state actor in Wisconsin?

Mr. Lionel: No.

I would say no.

That is pressure, that one might get from a newspaper or something of that nature.

That person has no right to demand that the State give them overt, official significant help.

Unidentified Justice: Well, of course, your example, the alumnus had no "right" to demand anything.

Mr. Lionel: Well, it gets very close, in that it puts them under the gun.

Unidentified Justice: Well, what's the difference between the two cases?

It isn't a matter of right, because neither one had any right.

Mr. Lionel: As I... I find a great gray area, and at some point if it puts someone arguably out of business, a university, it's very important that the university must have this, otherwise it would not be able to operate,... this is in this case that the university needs to be a member of the NCAA basketball program, which is an important matter--

Unidentified Justice: Is there some written indication of what membership in the [= NCAA] means?

Mr. Lionel: --From the standpoint of what, Justice?

Unidentified Justice: Well, what do they understand?

What is... does a member say

"We will abide by the NCAA rules? "

Mr. Lionel: Yes, well,--

Unidentified Justice: Is there something in writing to that effect?

Mr. Lionel: --We have not been able to find anything in writing, except the rules of the NCAA, the constitution and the bylaws say that a member agrees to abide by our constitution, the bylaws, our rules, and our enforcement program.

Unidentified Justice: So by becoming a member, you say the member has agreed, in advance, in advance.

Mr. Lionel: Yes.

Unidentified Justice: This isn't just an ad hoc situation?

Mr. Lionel: Absolutely.

He has agreed, and that was the exact position that the NCAA took in its amicus brief.

Unidentified Justice: Mr. Lionel, let me ask you... assuming I accept your theory of adhesion contract, which is I think what we've been talking about... is it clear that this is an adhesion contract, I mean that there was no other option?

Aren't there a lot of universities that don't belong to the NCAA?

The world comes to an end if you can't belong to the NCAA?

I thought probably more don't belong than do belong, isn't that right?

Mr. Lionel: No, No university with any kind of athletic program is not a member, is not a member.

Unidentified Justice: No university with any kind of an athletic program?

Mr. Lionel: Any kind of a... let's call it a major athletic program.

Unidentified Justice: It's that much the end of the world, that there was no realistic option except to belong to the NCAA?

Mr. Lionel: No realistic option.

Unidentified Justice: I think a lot of educators would be surprised to hear that.

Well, they can shut down the football program, basketball.

Well, it's not in the record... is anything in the record about how many universities belong or do not belong?

Mr. Lionel: Yes, I believe there are approximately 1,000 universities, at least half of which are State universities.

All the service academies are members.

Unidentified Justice: All?

Mr. Lionel: Yes, all the service academies.

Unidentified Justice: And all the universities in this country belong?

Mr. Lionel: No, no.

But approximately 1,000 universities.

Unidentified Justice: Well, how many universities are there?

Mr. Lionel: I don't know that.

Justice Marshall.

Unidentified Justice: Well, what good is the figure of 1,000 if I don't know what to compare it with?

Mr. Lionel: Well, it encompasses all universities which have major athletic programs.

Unidentified Justice: I know some who don't belong.

Mr. Lionel: There are.

Unidentified Justice: The one I graduated from didn't.

I just can't help but interjecting the fact that the University of Chicago survived without an athletic program.

[Laughter]

Mr. Lionel: And that survived well.

With respect to the Lugar case, we think we fall clearly under Lugar.

The first prong of Lugar indicates two different types of situations, one where there is a delegation... and here there is that delegation to the NCAA, of the right to make those disciplinary standards and determination... and number two, that if there is, if the State imposes a rule of conduct... now, the rule of conduct here is the NCAA saying that Jerry Tarkanian did this, which he shouldn't, and there should be a two-year suspension.

And the University imposed that.

That clearly comes under Lugar, and there can be no doubt that insofar as the Association is concerned, its conduct is attributable to the State.

Unidentified Justice: Let me ask you a question.

Let's assume that we agree with you, that the NCAA is a state actor insofar as Mr. Tarkanian is concerned, that he has a remedy against the University.

But what... even if that's the case, what was the basis for the injunction against the NCAA from taking action against the University itself?

Mr. Lionel: Because if it were permitted to take action against the University, the injunction that Coach Tarkarian received will not help him any.

Unidentified Justice: Why?

Why?

Mr. Lionel: Because if the University no longer belongs to the NCAA--

Unidentified Justice: So?

Mr. Lionel: --It won't have a major college athletic program.

He will have nothing there that he can coach.

Unidentified Justice: Well, did he ask for an injunction against--

Mr. Lionel: Yes, he did.

Unidentified Justice: --Against the NCAA?

Mr. Lionel: Yes, we never sought--

Unidentified Justice: Or was that the University?

Mr. Lionel: --Against both.

When we amended the complaint, after the remand, to make it so the NCAA could become a party, we amended it and also stated a claim under 1983 against the Association.

And we sought an injunction... we never sought damages.

Unidentified Justice: So you think that any time the NCAA thinks one of its rules has been violated, it can be forbidden to throw the member out?

Mr. Lionel: No.

It's only if we can... the NCAA--

Unidentified Justice: I don't see what the basis... even if you win on a state action thing, what's the basis for telling the NCAA that it can't suspend the University, if the University wants to keep Mr. Tarkanian on, that's fine.

But it's not going to be a member.

Mr. Lionel: --But the injunction... Coach Tarkanian would then have obtained just a Pyrrhic victory.

He has--

Unidentified Justice: Maybe that's all he's entitled to.

Mr. Lionel: --But his constitutional rights have been infringed upon.

He's been denied due process in connection with this, and he--

Unidentified Justice: Well, I know, but the NCAA shouldn't be required to keep a member on that isn't living up to its rules.

Mr. Lionel: --The only rule that would be involved here would be the non-suspension of Coach Tarkanian.

Unidentified Justice: The Constitution forbids the University from firing Coach Tarkanian without proper process, but surely the Constitution doesn't require that the University give him a major-league basketball team to coach, does it?

Mr. Lionel: No, it doesn't.

Unidentified Justice: So then what is the... maybe the Chief Justice is right, that all he is entitled to under the Constitution is a Pyrrhic victory, that he can coach whatever basketball team the University has?

Mr. Lionel: Well, it would seem to me that a court of equity could do what the court below did here.

The court said,

"He has a right to have vindicated his constitutional rights. "

He is not vindicated but if we are going to say he can't continue to do what he did before, in which the court found he had a property right.

In effect, if there is no injunction against the NCAA, he will have lost that property right to be that basketball coach--

Unidentified Justice: Property right, not just to have a job with the University, not just to coach the University's basketball team, but a property right to coach an NCAA basketball team... that's what the Constitution guarantees him?

Mr. Lionel: --Yes, and also, there were other rights that flowed from that, as we pointed out.

He lost... he had clinics, he had other matters, and radio programs, all of which came from the fact that he was the basketball coach at the University.

Unidentified Justice: Well, but your position, as I understand it, is that if the NCAA is a state actor, it has to follow constitutional procedures when it imposes sanctions on anybody.

And you would really require them to remodel their whole procedural mechanisms for dealing with this kind of case and maybe... you know, if you're right, it seems to me that they would have an obligation to follow due process procedures, and not use private investigators, to rely on hearsay and that sort of thing.

So what really is at stake is what kind of procedures they can use when the member that's being challenged is a public entity rather than a private one.

Mr. Lionel: That's correct.

And in fact, as a result of this case, as the result of a Congressional oversight committee investigation which followed shortly thereafter, the NCAA has changed many of their rules with respect to this type of investigation.

Unidentified Justice: Well, I think then that even if you win, as Justice Stevens suggests, if the NCAA wanted to take some action against a State university, even though no employee was involved, it would have to follow due process procedures.

Mr. Lionel: Proceeding against the University?

I frankly don't know the answer.

The University's under injunction not to suspend Tarkanian.

Unidentified Justice: Well, if the University's become a member of this association, and it delegated... it makes this big delegation, and so... and the NCAA has some rules that it must comport with due process?

Mr. Lionel: Yes, it must.

Unidentified Justice: In moving against the University?

Mr. Lionel: No, that may be just private activity, that may be just private activity.

Unidentified Justice: Well, if it is, what is the basis here for an injunction against the NCAA from moving against the University?

Even if it can be called a state actor by Mr. Tarkanian?

Mr. Lionel: Because then Mr. Tarkanian has not... his property right has not been protected.

He's been denied due process of law.

Unidentified Justice: Well, but you certainly are putting the NCAA in a strange position in not being able to throw out a member that refuses to abide by its rules.

Just as a matter of equity I would think that the injunction is very suspect against the NCAA.

Mr. Lionel: The NCAA was really the moving party here.

The NCAA is really responsible for this denial of due process to Coach Tarkanian.

Unidentified Justice: Well, he's had his remedy against the University.

He's no longer suspended.

Mr. Lionel: I submit that would be a meaningless remedy, and that the injunction against the NCAA should be--

Unidentified Justice: He's still going to be paid his salary, what more does he want?

Radio programs.

The Constitutional right to radio programs.

Mr. Lionel: --His due process rights were violated.

Unidentified Justice: Well, his due process rights were violated were procedural, weren't they?

Mr. Lionel: Also substantive.

Unidentified Justice: What was the substantive violation?

Mr. Lionel: Because there was no basis for the findings, the court found that they had been substantively violated.

Unidentified Justice: Thank you, Mr. Lionel.

Mr. Lee, you have four minutes remaining.

REBUTTAL ARGUMENT BY REX E. LEE

Mr. Lee: Thank you, Mr. Chief Justice.

In answer to Justice White's question, the obligation that the UNLV is under tort appears on page 80 of the joint appendix.

And what it is, of course, is an agreement to, it's on fundamental policy 2(b),

"shall be obligated to apply and enforce this legislation and the enforcement program of the Association shall be applied to an institution when it fails to fulfill this obligation. "

What the UNLV agreed to do was to abide by the NCAA's rules.

What it did not agree to do, and could not have agreed to do, as a governmental entity, was to delegate any kind of discipline of State employees or any other Governmental function to the NCAA.

And the way it's tested is this: assume that what President Bepler had said, back in 1977, was

"No, our answer to the order to show cause is we cannot and will not, because under our judgment, he just doesn't deserve to be suspended, and that is a function that is non-delegable as a matter of Nevada State law. "

What the NCAA would have done at that point is to look to other sanctions.

They would not have, and could not have required that he be dismissed.

Unidentified Justice: So you say it looks like the university is looking around for a set of rules to have in its university, and it suddenly runs across the NCAA which has promulgated a bunch of rules that it recommends for universities to adopt, and so the university says, gee, here's a bunch of rules, we'll just adopt them.

Mr. Lee: No, as a condition of membership, they have agreed, as a condition of membership--

Unidentified Justice: Well, they just simply agreed to adopt this set of rules?

Mr. Lee: --That is correct.

As a condition of membership... and in the event that they decide not to follow those rules, or not to follow the NCAA procedures, they can either accept... it wasn't just a matter of NCAA membership, though if it were, the legal rule would still have been the same.

They could have accepted other, less severe sanctions, such as an extended period of probation, pure scholarships, etcetera.

Unidentified Justice: Let's assume they're wrong on the state action, that Tarkanian was entitled to a remedy here.

What was the basis for the injunction against the NCAA's taking action against the University?

Mr. Lee: Because the State court judge said that UNLV had acted wrongfully, and there was a derivative, there was a derivative right from the NCAA.

I do not defend that... I do not think that's right... but that was the basis for the injunction.

And I want to stress that the only relief we're asking for is the relief of, of the release of the injunction against the NCAA.

Unidentified Justice: And do you argue that even if it's held to be a state actor, that injunction shouldn't stand?

I don't know--

Mr. Lee: No, no, no.

Unidentified Justice: --I've never heard you say that.

Mr. Lee: No, no, no.

I'm not saying that even if we're held--

Unidentified Justice: But that's the argument.

That's the question that I asked you.

Even if you lose on state action, why should you be forbidden to take action against the University?

Mr. Lee: --I see.

I think there are good reasons why we shouldn't, but we also think we are not a state actor, for reasons that have been stated.

What this whole argument this morning has demonstrated is the mischief that you get into once you open the door beyond those two Lugar requirements.

There are good reasons for those two Lugar requirements, and also for the rule in Blum v. Yaretsky.

All that happened here was a response by a governmental entity to a non-governmental entity.

Blum v. Yaretsky says that that is not sufficient.

And once you open that door, you get into problems like the United Airlines hypothetical, and like the numerous others that are raised in our brief.

There are lots of accrediting agencies, for example, that set standards, private entities, that set standards for Governmental entities to abide by.

Are they bound by the full panoply of Fourteenth Amendment and 1983 restrictions on their area of private activity, and also subject to damage actions?

We would hope not.

Chief Justice William H. Rehnquist: Thank you, Mr. Lee.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Cornelius v. Nutt - Oral Argument

Fri, 31 Aug 2012 18:29:20 +0000

Case:

Cornelius v. Nutt

Media File:

83-1673_19850107-argument

Related Transcript:

83-1673_19850107-argument

Transcript:

ORAL ARGUMENT OF CHARLES A. ROTHFELD, ESQ., PRO HAC VICE

Chief Justice Warren E. Burger: We will hear arguments next in Devine against Nutt.

Mr. Rothfeld, I think you may proceed whenever you are ready.

Charles A. Rothfeld: Mr. Chief Justice, and may it please the Court, this case concerns the federal government's ability to fire or discipline employees who have engaged in serious misconduct.

Under the Civil Service Reform Act of 1978, an employee who is fired or subjected to another form of so-called adverse agency action may challenge that action in one of two ways.

Any employee may seek to have the action set aside by filing an appeal with the Merit System Protection Board.

Alternatively, an employee who belongs to a bargaining unit may invoke the grievance procedures set out in the contract between his union and the agency that employs him.

No matter which of the routes the employees follow, the statute sets out the standards of proof and substantive rules that must control the decision in the case.

One of these statutory standards is the harmful error rule, which provides that an employee may have otherwise justified adverse action against him overturned if he is able to demonstrate harmful error in the agency's application of its procedures in arriving at its decision.

Reversal also is in order if the employee may demonstrate that the agency committed harmful error in the application of a procedural rule set out in the collective bargaining agreement.

The issue here is the application of this harmful error rule to two federal employees who undoubtedly engaged in serious misconduct.

The two were employed by the General Services Administration as officers in the Federal Protective Service when their employer received information that they had falsified law enforcement records to cover up misbehavior and had misused government property.

After conducting an investigation, GSA concluded that the charges had been proved, and it ordered the two employees separated from federal service.

The employees, who were members of a bargaining unit, elected to challenge this action by filing a grievance through the negotiated procedure.

The case went to arbitration.

The arbitrator found that--

Unidentified Justice: Excuse me, Mr. Rothfeld.

Do most collective bargaining agreements in the federal service have a grievance procedure that concludes with arbitration.

Charles A. Rothfeld: --Yes, they are required to provide for arbitration.

Unidentified Justice: Do they have a standard form of arbitration clause, or may they differ depending on how the union and the agency negotiate?

Charles A. Rothfeld: They may differ, Your Honor.

In this case, the arbitrator found that the employees had committed the acts alleged, and that those acts fully justified the separation of the employees from federal service.

The arbitrator also found that GSA had misinterpreted its contract with the employees' union, and that misinterpretation led it to commit two procedural errors during the investigation into the employees' misconduct.

The employees had not been informed that they had a right to request the presence of a union representative when they were interviewed by investigating agents.

And the agency had delayed unnecessarily before informing the employees that they would be fired.

But the arbitrator concluded that these procedural mistakes in no way prejudiced the grievance case, did not affect the course of the agency's investigation, and had no impact on the agency's decision to fire the two employees.

Despite these findings, however, the arbitrator, in order to penalize the agency, ordered it to reinstate the two employees in the Federal Protective Service after they had served a two-week suspension.

The Court of Appeals for the Federal Circuit upheld this decision.

The court accepted the arbitrator's findings that the grievants had committed the acts alleged and that those acts fully warranted their being removed from federal employment.

The court also accepted the arbitrator's finding that the procedural mistakes had no effect on the outcome of the case, and the court acknowledged that the statutory harmful error rule controls arbitral decisions.

But the court went on to conclude that a union may assert its own institutional interests during the course of an individual employee's adverse action challenge, if that challenge is brought through a negotiated grievance procedure.

As a result, the court found that an arbitrator must set aside otherwise justified adverse action taken against an employee on account of non-prejudicial that that error was in some undefined sense harmful to the employee's union.

Unidentified Justice: Could the government begin all over again and remedy the defects seen by the court?

Charles A. Rothfeld: It is not clear whether they could, Your Honor.

Since the arbitrator and the Court of Appeals imposed or took away the sanctions that had been imposed by the agency to penalize the agency, it might well be that the court would then find that the agency would be circumventing its order if it attempted to get around the penalty by reinstituting proceedings.

So, it is not clear whether--

Unidentified Justice: On this holding of the Court of Appeals, would it be correct to say that it wouldn't make any difference what the offenses of these employees were?

Charles A. Rothfeld: --That is true, Your Honor.

Unidentified Justice: It would be... they would be in the same boat if they had been caught selling drugs, or caught stealing typewriters?

Charles A. Rothfeld: I think that is true.

The focus--

Unidentified Justice: Purely a procedural problem.

Charles A. Rothfeld: --The arbitrator focused solely on the procedural mistakes that were made by the agency, and in fact the actions of the employees in this case were serious violations which the arbitrator noted could be subjected to criminal penalties.

The case had been referred to the United States Attorney, and he delayed taking action because he believed that it could be settled through the agency process.

So, even violations of law obviously are affected by the arbitrator's decision and the Court of Appeals' affirmance in this case.

Unidentified Justice: Mr. Rothfeld, what remedies do you propose for the union under your view of the case to enforce the terms of the collective bargaining agreement in this regard?

Charles A. Rothfeld: Well, there are two points to make in response to that, Justice O'Connor.

First, most procedural violations will be addressed during the course of an adverse action challenge anyway, because any consequential violation of the collective bargaining agreement which had an effect or might have affected the agency's decision will be taken into account and may lead to the overturning of adverse action.

In those cases in which procedural errors had no effect on the agency's decision, the Act gives unions their own distinct remedial procedures that they can use.

Any union can file a grievance of its own challenging any violation of the collective bargaining agreement, and if it prevails, it might ask the arbitrator to issue a cease and desist order to the offending agency.

In clear cases of contractual violations, the union could also file an unfair labor practice charge with the Federal Labor Relations Authority.

Unidentified Justice: I am sorry, Mr. Rothfeld.

You say both the arbitrator as well as the agency, the FD... whatever that labor agency is styled, each can issue cease and desist orders when a grievance is prosecuted by the union?

Charles A. Rothfeld: Well, certainly the Federal Labor Relations Authority.

Unidentified Justice: It may, of course, because it is proceeding, alleging an unfair labor practice, but what about... may the arbitrator issue a cease and desist order?

Charles A. Rothfeld: Well, the arbitrator certainly can remedy in any way they find appropriate a violation of--

Unidentified Justice: Well, including a... I thought I heard you say earlier, including a cease and desist order.

Against the agency?

Charles A. Rothfeld: --I believe that would be an appropriate remedy, if the arbitrator found that a violation had occurred, and that that was a way to redress the violation.

Unidentified Justice: Are cease and desist orders something that private arbitrators can do, do you think?

Charles A. Rothfeld: Private arbitrators generally direct the remedy to whatever violations have been found, and I think that... if this is an instance where the union is asserting its institutional interests, and as the statute clearly allows it to do for any violation of the collective bargaining agreement.

Unidentified Justice: Well, now, what about the past misconduct, assuming the cease and desist order, whether it is the Labor Board or the arbitrator?

What is done about the past misconduct if it is the arbitrator who wishes... has the remedy of cease and desist?

Charles A. Rothfeld: Well, past misconduct or past procedural violations that had no effect on the outcome of the agency's decision, one thing the arbitrator certainly cannot do is reinstate penalized employees.

The harmful error rule forecloses the arbitrator from taking that action.

So, to that sense, procedural violations won't be addressed by the arbitrator except to the extent he will prevent the agency from committing... or direct the agency not to commit further violations in the future.

I think, Your Honor, the interpretation of the harmful error rule that is provided by the Court of Appeals can only benefit one narrow class of federal employee under any reading of the rule.

An employee whose adverse action was affected by procedural error will have that action overturned.

And under any reading of the rule an employee who brought his adverse action to the Merit Systems Protection Board will have that action overturned only if he can demonstrate that the procedural mistake had some effect on the outcome of his case.

Unidentified Justice: Now, as I recall it, the Congressional history here of this statute weighs heavily in favor... indicated Congress weighed heavily in favor of arbitration, did it not?

Charles A. Rothfeld: It made provision for arbitration.

Yes, Your Honor.

Unidentified Justice: But there is much in the legislative history that says that that is the preferred course?

Charles A. Rothfeld: Well, Congress recognized that there are a variety of advantages to arbitration, and certainly we don't dispute that.

Arbitration is faster and is often less expensive than litigation, and may well be less acrimonious.

But Congress did not make arbitration preferred in the sense that it intended there would be outcome determinative differences between arbitration and appeals through the Merit Systems Protection Board.

It was quite explicit on that, providing that they were to be governed by the same standards and that... in fact, the legislative history said they should be applied identically.

So, I don't think arbitration was the preferred method in the sense that it intended every employee with a claim of procedural error to go to arbitration because he knew that he would win in arbitration and might not win before the Merit Systems Protection Board.

But that in fact is the only... the only category of employees who are benefitted by the Court of Appeals' ruling are those who have been demonstrated to be unfit for federal service who are challenging a procedural error that concededly did not effect the outcome of their case, and who chose to go through the negotiated grievance procedure.

And this result, for a variety of reasons, is clearly not what Congress intended when it enacted the Civil Service Reform Act.

I think the problem with the Court of Appeals decision is plain on the face of the statute.

In so many words, the Act places on the affected employee the burden of demonstrating that harmful procedural error was committed while the agency was arriving at its decision.

Given any straightforward reading, this appears to place on the employee the burden of demonstrating that the agency's result in the case might have been affected by the error, and that is the definition of the term given by the Merit Systems Protection Board, which is the agency that is given responsibility for interpreting the Act's standard of proof provisions, and it is the only interpretation that gives effect to the full Congressional purpose.

Unidentified Justice: The union represented the employee before the arbitrator?

Charles A. Rothfeld: That's correct, Your Honor.

Unidentified Justice: So it had an opportunity at that time to ask... or did it have an opportunity to ask for a remedy tailored to its own interests?

Charles A. Rothfeld: Well, the nature of the proceeding--

Unidentified Justice: Or would it have had to file a separate grievance of its own?

Charles A. Rothfeld: --I think, Your Honor, that if it had wanted to assert its institutional interests, it would have been required to file a separate union grievance, which the arbitrator might have consolidated.

Unidentified Justice: Well, if that is clear enough, then it was clearly out of bounds to give a remedy to the union in this case.

Charles A. Rothfeld: I think that is correct, Justice White.

Unidentified Justice: Is there something clear about that in the Act, or is there any... it is just clear because the union is free to file a grievance of its own?

Is that it?

Charles A. Rothfeld: Well, the nature of the statutory adverse action proceeding, I think, does make that clear.

In addition to the remedies that are given the union--

Unidentified Justice: May the union invoke independently the adverse action procedure?

Charles A. Rothfeld: --The union may independently invoke... file a grievance of its own and invoke arbitration on its own behalf.

Unidentified Justice: No, no, but that is under the collective bargaining agreement, isn't it?

Charles A. Rothfeld: Yes, that's correct.

Unidentified Justice: But how about the route that the non-union member may take before the... what do you call it, the agency or something?

Charles A. Rothfeld: Through the Merit Systems Protection Board.

Unidentified Justice: Yes.

May the union independently go to the Merit Systems Protection Board?

Charles A. Rothfeld: No, it may not.

In either--

Unidentified Justice: Its only remedy is either to go file its own grievance under the collective bargaining agreement, right, or go to the Labor Relations Board?

Charles A. Rothfeld: --Correct.

Unidentified Justice: Those are the only two routes you think that the union may take?

Charles A. Rothfeld: That's correct, Your Honor.

The employee is also given two routes.

He can go to the Merit Systems--

Unidentified Justice: But that isn't what the Federal Circuit held, was it?

Charles A. Rothfeld: --Well, the Federal Circuit we think incorrectly held that the union is a participant or is an independent party to the employee's adverse action charge through arbitration, and in fact, the answer to your question is no.

Unidentified Justice: You just say that is plain wrong.

Charles A. Rothfeld: We do say that is plain wrong, not only because the union has its own independent remedies, but because the adverse action procedures place the focus on the employee.

It is the employee, not the union, which decides the forum for the challenge.

Unidentified Justice: And this remedy was imposed plainly to benefit the union, not the employee.

Charles A. Rothfeld: Explicitly, Your Honor.

The Court of Appeals opinion explicitly provided that it is the union which is being benefitted.

In response to you, Justice Brennan, it is the employee and not the union which chooses the forum, either the Merit Systems--

Unidentified Justice: Wasn't Congress focused on the employee, not on the union?

Charles A. Rothfeld: --That's correct.

In an adverse action--

Unidentified Justice: And it gave the employee the options of going the collective bargaining route or going the Merit Board route, didn't it?

Charles A. Rothfeld: --That's right, Justice Brennan.

Unidentified Justice: It didn't give the union that.

Charles A. Rothfeld: No, if the employee opts not to go through the grievance procedure, the union has no recourse.

And if the employee... if the case goes to arbitration and the arbitrator issues a decision adverse to the employee's interest, it is only the employee who can then appeal to the Federal Circuit.

The union has no independent right to appeal on the employee's behalf.

So, the entire procedural structure of the adverse action proceeding is focused on the rights of the employee, not on the rights of the union.

Unidentified Justice: Incidentally, do non-union members, do they have... may they invoke the collective bargaining grievance procedure?

Charles A. Rothfeld: Members of bargaining units, whether or not they are dues-paying union members, may invoke the negotiating procedure.

When Congress placed the harmful error rule in the statute to address these problems, it did so expressly to provide that a federal employee adverse action would not be overturned simply because of technical or procedural mistakes on the part of their employers.

And it did this with the express purpose of overcoming the widely held view that federal employees cannot be fired no matter how egregious or unacceptable their conduct, and it cannot be consistent with this intent to keep employees on the federal payroll after they have been demonstrated unfit simply because their employer committed a concededly non-prejudicial procedural mistake while attempting to fire them, but that is the effect of the Court of Appeals' ruling.

That is its primary effect.

Here, for example, the court reinstated in the Federal Protective Service two employees after the arbitrator, in his own words, found that their actions had rendered them unworthy of their employer's trust.

And the decision will lead to other results that Congress wished to avoid as well.

While the Civil Service Reform Act gives unions broad leeway to negotiate the procedural rights, it also insists that arbitrators and the Merit Systems Protection Board apply identical standards in judging adverse action challenges.

Congress placed that provision in the Act expressly to promote consistency between board and arbitral decisions, and to prevent forum shopping on the part of the aggrieved employees between those two decision-makers.

But it seems undeniable that the Court of Appeals decision will frustrate both of those purposes.

It guarantees that there will be inconsistent decisions because it establishes two entirely distinct harmful error rules, one to be applied by the board, one to be applied by arbitrators.

Had one of the employees in this case gone to the board, for example, he would have lost, while his identically situated co-worker was being returned to his job at the Federal Protective Service by the arbitrator's decision.

And this state of affairs in turn guarantees that forum shopping will occur.

The Act gives the aggrieved employee the right to choose between which two forums he will bring his challenge.

If employees realize that arbitrators are applying their own outcome-determinative, more generous standards in cases involving procedural error, every sensible bargaining unit employee who has a procedural claim will choose to go through the negotiated grievance route.

The result will be consistently more favorable treatment for the 60 percent of federal employees who are bargaining unit members than for the 40 percent who are not.

Not only is this result inequitable, but it distorts the procedural scheme that Congress envisioned.

The Act establishes a single uniform system for disposing of adverse action challenges which gives the bargaining unit employee the right to choose between two... what are supposed to be two roughly equivalent fora for bringing their appeals.

While Congress certainly recognized that a variety of factors would impel employees to choose one route rather than the other for their challenges, the Act's emphasis on consistency makes it plain that one of those factors should not be the existence of substantive rules that make one forum predictably more likely to grant relief than the other.

The Court of Appeals sidestepped all of these considerations by asserting that the union's role as the representative of the employee in an adverse action challenge means that it can assert its own institutional interests during the course of the employee's adverse action appeal.

But this reasoning is squarely inconsistent with the language and purposes of the harmful error rule and with the Act's emphasis on consistency between board and arbitral judgments.

As noted before, the emphasis of the adverse action procedures is squarely on the protected employee.

Unidentified Justice: Perhaps you answered this already, Mr. Rothfeld, but did you say or not that the individual employee who elects to go the Merit Board route on appeal may or may not have the help of his union?

Charles A. Rothfeld: He may be represented by his union, but the union is not his exclusive representative as it is in the arbitration.

Unidentified Justice: He is not going to collective bargaining unit, now, he is going to the Merit Board.

Charles A. Rothfeld: The union has no statutory role in that--

Unidentified Justice: Does the union in fact play any role on behalf of the employee when the employee elects to go the Merit Board route?

Charles A. Rothfeld: --The union may elect to provide representation, but it has no statutory role, and it has no official role in the proceedings.

Unidentified Justice: How about this case?

Charles A. Rothfeld: In this case... in every case in which arbitration is invoked, the union represents the employee.

So the union did provide representation in this case.

A final point.

The Court of Appeals apparently believed that the collective bargaining process would be made meaningless if employees were not permitted to have adverse action overturned on account of non-prejudicial procedural violations.

Now, it is obvious that this concern was vastly overstated.

Under any interpretation of the harmful error rule, unions will be free to negotiate for whatever procedures they wish.

Under any interpretation of the rule, agencies are obligated to abide by those procedures.

Unidentified Justice: Well, may an agency and the union negotiate a provision limiting the scope of an arbitrator's authority, or does the requirement that they go to arbitration spell out what the scope of the arbitration is?

Charles A. Rothfeld: No, it does not, Your Honor.

By contract, the nature of the issues that can go to arbitration may be determined by the union and the agency.

Unidentified Justice: By the collective bargaining agreement.

Charles A. Rothfeld: That's correct.

Any adverse action affected by a violation of rights contained in the collective bargaining agreement will be overturned either by the board or by an arbitrator.

As a result, it is only the least meaningful of procedural violations, those found by an arbitrator or the board to have had no effect on the outcome of the case, that will not be taken into account during an employee's adverse action challenge.

And the union may obtain a remedy even for these types of procedural mistakes by filing its own grievance or an unfair labor practice charge if appropriate.

In drafting the Act, Congress explicitly balanced all of these concerns and protected the interests of unions by giving them their own set of remedies, and by providing that agency decisions affected by violations of the collective bargaining agreement cannot stand.

It protected the rights of employees by giving them a variety of procedural options to challenge adverse action, and by providing that action taken against them in violation either of regulations or of the terms of the collective bargaining agreement, so long as the action was affected by the violation, will be overturned.

And it explicitly protected the public's interest in a competent and efficient government by providing that inconsequential agency errors will not force the retention on the federal payroll of demonstrably unfit federal employees simply because the agency committed a procedural mistake while attempting to remove those employees from federal service.

If there are no further questions, Your Honor, I will reserve.

Chief Justice Warren E. Burger: Very well.

Mr. Hobbie.

ORAL ARGUMENT OF CHARLES A. HOBBIE, ESQ., ON BEHALF OF THE RESPONDENTS

Charles A. Hobbie: Mr. Chief Justice, and may it please the Court, the question presented this afternoon may be more simply stated than the government has done.

The question is, does the arbitral award violate the harmful error provision of the Reform Act.

It is not disputed that if the award is not inconsistent with the Reform Act, it should be upheld.

We contend that the Court of Appeals correctly decided that the extension of the harmful error rule to be applicable to important rights of the rest of the members of the collective bargaining unit, the collective rights, if you will, of employees represented by the union, is entirely consistent with law.

The government claims specifically that only error harmful to the rights of the individual grievant may be considered in the arbitral context.

This contention is based on an interpretation of the statute by the Merit Systems Protection Board.

Unidentified Justice: Could the union have filed its own grievance?

Charles A. Hobbie: Yes, Your Honor, the union--

Unidentified Justice: And gotten an appropriate remedy for its omission from the initial steps?

Charles A. Hobbie: --That is the critical question, Your Honor, what would be an appropriate remedy--

Unidentified Justice: I just asked... how about the answer to my question?

It might have had that kind of a remedy?

Charles A. Hobbie: --Yes, Your Honor, the union could have filed--

Unidentified Justice: And the employer could have been told, don't do it any more?

Charles A. Hobbie: --Yes, that's right, Your Honor.

Unidentified Justice: By the arbitrator?

Charles A. Hobbie: By the arbitrator, but, Your Honor, I would point out in the context of this particular case early in the arbitral decision the arbitrator makes reference to a previous arbitration award by another arbitrator involving the same parties, GSA and this local.

In that situation, which happened the previous year, again, the agency had not provided the grievant with the opportunity to be represented by the union.

So the arbitrator in this case, knowing that this violation had occurred just the previous year, would, I suggest, be reluctant just to issue a cease and desist order, because he knows the agency last year did exactly the same thing, and was put on notice by another arbitrator not to do it again, and yet they go ahead and do exactly the same thing.

Unidentified Justice: Well, suppose an employee is discharged for what... if he did what he did, anybody would say he shouldn't be working for this agency, and it goes to arbitration, and the arbitrator says, yes, you certainly shouldn't be working for this agency but you didn't have the benefit of your union at the initial sit-down, so we are going to put you back on the payroll.

Is that your argument?

Charles A. Hobbie: Our argument is, Your Honor, that the arbitrator is in the best position to devise a remedy for the situation.

In this case, these were police officers.

One of them... both of them were accused of tampering with agency records to cover up misconduct, and the arbitrator recognized that the employee who had access to agency records should not be returned to that position, specifically ordered that upon reinstatement this employee should not be returned to a position of trust such as he had occupied before.

The other employee, who was not directly involved in that kind of tampering with records, Mr. Rogers, who was just guilty, if you will, of picking up the beer and misusing a government vehicle for that purpose, there was no such limitation in his case because it was not appropriate in view of the facts.

Unidentified Justice: Are there lots of positions in the federal government that don't involve trust?

Charles A. Hobbie: Well, the particular officer, Your Honor, to answer your question, was returned to a custodial position.

Now, of course, that involves a certain amount of trust, but it is not the same as being a police officer.

Our point is that in this award, the arbitrator did not violate the statute, he only violated an interpretation of the statute made by the Merit Systems Protection Board.

The board can never have the union before it as a party.

To answer the question, I believe, of Justice Brennan concerning whether in fact the union could represent the grievant before the MSPB, the Merit System Protection Board, the answer is, if they did so, it would be out of good will, if you will.

Unidentified Justice: The union can't go before the board with its own?

Charles A. Hobbie: It cannot.

It cannot.

Unidentified Justice: The only places it may go if there is a collective bargaining agreement is to the arbitrator.

Charles A. Hobbie: That's correct.

Unidentified Justice: Or to the Labor Board.

Charles A. Hobbie: That's correct.

And the significance of that is that the Merit System Protection Board therefore could never have extended the rule before to cover violations harmful to the union because they never would have had that occasion.

The union has never been before the board as a party.

Unidentified Justice: Do you agree with your friend that if these two men had been caught selling narcotics, heroin and what-not, this situation would be the same as it is now?

Charles A. Hobbie: Your Honor, no, I do not.

Again, I would--

Unidentified Justice: What do you think the remedy would have been?

Charles A. Hobbie: --I believe that the arbitrator in that case would have devised a remedy different from reinstatement.

Unidentified Justice: Would you suggest some alternatives?

What might he have done?

Charles A. Hobbie: I think that in that particular case, and I am assuming that there have been pervasive violations, that the violations have been repeated, and that the conduct, the misconduct approaches the level, for example, of theft, as I believe you suggested.

Unidentified Justice: Well, just they caught them selling heroin once.

Are you suggesting that once isn't a serious matter?

Charles A. Hobbie: No, Your Honor, I am not.

Certainly, particularly for police officers, that kind of misconduct would be indeed serious.

Unidentified Justice: Or stealing typewriters.

Charles A. Hobbie: Yes, I would agree.

That would be the same.

But in this case that was not the situation, and the arbitrator--

Unidentified Justice: Procedurally, might they not have come out just where they came out?

Charles A. Hobbie: --Procedurally they would have.

The difference, however, Your Honor, between the arbitral context and the Merit Systems Protection Board is important in analyzing that particular question.

The arbitrator is given a certain amount of discretion, if you will, in the arbitral system.

That discretion is reviewable by the Federal Circuit Court of Appeals, which is charged by statute with, if you will, enforcing the overall symmetry of the system.

Unidentified Justice: So you are suggesting that if it had been a drug case or a theft of a typewriter, then they might have come to a different result?

Charles A. Hobbie: We wouldn't be here today, Your Honor, if it had been a theft case, I am quite sure.

I believe if you look directly at the language of the award and note the circumstance of the unions participating in this procedure and asserting from the beginning that the violations of the collective bargaining agreement so tainted the evidence before the arbitrator that the union wasn't even going to put on any case, and they didn't.

They didn't even contest the misconduct.

The arbitrator, however, expressly declined to accept the union's invitation to apply some sort of exclusionary rule.

He said he would not agree with the union that this kind of technical procedural violation should result in the voiding of disciplinary action.

He specifically refused... he refused to void the discipline on the basis of minor, if you will, procedural irregularities, as the government has characterized them.

What he did do, though, was to mitigate the penalty.

He examined the discipline that had been imposed, and he said that under the circumstances, in view of the totality of the circumstances, including the incident of the previous year which is referred to in the award, where the agency had pervasively violated the agreement before, under those circumstances, mitigation of the penalty was appropriate.

Unidentified Justice: Even though nothing in this particular employee's record would deserve mitigation.

In effect, the agency is being required to take back an employee that it ought not to take back because the agency has violated procedural rights.

It made no difference in this case.

Charles A. Hobbie: The procedural rights, Your Honor... that's correct, Your Honor, but the procedural rights nevertheless are very important in this scheme, particularly when one recalls that procedures are the only thing in the federal sector that unions may bargain over.

There are certain management rights that are reserved for management exclusively, and only the procedures by which management implements that authority are negotiable.

Wages in the federal sector are not negotiable.

They are set by statute.

Most conditions of work are set by statute.

Therefore, procedures are the only thing that is negotiable.

Unidentified Justice: Well, supposing that you have six people who have done what the most serious offender of these particular two did, and the arbitrator says, well, you know, this agency hasn't just violated the procedures once.

It has violated them three or four times, and I have admonished them before.

In fact, I mitigated an award, or mitigated a discharge last year.

I don't know how I am going to bring them to... I am going to order all six of these people reinstated.

Now, do you think that is a proper decision of the arbitrator?

Charles A. Hobbie: I would say that it would be under those circumstances.

The prerogative of the arbitrator to make that kind of decision, if he is faced with an agency that so adamantly, as your example suggests, refuses to follow the contractual provisions.

Unidentified Justice: Even though the violation of the contractual provisions had no effect on the factfinding process in this particular arbitration?

Charles A. Hobbie: Your Honor, it is a subjective determination as to whether it did or did not, and the arbitrator must make that decision.

Unidentified Justice: Did the arbitrator here, in the case before us, make the determination that the violations of the procedure by the agency did have an effect on the factfinding process?

Charles A. Hobbie: Not on the factfinding process, Your Honor.

I would remind the Court, however, that these employees admitted their guilt in affidavits executed while they were being effectively denied representation by the union.

Unidentified Justice: But this remedy was imposed expressly just to vindicate the union's rights.

Charles A. Hobbie: That's correct, Your Honor.

Unidentified Justice: Nothing to do with whether these people did or didn't do what they were charged with doing, or what their desserts were.

Charles A. Hobbie: The union didn't even, in this arbitration, contest the facts of the misconduct, Your Honor, because they felt they had been so grievously prejudiced.

Unidentified Justice: Would they have contested the remedy, I suppose, would they, except for their exclusion from the sit-down process?

Charles A. Hobbie: I am sorry, Your Honor.

I am not sure I understand your question.

Unidentified Justice: Well, what was their position before the arbitrator?

Just the remedy?

Charles A. Hobbie: No, their position before the arbitrator was--

Unidentified Justice: The union's.

Charles A. Hobbie: --that there was no case, because the agency's infractions had so grievously tainted the evidence that had been obtained against the grievants that the matter could not be supported at all.

All of the evidence should be excluded, in other words.

That was the union's position, and the arbitrator did not accept that position.

He refused to void the action, and instead used the remedy of mitigating the penalties.

Returning to the question of what would be a proper remedy, I believe, that Justice O'Connor posed, it is possible to go to the Federal Labor Relations Authority and file an unfair labor practice charge.

In fact, in this case, that is exactly what the union did.

They filed a charge alleging that the agency had violated the contract.

The Federal Labor Relations Authority, which is charged with administering the labor relations statute, declined to issue a charge because it said the matter was more appropriately resolved through grievance proceedings.

Therefore, the union would be in the position of having to go back and file another grievance before a different arbitrator, involving a whole nother proceeding, additional costs for both the union and the agency, of course.

In other words, it would be a waste of the resources of the government and the union.

We would submit that in the facts of this case in particular, it is a much more economic use of resources to have one arbitrator address all of the issues that happen to be attached to a certain set of circumstances.

Unidentified Justice: Except that it deprives the employer of a right to discharge an employee that legally is dischargable.

That is the problem.

Charles A. Hobbie: Justice O'Connor, the Merit System Protection Board, however, would also have the right to mitigate a penalty based upon the consideration of all the relevant factors in the record.

The board has delineated those factors in a case, Douglas versus Veterans Administration.

They delineated factors that did not include, I will admit, violations of a collective bargaining agreement, but again, a union is not properly before the MSPB, and the board specifically stated there that these were not exclusive factors, that there could be others.

Unidentified Justice: Do you think under the law the board could have imposed this very remedy if the employee in appearing before the board had said, I am entitled to relief here because I didn't have my representative earlier in this procedure, and the entire factfinding process was tainted?

Do you think the board could have said, well, we don't agree with you at all, but you were entitled to the presence of the union, so we are going to reinstate you.

Do you think the board had that authority?

Charles A. Hobbie: The board could have done that under the... in my own opinion, Your Honor.

The board could have done that.

In fact, as I said, by judging, if you will, the appropriateness of a particular penalty, the board does that all of the time.

It says that a particular penalty is not appropriate, constitutes an abuse of discretion or an abuse of authority, based on many factors, and mitigates a penalty without using the harmful error rule.

It is important to realize here the nature of the differences between the arbitral context and the Merit Systems Protection Board, and how Congress specified in the statute arbitration and collective bargaining were to fit into the overall scheme.

Taking the latter first, in Title 7 of the Civil Service Reform Act, even the government does not dispute that collective bargaining is of primary importance, and that the intent of the statute was to promote collective bargaining.

In that scheme, arbitration was expressly the mechanism by which the procedures negotiated in collective bargaining were to be enforced.

This can easily be seen when you realize that in the previous scheme, under the executive order, Executive Order 11491, arbitration was not mandatory.

The Congress expressly departed from this past practice, if you will, by mandating arbitration in the new scheme.

They also departed from the scheme under the executive order by requiring or by permitting, I should say, that adverse actions could be aggrieved and arbitrated under the new scheme.

In the past, adverse actions had been excluded, had been excluded from the coverage of grievance procedures negotiated by the parties.

In view of the fact that the union is the one who selects an arbitrator, in fact, invokes, has the authority whether or not to invoke arbitration, and the union has the authority to negotiate the exclusion of adverse actions from the arbitral process, the union jointly with the agency selects the arbitrator, pays the arbitrator, pays the costs of the arbitration, in view of all of these circumstances expressed in the language of the Act, the Courts of Appeals have found that the union is an important party in the arbitral process, a party whose significant interests are to be protected.

The government implies in their argument that some kind of a per se rule is here involved, that any kind of violation of a collective bargaining agreement could cause an arbitrator to throw out this discipline that has been imposed.

In a later case, Devine versus Brisco, the Federal Circuit addressed this exact question, and held that there must be a demonstration by the union of prejudice to its rights, and the kind of demonstration that the Court was talking about in Brisco was exactly what occurred here, and they referred to this, the filing of an unfair labor practice charge indicating that the union in fact believed that its rights had been prejudiced to the degree that they are going to file a charge.

In the face of Brisco, I think that this argument of the government cannot really be given any credence.

Clearly, the Federal Circuit, which has been charged with the oversight of this whole arbitral process, has determined that contractual violations which are demonstrably harmful to the union have to be considered.

Unidentified Justice: In grievances brought by employees in the collective bargaining--

Charles A. Hobbie: That's correct, Your Honor, and that's a very important addition to what I said, because in fact we are talking about the integrity of the whole collective bargaining process here, and the only effective mechanism to really preserve the integrity of that process.

A very important question would be, what would be the effect of this Court's refusing to permit an arbitrator to so mitigate penalties.

We would submit that this would result in the subordination of arbitration and the statutory scheme to the point where it would virtually disappear as a mechanism.

The union, which again has the power to invoke arbitration, is hardly going to invoke it if it feels that arbitration is going to be a completely ineffectual remedy.

There would be no incentive for the union to expend its resources unless it believes that the arbitrator who has been selected by the parties is actually going to be able to effectuate a remedy that protects the union's interests.

Unidentified Justice: --When you say the union's interests, do you mean the union's interests as distinguished from the grievant's interest?

Charles A. Hobbie: Distinguished from the grievant's interest to a certain degree, Your Honor.

The union's interests--

Unidentified Justice: In the immediate case.

Charles A. Hobbie: --Yes.

The union's interests are, after all, the collective interests of the employees it represents.

We are not talking about purely institutional interests like the collection of dues and things like this, obviously.

Here we are talking about prejudice to the rights of the... the collective rights, if you will, of the members of the bargaining unit, and this would include the grievants, of course.

They are also members of the bargaining unit.

Unidentified Justice: And this individual grievant may have been denied a right, but it was found to be harmless, that it had no effect on the outcome.

Charles A. Hobbie: That is correct, Your Honor, but that interpretation of the statutory harmful error rule is the MSPB's interpretation, and we are saying that that interpretation does not necessarily relate to the arbitral process, because the union cannot be a party before the Merit System Protection Board.

Had they argued that before the board, the board might have adopted that position, but they could not have.

It would have been an impossibility.

So, what the government is alleging is merely that it is... the arbitration award is inconsistent with an interpretation of law.

The Federal Circuit and the Court of Appeals for the District of Columbia have repeatedly held in three different cases that nothing in the Civil Service Reform Act requires that the standards be applied in exactly the same way.

We would admit, and it is plain in the language of the statute, that Congress intended the standards of proof and the burdens of proof, if you will, to be uniformly applied in both parallel appeals processes, arbitration and before the Merit System Protection Board.

But the fact that Congress has chosen to impose a certain symmetry on the appeals processes to discourage, as the government has said, forum shopping, and to promote consistency in adjudications, does not mean that in every application of the statute, of the standards of proof, that arbitrations must be exactly the same as the MSPB proceedings.

In Devine versus Sutermeister in the Federal Circuit, this question was expressly addressed by the Federal Circuit, which concurred in the prior holding of the Court of Appeals for the District of Columbia Circuit.

Unidentified Justice: Well, of course, the same grievant can't be before both the board and the arbitrator at the same time, can they?

Charles A. Hobbie: That's correct, Your Honor.

Unidentified Justice: Cannot be.

Charles A. Hobbie: Cannot be.

Unidentified Justice: Once he elects the route he wants to take, he is stuck with it, and he can't go the other route ever.

Charles A. Hobbie: That's correct.

Unidentified Justice: How do you get these differences between the board and the arbitrator on the interpretation of harmful error?

Didn't you say there are differences, that the board has interpreted what is such error--

Charles A. Hobbie: The board... yes, Your Honor.

Unidentified Justice: --and that you disagree with the interpretation the board has put on it?

Charles A. Hobbie: Yes, because... I will clarify that.

I don't disagree with the interpretation that the board has put on the harmful error rule with respect to the individual grievants.

That is not the question in this case.

I think the government would concede that with respect to the individual grievants here, the arbitrator correctly applied the harmful error rule.

He refused to touch the penalty imposed because of his finding that they were not prejudiced.

Unidentified Justice: How did the board in your view improperly interpret the harmful error rule?

Charles A. Hobbie: The board, Your Honor, has not had occasion to interpret the--

Unidentified Justice: Well, then, I don't understand where the conflict--

Charles A. Hobbie: --Well, there is no conflict, we would submit, between this award--

Unidentified Justice: --What is it you disagree with that the board has done in the way of interpetation?

Charles A. Hobbie: --Your Honor, in this case, that is not an issue.

We do not disagree with what the board has said.

It is the government that is saying that because of the board's interpretation of the statute, this arbitrator's decision is inconsistent with law, because it is inconsistent with the board's interpretation.

Unidentified Justice: That you disagree with.

Charles A. Hobbie: We would disagree with that, yes.

Clearly our position is that the arbitrator correctly and could easily extend the application of this harmful error rule to protect the interests of other parties in this separate process.

Unidentified Justice: And was not required to follow the board's interpretation because the union was not party to the board's proceeding.

Charles A. Hobbie: That's correct, Your Honor, and nothing else in the statute requires that the arbitrator follow board precedent.

Nothing requires that an arbitrator follow the precedents of the Merit System Protection Board.

Unidentified Justice: Nor the other way around, I take it.

Charles A. Hobbie: Or the other way around.

That's correct.

Unidentified Justice: But I take it both are supposed to follow the applicable statutes, not ignore the applicable statutes.

Charles A. Hobbie: Of course, Your Honor, that is correct.

An arbitrator cannot make an award that is inconsistent with law, or for that matter with the precedents, the binding precedents of the Federal Circuit Court of Appeals.

Unidentified Justice: The government says the arbitrator did that in this case.

Charles A. Hobbie: The government is relying, however, on an interpretation by the Merit System Protection Board, which does not, in our opinion--

Unidentified Justice: Well, it is also relying on its own.

Charles A. Hobbie: --Yes, Your Honor, clearly.

We would submit that that interpretation is wrong.

Unidentified Justice: Yes.

Charles A. Hobbie: We are left in the private sector... we wish to emphasize this... with the arbitral mechanism to enforce the negotiated rights of the employees represented by unions, striking down the approach followed by the award at bar, which was to balance the competing interests of the agency--

Unidentified Justice: May I just ask this one question?

Other than the argument that it would duplicate proceedings, is there any reason to believe that an unfair labor practice proceeding would be an inadequate remedy for the wrong that you are vindicating here?

Charles A. Hobbie: --The Federal Labor Relations Authority in the context of an unfair labor practice complaint, could also order the remedy of reinstatement based upon violations of the statute or pervasive and repeated violations of the contract.

Of course, in this case, as you pointed out, they chose not to.

Unidentified Justice: They could also issue a cease and desist order, couldn't they?

Charles A. Hobbie: They could also issue a cease and desist order, although again the fact that the agency had previously apparently ignored an arbitrator's determination--

Unidentified Justice: Ignored an arbitrator, but that is why I wonder if the arbitrator is really the most effective tribunal for granting relief to the union.

Charles A. Hobbie: --Well, an arbitrator is supposed to be a parallel process in the context of adverse actions.

Unidentified Justice: But adverse actions between the employee and the government.

Charles A. Hobbie: In which the union, though, in the arbitral context, is a co-party, if you will, if not the most important party, as the two Courts of Appeals have found.

Unidentified Justice: What steps can the union take to ensure that this won't happen again other than filing some procedure, proceeding?

How does it ever get into the initial stages?

Who tells them about what?

Charles A. Hobbie: In the context of the grievance procedures, most contracts provide that the union must be notified, Your Honor.

Unidentified Justice: By whom?

Charles A. Hobbie: By the agency, which is the other party--

Unidentified Justice: The employer.

The employer.

Charles A. Hobbie: --The employer.

The employing agency.

That discipline is being proposed.

Unidentified Justice: And of course any employee can notify the union, can't it?

Charles A. Hobbie: Yes.

In fact, that might be an example of when a harmful error might have been corrected, and therefore would not have harmed the rights of the union.

Unidentified Justice: Who can file a grievance?

Charles A. Hobbie: The employee may file a grievance, or the union may file a grievance.

Unidentified Justice: And the employee files a grievance and doesn't even tell the union.

Is that what happened in this case?

Charles A. Hobbie: No, Your Honor.

Unidentified Justice: What happened?

Charles A. Hobbie: The grievance was filed by the employees with notice to the union.

There is no question about that.

Unidentified Justice: And then what happened?

Charles A. Hobbie: The grievance was processed through a number of steps, and at the conclusion of the two or three steps--

Unidentified Justice: And during the processing was the employee there?

Charles A. Hobbie: --Yes, the employees were there and the union was represented.

At the conclusion of those steps, the union--

Unidentified Justice: Those were meetings with supervisors up the line?

Charles A. Hobbie: --Yes, that's correct.

Unidentified Justice: And then what happened?

Charles A. Hobbie: Then the union is faced with the option of electing arbitration or not.

If it chooses not to elect arbitration, that is the end of the process.

The employee is foreclosed from going anywhere else.

He cannot then file an appeal to the Merit System Protection Board.

Unidentified Justice: Yes.

Charles A. Hobbie: If the union elects arbitration, they proceed to arbitration under the procedures negotiated by the union and the agency.

In other words, when, how, why--

Unidentified Justice: What wrong was committed against the union here?

Charles A. Hobbie: --Well, in this particular case, Your Honor, the union hypothetically, had they been present at the time of the investigation, the investigatory interviews with these officers--

Unidentified Justice: Did it file the grievance?

Charles A. Hobbie: --It did not.

Unidentified Justice: Did the employee file the grievance?

Charles A. Hobbie: The employees filed the grievance.

Unidentified Justice: In this case.

Charles A. Hobbie: In this case.

Unidentified Justice: This particular case.

And never notified the union?

Charles A. Hobbie: No, the employees did notify the union, Your Honor.

That is not a problem in this case.

What is a problem is that the union was unaware at first of the investigation, and the employees were never afforded the opportunity to have the union present during the investigation and at the time they executed these admissions of guilt.

Unidentified Justice: Isn't there some indication in the record that the employees knew of their right to have the union present, and just didn't either feel it worthwhile or didn't bother to call the union people?

Charles A. Hobbie: The arbitrator did not indicate that they knew of the right to have the union present.

He merely said that because they were police officers, in the execution of these all-important admissions of guilt, they were aware of their right not to do this.

That is correct, Your Honor.

My time has expired.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Rothfeld?

ORAL ARGUMENT OF CHARLES A. ROTHFELD, ESQ., PRO HAC VICE

Charles A. Rothfeld: A few quick points, Your Honor.

First, while it is true the Merit System Protection Board may mitigate an employee's penalty, it does so based on an analysis of the employee's situation to make the remedy fit the offense.

It does not in any event consider the harmless procedural error in deciding whether mitigation is appropriate.

There is no reason to believe that the board would ever take a union's institutional rights into account, because the board's own regulation defines harmful error as error that affects or might have affected the outcome of the case.

It follows from that we are not arguing that the arbitrator here abused his discretion, or that the arbitrator was wrong because he departed from the board's interpretation of the harmful error rule.

The arbitrator was incorrect because he departed from the statutory standard that Congress laid down to control in a parallel way both the decisions of the board and the decisions of arbitrators.

Unidentified Justice: Mr. Rothfeld, I think your colleague just said that if the employee goes all through the grievance procedure with the union, up to the last supervisor, and that the union does not elect to go arbitration, the employee is finished.

He can't go either to the board or to the arbitrator.

Is that right?

Charles A. Rothfeld: I think that is true, Your Honor.

The statute gives the employee the option of filing either a grievance through the negotiated procedure or with the Merit Systems Protection Board.

Unidentified Justice: You mean, at the very first, at the initial step.

Is that it?

Charles A. Rothfeld: At the initial step, but of course the union is obligated by its duty of fair representation to safeguard the employee's rights--

Unidentified Justice: It may be that the employee then may never want a union through those initial steps.

Charles A. Rothfeld: --That is true, Your Honor, and an employee who doesn't wish representation by a union may go through the Merit Systems Protection Board and obtain the... or should be able to--

Unidentified Justice: But if he takes union help through the initial steps, then he is stuck with it.

He can't go to the board.

He has to go the collective bargaining route.

Is that it?

Charles A. Rothfeld: --If he elects to follow the negotiated procedure, that is his choice, and once he has done that, that is it.

Unidentified Justice: I see.

Well, now, I don't... suppose he has union help through the early stages of the grievance procedure, and then the question is... from there on it is either to the board or to arbitration.

Do you mean, if he has had union help in the initial phases, he has got to go to arbitration as a further remedy if the union will let him?

Is that it?

He cannot go to the board at all.

Charles A. Rothfeld: I believe that is correct, Justice White.

The statute gives him an option of electing to go one way or the other.

Unidentified Justice: I would think there would be a lot of employees that wouldn't want the union.

Charles A. Rothfeld: I think that is true, Your Honor.

At least the figures available from the GSA indicate that many employees elect to go through the board and not through the negotiated grievance procedure.

Unidentified Justice: Well, they can't if they have had a union.

Charles A. Rothfeld: They can go to the board if they have not yet elected to use the grievance procedure.

There is no obligation that they do so.

Unidentified Justice: Oh, I see.

Even though the grievance procedure is available to them because they are union members at the beginning, they can elect to go to the board.

Charles A. Rothfeld: That is right, Justice Rehnquist.

Congress explicitly gave employees a choice, one or the other.

And to answer one of your questions, Chief Justice Burger, there is no indication in the opinion of the Court of Appeals or the arbitrator that the type of crime or violation committed by the employees should make any difference in the remedy that is provided, because it is not the employee's situation which is being considered by the arbitrator.

It is the violation of the union's institutional rights.

And in either case, no matter what the employee did, that violation presumably is the same.

I think two quick final points.

There certainly is no reason to believe that arbitration will be made meaningless in any sense if inconsequential procedural errors cannot lead to the overturning of adverse agency action.

Any important violation would be remedied in precisely the same way that it would be remedied before the board.

In fact, coming to any other conclusion would be entirely inconsistent with the Congressional emphasis on avoiding forum shopping.

It seems undeniable that forum shopping will occur if the arbitrators are permitted to take into account the violations that the board, by statute and by its regulations, cannot take into account.

Finally, one final point, it is true that there are a variety of management rights that are not negotiable with unions.

One of the things which the federal circuit has also found is not negotiable is the harmful error rule.

A union and an agency cannot agree to dispense with the harmful error rule because Congress believed it was so important that unfit federal employees not be retained on the federal work force because of inconsequential procedural mistakes.

If there are no further questions, Your Honor.

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

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.

Featured:

Cleveland Board of Education v. Loudermill - Oral Argument

Fri, 31 Aug 2012 18:29:06 +0000

Case:

Cleveland Board of Education v. Loudermill

Media File:

83-1362_19841203-argument

Related Transcript:

83-1362_19841203-argument

Transcript:

ORAL ARGUMENT OF JAMES G. WYMAN, ESQ., ON BEHALF OF THE PETITIONERS IN NOS. 83-1362 and 83-1363 AND THE RESPONDENTS IN NO. 83-6392

Chief Justice Warren E. Burger: We will hear arguments first this morning in Cleveland Board of Education against Loudermill.

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

James G. Wyman: Mr. Chief Justice, and may it please the Court, the issue presented by the cases at bar today is whether or not the due process clause of the Fourteenth Amendment required the Cleveland Board of Education and the Parma Board of Education to grant respondents a hearing before they were terminated from their employment.

It is the petitioners' position that the precedents of this Court do not require a pretermination hearing, and further, that the Ohio Revised Code, Section 124.34, comports with the due process clause and adequately protected the respondents' rights.

Mr. Loudermill was a security guard for the Cleveland Board of Education.

In order to get that job, he filled out an application form.

On that form, he was asked if he had ever been found guilty of any felony.

He answered he had not.

He further attested at the end of that application that the answers he gave were not only truthful but accurate.

A routine check of his record was done by the Cleveland Board of Education.

He was found to have had a previous felony conviction, that of grand larceny, and he was terminated.

Unidentified Justice: How long after his appointment was that discovery made?

James G. Wyman: After his appointment it was approximately eleven months, Your Honor.

What had happened in that case is, we had originally hired on a number of security people during the institution of our desegregation case.

We thereafter reorganized our organization and as a part of the reorganization we went through routine checks for a newly created safety and security department.

Unidentified Justice: I gather his service was satisfactory during the eleven months before discovery?

James G. Wyman: There were no known reasons or any incidents that had happened with Mr. Loudermill.

That is correct.

But the Cleveland Board of Education, upon finding out of his criminal past, did in fact release him.

Mr. Donnelly was a mechanic for the Parma Board of Education.

He was required as a part of that job to have an annual eye examination.

He took and failed that eye examination.

He was given the opportunity to retake that exam.

He declined to do so, and he, too, was fired.

The most recent decisions--

Unidentified Justice: How long had he been working before his discharge?

James G. Wyman: --I am not sure of the actual length of employment.

He had been working for not a considerable length of time, but more than two or three years he had been employed.

Unidentified Justice: And his service, too, had been satisfactory?

James G. Wyman: As far as I know, yes, that is true.

The most recent decisions of this Court have consistently held that in analyzing the requirements of due process vis-a-vis the termination of an employee who has a protected property interest, the Court will take a case-by-case approach based upon the facts of each case, and further, that the timing and the nature of the required due process hearing depend upon an appropriate accommodation of competing interests.

Those interests include the private interest of the employee.

They include the timing or the length of deprivation, the risk of error that is involved, and the governmental entity's interest.

It is petitioners' argument that in weighing and in balancing these particular factors, the Court should determine that the governmental interest outweighs that of the individual employees in this case.

The private interest of the individual in this case would be his right to continued employment and the possible interruption of his income.

The length of loss in these cases turns out to be exactly ten months.

Throughout the administrative procedure, it took ten months for a resolution of the status as to whether or not they had been rightfully or wrongfully terminated--

Unidentified Justice: So there was as posttermination hearing?

James G. Wyman: --Oh, absolutely, Your Honor.

Unidentified Justice: And that went on for ten months in the case of Loudermill?

James G. Wyman: That's correct.

And at the end of that ten-month period, the administrative agency determined that he had... Mr. Loudermill had in fact been dishonest, and there was no appeal taken from that decision, so as it stands, and as of the time of the filing of the complaint in this case, Mr. Loudermill had been adjudicated to have been dishonest.

Unidentified Justice: Well, now, Mr. Donnelly was reinstated, I take it.

James G. Wyman: That's correct.

Mr. Donnelly was... his decision was modified by the Parma Civil Service Commission to a suspension for the time of period... length of time that he was off, and he was reinstated, however, to his employment, so he did get his job back.

Unidentified Justice: Mr. Wyman, may I inquire, what are the possible remedies for a wrongfully discharged employee in your jurisdiction?

Do they have a right of reinstatement if the discharge was erroneous?

James G. Wyman: Absolutely.

Under Ohio Revised Code 124.34 they have the right to a full, prompt de novo hearing where they are entitled to--

Unidentified Justice: Not the procedural remedies, the substantive remedies available are reinstatement... how about damages?

James G. Wyman: --They are entitled to reinstatement, and if the discharge was found to be wrong, reinstatement and back pay.

The Civil Service Commissions, however, also have the right to affirm whatever decision the governmental entity made, or it can modify.

The modification may take the form of denying back wages, or it may take the form of modifying the length of time of any suspension that might be involved.

Unidentified Justice: With regard to the procedural remedies available to such an employee, you rely on this Court's decisions in Arnett and in Matthews, and in those cases the Court upheld postdeprivation hearings for employees where there was an opportunity to respond before the discharge.

Was there an opportunity to respond given here?

And is that part of the scheme in place in your jurisdiction?

James G. Wyman: There is no statutorily provided scheme for response.

In both cases there was a time period within which a response could have been granted.

Unidentified Justice: Would you state that again?

James G. Wyman: There is no statutorily outlined scheme for requiring or allowing some pretermination process.

Unidentified Justice: Then you said but?

James G. Wyman: But the facts in the instant case reflect that there was a time period during which both Mr. Donnelly or Mr. Loudermill may have responded should they have desired to do so.

Unidentified Justice: You mean you told them you were about to fire them, and then there was some time?

James G. Wyman: There was a letter sent out in the Loudermill case to the employee, and his discharge was not confirmed by the board of education until November 13th, ten days later.

Unidentified Justice: But nothing in that letter told him that he could explain or respond or whatever?

James G. Wyman: That's correct, and it's the position of the petitioners that there would have been no purpose to any additional pretermination hearing or process.

The factual basis upon which the boards of education made their determination was objective criteria.

In Mr. Loudermill's case, we had two documents in front of us.

We had a court record which reflected his felony conviction, and we had his application, which reflected his attestation to not only the honesty but the accuracy of the information.

Unidentified Justice: What do you do, Mr. Wyman, with what we said in Davis and Scherer last time, that decisions of this Court by 1978 had required some kind of hearing prior to discharge of an employee who had a constitutionally protected property interest in his employment?

James G. Wyman: It is the petitioners' position that--

Unidentified Justice: But he didn't get any kind of hearing.

James G. Wyman: --He got no kind of hearing, and for the sake of the argument before this Court, because of the status of the pleadings, the way this case has developed up, that has to be taken as true.

It is our position that there must be... a fair reading of the cases indicates there must be a hearing provided before an employee is finally deprived of his rights.

And in this case Mr. Donnelly was never finally deprived of his right to employment, because in fact he was reinstated, and in Mr. Loudermill's case he was finally deprived at the end of the posthearing process.

Unidentified Justice: Mr. Wyman, do you think that our cases indicate there has to be an opportunity to respond?

James G. Wyman: There are cases that do in fact indicate that there should be an opportunity to respond.

It is our position that in this case, or under the facts of this case, the response would have served no purpose, and I would turn to basically the Dixon versus Love type of analogy where the only thing that they could have said was, I didn't mean to do it, or I didn't know that it was a felony.

There was no additional--

Unidentified Justice: He also said he didn't do it at all, and he wasn't there.

James G. Wyman: --He could say that.

Unidentified Justice: And he wasn't in court.

Didn't he?

It is true that he could say that, but we had before--

--Couldn't that have been true?

James G. Wyman: We believe that the reliability of the objective evidence was such that we had a right--

Unidentified Justice: I thought you said all you had was the conviction.

James G. Wyman: --We had a court record of the conviction and his application.

Unidentified Justice: How do you know it is the same man?

James G. Wyman: Because we have an employee number.

We have a number of internal processes that would identify who we had.

Unidentified Justice: Like what?

James G. Wyman: We have an employee number.

We have a social security number which identifies the employee, which also would be on his... it would be on his application form, obviously, and we would have identified the person that was involved with the name and also checked it out to make sure that it was in fact the person we were talking about.

We would not act arbitrarily.

When we terminate someone, we do not just terminate them at a whim.

We make sure there is a reason.

Unidentified Justice: Did you ever ask him if he was the same person?

James G. Wyman: I cannot honestly answer that, Your Honor.

Unidentified Justice: Doesn't he admit that he is the same person, and that it was a misdemeanor and not a felony?

James G. Wyman: Under the facts of this case, certainly.

It is in fact admitted that Mr. Loudermill was the person who was convicted of the grand theft felony previously, but again, the important thing, I think, for this Court to realize is that we are talking about the boards' use, both Parma and Cleveland boards' use of objective criteria.

We are not using subjective criteria, where the possibility is that we might have made some sort of error, even though again I admit that certainly even with objective criteria there may be an error somewhere in that process.

Unidentified Justice: In Donnelly's case, the ultimate disposition was changed from discharge to suspension.

James G. Wyman: That's correct.

Unidentified Justice: What was the basis on which the Civil Service Commission made that change?

James G. Wyman: I don't know what the basis of the Civil Service Commission's decision was, because the Parma Civil Service Commission is not a party in any of the cases before the Court.

I do understand, though, that it may have been a compromise type of position where they gave him back his job but also failed to grant him the back pay as a half a loaf type of situation.

Unidentified Justice: And he accepted that.

James G. Wyman: Apparently he accepted that, although he has... he went through a process, a court process to try to win back his back pay.

Unidentified Justice: Is Donnelly a party to this litigation?

James G. Wyman: Donnelly is, yes, but the post-termination delay issue which is involved in Loudermill is not involved in, I don't believe, the Parma case.

Unidentified Justice: Well, in Donnelly's case it may be that if you had given him an opportunity to respond, he never would have been suspended, or laid off.

James G. Wyman: It is the Parma Board of Education's position that they did give him that opportunity.

They gave him a chance to retake the eye examination, and said, here, take it again.

Before we do anything take the exam again.

Maybe there was an erroneous medical determination.

Maybe there is something else that can happen.

Unidentified Justice: There was a communication back and forth in Donnelly's case?

James G. Wyman: There was at least a communication to him and an apparent refusal to take that second eye examination.

What Mr. Donnelly's thinking was as to why--

Unidentified Justice: Well, I know, but couldn't at that stage the same reason have been... couldn't the same reason have emerged to keep him on that later reemployed him?

James G. Wyman: --I can't answer that, because I don't know what went on in the minds of those in the Civil Service, other than the fact that--

Unidentified Justice: Is it your position... suppose that it was perfectly plain that there was quite a large risk of error in this case.

James G. Wyman: --Okay.

Unidentified Justice: Is it the board's position that nevertheless a pretermination hearing need not be given?

Is it your position that a post-termination hearing always is enough?

James G. Wyman: You are placing me in your position.

My thought would be that the greater the risk of error, obviously, the more useful the pretermination process.

Unidentified Justice: Well, however, you don't suggest that we redo the Arnett case?

James G. Wyman: It would be our position from the board of educations--

Unidentified Justice: You would like us to.

James G. Wyman: --that we would like you to, yes.

We realize, obviously, that there are some constraints to that, and with the definition of due process.

Another important point is that the cases of this Court that have come down that dealt with pretermination hearings dealt also with situations where there was a permanency of the effect of the discharge or the effect of the taking of a property right.

We do not have that type of permanency in this case.

When we are talking about the deprivation here, we are talking about, assuming we are wrong, which we do not concede, obviously, we are talking about the fact that it is a temporary loss of employment, a temporary loss of wages which, if we are found to have been wrong, he may be reinstated, and he may be entitled to his back pay.

He can be made whole entirely.

The other cases of this Court which dealt with and, of course, which there is a valid and obvious concern, is when you have a deprivation such as the taking of someone's benefits that might in fact leave them poverty stricken and they would be unable to survive.

We are not talking about that type of situation.

Unidentified Justice: What about this eye examination?

Is it your position that when this man was offered a chance to have a second eye examination, that that met any requirements of due process?

James G. Wyman: We... the Parma Board of Education would certainly argue that, yes.

And those facts, I believe, are in the record, in the pleadings in the complaint.

Unidentified Justice: Mr. Wyman--

James G. Wyman: Yes, sir?

Unidentified Justice: --When was the offer for a second eye examination made?

Was it before or after the notice of discharge?

James G. Wyman: It was before, Your Honor.

Their offer was made before he was discharged to take a second eye examination.

He refused to do so, and he was thereafter discharged.

Unidentified Justice: It was at your client's expense?

James G. Wyman: I believe so.

I believe it is.

It is a benefit that the Parma Board of Education... it is not only a benefit, but it is a safety factor that is involved with the boards of education, and they provide those examinations for their employees.

Unidentified Justice: Including the reexamination.

James G. Wyman: Yes.

Unidentified Justice: You assumed the reexamination?

James G. Wyman: Yes.

Yes.

Unidentified Justice: May I just ask, on the notice of the second... the right to take a second exam, he alleges, as I remember, that there was another employee who had failed the exam and was still working there.

Is it clear that he knew that flunking the eye exam would cause his discharge?

James G. Wyman: It is clear that he knew that flunking the eye exam would cause his discharge.

The other gentleman, it was part of a labor negotiation, and had a grandfather status, and has not in fact doing mechanical type chores as Mr. Donnelly was performing.

Mr. Donnelly's position directly related... it is our position that his position directly related to the safety of the children involved.

We are talking about both Mr. Loudermill and Mr. Donnelly dealing in very sensitive areas.

We have Mr. Loudermill being a security guard, and charged in the Cleveland Board of Education with millions of dollars worth of real estate, and also millions of dollars worth of assets, computers, educational materials, and to find that we have a person who is an ex-felon as our security guard is very distressful to us.

We need, and I believe this Court should find, the right to immediately discharge an employee who, pursuant to some objective criteria, in this case again a court order, is found to have... to pose a risk, a potential threat to the system.

We have to be able to immediately act on that.

It affects not only the efficiency of our operation and the discipline of our employees, as the Sixth Circuit said, but with boards of education it affects the safety--

Unidentified Justice: Mr. Wyman, why wouldn't the boards' interest be adequately served by immediate suspension and an opportunity to make a response in 24 hours, or something like that?

What harm would that be?

James G. Wyman: --An immediate suspension itself would kick in the same thing.

It becomes a semantic game.

Whether you call it a suspension pending termination or whether you call it termination, under the Ohio Revised Code the same due process rights are afforded, and I believe under the dictates of this Court the same due process rights would be required.

The question would be whether or not there should be a pretermination before the suspension.

Unidentified Justice: But you would agree that there would be no prejudice to the board if there were an immediate suspension followed by an option to respond before the suspension ripened into a discharge.

James G. Wyman: I would think that that would be a possible resolution, although it may in fact still be burdensome upon the employer, the boards of education.

Unidentified Justice: I suppose it doesn't make a lot of difference to Mr. Loudermill whether he is suspended without pay and then granted a hearing and ultimately discharged after the hearing or whether he is discharged and given a hearing after that.

If he doesn't get back pay during the time of suspension, it is six of one and half a dozen of the other.

James G. Wyman: That's correct.

That's our position.

I mean, technically we could have suspended him without pay, given him the hearings that are required under Ohio Revised Code 124.34, and called them pretermination hearings.

And by playing that type of game we could have avoided a pretermination hearing issue.

Unidentified Justice: What remedy did the Court of Appeals think Loudermill was going to get?

James G. Wyman: Did the Court of Appeals... we are unsure.

I am unsure.

Unidentified Justice: It certainly didn't--

James G. Wyman: The court was unaware of what it could do.

I mean, we were... when we went back to District Court--

Unidentified Justice: --Under the decision, all he was deprived of is a procedural due process.

James G. Wyman: --That's correct, and that was the only issue left, and the question would have been--

Unidentified Justice: So under our cases, what remedy would there be?

A peppercorn, or a penny, or something?

James G. Wyman: --Probably.

The time length in this case would have been a short time period, and again, substantively his employment has been properly terminated, the collateral estoppel argument in regards to a substantive issue of employment.

Unidentified Justice: Aren't there two aspects to his answer?

First, the objective, uncontested objective fact that he was guilty of a felony, and the second one is that he, as he claims, misrepresented this because of a misunderstanding.

Now, is the state concerned with the existence of a felony conviction, or concerned that he got confused about it?

Which is the basis of the firing?

James G. Wyman: We are concerned that he got confused about it.

I think that that adds a little bit of fuel to the fire.

While the felony itself might raise some concerns, to find that he had misrepresented that, the felony was relatively old, but the misrepresentation was relatively new.

And if we are dealing with someone who we can't trust in regards to an application, how can we trust him again, not only with the assets, but the security guards deal with the safety of the children.

They deal with part of the educational processes.

They are part of the providers.

That is the difference in these cases, that we are dealing with boards of education.

The interests of not only the governmental entity but those to whom it serves merge.

We are serving pupils.

Education is our business.

And we have to get on with the business of that.

We don't... the Civil Service Commissions are totally independent bodies, and once the process kicks into the Civil Service Commission, the board of education has very little to do with it.

Under the Ohio Revised Code, promptly afterwards, within ten days he has the right to file an appeal, and it kicks out and is handled by Civil Service.

It is not handled by boards of education.

Their employees, their time is not spent in that process.

Unidentified Justice: May I ask you about the promptness of the postdeprivation hearing?

The law says that it will be granted within 30 days, does it not?

James G. Wyman: That's correct.

Unidentified Justice: But Ohio courts have said that is not mandatory.

James G. Wyman: That's correct, they've said that--

Unidentified Justice: And in this instance it took nine months for a decision.

James G. Wyman: --For a decision.

Now, we are talking two different issues, Your Honor.

For the initial hearing, it took two and a half months, and it is interesting to note also--

Unidentified Justice: And the Ohio court simply says that the statutory requirement of 30 days is not binding.

James G. Wyman: --That's correct.

The courts, the Ohio courts have held that it is not binding because of the tremendous volume--

Unidentified Justice: What would assure a prompt postdeprivation hearing under Ohio's scheme then?

James G. Wyman: --The assurance is--

Unidentified Justice: Even if you are right.

James G. Wyman: --Well, our position is that there was in fact a prompt post-termination hearing in this case.

There is no question he had a hearing within the two and a half months.

Although that might be lengthy to some, in the scheme of the volume, tremendous volume of cases that are heard by that commission, which is well over... in the thousands, that is not particularly a lengthy time.

It is also interesting to note that during that two and a half months you had Thanksgiving, you had Christmas, and you had New Years'.

Unidentified Justice: Why are there so many cases in Ohio?

Are you firing everybody out there?

James G. Wyman: We have a lot of public employees, Your Honor.

Unidentified Justice: May I just ask one other question?

If he had had a pretermination opportunity to respond, would the response perhaps have been considered by the school board instead of the Civil Service?

James G. Wyman: Yes.

Unidentified Justice: Would it possibly have been a different decisionmaker?

James G. Wyman: We would submit that it would not have.

Part of my argument was the fact that the only thing he could say was, I didn't... I was ignorant of the law.

His ignorance of the law did not go to the merits of the decision.

Basically it would be a Dixon versus Love type of situation.

He would be begging for clemency as opposed to challenging the factual basis for the determination.

Unidentified Justice: Isn't that perhaps a relevant point, that maybe there would have been room for clemency immediately before the board, but it wouldn't be a legally sufficient basis for objecting before the Civil Service Commission?

Isn't there a possibility of a different disposition, depending on the timing?

James G. Wyman: From the board of educations' point of view, no.

Thank you.

Chief Justice Warren E. Burger: Mr. Fertel.

ORAL ARGUMENT OF ROBERT M. FERTEL, ESQ., ON BEHALF OF THE RESPONDENTS IN NOS. 83-1362 and 83-1363 AND THE PETITIONER IN NO. 83-6392

Robert M. Fertel: Thank you.

Mr. Chief Justice, and may it please the Court, I think this Court's recent decision in Davis versus Scherer makes clear that the issues in this case are not whether some pretermination procedures are to be required before termination of a discharged employee, but what procedures are to be required.

And I think in Note 10 of the case the Court says that we have to consider the factors in Matthews versus Eldridqe, and the first factor in Matthews versus Eldridge is the private interest involved, and this Court in Logan versus Zimmerman held that there is a substantial interest in the continued government employment.

We are also dealing with 16 million governmental employees, federal, state, and local, and when you are dealing with the dependents of such employees, you are possibly dealing with one-fifth to one-fourth of the population of the United States, so the right to continue governmental employment is clearly a substantial interest.

The second factor is the risk of wrongful deprivation, and whether the use of additional procedures would lessen such risk.

First of all, under Ohio law, there is no procedure whatsoever to guarantee pretermination procedures.

It is like a knockout punch.

You get a letter that says you are going to be terminated, and you have to get up off your feet and file an appeal within ten days.

A lot of times you are without counsel.

And you just get this letter and they say, you are hereby being terminated.

In the Loudermill case, he received the letter dated November 3rd saying that he was going to be terminated.

Then the board of education on November 13th rubber stamped it, confirmed it.

But all the letter said was, you are here being terminated.

In the Donnelly case--

Unidentified Justice: What is the time allowed for answer, say, under the Federal Rules of Civil Procedure to answer a complaint?

Robert M. Fertel: --Twenty days.

Unidentified Justice: Twenty days.

Do you think there is a constitutional difference between 20 days and 10 days?

Robert M. Fertel: Yes, sir, especially in the fact situation where there is no pretermination procedure.

All of a sudden you just get a letter.

There are no warnings without any pretermination standard to be considered.

One day you get a letter.

Unidentified Justice: Well, it seems to me your argument defeats itself, because if there are no pretermination procedures, then any amount of notice or no notice at all is really satisfactory, because there is nothing to be done.

Robert M. Fertel: Well, that is our position, that you need some... there has to be pretermination procedures.

Unidentified Justice: Then the amount of days that go by between the notice and the action isn't really relevant, is it?

You are saying that presumably he could have gotten this letter and six months could have gone by before the board acted, and yet if the board hadn't specified that there were pretermination procedures, your argument would be the same, wouldn't it?

Robert M. Fertel: No, Your Honor.

It is just the effect of it, to show how the system lacks due process, the fact that--

Unidentified Justice: Let's boil your argument down a little.

Supposing that he received exactly this letter that he did receive, but instead of the school board acting in ten days it acted in six months.

Wouldn't your argument be pretty much the same, that they didn't specify any pretermination procedures?

Robert M. Fertel: --Right.

We would say that without the pretermination, he is denied due process, whether it is ten days or whatever.

Unidentified Justice: So what difference does the amount of time between the notice and the action of the school board make to your argument?

Robert M. Fertel: It isn't.

There is no... the point being that I am just saying the inadequacy of the state procedure is that there is no pretermination procedures whatsoever, and all of a sudden you get a letter for termination, and then you have to react in ten days by filing an appeal.

There is no guarantee in Ohio of either a pretermination procedure or any prompt termination procedure.

Unidentified Justice: When did this explanation that he was confused between a felony conviction and a misdemeanor conviction first appear?

Robert M. Fertel: It first appeared at the time of the hearing, before the referred at the Civil Service Commission, where he testified that he thought he was convicted of a misdemeanor, and when he saw the application, it said were you ever--

Unidentified Justice: What was the conduct?

Is that shown by the record?

What was the conduct for which he was convicted?

Robert M. Fertel: --It was a grand theft conviction approximately eleven years prior to the filling out of the application, and there are administrative code sections in Ohio saying that more than two years is insufficient.

You can't... somebody can't be terminated for a felony conviction prior... for two years prior to the date of the termination.

Unidentified Justice: You contend this termination was in violation of that section of Ohio law?

Robert M. Fertel: It was a violation, plus the fact that his defense was that he thought he was convicted of a misdemeanor and not a felony.

Unidentified Justice: What if the school board's approach was, we are not so worried about the felony, we are worried you lied about the felony?

Robert M. Fertel: Well, that is the whole issue of the case.

It is whether or not he was dishonest.

He was not terminated for the felony conviction.

He was terminated for being dishonest, and there is a factual question whether or not he was dishonest at the hearing.

Unidentified Justice: Well, so then the school board's action doesn't violate Ohio law.

The two-year section that you mention, if they are terminating for dishonesty rather than for a conviction of a felony.

Robert M. Fertel: Right, but then you have to have an opportunity to explain the reason it is a factual conviction.

Just because they have the order of conviction, there is still a fact issue in this case whether or not he believed that he was convicted of a felony or whether he thought he was convicted of a misdemeanor.

Unidentified Justice: What if the school board had followed the action which Mr. Wyman, your opponent, was quizzed about, if they had simply, when this information came to their attention, they had suspended him without pay, and he had then gotten a hearing in the same manner that he did, and the hearing board, the Civil Service Commission says, well, we are converting your suspension into a discharge?

He had an opportunity to testify and all that before the Civil Service Commission.

Would that have comported with due process?

Robert M. Fertel: No.

First of all, he didn't have an opportunity for two and a half months, and then the referee didn't file his report for another two and a half months, and then by the time the Civil Service Commission made its "hearing", even though there were no... it was just arguments of counsel in July for nine months until the... by the time he got his letter of termination until his actual resolution, and that is one of the issues we raise.

That is a delay issue, that there wasn't a prompt hearing, that you are entitled to a prompt hearing.

Unidentified Justice: Well, supposing then that there had been a suspension without pay followed by a hearing which would meet your definition of a prompt hearing, and the Civil Service Commission then said, we convert the suspension into a discharge.

Would that have comported with due process?

Robert M. Fertel: Well, I think first of all you have to have a hearing in front of the... I think it is an opportunity to respond to the school board.

I think not only is there a question of whether or not the facts, I think there is a question of the appropriate sanctions, and I think it could have made the opportunity--

Unidentified Justice: Well, but you are saying in effect that Ohio can't channel all of these Civil Service questions to the Civil Service Commission.

You are saying that initially it has to be a hearing before the employer who is taking action rather than the Civil Service Commission.

Robert M. Fertel: --I think it has to be a decision... prior to termination, he has to have a hearing in front of an impartial decision-maker, and then appeal, because I think you have different standards when you go to an appeal, because first of all the decision is already made.

There is a different standard.

You have to show abuse of discretion before maybe the Civil Service Commission will change.

But if, let us say, the employer, especially with the fact that it is eleven years between the time of the conviction and the time he filed his application, and there is nothing in the record to show that he was--

Unidentified Justice: So if Ohio wants to channel these personnel matters to the Civil Service Commission, then the Civil Service Commission would have to make the initial suspension decision.

Robert M. Fertel: --No, I say the school board would have to make the initial suspension.

Unidentified Justice: Supposing Ohio says, we want all these personnel matters to be considered by a uniform body in the jurisdiction, to wit, the Civil Service Commission.

Nobody car be suspended or discharged except by the Civil Service Commission.

Now, then would you say it is all right if the Civil Service Commission made both the decision to suspend and the decision to discharge?

Robert M. Fertel: Well, it was the impartial decision-maker, because it should be made... the initial termination decision should be made by an impartial decision-maker.

Unidentified Justice: Do you contend the Civil Service Commission in your case was not an impartial decision-maker?

Robert M. Fertel: The Civil Service is an impartial decision-maker, but you are dealing within the appeal, right, instead of the initial decision.

I think that would have the employer then... had he had the opportunity to respond to the employer, he could have said, well, there could have been maybe only suspension or maybe no action at all, saying it was eleven years prior.

He says I did think I was convicted of a misdemeanor.

My service record is clean.

I have been employed for eleven months and nothing has happened.

You know, Mr. Wyman kept saying there was a big risk, a big risk.

In eleven months, there was no... there was nothing, no incidents.

Unidentified Justice: Loudermill... excuse me.

Loudermill's claim is that he thought he was convicted of a misdemeanor.

Does the record show whether he actually served time?

Robert M. Fertel: I believe he was sentenced to six months in the workhouse and fined.

Unidentified Justice: Did he actually serve for six months?

Robert M. Fertel: I believe they were suspended.

I don't think he actually served them.

Unidentified Justice: Suspended for all of it?

Robert M. Fertel: Right.

Also, I would like to say that you have to have a prompt, full hearing prior to termination.

I think first of all you have the awesome power of the government going against the individual, who is a lot of times not represented by counsel.

I think the procedure now in Ohio where you file an appeal and have a hearing and go through the courts, you've got the awesome power of the government, who has all their attorneys, against the individual.

You have an employer who is all of a sudden... who has geared his lifestyle to a certain income, who all of a sudden has lost wages.

We are not just dealing with monetary damage.

We are dealing with emotional damages.

Unidentified Justice: Mr. Fertel, in both Arnett and in Mathews, this Court found no due process violation, despite the evidence that at least some of the hearings weren't completed for more than a year after the deprivation occurred.

How do you distinguish those cases then in making you argument about a prompt hearing?

Robert M. Fertel: In Mathews versus Eldridge it was a... the question was liability.

First of all, the issue in Mathews versus Eldridge was not whether a hearing was required, but whether a prior evidentiary hearing was required.

There was no issue of pretermination procedures.

Number Two, in Mathews versus Eldridge, the question was... basically the Court said it was a straightforward medical determination.

It was just whether or not the person... all those... it was by a medical doctor's medical reports, so basically it was a straightforward medical determination.

In this it was dealing with a fact standing, whether or not there were certain facts.

Also, in Donnelly's case, it wasn't just a medical determination.

There was a question of whether or not a prior employee, who also could not pass the eye test, was still employed, and that was a defense which was raised in front of the Civil Service Commission, that another employee who also could not pass the test, that plus the reasonableness, because he was a bus mechanic, he was not a bus driver, and the reasonableness of why a bus mechanic would have to pass the eye test was also raised, so those were the two issues.

Also, in Arnett versus Kennedy, they talked about... I think the hearings was three months, the... proceedings was three months, but I think in the fact in this case it was nine months before the termination and the actual notice, and I think you have... first of all, you have a question... you have the great emotional damage to the employee.

He is without wages.

Loss of self-esteem.

In these cases, you go with the awesome power of the government.

You have a hearing in front of the Civil Service Commission.

You take ten or eleven months to go through the administrative procedures, and you have to file it through the courts.

It could be another two or three years with the courts.

And then you also have problems with future employees.

A future employer, you have to train somebody, you have to train another employee.

Unidentified Justice: May I ask, Mr. Fertel, what remedy do you think your clients are entitled to at the end of the road, and what do you think the issues would be at trial?

I have in mind the Mount Healthy problem, that say they proved they would have fired him anyway, even if--

Robert M. Fertel: Well, first of all, you can't tell whether they would fire somebody, you know.

It is after the fact.

Had they come up to Mr. Loudermill and stated, well, you were convicted eleven months, and he said, well, I didn't know, plus, the only... the only adjudicated--

Unidentified Justice: --What if he had a trial and the federal judge or the jury decided, well, we don't believe his story, just as apparently the Civil Service Commission did?

Robert M. Fertel: --First of all, he was convicted of dishonesty, so he would have to have an opportunity to... you know, it is just... you know, it is after the fact.

First of all, it was eleven... the conviction was eleven years previous.

There was nothing on his record.

Unidentified Justice: I understand, but supposing at this trial that you seek to have now the determination is that, well, we analyze the facts exactly like the Civil Service Board did, that he was in fact dishonest.

Then what... would you be entitled to any remedy then?

Robert M. Fertel: I think you would be entitled to damages for denial of due process.

First of all, there was a full hearing in front of a referee.

The referee determined that Mr. Loudermill was credible, and recommended that he be reinstated without back pay.

The Civil Service Commission never held a hearing.

It just made a determination without holding a hearing, so the only really adjudicated facts you have in this case was that Mr. Loudermill was credible, and that he was... that he honestly believed that he was convicted of a misdemeanor.

So, on the record of this case, the only determination made after a full factual hearing was by the referee, who stated that he believed that Mr. Loudermill was sincere in knowing that he was convicted of a misdemeanor instead of a felony.

Unidentified Justice: Did you make the point that bad eyesight is not important for a mechanic, but only for a driver?

Robert M. Fertel: Yes, Your Honor, I raised that issue in front of the Civil Service Commission.

Unidentified Justice: Do you think that would be true of airplane mechanics as well as automobile mechanics?

Robert M. Fertel: The rationale they gave was that sometimes there is bad weather and they need substitute drivers, and therefore they should have... that sometimes they supposedly would have bus mechanics drive buses, and so I made the Point Number One, I thought if you are going to terminate everybody who can't pass an eye test, if you terminate somebody, you have to terminate everybody.

You can't single out between one employee and another.

So, the fact that one employee who... another employee who also can't pass an eye exam was not terminated, I thought that was a defense, plus the fact that I think they could hire substitute bus drivers instead of having the bus mechanics.

I thought it was very unreasonable to also require the bus mechanic to also be a bus driver.

He was hired to be a bus mechanic and not to be a bus driver, so I argued basically the fact that, Number One, another employee who could not pass an eye exam was not terminated, and Number Two, that it was unreasonable to have bus mechanics be substitute bus drivers.

Unidentified Justice: I suppose there are degrees of eye defects, too.

Two people could have different defects, one of which would not warrant termination, and the other one such a defect that it would.

Robert M. Fertel: Well, obviously--

Unidentified Justice: Is that not so?

Robert M. Fertel: --The only defect was that he couldn't pass the state requirements for a bus driver.

That is why he was terminated.

And because when they needed substitute bus drivers they could not use him as a substitute bus driver.

His work as a bus mechanic has never been questioned.

I would also like... as far as the delay issue, we are dealing here with nine months.

During the nine months he said there was no right to unemployment, there was no right to welfare unless he sells his assets, like his house and his car, which, you know, if you are dealing with somebody who has geared his lifestyle to a certain level and all of a sudden gets a notice saying he is being terminated, you have a long, drawn out proceeding where the person not only loses wages, might not be able to get welfare, has to sell his house, has to probably sell his car, will probably lose his marriage and his children, basically the decisions of this Court say that a person should be given a full and fair hearing prior to final deprivation.

In this case Mr. Wyman says, well, it is temporary deprivation, ten or eleven months, if he is proven lawful, you get your back wages, but during those ten or eleven months, the person probably loses his house, he probably loses his car, his family, he loses his self-esteem, plus the right of the government, which is the third factor in Mathews versus Eldridge.

They have to decide when... they have to train somebody else.

What happens if the government says the termination is proved lawful?

Then they have already somebody hired who may reach tenured status and this employee, so it is not just an issue of back pay.

The final deprivation when a person loses his house, loses his car, loses all his assets, and probably loses his family, is already taken prior to the administrative procedure being over, and this Court has said that the purposes of the due process is before final deprivation, so back pay, a person has to give up his house, has to give up his car, probably loses his family, loses his self-esteem, plus he is in limbo.

He doesn't know whether or not he should try to get other employment, and also the reasons for his termination, like in Donnelly's, or, excuse me, Loudermill, he was terminated for dishonesty.

Every time he filed another application, what is your last employment, Cleveland Board of Education, was terminated for dishonesty.

So how do you expect somebody to get another job?

And so here you are dealing with a lengthy period where actually the effects, the deprivation is final.

He loses his house, he loses his family.

There is definitely final deprivation before you get... prior to resolution.

So it is not just a temporary termination and back wages.

I think there is very emotional... I think it is not just monetary damages, but the emotional--

Unidentified Justice: Mr. Fertel, you have said several times that a person in Loudermill's situation loses his wife and children.

Is that what in fact happened to Mr. Loudermill?

Robert M. Fertel: --He was already divorced, but he lost his house.

He had to stay in his sister's house.

He was, obviously, his daughter... he couldn't support his daughter, so he lost--

Unidentified Justice: So you are referring to this particular case?

Robert M. Fertel: --I am talking to all employees.

Unidentified Justice: Are there statistics that show that if a person becomes unemployed he is very likely to lose his wife and his children?

Robert M. Fertel: I don't know if there are statistics.

I think that is... I think in the briefs we stated about the emotional damage, and I think that a lot of people, when there is loss of income, all of a sudden a person in fact who may be a fairly well paid employer all of a sudden gets a letter saying, you are being terminated.

Unidentified Justice: That's the time his wife divorces him?

Robert M. Fertel: Well, not then, but when it drags on and drags on and drags on.

Unidentified Justice: Counsel, may I ask this question?

Do you think our cases require a full evidentiary hearing before a discharge?

Robert M. Fertel: Well, Arnett versus Kennedy did not, but this case is different, because in that case there is a question about proper service, and in Arnett versus Kennedy he made libelous statements, and there was a question whether or not there was a danger to employees or to morale, the other employees.

In this case, there is nothing in the record shooing that there was any lack of service, good service by either Mr. Donnelly or Mr. Loudermill.

There was no danger to the work force by having--

Unidentified Justice: Do you think our cases require an evidentiary hearing before discharge?

And if so, which case?

Robert M. Fertel: --Well, I think the Court in Davis versus Scherer said there has to be... you have to consider the three factors in Mathews versus Eldridge.

Unidentified Justice: An evidentiary hearing?

Robert M. Fertel: Well, I think--

Unidentified Justice: A full evidentiary hearing, right to call witnesses?

Robert M. Fertel: --Well, I think that's what I said.

I think when we consider the factors in Mathews versus Eldridge, under the facts of this case a full evidentiary hearing is required.

Unidentified Justice: Is required?

Robert M. Fertel: Right, that is the position that--

Unidentified Justice: We didn't say that in Arnett.

Robert M. Fertel: --No, but I think you need clarity in this case.

I think here you are dealing with 16 million employees.

Like in Miranda warnings, when an alleged criminal is arrested, you said you have to give him warning, so I think that is clarity.

I think we need clarity so that every Civil Service employee, federal, state, or local, and every government knows exactly what procedures have to be employed.

And I think by considering the factors, I think... first of all I think the government's interest also would be furthered in having a full evidentiary hearing, first of all because there is no two-tier procedure where they have to have one hearing at an administrative level, and another hearing where you go to two hearings, plus the fact that if there is a decision to be made, that the employer... at least there could be finality.

The employer could make a determination, this employer is going to be discharged.

Then we could hire somebody else.

There is no position where they have to hire somebody else and go through, pay for training while this, while the appeals process, and then when the appeals process is done and determines that he has to be rehired and you have two people for the same position, plus the fact that he said there may be excessive back pay.

The longer the procedure takes, the longer back pay.

So, especially if you get a court judgment, then you have interest.

Unidentified Justice: Mr. Fertel, I suppose our inquiry for the purposes of due process, the procedural due process requirements is to determine what is fundamentally fair in this area, right?

Robert M. Fertel: Right, Your Honor.

Unidentified Justice: Is that the thrust of the inquiry?

Robert M. Fertel: That is my position.

Unidentified Justice: All right, and if that is so, should we consider as part of the fairness inquiry the fact that the state had established certain post-termination procedures of which the employee was aware when he accepted the position of employment with the state?

Does that have any impact at all in our fairness inquiry?

Robert M. Fertel: That was the basis of the plurality decision in Arnett versus Kennedy, that the state procedures are bound with the procedural... or the property interest is bound up with certain procedures, and the employer is bound by those procedures.

You have to take the bitter with the sweet, and I think the majority of this Court--

Unidentified Justice: Well, even if you don't accept that fully, that all he can ever get is what the state provides, even if you don't accept that, do you think that it has any role at all in the process of determining what is basically fair?

Robert M. Fertel: --I think you have a right to a prompt post-termination hearing, if there is a promptness.

I think you have to... if this Court doesn't... if there is not a full evidentiary hearing, there has to be at least some pretermination procedures with the full evidentiary hearing promptly.

It is our position that a full evidentiary hearing is required but if the Court takes the position that a full evidentiary hearing is not required, there at least has to be a pretermination procedure to respond--

Unidentified Justice: Opportunity to respond.

Robert M. Fertel: --Right, and then a prompt--

Unidentified Justice: Do you think that has to be a statutory opportunity, expressed in statute, or can it be given in fact?

Robert M. Fertel: --I think it has to be given in the statute.

Otherwise there is no guarantee.

Unidentified Justice: Counsel, has... what I think Justice O'Connor is referring to is the so-called bitter with the sweet theory that Professor, now Judge Easterbrook and others have espoused.

Has this Court ever adopted that?

Robert M. Fertel: No, Your Honor.

I think in Vitek versus Jones, Santowski versus Kramer, and Lobin versus Zimmerman, the Court has specifically rejected that principle.

Unidentified Justice: Arnett, too?

Robert M. Fertel: And Arnett, too.

Unidentified Justice: The majority of the Court.

Robert M. Fertel: Right, the courts say that... those cases held that the majority Court has never accepted the bitter with the sweet.

Unidentified Justice: Does Ohio have a statute comparable to the federal statute that makes it a crime to give a false answer in an application for employment?

Robert M. Fertel: I don't believe there is a specific statute.

Of course, the whole point being there is a question of whether or not it was actually a felony or a false answer.

Also, I think there is a big point here about the promptness.

I think that the Court of Appeals stated that Mr. Loudermill had a hearing two and a half months.

However, the decision was not made until nine months.

And I think you can't just say give a hearing and then allow an unreasonable time for resolution.

This Court has stated you are not only entitled to a prompt hearing, but you are also entitled to a prompt disposition, and I think just the fact that a person was given a hearing in two and a half months when the whole procedure took ten months, I think, is very unreasonable.

Also, the Court of Appeals mentioned the procedure used of mandamus.

I think that is a very extraordinary remedy.

It is discretionary whether or not the Court would grant it.

You don't know how many months it would be, especially when you are dealing with somebody who doesn't have counsel.

You are dealing with the government on one hand, the awesome power of the government against the individual, who a lot of time isn't represented by counsel.

Also, this Court in Mennonite Board of Missions versus Adams stated that the fact that an individual can protect his rights still doesn't relieve the government of its responsibility to guarantee due process rights.

Also, the Sixth Circuit held that there was no liberty interest violated because the grounds for Mr. Loudermill's and Donnelly's terminations weren't published, and it is our position with the Court that it was communicated to the employers, that when Mr. Loudermill filed employment applications prior to... this is his past employer, Cleveland Board of Education, they said, well, he was terminated for dishonesty, and was unable to get any future employment.

So there was communication.

This Court in Paul versus Davis stated that the constitutional violation is defamation in... deprivation of a governmental interest.

Here he was terminated.

He had a right to continued employment.

Therefore he had a governmental interest, and he was terminated in there, so that the procedures, constitutional requirements would be provided by the publication.

It doesn't have to be "publicized", but there was publication because other employees, employers, or potential employers were notified.

I would like to say that in Gaus versus Lopez, where there was suspension of high school students, they said that there would be a liberty interest, because future employment opportunities would be involved, and in their case it wasn't "published", but yet this Court found a violation of a liberty interest.

I would like to point out to this Court in Parrott versus Taylor you said that there are only two instances where no pretermination procedures would be provided.

One is where there is implausibility of pretermination procedures, which is certainly not the case.

And Number Two, where there is necessity for quick action, and I think if there is an emergency situation, which we deny, because there was no prior violations or disciplinary procedures, that a suspension could be made with the opportunity to respond to the charges.

So therefore the two requirements in Parrott versus Taylor to dispose of any pretermination procedures will not be applicable herein.

The main thing that we need... basically is that we need clarity, that there has to be some... that public employers have to know what exactly the procedures are before they can terminate somebody.

As you know, the police know that they have to have probable cause.

They have to know that they give the Miranda warnings.

And so we need clarity.

I would also like to say that you can't really have due process on a case by case basis.

Mr. Wyman says, well, the greater the risk, the more the need for pretermination procedures.

You leave it up to the employer to determine whether or not there are risks involved.

There is no statutory right to grant pretermination procedures.

Well, this case there is a big risk so we have hearings.

This case we won't.

I think you need a statutory right that says you are going to give them notice, you are going to give them an opportunity to present witnesses, and have a decision by an impartial decision-maker, and also that you need a prompt procedure, it has to be held within 30 days, so not only the government can make its determination of whether or not they are going to have to hire somebody, but also the employer can get on with the rest of his life.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Wyman?

ORAL ARGUMENT OF JAMES G. WYMAN, ESQ., ON BEHALF OF THE PETITIONERS IN NOS. 83-1362 AND 83-1363 AND RESPONDENTS IN NO. 83-6392

James G. Wyman: Yes, I do, Your Honor, a number of statements, possibly factual clarifications.

First of all, the liberty interest is not at issue here.

There are no facts in the complaint or the pleadings before this Court which would reflect that there was any communication of any of the allegations or the charges made by the board of education in regards to dishonesty.

In further way of clarification, Mr. Donnelly's initial hearing was well within the 30-day time limitation.

I think it is important for this Court to know that.

Very briefly, Mr. Fertel has chastised me possibly, and with all due respect to him, concerning the what-ifs and the fact that Mr. Loudermill would have in fact been fired even if we had had some sort of pretermination, but he has then gone on with a number of his own what-ifs, what if he loses his house, his wife, his children.

I don't think that is valid for the Court to consider.

I don't think those facts are before it.

We have one issue before this Court, and that is due process, and what is fundamentally fair to the employees involved.

It must be kept in mind, and I would urge this Court to keep in mind the fact that the due process rights impact not only upon the governmental entity in this case but also upon those whom we serve, which are the pupils.

We are in the business of education, as I said before, and there are treatises out that consider us to be a nation at risk.

It is important for us to get on with the business of education, not with establishing elaborate routines and procedures for our employees.

That is taken care of under Ohio Revised Code 124.34.

It provides for due process hearings.

They are de novo hearings.

They are hearings that are by an objective board.

We feel they are appropriate underneath the Ohio Revised Code and the due process standards of the Fourteenth Amendment.

We respectfully request this Court to affirm the District Court's decisions of the dismissal, to reverse the Sixth Circuit in regards to the pretermination issue, to find that Ohio Revised Code Section 124.34 is in fact constitutional and adequately protects the rights of those that are affected.

The process that the respondents were due was given.

Thank you.

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

The case is submitted.

Featured:

Bishop v. Wood - Oral Argument

Thu, 23 Aug 2012 18:28:02 +0000

Case:

Bishop v. Wood

Media File:

74-1303_19760301-argument.mp3

Related Transcript:

74-1303_19760301-argument

Transcript:

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.

Attribution:

The OYEZ Project

Featured:

Christian v. New York Department Of Labor - Oral Argument

Thu, 23 Aug 2012 18:24:43 +0000

Case:

Christian v. New York Department Of Labor

Media File:

72-5704_19731113-argument.mp3

Related Transcript:

72-5704_19731113-argument

Transcript:

Argument of E. Richard Larson

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-5704, Christian against New York State.

Mr. Larson you may proceed whenever you’re ready.

Mr. E. Richard Larson: Mr. Chief Justice, may it please the Court.

This case is on appeal from a final judgment with the three-judge District Court, one judge dissenting from the southern district of New York.

The issue here involves questions of due process, equal protection, and statutory construction.

The issue here stated specifically is whether consistent with the statutory and constitutional framework of unemployment compensation.

A former or a Federal agency may deny compensation, unemployment compensation to a former Federal probationary employee, solely on the basis of the employing agency’s statement of its reasons for discharging the former employee, without that employee ever being provided with an opportunity for a fair hearing, at which the employee may contest the reasons for which he has been denied unemployment compensation.

Stated more simply, the issue is simply is whether unemployment compensation maybe denied without any hearing, at any time on the basic reasons for the denial of compensation.

This case arises within the context of the jointly administered State and Federal Unemployment Compensation Program, a program through which the states administer the payment of unemployment compensation to all covered employees, pursuant to various Federal requirements.

One of those Federal statutory requirements is the requirement that a fair hearing before an impartial tribunal be provided to all individuals whose claims for compensation are denied.

This case arises from the appellee’s interpretation of one of the unemployment compensation statutes, a section of the Social Security Act countrified as 5 U.S.C. Section 8506 (a).

Pursuant to the appellee’s interpretation of this particular statute, a Federal agency’s ex parte statement of its reasons for discharging a probationary employee are final and conclusive upon the State unemployment compensation agency and accordingly may not be reviewed by the state in the fair hearing, which is provided by the state.

This interpretation should be noted at the outset is directly contrary to the statutory interpretation provided by the case of Smith v. District Unemployment Compensation Board, a case decided more than three years ago by the Court of Appeals for the District of Columbia.

The appellee’s interpretation, which is at issue in this case, is best illustrated by describing the facts relevant to the denial of compensation to appellant Christian in this case.

Appellant Christian was discharged by her employer, the post office during her probationary period, on the grounds allegedly of having an unsatisfactory attendance record, specifically that she had not reported her absences to her employer during a period, when she was on a restricted sick leave list.

Well, since appellant Christian was not a permanent employee, she was not eligible for a termination hearing.

This is not something that is contested in this case at all, we can see she is not eligible for termination hearing and do not seek a termination hearing.

Similarly however, since she had not resigned her Federal employment, she was not provided with an unemployment compensation fair hearing for purposes of unemployment compensation.

She was however basically eligible for compensation, because she had worked the minimum amount of time and earned a minimum amount of remuneration in order to have her contractual right to unemployment compensation.

The contractual right, which this Court recognized in the case of California Department of Human Resources v. Java at 402 U.S. accordingly, she applied for compensation through a claims examiner at the New York State Department of Labor.

A claims examiner normally obtains information, both from the claimant and from the former employer and makes an impartial decision on the information that is received relevant to such issues as reasons for termination of employment.

In this case however, the claims examiner felt himself bound by Federal appellee’s interpretation of the statute at issue here and accordingly, after receiving the ex parte statement of the reasons for discharging appellant Christian, the claims examiner denied compensation to appellant Christian on the grounds of those that ex parte statements.

Justice William J. Brennan: What would’ve been the case if a fellow who had been a New York State employee?

Mr. E. Richard Larson: If the appellant had been a New York State employee, and particularly a probationary state employee, the appellant would’ve been treated as or private employee.

The claims examiner would have obtained information from the State of New York, concerning the reasons for discharge and information from he claimant himself or herself and on the basis of that information, the claims examiner would’ve made a fair determination as to the reasons for discharge for purposes of compensation.

Justice William J. Brennan: And, your only point is that as Federal employee she should get the same procedure.

Mr. E. Richard Larson: Oh! Very definitely Your Honor, I should point out that--

Justice William J. Brennan: But that’s the point of this --

Mr. E. Richard Larson: Yes, it is.

Permanent and probationary, private employees and permanent and probationary state employees, permanent and probationary Federal employees who resigned, and all permanent Federal employees receive this fair determination through an opportunity for fair a hearing for purposes of unemployment compensation.

Justice Potter Stewart: But some of those Federal employees get it in a Federal form, not on the state’s form.

Mr. E. Richard Larson: Through the Federal form, through their termination hearings.

Justice Potter Stewart: Right.

Mr. E. Richard Larson: Because of their status as permanent employees.

Chief Justice Warren E. Burger: And that we have described the process for the state employee, it was not a hearing, if I followed you correctly, but merely an inquiry --

Mr. E. Richard Larson: That is the initial determination --

Chief Justice Warren E. Burger: -- initial determination.

Mr. E. Richard Larson: -- which you described in the Java case, Mr. Chief Justice.

Subsequent to the initial determination procedure as it is illustrated by the facts of appellant Christian here, if the initial of termination is adverse to the claimant, Social Security Act requires that a state must provide an opportunity for fair hearing for an impartial tribunal--

Chief Justice Warren E. Burger: You weren’t undertaking to describe the whole process, but only the initial?

Mr. E. Richard Larson: Well --

Chief Justice Warren E. Burger: Eligibility.

Mr. E. Richard Larson: At this stage, yes I’m getting to the hearing, because something significant happened at this hearing, with regard to appellant Christian and that is that although the appellee’s interpretation of the statute issue here, requires the fair hearing referee at the second stage, now requires the fair hearing referee to accept that ex parte statement of reasons by the Federal agency as final and conclusive.

The hearing referee in this case, after hearing the evidence submitted orally on the issue of termination by appellant Christian and after having received the statement from the post office, submitted in lieu of appearance through the Industrial Commissioner.

The hearing referee here disregarded the appellee’s interpretation of the statute, and in fact did make a fair findings on the issue that was before the referee.

Now, this was a very short lived fair determination procedure, because the state immediately appealed this fair finding as fair determination procedure to the State Appeal Board and the State Appeal Board reversed on the grounds that the state had to accept the Federal reasons as final and conclusive, so it is a two-step process.

Justice William J. Brennan: So, I gather as a dismissed Federal employee, she gets neither --

Mr. E. Richard Larson: She gets neither.

Justice William J. Brennan: -- the initial determination or they should get the ultimate final determination.

Mr. E. Richard Larson: That is correct Mr. Justice Brennan.

Justice Potter Stewart: I suppose she gets an initial determination, but it’s preordained, is that it?

Mr. E. Richard Larson: It’s certainly as not a fair determination.

Justice Potter Stewart: No, it’s not. She gets no fair hearing.

Mr. E. Richard Larson: For example in Java this Court noted that the word “do” in Section 503 of the Social Security Act met after the first time when both parties could be heard in an impartial decision rendered that was the initial determination procedure.

That as a fair process, as reached in Java never occurs with regard to Federal probation or employee.

Justice Potter Stewart: And, there’s no argument between you and your brothers on the other side as to what happens, as to what the issue.

Mr. E. Richard Larson: There’s no argument.

This is acceptable.

Justice Potter Stewart: Right.

Mr. E. Richard Larson: Before I turn into the due process, and the equal protection, and the statutory construction issues in this case, I’d like to reiterate a couple of points about what this case is about and what it is not about.

And this is particulary in light of the briefs submitted by the Federal appellees in this case.

The hearing which is sought in this case and which we contend as constitutional and statutorily required is unemployment compensation hearing for purposes unemployment compensation.

The appellants do not seek a termination hearing, they do not seek reemployment, rather all is sought here is a fair determination procedure through a fair hearing for purposes of unemployment compensation.

Now, second the provision of a fair hearing for purposes of unemployment compensation to the appellants here would have no affect whatsoever upon the Federal discharge procedures with regard to probationary employees.

It is conceded on the record, indeed the Federal regulations provide and we do not challenge them that a Federal probationary employee maybe discharged without cause, during his probationary period.

Accordingly, if there maybe a discharge without cause, a subsequent hearing for purposes of unemployment compensation, which merely review the reasons or the lack of reasons for the discharge could have no effect upon the discharge procedures for that employee.

Now thirdly, the issue here, the unemployment compensation issue at the hearings, the reasons for termination as this Court noted in Java the reasons for termination constitute the most frequently disputed issue in unemployment compensation.

And, as we point out in our brief, note 8 on page 10 more than 60% of the claims in the State of New York that reached the fair hearing referee involved issues concerning reasons for termination, so it is a frequently disputed issue on our employment compensation and this is what is being denied to the appellants here.

Now fourth, we have contended and we continue to contend that the fair hearing, which we say is required both constitutionally and statutorily maybe provided either by the Federal appellees or by the state appellees.

Now, particularly relevant here is the Circuit Court of Appeal’s decision in Smith.

What happens in Smith is that the panel composed of Judges Leventhall, Fahy, and Robb said that in the first instance the Federal agencies or the Civil Service Commission could provide the hearing for purposes of unemployment compensation to the Federal employees.

But, if the Federal agencies of Civil Service Commission did not provide the hearing, in that case the state mechanism, the unemployment compensation agency mechanism for fair hearing, which is already in existence and which provides fair hearings to all other employees should be made available and would be made available for the Federal employees in a similar matter.

In other words, the fair hearing could be provided either at the state level or at the Federal level.

The fifth, the Smith case, which they --

Justice Byron R. White: Are you saying that you should have a hearing to determine whether that cause existed?

Let's assume the unemployment people say “You were discharged for cause.”

And is the issue whether the government said you were discharged or cause or as a matter of fact whether that was cause?

Mr. E. Richard Larson: Well, the issue is whether there was cause, whether it was a matter of fact there was cause.

Justice Byron R. White: If you agree that the government may discharge a probationary employee, for no cause at all.

Mr. E. Richard Larson: Right.

Justice Byron R. White: You must agree also that they could discharge him for cause.

Mr. E. Richard Larson: Certainly, they may.

Justice Byron R. White: By just saying “You were late yesterday.”

Mr. E. Richard Larson: Correct.

Justice Byron R. White: And discharged him, whether it’s true or false.

Mr. E. Richard Larson: Right.

In that situation --

Justice Byron R. White: If that’s the reason they discharged him, you say there must be a hearing to go behind that statement at the unemployment state?

Mr. E. Richard Larson: Well, the way the system operates right now pursuant to the apellee’s interpretation of the statute, whatever reason the Federal appellees give or the Federal agency gives is final, conclusive, and can never be reviewed.

For instance, the Federal agency may say you were late yesterday.

In appellant Christian’s case the facts were very similar to that, where "You were absent yesterday and you did not call in."

Appellant Christian said, “My older daughter did call in and she advised me that she did so and I had her do so."

"The telephone in my apartment does not work.”

There were underlying facts as to whether or not she did call in, and which is a crucial determination because the state applies its state law as to whether as misconduct (Voice Overlap)

Justice Byron R. White: Well, then I gather you say the hearing you require then really is something that you can’t get satisfied just by a paper record.

You think you must have --

Mr. E. Richard Larson: Oh! Certainly not.

Justice Byron R. White: Have a witness and an impartial confrontation, impartial hearing officer, etcetera?

Mr. E. Richard Larson: In our due process claim of course, we alleged that the requisites, the fundamental requisites of due process.

The normal requisite elements of a due process hearing should be provided.

But, then I think I can illustrate with the plaintiffs here.

Justice Byron R. White: But, the statutory procedure that were available would be enough for you?

Mr. E. Richard Larson: The procedure with regard to the state procedure.

Justice Byron R. White: Yes.

Mr. E. Richard Larson: I should note here that the state procedure, as well as the Federal procedure with regard to terminating a Federal employees.

The elements of the hearings are basically the due process elements.

There is an impartial hearing examiner.

There is a requirement that decision must be based upon the evidence --

Justice Byron R. White: But, that is at the discharge state, but how about at the employment stage?

Mr. E. Richard Larson: This is also present at the unemployment stage.

Justice Byron R. White: But, any way, whatever hearing they provide, where it’s available, that hearing is enough for your purpose?

Mr. E. Richard Larson: Yes.

Justice Byron R. White: Well, let me say if I understand, if this were a state employee, at the initial stage, whatever form that hearing takes, the determination by the hearing examiner would be what?

There was a cause, or there was not cause, which?

Mr. E. Richard Larson: I --

Justice Byron R. White: At the initial stage, is a dismissal in the state service.

Mr. E. Richard Larson: In the state situation, the hearing examiner would base its determination upon --

Justice Byron R. White: I know, but what would he decide?

There was cause or was not cause, which?

Mr. E. Richard Larson: It depends upon the facts before him.

Justice Byron R. White: But, that’s what he would decide.

Mr. E. Richard Larson: That’s what would he decide.

Justice Byron R. White: And if he --

Mr. E. Richard Larson: Decide the facts before him.

Justice Byron R. White: Right, and if he decided there was cause, whatever it may have been, and then she be an eligible for unemployment compensation?

Mr. E. Richard Larson: At that stage, yes.

Justice Byron R. White: Whereas if he said “there was no cause” and then she would be eligible at that stage, is that it?

Mr. E. Richard Larson: Right.

Justice Byron R. White: And then, the next step is the --

Mr. E. Richard Larson: Fair hearing --

Justice Byron R. White: -- the fair hearing, at which the issue was the same, isn’t it?

Mr. E. Richard Larson: That is correct.

Justice Byron R. White: With just the different procedure?

Mr. E. Richard Larson: It’s a more elaborative procedure, where there is an opportunity for cross examination and confrontation of witnesses, their seeking the power.

Justice Byron R. White: But the state agencies handling a Federal employee, accept the certification of the Federal official there was cause, period, in that statement.

Mr. E. Richard Larson: That’s final and conclusive, nothing more.

Justice Byron R. White: And at both stages?

Mr. E. Richard Larson: At both stages.

Chief Justice Warren E. Burger: What if instead of having a one year probationary period, the petitioner here, appellant here had been hired on a one year contract, renewable if the government wanted them?

If it’s a contract, the year expires, the contract expires, that’s unemployment, not renewed?

Mr. E. Richard Larson: Section 8501, which provides the basic coverage of the law, specifically accepts from coverage certain Federal employees.

It does accept that type of Federal employee.

It was on the contract or fee basis.

Chief Justice Warren E. Burger: But --

Mr. E. Richard Larson: So, that person would not be covered.

Chief Justice Warren E. Burger: But how do you distinguish a one year probationer from a one year termination?

Mr. E. Richard Larson: I’m not sure I understand your question Mr. Chief Justice.

If he --

Chief Justice Warren E. Burger: How is a one year probationer who is not continued in the service different from a one year contract employee, who is not renewed?

Mr. E. Richard Larson: Well, the unemployment compensation is not available to the latter employee.

If it were available to the latter employee, who were on a contract basis, I would say that that would be a resignation.

Basically, a resignation situation or it maybe interpreted as a lay-off.

But if it is lay-off, then the person would be eligible.

But, this is a factor, which under state law or with regard to all state employees, private employees, Federal permanent employees is fairly decided, if there are factual issues.

It is fairly decided for those employees, but if it’s a Federal probationary employee, it is not fairly decided with Federal reasons are automatically accepted as binding and conclusive.

With regard to the due process argument, most of the due process cases, which come before this Court of course, concern the finer issues of due process, with regard to the timing of the hearing or the form of the specific elements of the hearing.

Here, of course the issue is much more basic, since there is no hearing at anytime, yet this contractual right is taken away from the appellants.

Here there is no impartial decision maker, there is no decision to be based upon the evidence, there is no oral presentation of evidence, no oral argument, no right to representation, no confrontation or cross examination, none of these elements are here.

Justice William H. Rehnquist: As our affirmance in Tori as I take it approved is the absence of some of those procedures for a termination of unemployment compensation, would you apply a different standard to the initial eligibility determination?

Mr. E. Richard Larson: No, I think should I point out that Tori of course, as in the Bernie case the prior hearing cases which were at issue here, already provided the precise procedures, which we are seeking here.

The issue in Tori and Bernie was a prior hearing.

What was required prior to the termination of benefits, but as required by statute, as Mr. Chief Justice asked, the procedure that we're seeking here was required to be provided in Tori’s and in Bernie’s the initial fair and initial termination, and the fair hearing procedure later.

That was not an issue in Bernie or Tori’s that was already statutorily provided.

This is not a prior hearing case, this is just a hearing, there is no hearing, no fairness in this procedure at all, as the apellees state at page 17 of their brief, all they find, all they determined, they state that it’s merely a statement of the agency’s reasons for discharging the employee that’s all there is.

Justice William H. Rehnquist: Are you suggesting a bit of a more fire reaching type of hearing is required in making an initial determination that you're entitled to a right, than in making a later determination that takes it away from you?

Mr. E. Richard Larson: No, I am not suggesting that at all.

Justice William H. Rehnquist: Well, then why is there that distinction that you suggest between a hearing and determining initial eligibility and a hearing terminating the right.

Mr. E. Richard Larson: That’s provided for in the statutes and we do not challenge that statutory scheme of having an initial determination procedure, which is not a full blown hearing.

We do not challenge the absence of full blown hearing procedures of the initial stage, because there is a later statutory hearing.

Here, there is never any statutory hearing, nor is there even a fair initial determination process.

I think this can be the lack of one of the essential elements of a due process here in confrontation and cross examination is particularly well illustrated by appellant Green’s case.

Appellant Green was discharged by his employer, the Treasury Department, as noted on page 52 of the appendix, “as you were observed” engaging in such, and such alleged misconduct.

Now, appellant Green never new with this observer was.

Unknown Speaker: Is he the sky marshal took a drink within 24 hours before he had to fly?

Mr. E. Richard Larson: Yes, now it is alleged --

Unknown Speaker: It was observed to happen.

Mr. E. Richard Larson: He was observed to have been drinking and the observation is a matter of fact occurred more or alleged to have occurred more than 3 ½ months prior to his termination.

In other words, if--well, he was not terminated immediately after this alleged event took place, rather they waited.

It was six days before the end of his probationary period at which he was terminated for this alleged observation, which took place 3 ½ months before.

Now, of course, appellant Green was allowed no opportunity for confrontation or cross examination of this unknown observer, this element was completely absent as are the other elements of a fair hearing.

There’s no procedure, there’s no requirement for a fair hearing examine or fair decision maker, instead the decision maker here is conceded to be the agency, a bias party.

Indeed, there is no requirement that the decision be based upon the evidence.

Instead all that we have is the ex parte’s statement of the reasons by the Federal agency.

This procedure we submit is a one sided determination of facts, the size of contractual right.

Unknown Speaker: You haven’t addressed the statutory argument, but I gather that both things on pliable one to apply on three-judges?

Mr. E. Richard Larson: The statutory argument is based on, I guess many different factors, but the outset we would look at the Powell decision in the Smith case.

And what they did of course is they looked at unemployment compensation generally.

The right to a fair hearing that this is a very important right in the unemployment compensation statutory scheme, and that this fair hearing cannot be lightly taken away.

Now of course, the appellees in this case do not contend that their interpretation of the statute is necessarily the only interpretation of the statute.

All they contend is that the secretary has grabbed the authority to make whatever fact-finding procedure it chooses to make.

And, it here chose not to provide for fairness or for hearing procedures.

We contend it, as long as they concede that their construction is not one that they contend the statutorily required.

Indeed, the contrary interpretation is required that a fair hearing must be provided here.

Also, what is significant we hinge on the word “finding,” the Congress used the word “findings,” they did not use another word.

This is a contextual word and in the context of unemployment compensation, the word “findings” is very fairly mean, can mean findings after a hearing.

Additionally, we looked very strongly to the dominant legislative theme of providing unemployment compensation to Federal employees, that dominant scheme is simply to make employees equal to stay in private employees.

Provide them with the same terms and conditions of employment, as provided to other employees.

So, I should note that this Court need not declare the statute unconstitutional, that the proper statutory construction here does require -- that a hearing be provided to the appellants.

I should also note that this Court of course has reviewed many cases of statutory construction, which it involved questions of due process, where the due process considered an issue.

Justice Byron R. White: What I was asking particularly Mr. Larson, 42 U.S.C. 503 says that “The secretarial labor makes no certification, unless he finds the law of the state provides opportunity for a fair hearing before an impartial tribunal for all individuals whose claims for unemployment compensation are denied.”

And, my question was is that the statute in which you rely?

Mr. E. Richard Larson: That is one of the statutes which we rely on very definitely.

That is the most clear statement made by the congress with regard to the provision of fair hearing, but there are a host of other avenues which lead to the same conclusion that a hearing must be provided.

I noticed my time has expired, I would like to save whatever time I have left for rebuttal.

Justice Harry A. Blackmun: Mr. Larson, let me ask you one question, leave me out of the wilderness, isn’t there a little jurisdictional problem so far as the Federal appellees are concerned here?

Mr. E. Richard Larson: I do not think there is Mr. Justice Blackmun I --

Justice Harry A. Blackmun: Well, didn’t the District Court decide against you so far as the Federal employees are concerned?

Mr. E. Richard Larson: Yes, the District Court did.

I think the District Court of course is clearly wrong and 1908 decision by this Court on mandamus, under 1361 jurisdiction makes clear that common law or the relief available to common law mandamus includes corrective orders against Federal officials who have violated the constitution.

And what the District Court did was it held that -- it determined there was no mandamus jurisdiction over the Federal defendants and consequently did not reach the constitutional issues as to Federal defendants, but I would submit that Garfield, a decision more than 60 years old reached by this Court, makes clear that the mandamus remedy extends to the corrective orders against unconstitutional activity.

Justice Harry A. Blackmun: Well, Federal courts usually don’t so clearly misstep as to jurisdiction and --

Mr. E. Richard Larson: I submit they did in this case Your Honor.

I should also note that the Federal District Court dismissed the lack of jurisdiction under 1343 (3).

Now, we contend through a joint participation theory of this Federal state program that the Federal government is in joint participation with the state appellees and accordingly are properly named as defendants under 1343 (3).

Unknown Speaker: What about 1337?

Mr. E. Richard Larson: We did not alleged that in our complaint.

Justice Harry A. Blackmun: Isn’t that pretty good, to statute into figure?

If you did (Voice Overlap)

Justice William H. Rehnquist: Where do you get joint participation here between the state and Federal employees?

My impression of the state’s position was that they’re perfectly willing to give you whatever the Federal government provides by statute.

They’re willing to give you the benefit of their full hearing, if they’re not precluded by the Federal Statute.

They really have no dispute with you at all.

Mr. E. Richard Larson: Well, that‘s of course the position they have taken in argument with us, but you must remember that they of course denied a fair hearing to appellants Christian and Green in this case.

If they have not been -- their cooperation, their agreement with the Federal defendants or Federal appellees in this action, a joint participation which is clear through the statute both Section 8502 and 8504 made clear that the Federal government assigns all wages, all claims, to the state and that the state is to operate the program.

I think also a quote from Shapiro v. Thompson is appropriate where the court stated that Congress is without power to compel state cooperation in a program, in a joint Federal state program, which violates the Equal Protection Clause.

Now, this is a joint Federal state program and the unquestioned by this pursuant to Federal law.

But, it is the state actually, which has denied the Fair Hearing Act.

I notice my time is up.

Chief Justice Warren E. Burger: Mr. Evans.

Argument of Mark L. Evans

Mr. Mark L. Evans: Mr. Chief Justice and may it please the Court.

Before addressing the constitutional issues that Mr. Larson has discussed, I would like to raise an alternative ground for affirmance, which I think will permit this Court to decide the case without reaching the constitutional issues.

The appellants stand before this Court in this posture, they are attacking the constitutional adequacy of procedures that they have never invoked.

Under familiar principles requiring exhaustion of administrative remedies, their claim should not be entertained.

To understand why we take this position, it is necessary to have a clear understanding of what the procedures are, that are provided by the regulations and those governing regulations are set out of pages 33 to 38 of our brief.

The stage is set for these procedures, of course, when an applicant or unemployment compensation submits an application to a State Unemployment Compensation Board.

The State Unemployment Compensation Board thereupon seeks information from the Federal employing agency, with respect to the employee service, including most particularly for this case, the reasons for his termination.

Now, if a discharged probationary employee, which is what we have in this case, is denied unemployment compensation, because of the stated of reason for his discharge, he has the following procedures available to him.

First, under section 609.22 of the regulations, which appears at page 36.

He may obtain from the employing agency any information he needs relating to the basis for the Federal finding, the Federal finding being the reason stated for his discharge.

Under section 609.8, which is two pages earlier on page 34, the employing agency must furnish this information in writing and I add right here that for appellant Green, if he wished to know who it was who observed him drinking at the time he was observed drinking, he was free to ask the question and get a response in writing.

Second, under 609.23 which is at the bottom of the page 36, top of page 37, the employee may file a written request for reconsideration and correction of the findings that have been submitted to the state agency and he may submit together without request any information he has to support his request.

Again, referring back to page, the preceding page at 609.9, the agency must consider all the information submitted.

It must review its findings.

It must correct any errors, and at most in affirm, modify, or reverse whatever the findings are affected.

Justice William H. Rehnquist: What book are referring to Mr. Evans?

Mr. Mark L. Evans: Pardon me? I’m referring to the government’s brief in this case, the appendix short brief.

Justice Byron R. White: That of course is all of paper proceeding.

Mr. Mark L. Evans: This is all a paper proceeding.

Justice Byron R. White: So, that we suggest is at least as good as the initial statement.

Mr. Mark L. Evans: Yes, I think that is right.

Well, this is not -- yes, that’s a fair statement.

If there is a correction that is made by the state, be the Federal employee agency.

The agency had required to submit this to the state and the state if the corrections looked like the entitled the employee to a re-determination, the state is required by the regulation to make that re-determination.

Justice Byron R. White: And, what’s this mean, affirm, modify, or reverse any or all of its Federal findings in writing, so it affirms in what’s it do?

Mr. Mark L. Evans: Well, it just sends the same slip.

It's in first placing we've considered and affirmed or sustain or modify --

Justice Byron R. White: Let’s say, we modify it’s more elaborate or let’s say reverse, I suppose, it’s still more like it.

Mr. Mark L. Evans: That's right.

Justice Byron R. White: But, if they affirm to send the same old slip back to the state that’s the end of the matter, isn’t it?

Mr. Mark L. Evans: That’s the end of the matter.

Justice Byron R. White: The state may not go behind that?

Mr. Mark L. Evans: That’s right.

Now, I emphasize that --

Justice Byron R. White: Well, but so at least the so-called full due process hearing is not available to this area.

Mr. Mark L. Evans: That’s absolutely right, we don’t claim that the full due process hearing’s are, not that we claim there is no due process so, right it is implicated, but I’ll turn to that in a moment, but right now I’m just trying to point the existing procedures, whether valid or invalid under the constitution were never invoked (Voice Overlap)

Justice Byron R. White: Well, he can't be heard to complain, unless he’s at least exhausted these first.

Mr. Mark L. Evans: Well, that’s my point.

That’s right.

Justice Potter Stewart: Was this argument made to the District Court?

Mr. Mark L. Evans: The argument was not, so far as I can tell, made to the District Court.

It was made in our briefs in this Court, at pages 8 and 23, and --

Justice Byron R. White: Were you involved in the, not you but --

Mr. Mark L. Evans: Yes.

Justice Byron R. White: Oh? You are?

Mr. Mark L. Evans: Yes, we are parties, but we -- the Federal defendants in that case were dismissed on subject matter jurisdiction grounds, and I might add in response to Mr. Justice Blackmun’s question, Mr. Larson’s right, we do not contest jurisdiction on the mandamus statute.

Unknown Speaker: Of course you can’t stipulate to it (Voice Overlap)

Mr. Mark L. Evans: No, I concede that I can't stipulate to jurisdiction.

These are in any event the procedures, the corrective procedures that are available and were involved.

And, it’s important to consider how they might have operated in these cases if they had been invoked.

Appellant Christian was terminated after six months of employment as a letter carrier, because of a history of unauthorized absences, which climaxed in two instances, in which she was two days, in which she was absent without notifying her supervisor.

This is after she had been warned and had been placed on a restricted sick list, which required her to bring in an authorized medical excuse for any further absences.

And, upon the receipt by the state board of this information, the determination was made that she would not be eligible for unemployment compensation, because the fact amounted to a voluntary quitting without good cause that is under state law these facts are led to the conclusion that she provoked her discharged by the final two absences.

Justice Byron R. White: Of course Mr. Evans, your argument, this argument and not exhaustion, no matter how I gather your position is, no matter how meritorious the due process times maybe, not entitled to have a determined here, because they didn’t exhaust this case.

Mr. Mark L. Evans: That is my point, that’s right.

Justice Potter Stewart: But you say as far as you know, this argument was never made to the District Court?

Mr. Mark L. Evans: It was never made to the District Court, as far as I can determine, Mr. Justice Stewart, but it is an alternative ground for affirmance and I think we’re entitled to present here and I think that this Court is entitled to consider the argument in disposing of the case.

Justice Potter Stewart: Well, maybe instead of our considering it, we should set it back to the District Court to consider it.

Mr. Mark L. Evans: Well, it’s a possibility, I don’t think it requires any factual inquiry that would be more appropriate for District Court.

It seems to me that kind of question that can be decided on the basis of what’s before this Court and there’s no real benefit to be gained by remanding it for the purpose.

Justice Potter Stewart: Well, do you claim that this procedure is still available and it either Mrs. Christian or Mr. Green could now get a re-determination under these procedures.

Mr. Mark L. Evans: That is problematic Mr. Justice (Voice Overlap)

Justice Potter Stewart: Of a reason for termination that would not foreclose that from State unemployment compensation?

Mr. Mark L. Evans: It presents a problem, the regulations provide that the employing agency shall make any corrections that if fines must be made within one year, now obviously the year is past as a consequence of a litigation, it maybe impossible.

I would think that their deregulations might limply be construed in these cases to permit to exhaust these procedures if they sought to do so, on remand or on their own.

After the denial of the claim of Christian’s claim, she was given a copy of findings and then, as she states in her affidavit, which appears in the appendix of pages 15 and 18.

She sets out her disagreement with the underlying facts that were transmitted to the state agency.

She claimed that she failed to report her absences in the original, in the older absences, because she couldn’t find a telephone that was in working order in her neighborhood to call in.

And, she said that the last two absences were required by compelling family circumstance, and then in fact she had asked her older daughter to make a telephone call to her supervisor.

And, in fact her daughter said that she had done so.

Well, these are precisely the kinds of new facts, new information that the regulations contemplate being submitted to the agency for their consideration, that was never done here, so the agency never had the chance to consider these new facts.

If in fact, the facts whereas stated by appellant Christian, she might as well submitted (Voice Overlap)

Justice Thurgood Marshall: Does the record show that that record was done?

Mr. Mark L. Evans: The record, I suppose is blank on the point, but I --

Justice Thurgood Marshall: Well, how could we assume that it wasn’t done?

Mr. Mark L. Evans: It wasn’t done.

I believe the record is clear as a matter of fact that it wasn’t done.

I don’t know where I can point to it, but there's never been any suggestion by anyone that it has been done.

Justice Thurgood Marshall: Well, I think before I could say somebody was guilty of exhausted their remedies, I don’t know whether they did or didn’t.

Mr. Mark L. Evans: Well, it’s clear -- well, I can't put my finger on it.

Justice Thurgood Marshall: Not being unreasonable in that?

Mr. Mark L. Evans: I think Mr. Larson will concede that this was not done.

I don’t think it’s a factual issue here.

Justice Thurgood Marshall: In fact you are conceding right now. The records didn’t say it positively --

Mr. Mark L. Evans: I could say it, but I don’t think I can point it to you -– point it out to you in the record, but the reason I can't point out to you in the record is that the issue wasn’t presented.

The only thing there is in the record that’s of relevance here --

Justice Thurgood Marshall: Well, if you present factual point to this Court, I don’t think this Court can decide a factual point.

Mr. Mark L. Evans: The complaint and the agreed upon material and statement of material facts, as to which there was no dispute.

I make it clear that appellants have not sought any relief from the employing agency, although they recognize that the procedures exist.

They make no mention of any fact of having exhausted those procedures.

Justice Thurgood Marshall: Is there anything in there that said they did or did not?

That is my only point.

Mr. Mark L. Evans: There’s nothing in there that says they did.

Justice William H. Rehnquist: Mr. Evans --

Justice Thurgood Marshall: Did not?

Mr. Mark L. Evans: That’s right.

Justice William H. Rehnquist: -- The plaintiffs brought this action, didn’t they?

They were (Voice Overlap) -- did they alleged in their complaint that they exhausted their (Voice Overlap)?

Mr. Mark L. Evans: They did not.

Although again, in their complaint they took cognizance of the existence of these procedures, there was no allegation that they were invoked.

Justice Thurgood Marshall: But, if you’d raise that point, at that time they might have.

(Voice Overlap) now to raise it, where there’s no way for them to answer it.

Mr. Mark L. Evans: Well, as I said, I think the regulations might be construed to permit them to exhaust their remedies even now, even though they -- I mean the time has elapsed because of litigation, but I think that they would be permitted an opportunity to undergo those procedures.

The same situation is present in the case of appellant Green, who was discharged for drinking before flight duty. He claims and his unemployment compensation was denied on the ground of that he was discharged from misconduct under state law.

And, he claims again, he’s innocent of these charges, but he never bothered to give his employer the benefit of any exculpatory information he may have nor he take advantage of the opportunity he had to get the information, he claims he didn’t have to make the judgment with.

In these circumstances, in our view, the appellants should not be heard to complain of corrective procedures, if they haven’t invoked.

The exhaustion principle has traditionally been required, because of what this Court in McKart v. United States called the practical notions of judicial efficiency.

If Christian and Green had invoked the procedures it may be that their employing agencies would have agreed that they had a mistake and would have corrected the findings.

If that were the result, this Court or no court would have had to intervene.

There would have been no judicial issue.

Justice William H. Rehnquist: Well, if exhaustion is a matter of defense, I suppose Justice Marshall is quite right that some of the government should’ve raised by way of an answer to the complaint.

On the other hand, if it’s a prerequisite of being able to proceed with an adjudication, then I suppose the plaintiff has to alleged.

Did you have any citations as to whether which side the line it’s on.

Mr. Mark L. Evans: I don’t have any citations, Mr. Justice Rehnquist.

I believe it ought to be the burden of the plaintiffs to make the allegation.

But, I say again, while the issue maybe somewhat ambiguous in the state of the record here, I don’t think there's any legitimate factual dispute over it.

I think Mr. Larson will concede that there's no question if they didn’t exhaust these procedures.

Justice William H. Rehnquist: Well, of course, that’s kind of tough to ask opposing counsel to concede something that’s outside the record.

Mr. Mark L. Evans: Well, see if the problem is that there's nothing in the record to suggest that they did exhaust it, and you know there's nothing in the record to suggest they didn’t either, but I guess the question comes down to where the burden lies, and I think I’ve --

Justice Thurgood Marshall: Does my question come down that the facts that are needed for these should have been presented in the lower court and since, you are raising them, why didn’t you raise it then, instead of raising it now?

Mr. Mark L. Evans: Well, it maybe that the --

Justice Thurgood Marshall: Why didn’t you raise it below?

Mr. Mark L. Evans: I wasn’t there below and I don’t know what went into their --

Justice Thurgood Marshall: But, you’re responsible for it.

Mr. Mark L. Evans: Yes, I’m certainly am.

I think that the thrust of the government’s response to the suit in the court of below was there was no subject matter jurisdiction and they responded on the merits to the constitutional claims and they succeeded on the jurisdictional issues and the constitutional claims of course were not addressed with respect to the Federal defendants in this case.

There's a corollary notion to that of judicial efficiency that impels, that suggest that this Court opt not to entertain the issue at this time, and that is the notion of administrative autonomy, which requires that an agency to give them a chance to correct its own errors.

Here, no such chance was given.

The only response that the appellants have made to this argument incidentally, is contained in a footnote and their reply brief, as a matter of fact, that might be where they indicated that they didn’t exhaust the procedures.

Well, they say in the footnote these problems, “The appellees also contend that appellants cannot complain about the constitutional inadequacy of the Federal appellees ex parte procedure."

This is I’m reading by the way from page 8 of their reply brief, since they did not utilize the ex parte corrective procedures.

Such an allegation is wholly without merit, where as here, the adequacy of the administrative procedure is the very issue to be resolved.

Justice Potter Stewart: That’s – I’ve read that on page 9, footnote 6.

Mr. Mark L. Evans: I have them on page 8, footnote 6, but I don’t have the printed brief that may explain the differences, I’m sorry.

So to the --

Justice Thurgood Marshall: (Inaudible)

Mr. Mark L. Evans: Well, the inference is available on any event that they have not in fact, exhausted the procedures.

I don’t want to press it anymore, because as you say there's nothing definitive that I can point to in the record.

Yes, Mr. Justice.

Unknown Speaker: I don’t know whether you reached this, but I would like to have it clarified.

I am looking at bottom of page 11 of the (inaudible) brief.

I’d like to read you a sentence, the last sentence.

“The consequence of permitting probationary employers to litigate the reasons for their discharge, are extensively merely to determine their eligibility of unemployment benefits would be to overturn the settle principle that a probationary employee does not have the right to contest the propriety of his discharge.”

I take it back then is that the principle that you say is settled and is conceded by your opponent is that a probationary employee maybe discharged even without cause, and with or without a hearing, no hearing as a matter of fact.

And I understand your brief to say that if we decide the case against the government on this issue that this will then become a precedent that will overturn the settled practice with respect to the discharge of probationary employees.

Now, if that so please tell me why?

Mr. Mark L. Evans: Well, I think it’s probably an over statement Mr. Justice.

There is of course, an analytical distinction between a hearing, with respect to the reasons for discharge, as it relates to unemployment compensation and a hearing with respect the validity of a discharged looking towards reinstatement.

And, there's no question that they’re separate, but the thrust of the statement, while it may have been an over statement, I think is accurate.

One of the reasons why a hearing would be inadvisable.

And, one of the reasons why a hearing is not provided, I think is that with respect to probationary employees, there needs to be the greatest amount of flexibility in an effort to weed out before an employee gets tenured status, incompetent and unsuitable employees, because of the importance of having abled people administering the government’s vital programs.

Once a man becomes tenured, it’s very difficult to remove them.

And, there are--the whole panoply procedures and just because of that extra protection he gets, it’s necessary that there be a great flexibility at the early stage.

Now, a hearing on the reasons for discharge of a probationary employee is going to have an impact on the decisions of supervisor’s make necessarily.

It’s not because the issue is one of reinstatement, but the fact of the matter is that a hearing, the prospect of a hearing is likely to be at deterrent to a supervisor, just because he realized that there's a great deal of manpower that has to go into it, a great deal of preparation.

His decision in a sense is going to be put on the line, even though there's not going to be an reinstatement that’ll result from it.

There is going to be a psychological impact and it will, I think, inhibit the flexibility, that I think is so essential.

So, in answer to your question, there is a relationship, though is not an analytically clear one.

Unknown Speaker: That’s it.

Mr. Mark L. Evans: I’d like to turn briefly to the statutory interpretation question.

Mr. Justice Brennan, I should note to your benefit I think, that the issue turns not on the section that you had read, it turns on Section 8506 of Title 5, which set forth at our brief, at pages 31 and 32.

Justice William J. Brennan: That’s the one isn’t it that authorizes the statement of reasons or something?

Mr. Mark L. Evans: That's right, that’s the one that requires the Federal employing agency to respond to a request from a state agency, by giving the findings, as what the word is.

Now, that the issue really turns on whether findings implies a hearing.

It seems to me plain that the findings doesn’t have that implication.

What it means here is simply a determination after an inquiry.

It has no implication one way or the other as to the form that inquiry would take.

And, you know when Congress has had a desire to require a hearing, it is not difficult to do so ambiguously and I should mention in the very next section, in 8507, which is not reprinted in the briefs, 8507 deals with the right of a state agency or the secretary of labor to recoup compensation paid to an employee who made a false statement, if he first finds that there has been a false statement made.

Now, what that says is “A finding by a state agency or the secretary maybe made only after an opportunity for a fair hearing.”

In the very next section, using the exact same words, they found it necessary to add only after a hearing.

I think that makes it quite clear that congress did not contemplate it, that there necessarily be a hearing preceding the findings that are referred to 8506.

Mr. Larson is correct in saying that we do not say this is the only possible interpretation of the statute.

I think a lot of the policy of unemployment statutes that the appellants set forth in their brief may well give this Court the option if it came to that of reading the statute to require a hearing, if it was necessary to preserve its constitutionality.

The point is however, that this a reading of the statute by the agency principally responsible for administering it, that we think it’s permissible and that we think ought to be respective, unless there’s a constitutional problem.

There are really two constitutional issues here, one is a due process issue and one is an equal protection issue and our position is that in neither argument is valid.

To start with a due process issue, we believe that the due process clause is not even implicated.

It provides that there no person shall be deprived of life, liberty or property without due process of law.

There’s no question that the appellants have not been deprived of life.

They don’t assert that they’ve been deprived of liberty, and so the question is whether there is a property right at stake.

Our position is that the property right in unemployment compensation benefits, like the right to continued employment in the Roth case is defined by the rules and understandings, under which the benefit is granted.

In Roth, the rules and understandings where contained in the terms of the appointment.

In this case, the rules and understanding are contained within the terms of the statutes in governing regulations.

And, those statutes and governing regulations made clear that the procedures available for correcting errors is the only procedure and that is the only way, one can correct errors that they find are made.

So, when one seeks unemployment compensation benefits, one seeks them with the understanding, that if there are errors in the Federal findings, they can be corrected by one method and one method only.

In these circumstance, there is no property right, unless the procedures that are specified have some sense been denied to the person.

I can think of one example that might serve to make the point, suppose at Congress enacted a statute granting benefits to victims of crime, provided that the administrator should first find on the basis of an application that has been submitted and on the basis of certified hospital and police records that in fact, the person was injured in the course of a violent crime.

And, supposed further, that the administrator’s determination were made unreviewable, except that the applicant after a denial of his application, might inquire further of the administrator, as to the further--as the basis of the denial and might seek reconsideration.

Now, this is basically what we have here, and I think it’s clear that there would be no due process right, no legitimate entitlement that an applicant who had been injured, who claimed to be have been injured in a course of a violent crime, would have to a due process hearing before the denial.

This is because the right, as Congress has to find it, includes only the procedures of Congress has specified.

Justice Potter Stewart: Now, has Congress has defined the right however to the statutory entitlement of unemployment compensation, it’s required that the state system, give an opportunity for a fair hearing before an impartial tribunal for all individuals, whose claims for unemployment compensation are denied, now those are the terms of state unemployment compensation.

Mr. Mark L. Evans: Mr. Justice Stewart that language comes from, I believe, Title 42, which is the Social Security Act, which of course does set up the standards, by which the secretary will approve state unemployment compensation plans, but that is quite different than the statutory scheme that was created from unemployment compensation for Federal employees.

Justice Potter Stewart: Or basically Federal employees were to be given the benefits that these state statutes give to other unemployed.

Mr. Mark L. Evans: That’s right, except that the statute quite clearly said that the information that is submitted to the state agency by the Federal employing agency shall be binding and conclusive.

There is no ambiguity about that, there maybe some ambiguity about whether the Federal government needs first to give them hearing, before they transmit the findings or after they’ve transmitted their findings.

Chief Justice Warren E. Burger: You’re saying that modifies the other provisions?

Mr. Mark L. Evans: That’s right.

It’s -- the statutory scheme that’s been set up for the Federal employees makes special provision for this.

Justice Potter Stewart: It didn’t say the information shall be binding and conclusive.

Mr. Mark L. Evans: It says the --

Justice Potter Stewart: Didn’t say the findings somewhere?

Mr. Mark L. Evans: The findings made --

Justice Potter Stewart: Where?

Mr. Mark L. Evans: I’m sorry on page 32 of our brief, which is Section 8506, towards the middle of the page.

Findings made in accordance with the regulations are final and conclusive for the purpose of Section 850 -- now, there is no question that the findings here were made in accordance with the regulations.

Justice Potter Stewart: Well, is the question about whether or not they were findings, we both know that -- (Voice Overlap)

Mr. Mark L. Evans: Well, there is a statutory question, I’ve dealt with that.

But, assuming that the secretary’s reading is correct, and that or permissible, I should say.

And, that the findings needn’t be predicated upon a hearing.

It seems to me quite clear that Congress has made it clear that they’ve defined the right to make with the condition that these findings will be conclusive enough, be open for further litigation.

I’d like to touch very briefly on the equal protection arguments.

There has been suggestion that there is a constitutional impermissible discrimination between state employees and private employees who are given full benefits.

And, between probationary Federal employees who were not given full benefits.

But again, these statutes had been setup different times, for different purposes and it seems to me our perfectly proper for Congress to draw, to strike a different balance in the context of federally funded benefits, when you’re dealing with Federal employing agency.

The Congress might reasonably determine that it was too much of a burden on the Federal government to require it to respond with hearings, in every case.

And, especially where they are giving us an alternative.

And, at least on its face, so far as we can tell from this case, an adequate way of correcting the errors might have been made.

Unknown Speaker: Mr. Evens, do I understand the agency has now gone along with the District of Columbia decision of the Smith case, is it?

Mr. Mark L. Evans: Yes, it is, shortly after the Smith case was decided the Secretary of Labor amended his regulations to provide that an employee who has resigned, a probationary employee, who has resigned and who disputes the findings of the Federal employing agency may have a hearing.

Now, there is a reason for that too.

In the case of a discharged employee, there is no question as to what the reasons were, I mean it’s within the Federal government’s competence to know what it was in it’s own mind when it discharged an employee.

When an employee resigns however, for example, if he resigns saying that he resigned, because it was too cold to work in that building, and the fact is from the Federal standpoint that he was resigned three days after he was told he was going to be terminated or might be terminated.

There's no way to resolve definitively what was in the employee’s mind.

And, if he wishes to commit in that point and show that what is in his mind is that the room was cold, that’s available to him, under the regulations.

There’s one other, of course, one other distinction that is between the treatment of probationary employees and permanent employees.

And, I think that the difference is they’re relate not to the statute, which gives them no permanent employees, no greater rights to hearing, to prevent to the findings are final and conclusive.

But, it relates to their different Civil Service status, they have a right to hearing with respect to their continued tenure and if it turns out after that hearing that the findings needed to be corrected, well the regulations specified that the agency must correct findings if it determines that there was an error within a year.

But, the purpose of the hearing is not to challenge the findings for unemployment compensation, but solely to challenge the validity of the discharge.

So again, if there's a distinction between them and in light of all these, we submit that the decision below should be affirmed.

Chief Justice Warren E. Burger: I think you’re time is consumed Mr. Larson. (Voice Overlap)

Rebuttal of E. Richard Larson

Mr. E. Richard Larson: If I may make one comment about this last one?

Chief Justice Warren E. Burger: Yes,

Mr. E. Richard Larson: We did note --

Chief Justice Warren E. Burger: Would you get to microphone so we’ll get on the record?

Mr. E. Richard Larson: As pointed out by Mr. Evans on page 9, note 6 of our reply brief, this Court held last term that were the adequacy of the administrative procedure is the issued to resolve, exhaustion is not required.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Arnett v. Kennedy - Oral Argument

Thu, 23 Aug 2012 18:23:42 +0000

Case:

Arnett v. Kennedy

Media File:

72-1118_19731107-argument.mp3

Related Transcript:

72-1118_19731107-argument

Transcript:

Argument of Daniel M. Friedman

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

Mr. Friedman.

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

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

The case brings before the Court two constitutional questions.

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

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

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

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

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

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

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

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

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

Mr. Daniel M. Friedman: Yes.

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

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

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

But summary judgment was granted against us.

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

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

Mr. Daniel M. Friedman: Oh, yes.

Oh, yes.

Yes.

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

Now, I would like to say one other thing.

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

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

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

He was a fairly important man there.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

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

[Lunch Recess]

Mr. Friedman, you may continue.

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

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

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

Basically, these charges related to two different activities.

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

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

Mr. Daniel M. Friedman: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

Now, the two allegations with respect --

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

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

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

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

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

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

Attacks which according to the affidavit of the Regional –-

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

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

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

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

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

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

Unknown Speaker: No question.

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

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

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

Unknown Speaker: But it was true?

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

He claimed it’s true.

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

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

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

It was a newspaper story covering that.

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

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

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

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

He elected to appeal to the Civil Service Commission.

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

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

Justice Potter Stewart: What page are you reading from?

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

Justice Potter Stewart: Thank you.

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

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

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

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

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

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

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

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

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

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

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

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

Then it provided certain procedural protections.

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

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

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

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

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

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

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

Unknown Speaker: Not to confront any witnesses?

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

Not of that stage.

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

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

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

Here, we do have a statute.

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

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

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

Here, we have two competing interests.

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

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

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

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

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

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

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

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

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

Maybe the facts are wrong.

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

That defines his entire right.

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

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

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

But here –-

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

Mr. Daniel M. Friedman: That is precisely.

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

Mr. Daniel M. Friedman: That is right.

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

That’s the point, isn’t it?

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

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

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

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

Unknown Speaker: Does your position entail that proceeding?

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

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

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

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

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

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

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

Justice Thurgood Marshall: He could have?

Mr. Daniel M. Friedman: Oh, yes!

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

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

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

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

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

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

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

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

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

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

Justice Thurgood Marshall: After he is discharged.

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

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

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

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

He can cross examine, be confronted by it afterwards.

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

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

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

Mr. Daniel M. Friedman: What?

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

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

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

Indeed, indeed in this very case.

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

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

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

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

You have to take that position.

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

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

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

That’s not what happened.

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

Mr. Daniel M. Friedman: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: (Inaudible)

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

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

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

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

Chief Justice Warren E. Burger: Mr. Barnhill.

Argument of Charles Barnhill, Jr.

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

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

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

I would do so very briefly.

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

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

He received five promotions and several commendations.

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

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

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

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

Mr. Charles Barnhill, Jr.: They are.

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

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

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

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

We answered those charges and those affidavits were never denied.

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

You won on a motion for summary judgment.

So I take it.

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

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

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

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

That was dismissed.

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

At that point, the charges became irrelevant.

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

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

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

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

The factual charges are irrelevant.

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

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

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

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

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

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

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

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

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

We said that the facts were stated –-

Unknown Speaker: And then you just added to it.

You wanted a hearing?

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

Well, it really was a vice versa.

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

Unknown Speaker: And by affidavit?

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

We were waiting for hearing.

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

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

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

That charge was not sustained in the suspension.

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

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

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

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

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

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

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

Mr. Kennedy did the following things with this information.

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

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

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

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

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

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

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

I was only wanted to ensure that the fundamental –-

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

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

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

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

We have not been given it.

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

That is over 15 months ago.

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

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

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

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

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

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

I know no explanation for that.

It seems to me –-

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

In that process, does it not?

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

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

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

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

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

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

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

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

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

Unknown Speaker: And some backpay?

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

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

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

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

The merits are still provable.

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

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

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

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

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

Unknown Speaker: And then discharged, is that correct?

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

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

He is been reinstated?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: The welfare of that.

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

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

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

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

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

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

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

Unknown Speaker: And Bell against Burson.

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

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

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

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

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

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

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

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

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

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

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

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

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

Our client has no right to bail.

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

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

Our client has no such alternative.

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

You are analogizing freedom to continued employment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: Even though it is a subordinate?

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

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

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

And I gather you say here also?

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

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

Mr. Charles Barnhill, Jr.: I agree.

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

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

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

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

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

Mr. Charles Barnhill, Jr.: Correct.

Unknown Speaker: And a right to confront witnesses?

Mr. Charles Barnhill, Jr.: Correct.

Unknown Speaker: What else?

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

A brief record of the proceedings –-

Unknown Speaker: That is statement of reasons?

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

And finally, a decision based on the evidence adduced.

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

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

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

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

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

If he has no expectancy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chief Justice Warren E. Burger: Well --

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

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

Mr. Charles Barnhill, Jr.: Right.

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

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

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

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

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

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

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

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

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

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

For example in Goldberg versus Kelly --

Unknown Speaker: Before you get off on that.

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

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

I do not disagree with that.

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

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

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

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

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

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

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

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

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

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

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

Would you like to still argue?

Mr. Charles Barnhill, Jr.: Absolutely.

Unknown Speaker: But, there might be more --

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

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

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

Mr. Charles Barnhill, Jr.: Dishonesty.

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

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

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

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

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

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

I think the government’s argument is very dangerous.

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

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

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

In fact, the procedures do not work.

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

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

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

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

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

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

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

Mr. Charles Barnhill, Jr.: Absolutely not.

But I do not think –-

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

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

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

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

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

That is not the thrust of our case though.

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

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

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

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

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

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

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

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

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

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

We’ll add a few minutes to your argument.

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

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

Mr. Charles Barnhill, Jr.: Thank you.

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

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

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

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

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

It has also ignored relevant judicial admonitions.

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

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

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

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

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

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

Unknown Speaker: Mr. Barnhill?

Mr. Charles Barnhill, Jr.: Yes Sir.

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

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

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

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

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

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

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

Chief Justice Warren E. Burger: No.

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

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

Mr. Charles Barnhill, Jr.: Correct.

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

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

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

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

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

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

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

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

Mr. Charles Barnhill, Jr.: Right.

That’s one of the issues, yes.

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

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

I think the analysis remains the same as in Gooding.

Unknown Speaker: More accurately, I guess the overbreadth.

Mr. Charles Barnhill, Jr.: What?

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

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

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

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

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

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

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

I do not believe there is any such opinion.

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

The Browder case was concerned with conduct, not speech.

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

The statute is one vague anomalous statute.

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

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

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

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

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

Thank you, Your Honor.

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

Rebuttal of Daniel M. Friedman

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

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

while the regulation does not in terms refer to speech.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is not a denial, this is –-

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

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

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

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Board of Regents v. Roth - Oral Argument

Thu, 23 Aug 2012 18:22:26 +0000

Case:

Board of Regents v. Roth

Media File:

71-162_19720118-argument.mp3

Related Transcript:

71-162_19720118-argument

Transcript:

Argument of Charles A. Bleck

Chief Justice Warren E. Burger: We'll hear arguments next in number 71-162, Board Of Regents Of State Colleges against Roth.

Mr. Charles A. Bleck: Mr. Chief Justice, Your Honor, the petitioners in this case are the Board Of Regents Of the State Colleges, they are now known as the Board Of Regents Of State University and actually to be absolutely accurate, they are now known as the Board Of Regents Of the University of Wisconsin System.

The other petitioner in this case, is the President of the Wisconsin State University at Oshkosh, Wisconsin.

The respondent, David F. Roth was the employee of the Board of Regents at Oshkosh State University and I believe the enrollment at that time was been a neighborhood of 11,000 or 12,000 students.

Doctor Roth was in his first full-time teaching position.

He was hired by the board as an assistant professor for the academic year, 1968-1969.

Justice Potter Stewart: You are calling Doctor, is he a Ph.D?

Mr. Charles A. Bleck: Yes, sir, he is.

Justice Potter Stewart: And where is he now?

Mr. Charles A. Bleck: Your Honor, I would -- I've heard but I'd -- much rather you ask the other side because I would mind to give you any misinformation.

I think they know and I just -- and just here say I might -- Doctor Roth was hired for the academic year, 1968-1969.

He was hired under a written contract, a contract that had a fixed term, expressly fixing a term for September 1, 1968 through June 30, 1969.

The contract also expressly referred to Section 37.31 of the Wisconsin Statute which is our state tenure statute.

This statute at that time provided that if a probationary teacher is hired for four consecutive years, he'll acquire tenure or permanent status.

When Doctor Roth was hired, there was a board rule in effect, in fact, it had been passed on March 10th, 1967, which provided that in the case of a probationary teacher, no reasons will be given for non-renewal and there will be no hearing provided by the University on the question of non-renewal.

This same rule also provided that in each case of non-renewal, the professor or the employee will receive notice of that fact by February 1st.

So in effect, he has from February 1st to start looking for a new position.

The procedure at Oshkosh State University in regard to renewal or non-renewal of the probationary contract was that the tenure committee of the particular department would first meet and vote on whether to recommend retention or non-retention.

In this case, it was the tenure committee of the Department of Political Science.

That recommendation then flows up to the Dean, who also makes a recommendation and from there it flows up to the Vice-President, in-charge of academic affairs, and then to the President for his decision.

In this particular instance, the tenure committee met and voted to recommend retention of Doctor Roth on December 17th, 1968.

Subsequently, and about five weeks later, Dean Arthur Darkin (ph) approached several members of the tenure committee and asked them to review this recommendation.

On January 27th, 1969, the tenure committee did meet again, did review their previous recommendation and at this time, voted for non-retention.

This recommendation then flowed up to the Dean, the Vice-President and to the President who made his decision not to renew Doctor Roth's contract for the ensuing academic year.

This notice was given on January 30, 1969.

Doctor Roth on February 14th, 1969, filed his complaint in the District Court seeking declaratory judgment and seeking reinstatement or a contract for the ensuing academic year.

On May 16th, 1969, both parties moved for summary judgment and on March 12th, 1970, the District Court granted the plaintiffs, Doctor Roth's motion in part.

The decision of the District Court held, one, that either the State University would have to give Doctor Roth a contract for the next academic year or in the alternative that the State University could give Doctor Roth a written notice of reason for non-renewal and a hearing on those reasons.

This decision was appealed to the Seventh Circuit which affirmed the District Court on July 1st, 1971.

Although I have explained the fact rather extensively, it is my opinion, Your Honor, that the fact in the Roth case, are absolutely irrelevant at this time.

The petitioners are not here to defend the university's action and not renewing professor Roth's contract.

Chief Justice Warren E. Burger: This is the Western District or the Eastern District?

Mr. Charles A. Bleck: No, sir, I don't believe it is, but the Board of Regents is in the Western District.

Chief Justice Warren E. Burger: (Inaudible)

Mr. Charles A. Bleck: Yes, sir it was.

Whether the University acted correctly or not is still to be litigated in the District Court.

The present posture of this case, does not involve any questions of the First Amendment Rights of Doctor Roth.

The issue is basically, it is whether a State University must give a statement of reason and a hearing on those reasons in every case of the non-renewal of a probationary teacher's contract.

Justice Potter Stewart: Well, in terms of the ultimate outcome of this case, what difference would be -- answer to that question mainly?

Mr. Charles A. Bleck: Oh, it makes a tremendous difference.

Justice Potter Stewart: I know that -- it was another case, what about Roth case?

Mr. Charles A. Bleck: In Roth case, it wouldn't make any difference, Your Honor.

Justice Potter Stewart: What have we got to hear for?

Mr. Charles A. Bleck: Your Honor, we have facing a --

Justice Potter Stewart: Well, I am trying to understand the significance of the law suit but in the case, you say that Roth has already what reinstatement or --

Mr. Charles A. Bleck: Well, that complaint seeks the declaratory judgment.

Justice Byron R. White: If he wins in the District Court on that issue, on being prior to the constitutional rights, he will have that all he wants --

Mr. Charles A. Bleck: No, sir, he will not have gotten all he wants because the defect remain that he wants reinstatement -- I assume, I don't know, this is what his complaint asks for.

He hasn't changed it or --

Justice Byron R. White: But you say you are not here defending his discharge.

Mr. Charles A. Bleck: I am not here defending his non-renewal, the propriety of the action of the University and non-renewal --

Justice Byron R. White: You don't mean you concede within that?

Mr. Charles A. Bleck: No, sir, I do not.

No, sir, that facet of the case must be litigated.

To repeat, I am not confessing judgment in any way, Your Honor, but because of my personal doubt as to whether the University acted correctly in not renewing Doctor Roth's contract for the ensuing academic year.

It means to me that there is a fundamental error or wrong in the decisions below, because Doctor Roth made the allegation in his complaint that his contract was not renewed because of his First Amendment Right.

Now, the decision below requires Doctor Roth to go to this administrative agency, and to have a hearing before the administrative agency which administrative agency is the alleged wrong doer to exhaust this remedy before he can proceed in the District Court to determine whether his fundamental liberties have in fact been violated.

Chief Justice Warren E. Burger: Now you’re saying that should have gone ahead and tried the case from the District Court right away?

Mr. Charles A. Bleck: Yes sir.

Chief Justice Warren E. Burger: Tried the question of whether he should have been hired on the merits.

Mr. Charles A. Bleck: The issue it seems to me, Your Honor, was whether the contract was not renewed for impermissible reasons or for engaging in protected constitutional activity.

If that is not established, then the non-renewal would stand.

Justice Byron R. White: Mr. Bleck.

Mr. Charles A. Bleck: Yes.

Justice Byron R. White: If this court were to follow the Tenth Circuit decision that Mr. Gottesman commented on in his argument, I take it even that subject wouldn’t be open to litigation in the District Court, would it?

Because as I understand it, the respondent here didn’t have tenure.

Mr. Charles A. Bleck: He did not have tenure, he was a one year probationary teacher on his first year of teaching.

Anyway, in answer to your question I would say, no, I feel that if, under the Civil Rights Act, professor Roth would always be able to come in to the District Court and frame a complaint alleging that his contract had not been renewed because of his protected activity.

Justice Byron R. White: Well, what you’re stating is that it states a good plan of action under Civil Rights Act, he would be entitled to a hearing?

Mr. Charles A. Bleck: Yes sir.

Justice Thurgood Marshall: Are you saying to the court, if you have a right to go to the court, you don’t have to have administrative hearing?

Mr. Charles A. Bleck: No sir, I am not saying that.

What I am -- the basis of my argument is that in administrative hearing before an agency that is the alleged wrong doer, such as the university, or this university can conduct their hearing on its own motive and on motives that might possibly involve fundamental liberties just doesn’t seem to make sense to me Your Honor, I think the proper form.

Justice Thurgood Marshall: Well, what happens with the tenure, the professor with tenure -- is he have the hearing?

Mr. Charles A. Bleck: Oh yes, we are required to give him a hearing by law.

Justice Thurgood Marshall: Well, he is ultimately saying, trying to hear him, would the Chief Justice say it?

Mr. Charles A. Bleck: No sir, it wouldn’t because it seems to me that if you gave the probationary teacher a hearing, then you are destroying the very purpose of tenure.

You’re appreciating any distinction between the probationary teacher and the tenure teacher.

Justice William J. Brennan: I thought you said that he was entitled to a hearing.

Mr. Charles A. Bleck: In court Your Honor, in court.

Justice William J. Brennan: In court, yeah, the only quarrel with the Court of Appeals is that if there is a hearing before the university administrative group rather than before the court.

Mr. Charles A. Bleck: That's our only complaint Your Honor, yes sir.

The hearing should have been in the District Court.

These facts should have been litigated there and it’s not a proper subject for an administrative hearing before a school or university.

Justice Harry A. Blackmun: I would like to come back Justice White's inquiry of what difference does it make to you in this or any other case once you've conceded this much?

Mr. Charles A. Bleck: Conceded what Your Honor?

Justice Harry A. Blackmun: Well, it seems to me that you’ve conceded a good litigated ase away.

You say your only posture here that he is entitled to a hearing in the District Court and not at all in the university administrative structure.

Mr. Charles A. Bleck: He is entitled to a hearing in the district court as to whether his fundamental liberties or First Amendment Rights have been violated.

I do not concede Your Honor that he is entitled to a hearing in the district court on any other ground such as the scholarship or competency or rapport with the student bodies.

These items are not for the District Court.

The only issue for the District Court seems to me is one of the constitutional rights.

Justice Harry A. Blackmun: Well I gather, you say that, because the action in the 1983 is predicated on the denial Of Constitutional Rights.

Mr. Charles A. Bleck: Yes Sir.

Justice Harry A. Blackmun: And I gather you are also saying, that predicated risk claim, denial of First Amendment.

Mr. Charles A. Bleck: Yes.

Justice Harry A. Blackmun: He might lose on that, and that still be open to question, pleaded both here and in the other case, he's entitled to a hearing as a matter of procedural Due Process which says nothing right over to do with it.

Mr. Charles A. Bleck: It's right, there is nothing to do --

Chief Justice Warren E. Burger: There is nothing in whatever to do with teachers as in the class, does it?

Wouldn't it justice to a taxi-cab driver, a bellhop or a bookbinder--

Mr. Charles A. Bleck: Well, that would be true for any governmental employee.

It wouldn't be necessarily --

Chief Justice Warren E. Burger: State action I'm talking about, let's make it more sharply, a driver for some state official, a truck driver.

If he frames a complaint under the Civil Rights Act, under 1983, that Justice Brennan suggested under the Federal Rules of Civil Procedure among other things, he must have a hearing to determine whether or not he can make this proof.

Are you saying anymore even that, when you call this a concession?

Mr. Charles A. Bleck: Not a thing, Your Honor, I just wanted to make it clear to the court that the issue here is Due Process the law and does not involve First Amendment Rights of Doctor Roth at this time.

The only thing is Due Process of law.

Justice Potter Stewart: Well, couldn't he have a 1983 action be predicated on the denial of Due Process?

Mr. Charles A. Bleck: Yes Sir.

Justice Potter Stewart: With this court?

Mr. Charles A. Bleck: Yes Sir.

Justice Potter Stewart: Both on denial of First Amendment Rights and Denial of due process?

Mr. Charles A. Bleck: Yes.

Justice Potter Stewart: The one that's here, the only one it's here is the denial of Due Process.

Mr. Charles A. Bleck: Yes.

Justice Potter Stewart: Well, why is that here at this stage if that's still be litigated to the District Court?

Mr. Charles A. Bleck: The Due Process question is not to be litigated in the District Court, Your Honor, the District Court ordered that in every case, that they have already decided it, they ordered that to give him a hearing and that's --

Justice Potter Stewart: That's right and then that should affirm in the Seventh Circuit, why to bring it here.

Mr. Charles A. Bleck: Yes.

Chief Justice Warren E. Burger: You want to channel in, into just a strictly section 1983 action, nothing more?

Mr. Charles A. Bleck: Yes, it seems to me that the issue really is, is whether the constitution recognizes a state system of statutory opinion or the maintenance of a meaningful system of tenure under State Law by creation of section 37.31 of the statutes, the Wisconsin legislature has recognized the importance of having a probationary period leading up to the acquisition of permanent employee status or tenure.

The probationary employees as well as the University has a tremendous interest in maintaining tenure.

The District Court decision recognizes and felt that tenure could be maintained by application in a case-by-case basis of minimal ground for non-retention.

The Circuit Court decision also recognizes the danger to the tenure system back every brief in this case.

It seems to me, it recognizes the possibility of loss of tenure.

The purposes of tenure are of course, academic excellence or the obtaining of the best possible faculty for the student body.

Tenure also affords protection for the faculty and is absolutely essential to the maintenance of academic freedom.

The Roth Decision does threaten tenure, because it vitiates any distinction between the probationary employee and the tenured employee.

This danger would result from that fact that these Universities and Colleges just will not get involved in administrative hearings of this sort or in protracted litigation.

They will do everything they can to avoid such hearings, including the keeping of an incompetence or unscholarly professors.

I think this is borne out, very clearly by the fact that we had so few discharge proceedings as against the tenured fact and so few discharged proceedings as against the civil service, these things are just not done in government.

Justice Byron R. White: May I ask you again, let's assume you've had a deal with the part of the District Court order which granted him hearing or you haven't brought the Court of Appeals decision here and then you had one what was left to be litigated in the District Court namely the First Amendment claim.

There would still be left the District Court's due process decision, wouldn't it?

Mr. Charles A. Bleck: Yes.

Justice Byron R. White: What does that mean in terms of the relationships between the University and law.

Does it means that he may not be discharged and he must be reinstated until and unless he's given a University hearing?

Mr. Charles A. Bleck: It was an alternative order Your Honor, one --

Justice Byron R. White: Alright, so they either reinstate him or give him a hearing.

Mr. Charles A. Bleck: Give him a contract or give him a hearing.

Chief Justice Warren E. Burger: So the District Court wouldn't be purporting itself to try out the issues involved in his discharge -- on non renewal, they would on the First Amendment side, but they would not be purporting to try out whether he was fired for incompetence or whether it was incompetent.

Mr. Charles A. Bleck: I don't know Your Honor, the District Court decision said that in recognizing the danger of losing a recognizable system of tenure, the District Court said that the court will recognize minimal grounds for none reappointment.

Now, what he meant by that, I don't know but --

Justice Byron R. White: Anyway, the district court didn't kind of played any further proceedings until and unless the University gave him a hearing.

Mr. Charles A. Bleck: That's right.

Justice Byron R. White: And that meanwhile he had to be reinstated.

Mr. Charles A. Bleck: No sir, it was not -- What happened, it was an alternative order, one, give him a contract and I assume if we don't gave him a contract we would possibly be liable for damage.

Justice Byron R. White: Or give him a hearing.

Mr. Charles A. Bleck: Or give him a hearing and we immediately asked for a stay of that decision or order and immediately appealed to the Circuit Court.

Justice Byron R. White: The court didn't indicate whether or not after a hearing and a decision against Roth, whether or not the District Court would and to what extent give judicial review to that decision.

Mr. Charles A. Bleck: He did not indicate other than to say he would respect minimal grounds for none --

Justice Potter Stewart: Did the District Court indicate what the District Court would do if the university chose not to give him a hearing?

Mr. Charles A. Bleck: Well, then we would have to give him a contract, we didn't give him a contract, we would be in contempt of court, Your Honor.

Chief Justice Warren E. Burger: Are you here only because you say that on non-renewal of a non-tenure teacher, you don't have to give any hearing at all?

Mr. Charles A. Bleck: Yes sir.

Justice Hugo L. Black: Or a reason.

Mr. Charles A. Bleck: Or a reason.

Dr. Roth was hired with this clear understanding, this does not come in shot to him, this was part of his agreement, he was given a nine month contract and no more.

Justice Byron R. White: You say it's simply a matter of Contract Law and as the District Court and the Court of Appeals were in error thinking that the constitution required the courts to add something to the parties with the contract, and the day the contract of the parties was made, is that it?

Mr. Charles A. Bleck: No sir, I don't maintain that, I think it's a great deal more than mere Contract Law.

Justice Potter Stewart: How much more?

Mr. Charles A. Bleck: I think the court has to balance the interest here.

Justice Potter Stewart: Does the court do that in an ordinary contract case, or just says look you really should have provided and since you didn't provide for a hearing on this, let us say this tenancy, year to year tenancy, we are now going to require one -- the court does --

Mr. Charles A. Bleck: I have never heard of that.

Justice Potter Stewart: Why is there something in -- required here.

Mr. Charles A. Bleck: Well I don't know, Your Honor, it's --

Justice Potter Stewart: Well, what is your -- I don't really understand your position, I guess that's my problem is all about.

Mr. Charles A. Bleck: My position is basically this that Due Process of law and the Fourteenth Amendment does not require the procedural protection of a statement of reason or a hearing.

That Due Process of law just does not require.

Chief Justice Warren E. Burger: Well then, didn't I state it correctly that you say that there is nothing in the constitution that requires a Court to add anything to the contract that the parties made in this case?

Mr. Charles A. Bleck: Yes Sir, I guess, that's correct.

I think in weighing the interest --

Justice William O. Douglas: Does the hearings before the District Court you think should be held is one purely -- where the First Amendment Rights have been violated?

Mr. Charles A. Bleck: Yes sir, that's all.

I can't conceive of any other appropriate issue for the District Court.

Now, the District Court in its opinion --

Justice William O. Douglas: Well, I take it you say that the University, they did not renew it because of its exercise of the First Amendment Rights, that the only remedy he has is 1983 action and the only hearing I guess is the hearing on the 1983 complaint in the Court that even on that circumstance, he is not entitled of any hearing before a University.

Mr. Charles A. Bleck: Yes Sir, for very, very practical reason because he is a probationary employee, and for another thing, these situations are very, very rare Your Honor in my opinion, and if somebody's constitutional rights are in fact infringed, I think in most instances, by inadvertence or ignorance of the constitution.

These are not simple question.

Another point, I don't see how this sort of procedure that is suggested in Roth would really be of only benefit to the professor or would be of any benefit to the court.

Justice Thurgood Marshall: Now, what you are saying is he has no resource.

Mr. Charles A. Bleck: No sir, he, if he feels that his --

Justice Thurgood Marshall: I understood, you say they can have in the institution and whatever he gets in the court is not going to do him any good.

Mr. Charles A. Bleck: No, I never intended to imply that Your Honor.

Justice Thurgood Marshall: Well do you assume that at the District Court, he could find out why he was fired?

Mr. Charles A. Bleck: Absolutely.

Justice Thurgood Marshall: Why?

Because you said under the contract, you are not supposed to give those reasons.

You are not required to.

Mr. Charles A. Bleck: But, once you are in litigation you have all the procedural remedies of a trial, you have discovery.

Justice Thurgood Marshall: Well let me ask you this.

Would it be cheaper for the university to give him a hearing in the university that just defend the --

Mr. Charles A. Bleck: No sir, it would not because are talking about hundreds of cases of non-renewal.f

We are not talking about just one specific direct law.

Justice Thurgood Marshall: But does anybody say that you have to give a hearing to everyone?

Mr. Charles A. Bleck: That's what the District Court ordered, that in every case --

Justice Thurgood Marshall: Not in every case, that's where it is requested.

Mr. Charles A. Bleck: Yes, in every -- oh yes.

Justice Thurgood Marshall: Where requested.

Mr. Charles A. Bleck: In every case where requested.

Justice Thurgood Marshall: Right, and how many that wouldn't be many?

Mr. Charles A. Bleck: Well there is no way of knowing Your Honor, but there are --

Justice Thurgood Marshall: Why is it that you -- first, I heard that I want some litigation, but trying to get away from litigation.

Mr. Charles A. Bleck: It would be an unnecessary and time consuming and wasteful procedure to put not only the school truly Your Honor, but it would be wasteful for the professor himself.

Justice Byron R. White: Well, not if the trial goes on, if he requested hearing, not if the trial goes on to the hearing.

Justice Harry A. Blackmun: Mr. Bleck, if he proves something wasn't referred to him, the case is over with.

You haven't yet told me why an administrative hearing is prudent, other than to say it is the alleged wrong doer itself, but maybe this is the purpose of the hearings.

Mr. Charles A. Bleck: Well, first of all the statement of reasons -- I don't know what type of case we are talking about, whether we are talking about case that involves First Amendment claim or whether we are talking about such things as scholarship, rapport with the student body and so forth, it it is that type of a situation where these things are very difficult to articulate and these decisions are made up by many, many people, this isn't the decision of one man, but this is the decision of maybe twelve or fifteen people and to have a hearing on whether this particular professor has achieved a certain level of scholarship.

I can't see where this hearing would afford anybody any benefit.

It would merely polarize the party, it would involve the entire student body in the case because professor would call his students and say, “Well, now I am a good professor, aren't I?”

And the administration would call students and so forth and we would just have a one heck of a mess.

These things just don't work that simply.

Also --

Chief Justice Warren E. Burger: I take it you are still standing on your basic position.

And I am a non-tenure teacher whose contract is not renewed, is not entitled to a hearing in the university context under any circumstances.

Mr. Charles A. Bleck: That's it precisely, thank you.

Chief Justice Warren E. Burger: Mr. Steinglass.

Argument of Steven H. Steinglass

Mr. Steven H. Steinglass: Mr. Chief Justice, may it please the Court.

The issue for this court today is whether non-tenured State University professors are entitled to minimal Due Process?

Statement of the reasons why their decision is being -- why their contract is not being renewed and a minimal opportunity to come forward with reasons, why that decision should not be made?

Justice Byron R. White: A paper hearing, is it up?

Mr. Steven H. Steinglass: No, I don’t think so, I hope not.

Certainly, first of all the statement of reasons is essential.

The hearing itself would serve several functions.

First of all, whether all examples of inadvertence, ignorance, the teacher would be able to bring forward those reasons which would simply clarify the situation.

Justice Potter Stewart: How about, court examined which issue?

Mr. Steven H. Steinglass: Well I think the answer to that question has to be look back at the order of the District Court.

District Court said the burden would be on professor, so the professor would have the initial burden of showing that either the reasons offered were wholly inappropriate or wholly without a basis in fact.

Justice Potter Stewart: Did he give that through witnesses?

Mr. Steven H. Steinglass: Yes.

Justice Potter Stewart: Could he have the assistant to counsel?

Mr. Steven H. Steinglass: I would think that he would be able to have representation there.

I would think that with a person --

Justice Potter Stewart: Subpeona power?

Mr. Steven H. Steinglass: No, no I think, subpeona power would not have --

Justice Potter Stewart: Discovery?

Mr. Steven H. Steinglass: Discovery, I was --

Justice Potter Stewart: I was not -- are you talking about a full Due Process here?

Mr. Steven H. Steinglass: No, I am not talking about of full panoply of rights.

What I am talking about is an opportunity to bring forward that testimony that he has been --

Justice Potter Stewart: Is he entitled to as many of the elements of Due Process that we held in Goldberg, the welfare recipient is entitled to it before welfare benefits maybe terminated.

I think we said there that welfare recipient is entitled to not only the reasons but to dwell the rights to his testimony to contest a reason, then the court examine anyone, I will offer them to have the assistant in the counsel, I would have had to be appointed, to be entitled to (Inaudible) if he wanted to.

Mr. Steven H. Steinglass: I would think so, I think the major exception would be that because the District court recognized that we were dealing with academic questions many of which would -- many of the decisions would rely on very subtle reasons that firstly, he had -- the Court had to report to the university over a very wide discretion.

So, in a welfare case for example, it would seem to me that a decision that there was -- in order to deny a person in a welfare system, you would not simply have to show that your decision was wholly unsupported, in fact the burden would simply in that case for a welfare director to terminate and assist – and granted assistance, he would have to show that the facts did show that person was not eligible, whereas in the hearing that we are talking about, we are talking about a much smaller burden and that smaller burden is necessary because the District Court did recognize that the university did have an interest in maintaining the probationary system, in maintaining a system under which they could decide not to retain a professor for something less than foreclause as fore clause has come to be known in tenure systems.

So, I think that would probably be the major -- the most fundamental difference between a Goldberg type hearing as part of each of the individual elements that the court requires in Goldberg, I would --

Justice Potter Stewart: How about any partial decision like there was a dissent --

Mr. Steven H. Steinglass: Yes, I think that would be essential but that still would leave university great deal of discretion in determining who that decision maker would be that doesn't necessarily mean that it has be an independent examiner taking from outside of the university system, although it could be, it does in the context of the present case defending Giles (ph) who only became a defendant after Professor Roth was denied minimal Due Process.

Professor Giles (ph) own affidavit says that it is his practice to simply receive recommendations, to receive the memorandum outlining the reasons which were in fact articulated and were not very subtle at all.

They said that David Roth violated a whole series of university rules.

Justice Potter Stewart: How about a written statement of reasons supporting the decisions from the decision maker?

Mr. Steven H. Steinglass: I would think that that would be essential Your Honor, that decision maker would want to --

Justice Potter Stewart: Well, what did it sound to me that what’s different, Goldberg case.

Mr. Steven H. Steinglass: I thought the court in Goldberg did recognize that was offering minimal pre-termination evidentiary hearing and if the court --

Justice Potter Stewart: My question was as to whether or not the type of hearing you’re saying, Due Process requires, in this situation, the same type of hearing, we said in Goldberg, you are acts just seemed to me which are yes.

Mr. Steven H. Steinglass: But I think the essential difference is that and I indicated it before is that the burdens would be completely different and in Goldberg -- in Welfare type situations there is the equivalent of a four clause requirement.

If you break x rule, you will lose x benefits, similarly with a tenure situations, there is that almost of fore clause requirement.

In this situation, in this context there is no such heavy burden on the University, in fact the burden lies on the professor.

Chief Justice Warren E. Burger: Would you think this minimal Due Process that you are talking about Mr. Steinglass would be limited to the faculty members or would it include the elevator operator who takes the faculty members up to the upper floors of the building.

Mr. Steven H. Steinglass: Well I would think that --

Chief Justice Warren E. Burger: Assuming they aren't covered by a union contract after all the tenure.

Mr. Steven H. Steinglass: I would think that in each instance, someone would have to undergo the balancing test that this court has underdone in the past and I could well see, how court might come down on a different side of the equation with respect to an elevator operator, than it might with the Professor, I think there are certain differences, when one applies the Fourteenth Amendment, balancing test.

The Court has recognized, when a person is interested in pursuing the profession is at stake, that that minimal Due Process is required that would truly form one side of the line.

Situation where a person is capable of finding a new employment where non-retention will not have any adverse employment consequences.

A situation in which a person does not have to put a great deal of time and effort in training to acquiring their present position.

Although would it has to be weighed and might bring one down on a different side of the line.

So, it's hard, if there are a lot of hypothetical that we could deal with, I would think that a decision that would require a University to provide a minimal due process hearing to a University professor before his non-retention would not necessarily require every governmental employer to provide that same type of hearing to every employee before they decide not to retain him.

Justice Potter Stewart: But that's only assumption, that's all like tell a elevator operator to look for a job as a mechanic, and not to tell a teacher to look for a job as mechanic.

Mr. Steven H. Steinglass: Well, I think the court has looked at the interests of the individual involved and I think that would probably be the answer.

Justice Byron R. White: While we have you interrupted -- where is Dr. Roth now?

Mr. Steven H. Steinglass: I thought you would ask Your Honor, first year he was unable to find employment and he had a post doctoral research, post doctoral position at one of the big time Universities.

After that he was able to find a job and is presently teaching at State University in Indiana.

So, probably in cases like this is, that it is not clear when the initial act complained of occurs, what the damage will be, the damage may be strung at whole for a long period of time when Dr. Roth commenced this action in Federal Court in February, 1969, he did allege that he believed there would be a damage to his professional reputation, at that time it was not possible for him to know what situation would be 1, 2, 3, 4 years hence.

I think there are a good number of federal courts in the country, who have an individual cases found damage to professional reputation being a significant injury and being one that flows from a non-retention decisions.

Justice Byron R. White: No back-pay consequences would flow from the hearing out of Judge Doyle's decision below, with a -- University could grant him a hearing upon remand and if it granted the hearing and followed whatever procedure Judge Doyle had described and then decided he was dismissed their would be no back-pay claim?

Mr. Steven H. Steinglass: At this point, Judge Doyle has not -- I think by implication by delaying -- by not rendering a decision, we would then – one or two months after, it was commenced.

The suit was commenced in the 69, February, 69, at that point Roth was asking for reinstatement of following the academic year.

The motions for summary judgment were not granted until March, 70.

The order which is appealed from this case said provide him a hearing or grant him a contract for the following academic year.

So the answer to the question is that, at this point no one had ordered back-pay.

Well, we of course would feel free to go back to the District Court and ask that the court consider the other issues which it left in advance during the tendency of this and we would think that those substantive First Amendment issues may give rise to a claim for back-pay.

Justice Potter Stewart: What if he (Voice Overlap) First Amendment claims, reinstatement or damage?

Mr. Steven H. Steinglass: At the time, the suit was filed, reinstatement at this point if we had -- when we go back because the only issue for the court is a procedural due process issue, we will have to reexamine what we will be seeking.

Justice William O. Douglas: But I take it you sustained your First Amendment claim, then that would be limited to say that by then --

Mr. Steven H. Steinglass: No, damage -- the defendant Giles (ph) was sued in his individual capacity as well as in his official capacity -- so as far as his individual capacity we could pursue that.

The question of why we are here today is one that I put it back sometime also.

I would have hoped that the order the District Court which simply have stated in effect and that we could have had an administrative hearing at Wisconsin State University, Oshkosh, I think such hearing would have had advantages that not at least of which it would have given persons with academic expertise and background, the first opportunity to review a case dealing with issues arising out of an academic context, that in itself would be valuable in terms of the resolution of controversies like this within university itself, it would make the issues much more simple for District Courts and if they do reach those forums.

Chief Justice Warren E. Burger: What do you understand are the procedures a tenured teacher receives?

A man who is -- or a woman who has six years or more -- isn’t it now under this Act.

But that six years they have tenure and they receive a notice that decision is terminated.

What kind of a procedure does the University gives that person?

Mr. Steven H. Steinglass: Yes, they would receive a statement of reasons why they were being destroyed in that case and they would have a hearing on that?

Chief Justice Warren E. Burger: Essentially like the hearing that Judge Doyle has ordered here in general outline?

Mr. Steven H. Steinglass: I have never seen one of those hearings.

I do not think that it wouldn't and that Judge Doyle has not ruled on any of the elements of the hearing, his ruling was rather narrowed down, a minimal hearing, I think the major difference again would be the standard that was to be applied, a teacher with tenure would only be dismissed for a clause and that for clause has a great deal of substance, even though it's too a rather simple word and that substantive difference in the standards --

Chief Justice Warren E. Burger: Well, we went in to the basis of the decision that the mechanism, the machinery of reaching that decision is at the same for the tenured teacher as for Mr. Roth?

Mr. Steven H. Steinglass: Well, I would like it to be the same -- Doctor Roth as it would be for the tenured teacher.

I don't think this court necessarily has to conclude that if they chose to affirm a decision about the District Court, the District Court is very careful in pointing out that it was a minimal type hearing, I don't want to --

Chief Justice Warren E. Burger: But he didn't define what minimal was.

Mr. Steven H. Steinglass: Right, I think for good reason Your Honor, these cases will be coming up in the future in districts, both in Wisconsin and then other parts of this country and I think, the determination of what a minimal hearing would consist of, outweighed a case by case determination by the courts.

I think, there is good advantage not to create a constitutional straitjacket in which every University must fit.

I think, there is a all great deal of variations within the phrase minimal Due Process.

I try to point out, want to prove them when I discuss the identity of the examiner, it could be within the University, it could be outside of the University, it could have been defendant Giles when he had received the statement of reasons why David Roth was being not retained, decided to call David Roth and then ask him, “Did you devote one-half to three-quarters of your time of quest talking about extraneous matters?

Did you miss this day in class?

Did you make those public statements, all of which formed a basis or which were in a memorandum which counsel was able to discover, in pre-trial discovery,” but unfortunately was unable to obtain prior to the initiating such action.

The constitutional basis for the situation we’re advancing is alternatively the First or the Fourteenth Amendment.

It is our legal position that when a non-tenured teacher is facing retention for reasons which may – is facing retentions for those reasons on which the retention is based, may implicate First Amendment values.

Roth's (Inaudible) him to a statement of reasons and to a minimal hearing.

The present case is quite good as far as illustrating, what the hearing would have accomplished, the reasons in the present case did on your face implicate First Amendment speech, the University relied on three quotes that David Roth was alleged of.

In fact, did make -- they alleged that these quotations, evidenced (Inaudible) approach to the truth, thereby making him unfit to remain for another academic year, although he was certainly fit to remain for the rest of the present academic year, because he was non-retained rather than discharged.

At a hearing he would have been able to bring forward evidence showing that number one, he did substantiate the claims that the University alleged, who had been unsubstantiated, number two, he would have been able to bring forward evidence showing that each of the individual infractions, which he was alleged to a committee did not take place as it was.

He was finally able to bring forward that evidence in the form of affidavits in the District Court on the motions of summery judgment, but not before them.

Chief Justice Warren E. Burger: Are suggesting an inconsistency Mr. Steinglass in the position of non-renewal and keeping them for the balance of the year?

Mr. Steven H. Steinglass: Well, I am suggesting that through the experience of keeping a teacher to the end of the year and simply saying now we decide not to retain you and so since, Wisconsin statute do not provide any procedures and in fact don’t limit us to the reasons we might choose, we will do it this way, rather than saying, well we better get rid of you right now.

I would --

Chief Justice Warren E. Burger: Having made a commitment for the whole year, for nine months, the school year, are you suggesting the University should not keep it if they can possibly do it consistent with the welfare of the University?

Mr. Steven H. Steinglass: Well, I wouldn't want the University to violate the contractual rights, but if he was unfit or not a proper teacher, the University could simply offer to pay out his salary, if it became that serious, but I think the real point --

Chief Justice Warren E. Burger: Isn't it reasonable that he might have been in the situation that he wasn't bad enough to fire but not good enough to keep.

And so they let him run out before the year so that he has a chance between February 1st and I think, your friend said, and when he receives the notice, until the following September or October to find another job.

Mr. Steven H. Steinglass: That's certainly a distinction between the two.

In undertaking, the balancing approach that this court's decisions have acquired in determining whether or not the minimal procedural safeguards will be extended to persons whose interests are adversely affected.

The district court did take into consideration the value of a tenure system and very carefully attempted not to dilute the tenure system in anyway.

We have the suggestion however that the decision somehow vitiates the distinction between tenure and less than tenure.

The opinions below both the District Court and Circuit Court made clear, there was no intention to vitiate the legal distinction between those two, between status tenure and lack of tenure.

Justice Byron R. White: Would you say that -- let’s assume that a nontenured teacher gets notice that his contract will not be renewed and it is stated in the letter, we have no reason other than the fact that we think we could find someone better sometimes than you are.

That's the only reason we have.

Mr. Steven H. Steinglass: And the teacher --

Justice Byron R. White: We do not claim you have done anything wrong at all.

Mr. Steven H. Steinglass: And the teacher doesn't believe that that's pretext here I believe that's an honest reason.

As far as, the substantive reason I think, that that would be a valid reason, for a non-tenured teacher to be terminated.

It would not be a valid reason to let a tenured teacher go but nevertheless, the non-tenured teacher might well believe that not to be the real reason.

So, I think that he would have the right to --

Justice Byron R. White: Well, what if the letter says, we are not terminating your contract or refusing your review because you exercised any First Amendment Rights at all.

We don't think you even made a speech anywhere, but otherwise we have no reason, that's all it says, we just have no reason.

Mr. Steven H. Steinglass: Well they can see, in other words they can see they have no reason, it's not that they can’t give you, when they don't have one.

That -- if I understand that question correctly, that might become so arbitrary as to violate some of substantive requirements of the Fourteenth Amendment --

Justice Byron R. White: Which one are they --

Justice Thurgood Marshall: Will the burden shift to him?

Mr. Steven H. Steinglass: No Your Honor, the burden would definitely be on the professor.

The professor would have to show --

Justice Byron R. White: He has a substantive right, not to be fired without a reason under the Fourteenth Amendment.

Mr. Steven H. Steinglass: Yes.

Justice Byron R. White: Even non-tenured teacher?

Mr. Steven H. Steinglass: Without any -- I mean, no, we are not just -- we are just saying that one day the President comes and says, “Today I am going to fire somebody, you are the most likely candidate,” I would think that that might well be arbitrary and capricious --

Justice Byron R. White: Does he have the right not to be fired without a good reason.

Mr. Steven H. Steinglass: well, good reason --

Justice Byron R. White: Alright, without any reason.

Mr. Steven H. Steinglass: Without any reason whatsoever.

I would -- it's an extremely abstract question, but I think the answer would have to be yes, you have to have a reason even if --

Justice Byron R. White: But, any reason will do?

I find that if you are wearing a mustache and I don’t like people wearing mustache.

Mr. Steven H. Steinglass: No I think, no.

I think, that might be, that reason might be improper and then I am not, the point is not whether or not it is in fact --

Justice Thurgood Marshall: I hope, it’s a probably good reason.

Mr. Steven H. Steinglass: Whatever, the question of whether or not there are any substantive protection to the Fourteenth Amendment is more a question, a question of where those substantive --

Justice Byron R. White: Were do you draw the line -- – there may be an assessment of reason, constitutional reason, where you differ the situation from a tenancy?

Mr. Steven H. Steinglass: A tenured teacher could not be terminated and if he, more of the reason, I want to say, that we found somebody better.

Justice Byron R. White: That's because of the time?

Mr. Steven H. Steinglass: But at times --

Justice Thurgood Marshall: A tenured can’t be terminated without cause.

Mr. Steven H. Steinglass: That's right, I would think cause has been interpreted --

Justice Thurgood Marshall: Cause has to be shown.

Justice Byron R. White: Would the length of his hair be a cause?

Mr. Steven H. Steinglass: For a tenured teacher?

I would hope not -- but again, try to draw the substantive, rely that a substantive reason -- it is just extremely difficult, the point before the court, is that there must be some reasons which are so absolutely devoid of reason, that are so wholly unreasoned, that are so wholly without a basis in fact, that relies on them, would constitute a violation of the Fourteenth Amendment.

Justice Thurgood Marshall: What happens if the hearing on non-tenure professor, he says why without filing the appointing authority or discharging authority says, I don't have to give you any reason.

Mr. Steven H. Steinglass: That is essentially what happened here.

Justice Thurgood Marshall: That's just what I am talking.

Who makes the move then?

Mr. Steven H. Steinglass: Well, if this court was to accept, the position that advanced by David Roth, the teacher would be able to request to the University, that they provide him with the reasons and their failure to do so would seem to me would violate --

Justice Thurgood Marshall: But suppose at that stage the University says, you just use your language, somebody's language, you just don’t cut too much.

Mr. Steven H. Steinglass: Well, I would think that a professor at that point would be able to request a hearing and at which time he would have --

Justice Thurgood Marshall: Well, I am talking about just their behavior.

Mr. Steven H. Steinglass: Well, he would then have the burden on him to bring in testimony and show that reason was wholly – and he did cut the mustard, however I would think that a reason like that --

Justice Thurgood Marshall: I would hate to see somebody have to prove that he is an efficient professor.

Mr. Steven H. Steinglass: No, I am not -- professor.

I don't want to overestimate the beneficence of universities, but I don't think universities are going to come up with the reasons like that.

I think university administrations will be on it, and will provide the reasons and I would think they would all be required to provide the reasons, it's sufficient detail, so that a response is capable of being framed.

I think that might be a little vague but again, at the hearing the burden lies on the professor shows the reasons chosen are not wholly inappropriate, the reason was that, we are being firm -- you are not being renewed because you drive a yellow rather that a green car.

I could well -- I might conclude that that reason might be so insubstantial, so that it would violate some of the substantive rights.

Justice Byron R. White: Where are the substantive right, the Fourteenth Amendment?

Mr. Steven H. Steinglass: The Fourteenth Amendment, I mean the case --

Justice Byron R. White: Must have been the due process, nothing to do with trial.

Mr. Steven H. Steinglass: Yes Your Honor.

I think in the Schware case this court dealing with a mission to a bar relied on the substantive -- on that particular provision.

I don't think -- I recognized the difficulty in trying to put content into that particular clause or I would say that there are some reasons that are so arbitrary, so without foundation that it would be a violation, but let me make one very important point, we are not resting our case on an attempt to resurrect the Fourteenth Amendment, what we are saying is that the First Amendment requires that a teacher should be provided with statement of reasons and minimal Due Process hearing.

We would say that there is an also an argument to be made that the Fourteenth Amendment requires it, not only -- not because there is a right, there is substantive Due Process right, but because a decision terminating or not renewing a teacher adversely affects very fundamental interests of that teacher.

Chief Justice Warren E. Burger: Would you make the same claim for a person who had not been hired that is who had applied and who was not hired, as you make for a person who is not rehired, the last time I would say parenthetically, the last two-three questions and answers had all talked about firing somebody, you don't claim the man was fired, do you?

Mr. Steven H. Steinglass: A lot of the lawyers in this area, Your Honor -- and administratively slip in their terminology and facts, perhaps that's indicative of the fact, that even the lawyers and administrators in the area do not see that substantial difference between the two, I mean non-renewed, non-retained, and as far as the specific questions, I can see, specifically different bouncing being made in point of that, with respect to the hearing rights of the person who has denied an initial application, it seemed that his hearing rights would be -- his interests would be quite small and probably would not entitle him to a hearing, again that decision doesn't have to be reached, but certainly no stigma would flow from the failure to get a job and certainly not the same stigma that would flow from being not retained on the relocation problems, would not flow, from not receiving the job, with lots of income and income was never coming in, but certainly not be a direct --

Justice William O. Douglas: You just said something, under the (Inaudible).

You said that the right to hearing stems from not so much or necessarily from the due process, as from the fact the teaching profession, qua-teaching profession, served certain First Amendment values that the requirement of a hearing before non-renewal can be rested on the service to those First Amendment values and not necessarily depend upon the Due Process, did I correctly answered it?

And that has nothing to do with a specific claim of violation of First Amendment rights alleged in the 1983 suit.

Mr. Steven H. Steinglass: That's correct, we will go --

Chief Justice Warren E. Burger: Justice teacher-qua-teacher has served certain First Amendment values.

Mr. Steven H. Steinglass: That's part of that but in addition, in this case the reasons that were discovered did in fact implicate --

Justice Byron R. White: Yeah, but as I gather, you distinguished then the teacher from the college administrator, the college janitor, the college -- and the other kind of, the college football coach for example.

Mr. Steven H. Steinglass: I would say we don't have to reach that question and the different bouncing would be undertaken in each case.

Justice Byron R. White: How about the college student?

Mr. Steven H. Steinglass: Well, this court in Goldberg did site approvingly the Dickson case for the Fifth Circuit, I would say, college student probably would if those person not ruled out it would probably be entire -- there is a minimal Due Process for court, he has to leave and pointed back, one of Roth's public statements dealt with the fact that students had been terminated without due process and ironic twist that he is here today asking such rights for himself.

Justice Byron R. White: Mr. Steinglass, one last question, during the World War II, student bodies dried up because people were at war, suppose that same kind of thing happened at Oshkosh and the administration terminated 90% of the non-tenure people, retaining 10%, would anyone of the 90% have the right to a hearing on your theory?

Mr. Steven H. Steinglass: I think they would have the right, I think that reason that you stated would be a perfectly a legitimate reason, I can't see any logic behind a professor asserting his right to a hearing in that situation.

Justice Byron R. White: That's because he would have a right to know why he, rather than x was let go.

Mr. Steven H. Steinglass: Yes.

Chief Justice Warren E. Burger: Thank you Mr. Steinglass.

Thank you Mr. Bleck.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Perry v. Sindermann - Oral Argument

Thu, 23 Aug 2012 18:18:04 +0000

Case:

Perry v. Sindermann

Media File:

70-36_19720118-argument.mp3

Related Transcript:

70-36_19720118-argument

Transcript:

Argument of W. O. Shafer

Chief Justice Warren E. Burger: We will hear arguments next in 70-36 Perry against Sindermann.

Mr. Shafer, you may lower the lectern if you would like to.

It's on the right side.

Mr. W. O. Shafer: Mr. Chief Justice, and may it please the Court.

Usually I carry a coke box to take care of that difference.

Petitioners in this case are the President and the Board of Regents of Odessa College, a small town in West Texas.

The respondent, Sindermann was a teacher employed on a year to year contract, which had it's expiration was not renewed.

Termination did not occur during the contract term.

Before the term date actually expired and before official notice that it would not be renewed, he claimed he was fired for anti-administration activity.

The President of this college also had about simultaneous with the notification of non-renewal, issued a press release in which he detailed the activities, and as we read in this claim that it had any thing to do with his discharge.

But it is set out in detail, what we considered to be, too precise, valid and legitimate grounds for non-renewal which included one; persistent insubordination and two; a disruption of harmony, among his colleagues, by the way of harassment.

Now, we don't know of any decisions that says that either of those situations, or invalid as grounds for dismissal, three days and with a notification--

Justice Harry A. Blackmun: You concede that there was a dismissal here or simply a --

Mr. W. O. Shafer: It is a non-renewal, Mr. Justice and I debate in terms of termination and I may slip and say discharge, I do hope to make it clear that it was a year-to-year contract.

It was not renewed at the expiration of the contract.

Justice Harry A. Blackmun: It was a failure to the rehire.

Mr. W. O. Shafer: Yes, it is a failure to renew or give him another contract.

These are year-to-year contracts, and what we present here as a non-tenure college in a non-tenure state and with a non-tenure profession.

And if I say termination, and I mean to say non-renewal.

Justice Potter Stewart: Well you said dismissal, and I wondered if you were speaking that and I gather you are not.

Mr. W. O. Shafer: No sir, we do not.

Justice Potter Stewart: This was a professor, you are saying?

Mr. W. O. Shafer: Yes, well, and I guess you would say pro-professor, yes sir, this is a junior college and--

Justice Potter Stewart: A two-year college.

Mr. W. O. Shafer: Yes, sir a two year college.

So we don't have chairs and things of that types of that nature, if you would find in a Ford University.

I do hope to make that clear though I may have used that term, I don't mean to, I will try not to.

Three days after, he had notice of the non-renewal, Sindermann filed a suit in the Federal Court in our area for $475000 of damages, and seeking various other relief.

Simultaneously, with the filing of a suit, he wrote a letter asking for a hearing which was the first indication, or request for an entire period, no hearing was made, the case proceeded under the court--

Justice Thurgood Marshall: Does the college provided for hearing if requested?

Mr. W. O. Shafer: Well Odessa College does not have a tenure type of statement.

Although it has adopted in part and the declaration of policy of the American Association of University Professors.

And had he requested a hearing instead of placing the matter in Court.

I have no doubt, that if a hearing would have been provided, but the college, the president of the college got the summons to go to Court on the same day, he got the letter requesting a hearing and of course I am sure it was Perry.

As far as the college was concerned, and we simply answered in the forum in which he had chosen, not to proceed and, we think that we should not be condemned for answering in court and proceeding then.

Now, up on motion, the trial court entered a summary judgment of all petitioners on grounds basically that the Sindermann had neither a tenure or a contract, and that his constitutional rights had not been violated.

Now we'll agree that trial courts could have been somewhat more explicit in its findings, because he made the broad conclusion that his constitutional rights had not been violated.

We think that it isn’t and haven't, and necessary and not only permissible but inherent in that finding, that he had to find that either one, that no hearing was necessary or that Sindermann waived his right to won, when he resorted to the courts and that valid grounds for non-renewal were established as a matter of law by Sindermann's own pleadings, in the District Court for the Western District.

Now, it is on those basis that we seek a premise of the Trial Court's judgment, and we think that if we can make our position clear on, the court will concede while we say the case be affirmed.

First, about the hearing as I have explained the hearing demand arrived with the summons, but then Sindermann could have asked for hearing, or he could have proceeded in Court -- both remedies were open to him.

He chose to do both at the same time and we think knowing that the Court’s action would paralyze any action by the Board.

Now the choice was his.

He made this election not the college.

The college responded in the court where he felt it had (Inaudible).

Now we don't think they should be to contempt with it and we think the trial court had a right under those circumstances which were appeared in the pleadings, had a right to say that he had waived his right to a hearing.

Now, probably what is more compelling from a record in this case, is that when you look at the basis on which the case was handled in the trial court, you can see that there is no necessity for a hearing in this case, if the the Board was correct in finding adequate and valid and supporting grounds without dispute.

Already established the purpose of a hearing is to determine the existence of facts.

If there is no dispute about the facts, then there is -- it is certainly a useless thing to hold a hearing to determine facts that are already undisputed, and without any controversy in the case.

In this case Sindermann himself pleaded that he had been insubordinate and that he had violated the directions and instructions of his Dean and his President, on not one but on several occasions and be specifically and in detail on two.

Now, we think he is bound under the rules of any court by his pleadings upon which he relies as to set forth his cause of action, and when he pleads them thinks himself that, that establishes that fact.

Justice Byron R. White: Well let's assume that there were valid grounds for non-renewal revealed in the pleading, that doesn’t necessarily mean that those are the grounds the college used, it could be that they used an invalid ground.

Mr. W. O. Shafer: Your Honor--

Justice Mr. Justice: And that's precisely what he alleged in his complaint.

Mr. W. O. Shafer: Yes Your Honor, I am going and I think if I maybe allowed to lay this foundation briefly, I am going to take issues where the proposition that where valid, legitimate, honest, full of grounds for dismissal are established without any dispute in the evidence and without any controversy, that a concurrent plead of impermissible ground is not and should not be controlling or required credit if that is going to reach upon.

I am getting to that as fast as I can be.

Now I do think it is appropriate here, for me to say that in Jones versus Parker, the Tenth Circuit, the Fourth Circuit in Parker versus the The Board of Education.

These cases have held that a non-tenured teacher, in a non-tenured school and in a non-tenured state and college.

Upon expiration of this contract has no right to a hearing.

The First Circuit I believe in Brown may have joined them in that view but said you ought to have a state.

Now we fit squarely under those cases and if those cases have directly declared the law, then our argument is over because we fit under that clause and would be protected under it.

But we do not think we are, and we are not here saying that that is enough because we don't have to, and our facts go beyond the holdings in those cases and we say that whether it is contractual or not, is not the point here, we go beyond.

We think we have adequate grounds under the rule that we propose as being the only possible rule, that the court can adopt and that colleges and boards and regents in this country can live with.

And in this rule, and this rule that we say we have to have for our survival is that point adequate full and proper grounds, I not talking about the disputed grounds I am not talking about the pretext.

I am not talking about matters incidental, the length of the hair, the length of the skirts, it might vary from school to school or from place to place.

I am talking about insubordination.

I am talking about disruption and harmony among the colleagues incompetence, and inefficiency, basic sound grounds.

And we say when those have been established the inquiry is over and that if there is a concurrent claim made of impermissible reasons that those failed in the contrast.

Now the reason is --

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

Mr. W. O. Shafer: I am sorry I didn't see the time.

Your Honor.

Chief Justice Warren E. Burger: Mr. Shafer you may proceed.

Mr. W. O. Shafer: Mr. Chief Justice and may the Court please.

It maybe best at this point to define activity that we are talking about so that to clarify the point.

Sindermann asked for and was refused permission to leave his duty post go to the State capital to lobby, in support of certain legislation in which he was interested.

Now as far as, well as Odessa College is concerned, he was and he is and will forever be free to support any legislation that he chooses.

What we say say that he was not free to do, was to leave his duty post contrary to the instructions and directions of the chairman of his department, his Dean and his President and go some 300 to 400 miles away at his convenience and at his choice to lobby in support of that legislation.

Now, whether the free support of legislation is protected, really we don't think is the question.

Here, we think that the critical question is whether he can go 300 or 400 miles away at a time of his choice, contrary to instructions of his superiors and lobby lobby at his convenience in support of legislation in which he is interested.

Chief Justice Warren E. Burger: Well, does it make any difference what he is doing, when he's gone that 300 or 400 miles?

Mr. W. O. Shafer: We think on balance, may your honor please that the compelling job, which he has hired out to do, which is to teach his classes must outweigh his own convenience in going or wherever he chooses at his convenience and at a time which he selects to lobby in favor our legislation.

Chief Justice Warren E. Burger: Let's assume for a moment that he was going there to listen to some lectures on the very subject he was teaching, would that be an excuse for being absent from his duty post as you put it?

Mr. W. O. Shafer: I think that would be a decision that his superiors would have to reach again on balance as to the benefit to the college and the students and as compared to him.

Certainly, we would have a constitutional and a protective right to go.

That would be a matter of his choice, but this Court has said and if I agree that this is a delicate balance and that the care must be used to preserve that autonomy of the Board to maintain discipline, competency, efficiency and at least an orderly administration of a college.

The problem Your Honor is to look at your question as to one professor, but suppose on that same, 250 professors or half the faculty also wanted to go and hear the lecture, and also wanted to lobbying at the legislature, then how do you choose each one would have an equal right to go; you couldn’t say one man had a superior constitutional right to go to the legislature and lobby, but what are you going to do, shut down the college?

No, you have students who came to get some education, you have professors who have been hired out to teach and this is the point we make Your Honor, when we say that on balance, this is not a matter of choice of the professor to go to a state capital once.

This perhaps arose some four times and he went on two occasions, testified on the legislation in which he was interested on neither occasion.

The Fifth Circuit summarily held that this was just a protected right and really did not discuss the matter but we think respondent recognizes the problem quite well, because in a respondent's brief, he classifies it as a grey area, upon which some balancing is needed and when you are in the grey area, if that's what it is, we think the actions of Sindermann himself may well be determining of the importance of the problem.

Now listen, bear in mind that Sindermann himself approached his superiors and requested permission to go, he just didn't leave and go.

He came and asked, realized that this was an area in which he might be refused permission, otherwise why ask, why not just go.

They argue in their brief that the faculty guide says that all he had a right to expect was on an unexcused absence; a deduction of 118 of his pay.

Well, you see, we get out of unexcused absences.

This is not just an unexcused absence.

This is an absent, which occurs in direct contradiction to his superiors.

If he just takes off the leaves, we have an unexcused absence.

This man sought permission, was refused permission and disregarded and went anyway.

Well --

Justice Potter Stewart: How big is a institution -- Odessa Junior College, how many students?

Mr. W. O. Shafer: About 2000, if the count would be less, count the night students too.

Justice Potter Stewart: About 2000 students and how about the faculty?

Mr. W. O. Shafer: Say about 200, 300.

Justice Potter Stewart: How large is the department?

Social or political science?

Mr. W. O. Shafer: Yes, Your Honor, may be six or eight.

Now I guess what we are saying is the opposite of what respondent contends that the rule should be.

They say that a bond termination or a bond non-renewal.

If there is a claim and bear in mind Your Honors, I'm talking about a claim.

If there is a claim of impermissible reasons, then you must go into that matter with a hearing and with full procedural Due Process.

Justice Potter Stewart: (Inaudible)

Mr. W. O. Shafer: Yes Your Honor, now this is what that contention is.

He finds some support, Kruger (ph) versus Alabama by the Fifth Circuit says that.

Now this case has -- very well might be construed in saying that.

But let me try to explain why, we say that can’t run, you see if that's true, then it is a matter of job securing for any professor or any faculty without tenure to take any administration positions, to amend the administration in areas of grey, or whatever black, or black or green.

Because then, if he is aware of his derelictions and he knows his contract may not be renewed, immediately upon notification, all he does is make the claim.

It doesn't matter about the validity of the grounds because he makes the claim, then we are in the hearing business, then the court is under --

Justice Byron R. White: Are you objecting to -- I gather you are objecting to the suggestion that a person be giving the right to prove a discharge for an invalid reason.

Let's assume this compliant in this case did not in any way reveal what could be called a justifiable reason for discharge, all it did, was say, I made some speeches and I was fired for making those speeches.

Mr. W. O. Shafer: Then I think the trial court is going to have to hear some testimony.

Justice Byron R. White: If he pleads right, it's either the Court or somebody else who's going to have to entertain that claim.

Mr. W. O. Shafer: Yes, if he does not plead that as far or Mr. Justice, if we have disputed ground.

Justice Byron R. White: Alright.

Mr. W. O. Shafer: I am talking only about grounds established as a matter of law at valid legitimate grounds.

Justice Byron R. White: But you do concede then that if he pleads only and that what we call an invalid ground or disputed ground, he should have a hearing in the Court.

Mr. W. O. Shafer: Then we are going to have to have some testimony.

Yes sir.

Justice Byron R. White: Yeah, alright.

Mr. W. O. Shafer: To determine what we say has already been placed.

Justice Byron R. White: Well, what do you think the Fifth Circuit meant when it said except in cases where the teacher or the institution refuses to follow these procedures, a court and its jurisdiction invoked would ordinarily stay at hand.

Arguably the court meant what we think would be better for the University to hold its own hearing, but if it refuses to do so, we will hold him here in court.

Mr. W. O. Shafer: Yes Sir.

Justice Byron R. White: And you conceded that at least, they will have to hold in court on the right kind of pleading.

Mr. W. O. Shafer: Yes Sir, I agree with that.

Well, I tried to distinguish ourselves and I hope to do so clearly because when I say the facts of the non-renewal on valid sign, not foolish ground.

I am talking sound grounds, then I say the inquiry is open and I say that is the only reason they did not --

Justice William O. Douglas: Because when -- if the court granted summary judgment --

Mr. W. O. Shafer: Yes Sir.

Two motions were filed.

We plead what we are now saying to the court that compliant ----

Justice William O. Douglas: From the point of view of this situation, this is not a summary judgment case right?

Mr. W. O. Shafer: Yes Sir.

Justice William O. Douglas: You may eventually win, but the only issue here is whether this is a case for a summary judgment.

Mr. W. O. Shafer: Yes Sir and we say that it was appropriate remedy in this case Mr. Justice simply because --

Justice William O. Douglas: We have been pretty strict and this court has --

Mr. W. O. Shafer: Oh yes Sir, I know that.

Justice William O. Douglas: There is First Amendment, possibilities of First Amendment issue here, it should be a hearing --

Mr. W. O. Shafer: Well, we say that that should not occur where valid, solid and please Mr. Justice, I am not talking about foolish grounds, I am talking about basic grounds such as involved discipline and competency when those are established as a matter of law, we say what is the necessity of going to have a hearing to see if that ground has already been established when it is played and there is no dispute about it.

This is the reason that we say Mr. Justice, that then a concurrent plan, our First Amendment suppression in the face of a valid ground, is no longer need to be examined because if you did so, you get in to the proposition of where it is a situation of job security.

Justice William O. Douglas: We agree with your result, of course, the valid ground but that is something I don't imagine this court would decide.

I don't know, it's very difficult from this tangled record to sort out the facts up here for the first time.

Mr. W. O. Shafer: Yes sir, we think the pleadings are there and the reason we feel a little more secure, than if we had a record of some testimony or some affidavits.

Mr. Justice, it is that in this case, we rely on Mr. Sindermann's own pleadings.

Well, there is no question about the --

Justice William O. Douglas: But Mr. Shafer, I have noticed that the claim based on the opinion by which Mr. Justice White referred to the court also says except the following such procedures would be a needless waste of time and I got that your whole argument is that this is a case where following hearing procedure would be in the persuading time.

Mr. W. O. Shafer: Well, yes sir, if I am correct in my position which I, you say I am at the opposite end of the spectrum.

That is what they say.

Justice William O. Douglas: Basically, as I understand you are arguing that in effect Sindermann has pleaded himself out of the right to a hearing because he set up facts in a pleading which established the legal question that you don't need a hearing.

Mr. W. O. Shafer: Insubordination.

Justice William O. Douglas: That's what you say.

Mr. W. O. Shafer: Yes.

Justice William O. Douglas: And yet probably the Court of Appeals did not think this was the case, where following such procedures would be persuaded.

Mr. W. O. Shafer: No, sir, the Fifth Circuit said that we were guilty of sophistry I believe is the term, Your Honor, and that they took the position that a forbidding of the exercised First Amendment right and then after a violation of the instructs, and holding that to be insubordination was simply a pretext or a worn out pretext but we are -- we don't agree, we think that they missed the mark, when they didn't consider to some way the balance of the problem involved of going at his convenience and we get back to the same problem of 200 professors going to Austin are happy, that this must we think, of necessity to be a matter of control.

Justice Thurgood Marshall: Is there anything in this record that shows that when he went to a superior, his superior said, you can't go because 199 others will go?

Mr. W. O. Shafer: No sir.

Justice Byron R. White: Well how did you get (Inaudible)?

Mr. W. O. Shafer: Well, I think if we are sitting down on a principle which is being urged as was in the Fifth Circuit, Mr. Justice that you have to look at both sides of the possibility.

Justice Thurgood Marshall: If you had followed the rule of the Fifth Circuit and gone back to the District Court, it's all de novo one way or the other, but that would --

Mr. W. O. Shafer: Well, I suppose if we'd gone ahead and gone on to the trial that we'd have been --

Justice Thurgood Marshall: You get a whole full record.

Mr. W. O. Shafer: Either there or all the way up here, one of the two.

We've had a full record --

Justice Thurgood Marshall: So what you're really pushing for is first to support the summary judgment.

Mr. W. O. Shafer: Yes sir, I think it is appropriate --

Justice Thurgood Marshall: That's all you say?

Mr. W. O. Shafer: Yes, and for the reasons which I hope to have made clear because of the question of opposite end of the spectrum, simply means you encourage anti-administration activities, a fight with your superiors, those are the things, then in that place you get an excellent position if your employment is terminated, we don't think that the law is designed, Mr. Justice to create dissent.

We think it ought to be designed.

Justice Thurgood Marshall: Well, in order to -- I guess it would be the opposite of dissent, if we had the absolute right to fire anybody for any reason without a hearing.

Mr. W. O. Shafer: We simply do not add --

Justice Thurgood Marshall: Because the only thing involved here is a hearing?

Mr. W. O. Shafer: Well, we think it's something more than a hearing.

Justice Thurgood Marshall: Like what?

Mr. W. O. Shafer: Mr. Justice, but we think that the pleadings determine the case, the hearing thing to us goes up because simply, we say the facts had been established --

Justice Thurgood Marshall: The pleadings will change?

Mr. W. O. Shafer: No, sir.

Justice Thurgood Marshall: Why not?

If it goes back to the District Court as the Court of Appeals says.

Mr. W. O. Shafer: Did you said could they be or are they?

Justice Thurgood Marshall: If you had followed the decision of the Court of Appeals, gone back to the Trial Court for full evidentiary hearing, am I not correct the pleading could have been changed, amended.

Mr. W. O. Shafer: I am sure with permission of the court, no question about it Mr. Justice.

Chief Justice Warren E. Burger: Mr. Shafer, if you have you got the views or someone has, I thought the issue you were presenting in this case was the right of some kind of a hearing when a man's one year contract is not renewed, some kind of a hearing to establish evidence, why it isn't renewed, now that's quite different from the terms of discharge and termination and so forth, that we have been loosely using.

I thought you had said at one point when you started, there is no discharge involved here, there is no termination involved here, it's merely a failure to renew, to extend, to make a new contract.

Mr. W. O. Shafer: That is correct, Your Honor, if I have responded in other terms, I was afraid I was going to use the term indiscriminately and I notice that, apologetically that some of the justices have too, so I have only responded as a track that we are talking about a non-renewal.

Chief Justice Warren E. Burger: Can't you let us in to that something --

Mr. W. O. Shafer: I am sure that I have.

Chief Justice Warren E. Burger: Thanks Mr. Shafer, Mr. Gottesman.

Argument of Michael H. Gottesman

Mr. Michael H. Gottesman: Mr. Chief Justice, may it please the court.

I think there are more issues in this case, than it actually revealed themselves so far that before trying to define what I think are three quite separate legal issues posed by this case.

I think a couple of minutes more on the facts can be helpful.

Sindermann was a professor who had been teaching in the Texas schools for 10 years, in Texas colleges, so that we don't have here what you have in the next case, the Roth case.

The system were there is a tenure after so many years and the cases before you on behalf of a probationary teacher who has been let go.

Sindermann had not only been teaching for 10 years in a system which has no tenure, you never get tenure but he had been the Co-Chairman of his department, so he was anything but a probationary employee.

Now during his last year of teaching that is the year which ended with his non-renewal, he had been active in two causes which were both very alive before the Texas Legislature.

Chief Justice Warren E. Burger: Well Mr. Gottesman, taking the phrase you used, is there anything but a probationary employee in a non-tenured context, do you have such thing, probationary employees?

Mr. Michael H. Gottesman: I suppose not.

Everybody is --

Chief Justice Warren E. Burger: On a one year, on a one year plan.

Mr. Michael H. Gottesman: That's correct, but why I meant by that was where you have a tenure systems, the arguments that are made in the Roth case, are not providing hearings, is that look we need this time to look these fellows over and we do give them the protections after we weeded out those that we don't think are going to cut the mustard here.

It's really only a short period of time until they are going to get their tenure, it's only seven years mostly.

But all of those arguments have no application I'm saying to a system and got the legal argument here.

The only point I wanted to make is there is no tenure system, but Sindermann was not somebody who was going through, what we would customarily called a probationary period, where they were trying to decide whether or not he meets the criteria for some kind of continuing employment.

He had been teaching there already for 10 years and he had been the Co-chairman of the department.

Justice Byron R. White: Where is Mr. Sindermann now?

Mr. Michael H. Gottesman: Mr. Sindermann has been for three years unable to obtain a teaching here and indeed he has for most of that period unable to obtain any employment even related to that.

He has been working for a former senator.

Justice Byron R. White: Working for what?

Mr. Michael H. Gottesman: A former senator from the State of Texas.

Justice Byron R. White: State senator.

Mr. Michael H. Gottesman: No, former U.S. Senator.

He has and an affidavit in our brief reflects, apply to something like 105 or 110 colleges and universities have been unable to secure another teaching employment.

We suggest there is a relationship between his non-renewal and that fact which outcomes later.

In any event Sindermann was very active in two causes.

One was an effort to get tenure for the Junior Colleges of Texas.

He was the president of the association of all of the Junior College teachers in Texas, some 42 colleges.

He had been invited, he'd been active throughout this period writing letters, preparing speeches and making speeches.

He had also been invited in his capacity as President of the Texas Junior College Teachers Association to testify when that legislation was up for hearing before the Texas State Committee.

The other course he was involved in was in community effort to turn Odessa College into a four-year college from a junior college.

Most of the people in the community were supporting that as what Sindermann, but the Board of Regents of the college who would have lost their positions as the nature of the college had changed, were opposing it.

As a result on both of these issues, the tenure issue and the elevation of the college issue, Sindermann was aligned with groups who were supporting legislature which the college administrators would violently opposed it.

Both of these bills came up for hearings in the Texas Legislature within two or three days of each other.

Sindermann was invited by the members of the Texas Senate to testify on both.

He went to his superiors and he said, “May I have permission to go?

The only way I can testify, since the legislature only sits during class hours.

Is if I can go and get permission to be absent for one day on each occasion.”

He offered to pay for the substitutes who would fill in for his classes.

The substitutes who were available were people who taught precisely the same courses at other hours in the days.

So, there is no question that they were fully capable of teaching the course.

They had agreed to substitute for him and he was prepared to pay them for doing so.

The college said, “No.

you can't go.”

And gave him a long elaborate letter from the President of the college explaining why he couldn't go.

The first reason in one sentence was, “We pay you to teach not to go lobbying.”

But then, they went on with, “This isn't your job, you ought to have a legislative man in Austin who can do the testifying for your groups.

We were thinking about giving tenure anyway, so there is no reason why you need to go and testify on it.”

Quite plain, I think, the college didn't want Mr. Sindermann to be testifying.

He did go, not withstanding their refusal to grant permission.

He did provide for substitutes to teach to classes and he did offer to pay for the substitutes himself.

Not withstanding that a couple of weeks later, he got advice from the college that he was not to be renewed for the following year.

When rendering that advice they issued a press release which they furnished a copy off to him.

The press release did not say he was guilty of insubordination, it did not say he was guilty of creating disharmony among his fellow colleagues.

The press release recited the entire gamut of what we would call his First Amendment activities that year.

He got involved in the committee to get tenure and that was unfortunate and it was in opposition to the views of the Board of Regents.

He got involved in the effort to elevate the college and that created a lot of dissension in the community and that was unfortunate and that was an opposition to the position of the Board of Regent.

In support of the latter cause, his name appeared on a “disgusting” ad which appears at the end of our brief and which is quite innocent.

But his name was attached to a disgusting ad which supported the effort to elevate the the college.

Though Sindermann had told the Board of Regents that his name had been put their without his permission, he was nevertheless responsible on the theory of guilt by association.

Because he had associated with the group who did publish the ad.

Then at the end of the group, his list of -- what I would call reasons that were being given, they mentioned the two absences.

Then they said, the Board of Trustees has been furnished the Board of Regents has been furnished.

The above explanation of Mr. Sindermann's activities and has expressed its disapproval.

Indeed on that same day though the press release didn't say, that they voted not to renew him.

Sindermann then came to court, or I should say before he came court immediately from being notified of his non-renewal, he requested a hearing.

He wrote a letter.

He had when he first had inklings that he was in trouble.

He had previously requested that he refurnish the procedures with some internal AAUP documents provide for faculty members, those had been refused to him.

He was notified of his non-renewal without being afforded a hearing of any kind.

He wrote a letter saying, “ Can I have a hearing?”

He got no answer to that letter and three days later he filed a law suit.

Now the law suit, it has been suggested in effect confesses a lack of claimant.

There is nothing with the the sort.

The law suit recites Sindermann's active participation on these two causes.

It recites the fact that he was not renewed.

It alleges that the reason he was not renewed was that he was taking positions, contrary to that of the Board of Regents on both pieces of legislation.

It attaches the press release, as reflecting precisely what the complaint alleged, namely on its face, the press release and the way it's written and the way it's structured suggest that all of his activities played a part in the decision not to renew him.

The university then moved for summary judgment and it did so on a ground which it is not arguing here today, that it was the ground on which it sought certiorari.

The college said “Since his contract is expired and since he has no tenure, we have no obligation to keep him or to hire him again for another year and we can refuse to hire him for reason whatsoever, including the exercise of his First Amendment rights,” for that proposition they cited the decision of Tenth Circuit which held precisely that.

“It's the only case we've ever found that held that what it did it and they cited that proposition and supported the motions for summary judgment.”

The District Court apparently granted summary judgment for precisely that reason.

Opinion recites 1, 2, 3, 4, he has no tenure, he has no contract, he therefore has no right to reemployment.

Therefore, the complaint should be dismissed.

The Court of Appeals of course, reversed that, pointing to the long line of decisions by this court, which established the proposition that a teacher or a public employee or anyone else for that matter can not be denied, even a privilege which the State affords.

If the reason for his denial was that he has exercised his First Amendment right --

Justice Byron R. White: Does this theory also apply to one employed as a teacher by private college?

Mr. Michael H. Gottesman: I would think not, since the -- that depends on whether the finance, the public financing that the private college gets would make it state action.

The theory derives from the Fourteenth Amendment which of course requires state action.

Therefore you would have to find that the college's actions constitute state action before you could find that it's applicable to private college.

Justice Potter Stewart: Well, Mr. Gottesman, if Sindermann had been an original applicant for employment by Odessa Junior college, if he had come with impeccable academic, intellectual credentials, with all sorts of fine letters of recommendation from the Dean and the Professors at Harvard where he had received his graduate degree and if the hiring authorities in Odessa Junior College had said, “ Yes, we recognize.

You are superbly qualified to be a member of our faculty, academically, professionally, intellectually, your character also we grant is impeccable but that you have been making too many speeches on subjects we don't agree with you on, so we are not going to hire you, would he have a entire cause of action.”

Mr. Michael H. Gottesman: Well this court has held that he would unless he would want to get involved.

Case called Whitehill v. Elkins 389 U.S. 54 in which this court held that an applicant for employment by a college could not be refused to employment because of his prior exercise of his First Amendment rights, to be more precise because he wouldn't sign an oath assuring that he had not belonged to certain organization.

Justice Potter Stewart: I suppose that's quite a --

Mr. Michael H. Gottesman: I don't want to get into the too far --

Justice Potter Stewart: I do want to get into that because I think it's just your position in this case.

Not in my question.

I am not talking about a non-communist oath or any other kind of oath.

Mr. Michael H. Gottesman: No, I don't think, but this court has said that the state can not condition employment.

Either in the first instance or continued employment.

Upon someone refraining from exercising his First Amendment rights.

Now, I have got a case where the man has been teaching for ten years and they've said -- we say they've said.

Justice Potter Stewart: But his contract has expired as it does each year.

Mr. Michael H. Gottesman: That's correct.

Justice Potter Stewart: So, each year, he has to be rehired and I am asking simply about original employment.

Mr. Michael H. Gottesman: Yeah, I think if a university said to a teacher, you are someone we would hire but for the fact we don't like your political views or but for the fact that you support tenure or but for the fact that you got to organize --

Justice Potter Stewart: For year college or rather two year college --

Mr. Michael H. Gottesman: Or well, yeah that's right.

Justice Potter Stewart: Therefore, we are not going to hire you.

Mr. Michael H. Gottesman: Let me emphasize that under pickering this court has suggested that there are limits within which a teacher must comply themselves --

Justice Potter Stewart: That was a dismissal case.

So what I'm asking you about is if this is a case where his employment contract had expired?

I am asking about the case of original employment.

Mr. Michael H. Gottesman: Alright, well all I can say is that this court has decided three cases.

Justice Potter Stewart: All on behalf of --

Mr. Michael H. Gottesman: Two of them are non renewals and the third on an application for employment.

The two non-renewal cases are Keyishian and Shelton v. Tucker, both of which are cited in our brief and the job application case is Whitehill v. Elkins.

Though the facts are different and though we could argue whether a particular statement of a teacher is protected by the First Amendment.

The principle of those three cases clearly stated was that the state can not condition employment, even though it would be a privilege, upon a teacher's refraining from the exercise of his First Amendment rights.

Now the reason I mentioned picker is that pickering somewhat limits the scope of the right, the First Amendment rights available to a teacher.

There are certain instances, pickering at least suggest where a teacher might not be allowed to speak and hold his job, whereas other members of the society might.

For example, where his criticism would go to his immediate superior.

Justice Potter Stewart: But Pickering is like --

Mr. Michael H. Gottesman: Pickering itself a dismissal case.

Justice Potter Stewart: A dismissal case and you properly identified the questions on which we granted Certiorari in this case.

The question to which Mr. Shafer didn't really address himself.

And I think that's a question on which we did grant certiorari in this case.

And that's the reason I asked my question about original employment.

Mr. Michael H. Gottesman: Right.

Now, I can only say these things about it.

Number one, every single brief filed in the Roth case, which are you going to hear next, which includes the State of Wisconsin, the State of California, the State of Massachusetts, the city of New York and a brief filed on behalf of “almost all the colleges and universities in the United States” concedes this legal issue.

Every single one of them says we absolutely concede that a college cannot refuse to renew a nontenured teacher for another year, because he has exercised his First Amendment rights.

Chief Justice Warren E. Burger: What impact is that concession suggested for us?

Mr. Michael H. Gottesman: Well that concession I think has no point in this court obviously, this court considered all wrong.

What I am suggesting is a long continuing unbroken line of decisions by this Court, had said something which these briefs all reflect.

Namely that even and the person who is an applicant in the first instance I think is a somewhat different case than this.

This is management teaching of a tenure.

But the case is clearly established that the man who has been teaching here for period of year, a one year renewable contract each time may not be told this time you shall not be renewed because we don't like what you are saying.

For the purposes that determining his protected rights under the First Amendment, his status is no different than that of a teacher in Pickering.

Now to be sure that doesn't mean, he can say anything he wants.

It means, but we are talking that area of substantive statements which Pickering says the teacher is allowed to make.

And our argument is that it is already been decided by this Court several times, that a teacher can't be denied renewal for that reason.

Justice Harry A. Blackmun: If you got to conceding that there is a difference obviously in fact between one who has been teaching for a tenure but who is teaches on a year to year contract and the original applicant, what is the difference from your point analytically.

Mr. Michael H. Gottesman: Well, I started with a proposition that even the applicant can, I mean, so analytically it shouldn't make a difference, but there is a -- it seems me that there is a obvious difference.

If you start at one end by saying the man who has in fact got tenure, whatever that means can't be dismissed, can't be dismissed as distinguished from non renewal.

But the man who is an applicant in the first instance, does not have the same right but assume that hypothetically.

This man obviously falls somewhere in the middle.

Now what it is that has led this Court to say you can't be dismissed for exercising your First Amendment right.

What led this court to say that is that society has a very important interest in hearing what teachers have to say about their colleges and universities.

And if we were going to allow colleges and universities to dismiss people because of what they say, then we are going to silence the people who can most benefit society by advising us with what's wrong with their colleges, how they can be improved --

Justice Thurgood Marshall: Mr. Gottesman --

Mr. Michael H. Gottesman: Now that consideration is equally applicable to Mr. Sindermann.

Justice Thurgood Marshall: Mr. Gottesman, if we follow you to the bitter end Mr. Sindermann wins his point, doesn't he?

He said that you now have tenure employment --

Mr. Michael H. Gottesman: I am sorry.

Justice Thurgood Marshall: You now have tenure employment --

Mr. Michael H. Gottesman: Oh absolutely not.

-- You have the right.

Justice Thurgood Marshall: I am sorry.

Mr. Michael H. Gottesman: You now have the right not to be fired for exercising your First Amendment right.

That's not judgment.

I have always understood tenure to be something more than simply giving what the First Amendment gives you.

Tenure says you can't be fired for any reason whatsoever unless the college undertakes to established that you've been guilty of some reach of their regulations or rules or obligations.

Justice Thurgood Marshall: Or is your relief, you want a hearing though?

Mr. Michael H. Gottesman: Does he want a hearing?

Absolutely, but it's not the kind of hearing that would be a tenure hearing and that's what I would like to turn to in remainder of my time.

Chief Justice Warren E. Burger: Before you do that Mr. Gottesman, let me ask you this.

We both agree, I am sure that writing articles or making speeches are First Amendment rights.

Mr. Michael H. Gottesman: Absolutely.

Chief Justice Warren E. Burger: Suppose when he applies a send back letter to him, so there is no dispute.

Say we are impressed considerably with your academic credentials, but on the information we have you make too many speeches and write too many articles and for that reason we do not want to employ you.

Do you think he has got a right hearing on that issue?

Mr. Michael H. Gottesman: If he has never worked there before?

Chief Justice Warren E. Burger: No.

Mr. Michael H. Gottesman: Oh, I think that I have to get into the analysis of the hearing right to explain why I think he may not have a right to a hearing on that.

There are if we see a two completely different sources for the right to a hearing of a nontenured teacher.

One emanates from the First Amendment, the other procedural Due Process clause.

This case and Roth both posed at least arguably First Amendment consideration they seem to have been implicated in the decision not to renew.

This Court has repeatedly recognized that assume with me for the moment, this teacher does have his First Amendment right.

This Court has repeatedly recognized that academic freedom or the exercise of First Amendment rights can be chilled, if the state can come along and wallop somebody to the point where he knows that can happen and he says, well I don't want that to happen to me.

I am going to refrain from the exercise of my rights and because of that this Court is recognized as it sometimes put it that the freedoms of expression must be surrounded by necessary (Inaudible) or buffers.

Procedural protections which will eliminate the chilling effect, which would otherwise exist in the exercise of such rights.

Now in the case of a university teacher who does not have tenure, if the college has the right to deny him renewal with neither a statement of reasons nor hearing, then every teacher says doing so.

Well, if I say something they don't like, all they have got to do is say okay fellow next year no contract.

Now, the impact of that on teachers unless they are extraordinarily brave and not concerned with whether they continue their employment or not.

The impact of the knowledge that the college need provide neither a statement of the reasons or a hearing, is that teachers are going to say, I better not say anything, that they are not going to like.

Because if I do I am not going to be working here next year.

Now, all of the Amicus Briefs in Roth are very sensitive to this point.

And they acknowledge that you do need procedural protections because otherwise the First Amendment rights will dry up and vanish.

But they say look there is a procedural protection, if the college fires the man and if he believes that the reason he was fired was because of things protected by the First Amendment, he can bring a lawsuit under Section 1983, and if he wins he will get back.

Well, we say and we brief this extensively that the availability of that lawsuit does not remove the chilling effect.

There are a number of reasons for that.

Number one, if they don't tell the teacher why he has been fired, he doesn't know that he has been fired because of his freedom of expression.

He is got to bring a lawsuit just to find out, in discovering he will find out whether or not he has got the right to proceed with this lawsuit.

Chief Justice Warren E. Burger: Alright, you are talking about a case where he is fired to use your word or --

Mr. Michael H. Gottesman: I am talking about a non-renewal case and I am assuming for the moment because that's our first point and I am assuming that a non-renewed teacher, if the reason for his non-renewal is the exercise of this First Amendment rights, has in fact suffered a constitutional violation and that he is entitled to reinstatement.

So that the question comes how do you enforce and protect that First Amendment right?

Is it sufficient to say that after he is fired, he can bring a lawsuit or is it necessary in order to make those rights meaningful and not to chill academic freedom to say that he is got to have a buffer between his speech and the moment of firing a procedure in which, the First Amendment considerations will be aired and debated and the facts will be gathered, and he will know that within the academic community, before the knife falls on his neck for what he says there will have then a hearing in which his position would have been heard.

And the First Amendment considerations will have been explored.

Now we suggest and we detail them in the brief and I am not going to have time to go through the full analysis.

We suggest that simply having the right to bring a lawsuit after you have been fired, when you may not even have been told why you have been fired.

And I use fired to being non-renewed.

I have to go make the same concession that Mr. Shafer did, when I use fired I mean non-renewed in this case.

Simply having the right to bring the lawsuit afterward is not an adequate protection for First Amendment rights.

Teachers will not regard it as sufficient protection to enrolled and then to speak, when they know they can simply --

Justice Potter Stewart: The non-renewed teachers that he was fired for exercising his First Amendment Right?

Mr. Michael H. Gottesman: Well it would be adequate in the sense that if the teacher could afford to sue and could afford to be unemployed until he wins because those are the some of the prospects he faces.

It would then be, but the problem --

Justice Potter Stewart: But if the university said that, yeah, we fired you for that reason and we are sticking to it, is only alternative (Inaudible)

Mr. Michael H. Gottesman: That's right but the hearing provides a buffer whereby he may talk them out of it.

For example, in this case there is no evidence whatsoever.

That the college was aware that the First Amendment had any implications here.

They seem to be have proceeded, because the press releases were awfully candid.

They seem to have proceeded without regard to the fact that they might have some constitutional obligations.

Justice Potter Stewart: What do you think the remedy or what do you think was going to go on in a District Court for this remand?

Mr. Michael H. Gottesman: Depends what it says, you mean if it were remanded in the --

Justice Potter Stewart: You figure, you won your case in the Court of Appeals?

Mr. Michael H. Gottesman: Pretty well, I mean there will be a remand for trial.

Justice Potter Stewart: For a trial or --

Mr. Michael H. Gottesman: A trial, the Fifth Circuit's decree that there is got to be a trial on the right to a hearing.

I don't think that's particularly right.

Justice Byron R. White: I would think you would be arguing that, the District Court would have to say that your client may not be terminated if it was been a University hearing?

Mr. Michael H. Gottesman: Well, the problem is the hearing at this point the hearing doesn't do Sindermann very much good, the people who are going to make the decision, they already decided before they gave them the hearing.

Our point is you have got to have a hearing before they make the decision.

Justice Byron R. White: Well then --

Mr. Michael H. Gottesman: And our point is that since they denied Sindermann the hearing to which we say he was entitled, is entitled to reinstatement and back pay and we say in a large number of cases in this Court.

Justice Byron R. White: Without regard of what the facts would show, even though the university could show that he was not fired.

That's the First Amendment right.

Mr. Michael H. Gottesman: That's right.

This Court has decided a number of cases of which I think the most recent is Green versus United States where there is a statutory procedure which has been violated.

And then the government says well look we don't have to put them back at least let's go through the procedure now and find out if we had substantive grounds to justify what we did.

And this court has said no, you didn't give him the hearing when he was entitled to and when it would have been meaningful.

Therefore your action is null and void and it must be set aside.

You have to put them in back and then if you want to get rid of them, you have to give him the hearing that he is entitled to.

Now, I would like in my remaining five minutes to get to what is the wholly separate source of what we say are the right to a hearing.

Our first point stems from the First Amendment.

This one stems from the procedural Due Process concepts which have been enunciated by this court in a number of recent decisions.

This court has said that where the state proposes to injure important interests of one of its citizens, it must first afford them a hearing or some form of procedural Due Process, unless the individuals need for or the help that he will derive from the hearing is out waived by the State's interest in summary adjudication.

Now the teacher's interest when he is a teacher like Sindermann, I think are clear.

When he is denied renewal, number one, it was his sole source of income.

This court has many times said what the significance of that is.

Number two, he loses the entire professional relationship that's developed with his colleagues in this campus.

Number three, he confronts a problem which is unique I think to teachers, almost invariably if he wants to stay in this career, he has got to move to another city because only college, Odessa Texas, if he is going to teach somewhere else he has got to move.

That means he has got to sell his house, he has got to move, he has got to buy a new house, make new friends.

His entire life is changed as a result of a non-renewal.

And number four the evidence, and we have got it all set out in our brief is very substantial that non-renewal just doesn't mean that you don't teach in this college.

It means that you don't teach again anywhere.

We are now in a period for the first time in the last two or three years and it's going to continue of a growing teacher surplus in this country.

Because of the decline in the number of people who were -- the total population of colleges.

Nobody fires a teacher with a black mark when there is another teacher who doesn't have one.

Sindermann has been trying for three years to get a teaching job.

Roth went for a year without a teaching job.

And an other case pending on cert, the Or. case he went for a year and half and couldn't get a teaching job.

The fact is when you are non-renewed, your career very likely may come to an end.

Justice Harry A. Blackmun: There must be a hearing, when you have a – if there is non-renewal regardless of whether reasoned or assigned or not --

Mr. Michael H. Gottesman: Yes what we are saying is what you must do, our concept of the procedure is, if someone is recommending that you be not renewed that you will be advised that the recommendation and that you be advised that if you wish you will be told the reasons and afforded an opportunity to be heard.

Now one thing I want to emphasize, the main argument made by the all the parties in Roth is to what's wrong with this process is that it's going to take away the college's discretion which they now have in making decisions and that's because they seem to think that the purpose of this hearing will be a force to college to prove the validity of the reasons that it's assigned for the decision.

And we want to emphasize that the hearing as we concede is not a hearing in which the college must prove the validity of its reasons.

The purpose of the hearing is literally what the Due Process clause says, to give the teacher an opportunity to be heard.

That is to say the college must tell him in sufficient detail so that he knows what he is responding to.

Why they propose to non-renewal?

Having told him that he then is afforded an opportunity to present whatever evidence he thinks will be helpful to his cause to persuade them otherwise.

Now, there is no burden of proof here and no finding to be made.

The college will ultimately make the decision just as they would it before and wherever they had discretion, they will still have it, but at least he will have the benefit of putting before them those facts and those arguments which he thinks could persuade them to go the other way.

Justice Harry A. Blackmun: You wouldn't think that after a hearing such as that, there would be any room for judicial review?

Mr. Michael H. Gottesman: Only as it now exists, the constitution does prescribe certain limited areas where the State will exceed its discretion --

Justice Harry A. Blackmun: So you could have reviewed in Court your claim that in fact, he wasn't fired for discharged or not renewed for reason A but actually for reason B which was enough, that.

Mr. Michael H. Gottesman: Well that exists now and we insist that.

I might say we filed a yellow brief in the Roth case in which we have explored all of the counter arguments because that case was accelerated, it was only filed I think last Friday and the Court may not have had a chance to reach it, but it's the only document I think which systematically tries to respond to the arguments thrown up against hearings as being burdensome in so and then we urge the Court to see it.

Chief Justice Warren E. Burger: Thank you Mr. Gottesman, thank you Mr. Shafer.

The case is submitted.

Featured:

Williams v. Zuckert - Oral Argument

Tue, 25 Sep 2012 22:33:11 +0000

Case:

Williams v. Zuckert

Media File:

133_19621213-argument

Related Transcript:

133_19621213-argument

Transcript:

Argument of David I. Shapiro

Chief Justice Earl Warren: Defendants [Inaudible] for the purpose of the next case to be summed by next [Inaudible] of petition number 133, Daniel Alton Williams, Petitioner, versus Eugene M. Zuckert, Secretary of the Air Force.

Mr. Shapiro.

Mr. David I. Shapiro: May it please the Court.

The issue in this case is whether an employee with veterans’ preference status can be denied an opportunity to confront and cross-examine his accusers in a proceeding before the Civil Service Commission challenging his removal from federal employment.

The employing agency, in this case, the Air Force, admitted that the witnesses to petitioner's alleged misconduct were all airmen, on active duty and subject to which military control, yet it refused to produce them before the Civil Service Commission because if the Air Force unilaterally concluded that their testimony would not have aided the petitioner's test.

Now, court below held that the failure of the Air Force to produce these witnesses did not violate petitioner's statutory or procedural rights, one of the facts.

The petitioner was a veteran with 16 years government service, was employed as a recreational supervisor at the Air Force Academy.

On March 19, 1959, he was suspended from employment on grounds that he had attempted to make homosexual assaults upon three airmen and it willfully damaged a government type.

Justice Potter Stewart: He was a civilian employee?

Mr. David I. Shapiro: Yes sir he was.

Justice Potter Stewart: Although he had been in military, it's in the Air Force?

Mr. David I. Shapiro: That's correct.

Justice Potter Stewart: In military.

Mr. David I. Shapiro: Yes.

Now, two of the attempted assaults were alleged to have occurred while the petitioner was on active duty with the Air Force, approximately a year and two years before.

The third attempt was alleged to have occurred while he was employed in a civilian capacity at the Air Force Academy.

Now, prior to his removal, the petitioner was notified that he could answer the charges against him personally and in writing.

However, since he had been prohibited the day before from entering the academy grounds on pane of arrest, he did not avail himself of his so-called “opportunity” to answer the charges in person, but did so in writing instead.

Now he was, after he replied in writing, discharged from his position with the Air Force on April 12, 1959.

He then appealed to the Civil Service Commission under Section 14 of Veterans Preference Act.

On May 5, 1959, the Tenth Civil Service Region held a hearing to take evidence of petitioner's misconduct.

Now at the outset of the hearing, the petitioner requested the Department of the Air Force for an opportunity to interrogate three airmen, two of them were alleged victims of this homosexual attempts and who were stationed at the Air Force academy but this requests were rejected.

The Air Force submitted its evidence against the petitioner in affidavit form and while admitting its ability to produce all three airmen, it declined to do so on the grounds at the hearing that the Air Force Academy saw no need for their attendance, it did not consider that they would be able to add anything to the case.

They later explained this by saying that if they had appeared, the testimony that they would've offer on cross-examination would even been more damaging to the petitioner.

Justice Potter Stewart: To who is which -- who is the third?

You told us that two of the witnesses --

Mr. David I. Shapiro: The third one apparently was an individual who was present there.

There is some confusion in the record.

They were actually two of these airmen who were the accusing witnesses that he requested.

The third was apparently an individual, another airman who was present during one of the occurrences and I think the government states that fact correctly in its brief with regard to that airman.

Now, as I said, the Tenth Civil Service Region upheld the refusal of the Air Force to produce the airmen and despite the petitioner's denial of the assaults which included an attack on the credibility of these accusers, the conflicts and evidence according to the Tenth Civil Service Region were resolved in favor of the Air Force and petitioner's removal from the stand.

The petitioner appealed to the Board of Appeals and Review of the Civil Service Commission which affirmed the regional director's decision on his rationale.

On June 6, 1960, the petitioner filed the complaint in United States District Court on cross motion for summary judgment.

The District Court dismissed the complaint.

On November 9, 1961, the Court of Appeals affirmed.

Now, we contend that where the issue on a veteran's appeal to the Commission turns in part on the credibility of the witnesses against him and the agency admits command and control of those witnesses, Section 14 of the Veterans Preference Act and the applicable Civil Service regulations do not authorize the agency to refuse to produce such witnesses at the hearing, but to rely in their affidavits instead.

Section 14 of the Veterans Preference Act of 1944, although it's modeled on Section 6 in the Lloyd-La Follette Act of 1912, was designed to provide special and additional preferences for war veterans.

That statute eliminated the Lloyd-La Follette provision making cross-examination of witnesses, trial or a hearing a matter for the discretion of the removing officer and substituted in its place an appeal to the Civil Service Commission with the right to make an appearance either personally or by representative.

And here's the provision which was excluded from the Veterans Preference Act and is contained in the Lloyd-La Follette Act, “No examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer directing the removal or suspension.”

As I say, that was specifically eliminated from the Veterans Preference Act and in its place was substituted the appeal provisions of the Civil Service Commission.

Now, the legislative history in the 78th Congress is virtually silent as to the meaning of Section 14 appeal provision, but the legislative history of that provision in both the 75th and 76th Congresses demonstrates, we think, that it was designed to provide a trial type hearing on the appeal to the Commission.

Legislative representative of the veterans of foreign wars testified in 1937 and pretty much the same way again in 1939 that, “The purpose of that Section referring to what became Section 14 as apparent is to prevent any man from being let out without good cause shown and he would be let out only after a proper hearing.”

It would protect veteran from being discharged for shall I say personal reasons and on the other hand it will not absolutely prohibit a supervisory officer from discharging a man for cause, but it does give the veteran an opportunity to defend himself by trial.

Now Your Honors, almost immediately after 14 of the Veterans Preference Act was enacted, the Civil Service Commission adopted regulations governing employee appeals.

These regulations, which are substantially the same now as when the first issued, provide pretty much as follows.

First, the employee has a right to appear at the hearing on his appeal.

The agency has a right to participate in such hearing and both parties shall have the right to produce witnesses, that's 22601.

Two, opportunity will be afforded for the introduction of evidence, including testimony and statements by the employee and witnesses and by representatives of the agency and its witnesses and for the cross-examination of witness, that's 22603.

Unknown Speaker: [Inaudible]

Mr. David I. Shapiro: Yes sir, they were.

Third, the testimony at hearing shall be uninterrupted.

Now the court below following its earlier decision in the Luévano against Campbell concluded despite these regulations that in as much as 22607 of the Commission's regulations provided that the Commission is not authorized to subpoena witnesses and that the employee and the agency must make their own arrangements for the appearance of witnesses, the failure of the Air Force to produce its witnesses at the hearing in no way violated the petitioner's rights.

Now, we say that this interpretation of 22607 is erroneous.

We say that that section has to be read together with 22601 which provides that both the employee and the agency shall have the right to participate in a hearing and that both parties shall have the right to produce witnesses.

When so read, we say that 22607 means that since the Commission is not authorized to subpoena witnesses, the employee and the agency must make their own arrangements for the appearance of their own witnesses because otherwise, the regulations providing for cross-examination of witnesses and requiring that the testimony at the hearing should be under oath would be rendered meaningless and as a matter of fact, since the Luévano against Campbell they have it.

Now, the government argues, first, that the Commission has always interpreted its regulations to mean that the employee has the burden of persuading the agency's witnesses to appear and testify against him first before being able and able under the regulations or entitled to cross-examine.

And second, that Congress by reenacting the Veterans Preference Act in 1947 implicitly accepted and ratified this so-called interpretation and if the Court please, the only thing that Congress had before it in 1947 was the Commission's regulations and it was these regulations, the ones I've just quoted here, not the Commission's unreported administrative practice under them which Congress in 1947 implicitly accepted and ratified.

Because in fact, the Commission's interpretation which the government can -- for which the government contends was an unknown prior to the 1952 decision in the Luévano against Campbell, which this Court declined to review on certiorari and which we say was wrongly decided.

The Luévano rule makes Veterans appeal hearings before the Commission where both parties are granted the right under these regulations to produce witnesses, to introduce evidence, to cross-examine witnesses in a hearings where the employee submits his evidence by testifying under oath and subjecting himself to cross-examination.

And the Government submits its witnesses by submitting affidavits and you cannot cross-examine an affidavit.

Now, in practical effect, what has happened is that the employee's right of cross-examination specifically provided for in 22603 has been read out of the regulations entirely.

I say employee has his right of cross-examination, but the government still retains its right of cross-examination.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David I. Shapiro: That is correct.

Now, as a matter of fact, I think the reason for that was that he had hoped to make his case through the testimony of the witnesses that did not appear and that's why at the outset of the hearing he asked the Air Force to produce them.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David I. Shapiro: That's correct, sir.

Now, --

Justice Potter Stewart: But it wasn't indicated that these were to be produced as his witness.

They were --

Mr. David I. Shapiro: No, sir.

They were the government's witnesses that he had --

Justice Potter Stewart: Whom he wanted to cross-examine?

Mr. David I. Shapiro: Yes sir.

Now, the government suggests that this problem that we have here need never have come about and that in fact the witnesses might have appeared at the hearing if petitioner had only taken the trouble to ask them to appear.

But this suggestion ignores Air Force regulation 110-5 which precludes the voluntary appearance of Air Force personnel at such hearings absent prior consent from the Air Force.

The fact that the Air Force rejected the request of the petitioner that such witnesses be produced and the fact that these witnesses were stationed at the Air Force Academy and petitioner have been prohibited from entering the Academy's grounds.

Now, the government attempts to make much of the fact that the Commission has no subpoena power and this of course is true, but Section 05.3 of the Commission's rules, that's 5 C.F.R.05.3, which unfortunately is not set forth in the briefs, specifically provides, “All officers and employees in the executive branch shall give to the Commission or its authorized representatives, all information and testimony in regard to matters inquired of arising under the laws, rules, and regulations administered by the Commission.”

Unknown Speaker: [Inaudible]

Mr. David I. Shapiro: 5 C.F.R., Section 05.3, in Vitarelli versus Seaton --

Unknown Speaker: [Inaudible]

Mr. David I. Shapiro: 5 C.F.R., Section 05.3 --

Unknown Speaker: [Inaudible]

Mr. David I. Shapiro: In Vitarelli the Interior Department had no subpoena power and no power equivalent to that's set forth in 05.3 of the Commission's rules.

Yet, in that case, this Court construed a Department of Interior Order which gave the employee the right to cross-examine any witness offered in support of the charges as requiring the Interior Department to call as witnesses at the hearing, all so-called non-confidential informants who supplied information against the employee upon which the agency relied.

Your Honors, we say that [Inaudible] is controlling in this case and that the decision below should be reversed.

Justice John M. Harlan: [Inaudible]

Mr. David I. Shapiro: I'm sorry sir, I didn't hear your question.

Justice John M. Harlan: Did any case come before or after?

Mr. David I. Shapiro: Before sir, 1952.

Vitarelli was decided I believe in 1959.

Chief Justice Earl Warren: Mr. Pollak.

Argument of Stephen J. Pollak

Mr. Stephen J. Pollak: Mr. Chief Justice, may it please the Court.

Petitioner was a civilian employee of the Air Force employed as a recreation supervisor at the Air Force Academy in Colorado Springs.

He was removed after proceedings before the Air Force and on appeal before the Civil Service Commission, proceedings which upheld the charges that he had committed homosexual assaults on three named airmen.

These charges which are set forth at pages 16 and 17 of the record provided petitioner with the names, dates, and places of the alleged assaults.

The subjects of the assaults, the accusers were known to the petitioner, but he did not call them to the hearings nor did the Air Force call them, the record consisted of affidavits.

The issues in the Government's view here is not whether an employee can be denied an opportunity to confront and cross-examine his accusers for we believe there was no such denial here rather we believe the issue is whether a government employee under the Veterans Preference Act and the regulations must make his own arrangements for the appearance of witnesses whom he may wish to examine or cross-examine.

We believe the regulations are clear, that this obligation was placed on the employee and more so had he done so that he would've been afforded his full rights of examination.

We do not believe there is any basis in this record for a contention that the witnesses would not have agreed to appear or that the Air Force would've precluded their appearance.

Justice John M. Harlan: Well, may be I'm confused, wasn't the request made to the production of these witnesses?

Mr. Stephen J. Pollak: At the proceedings before the Civil Service Commission, the proceedings on appeal Mr. Justice Harlan at page 44 of the record, the attorney, the counsel for Mr. Williams asked the Air Force or one of the Air Force representatives at that proceeding, Mrs. Dillon, a personnel officer whether three named airmen were available for attendance at the hearing as witnesses and if so, why they had not been brought.

Mrs. Dillon responded that the -- that two of the men were stationed at the Academy, Colorado Springs which was some 68 miles from the location of the hearing and that the Air Force saw no need for their presence and did not believe that they would be able to add anything and had not called them as its witnesses.

We believe that this request here was a request that the Air Force produce these men as its affirmative case witnesses.

Justice John M. Harlan: And that's all there is --

Mr. Stephen J. Pollak: That's all there is.

Justice John M. Harlan: -- in the record?

Mr. Stephen J. Pollak: In our judgment, yes.

Further, a review of the contentions before the Board of Appeals and Review, I believe indicates that that is petitioner's contention.

Moreover, in a later response in the Board of Appeals and Review proceedings, the Air Force representative, the personnel officer stated that there was, and I'm quoting from page 85 of the record, “that there was no design or intent upon -- on the part of any official of the Air Force to preclude Mr. Williams from such opportunity” that is the cross-examination or having the witnesses.

As I will indicate in the moment, the regulations are clear that each side is to make arrangements for its witnesses.

These regulations are set forth in the appendix of the government's brief and the Air Force was proceeding on that basis.

Justice John M. Harlan: Well, is the government's position that if they requested the names and he wanted these witnesses to testify on cross-examination purposes it would – should have been granted, is that it?

Mr. Stephen J. Pollak: It is the government's position that he asked these witnesses to appear in accordance with the Air Force policy, the Air Force would've permitted and in fact assisted the witness to appear.

I refer to the regulations which are in the appendix to the petition for certiorari, regulation 804.403, that is in the 32 C.F.R., Air Force Regulations which states that it is the policy of the Department of the Air Force to make official information available for use in litigation and to permit military and civilian personnel to testify concerning such information in its files if material and relevant to litigation.

And that had the petitioner and his lawyer only addressed their request to these witnesses or a request to the Staff Judge Advocate who was located on the Air Force Academy grounds that in accordance for these regulations, the witnesses we have no way of knowing whether they would have agreed or disagreed, the individuals, but the Air Force would've permitted them to testify and I think in accordance with its policy would've encouraged them to do so.

Justice Arthur J. Goldberg: Mr. Pollak, what is [Inaudible]

Mr. Stephen J. Pollak: Well, might I respond to that in two ways.

First, counsel for Mr. Williams here has cited the regulation 05.3 and advised me yesterday that he would do so.

In reviewing that regulation, I find that it does not apply to members of the military.

Members of the military are excluded from that power of the Commission by a just immediately prior regulation 01.1 which states that the rules in this sub-chapter apply to all positions in the competitive service.

So that I cannot respond to your question by saying that the Commission could have ordered their appearance under 05.3 because it does not have that power over members of the military.

Whether the -- a request then to the examiner, Civil Service Examiner should have brought forth an order then whatever power it had that they appear, I'm not sure how it would develop since it's -- since none of these steps were taken.

But certainly, had the witnesses refused to appear, had the attorney for Mr. Williams contacted the Air Force and asked the Air Force to urge them to appear, had he asked the examiner, none of these he did, had he asked the examiner to order the witnesses to appear, had he asked the examiner to strike the affidavit, if they did not appear, any one of those steps were open to this petitioner and he and his counsel did not take it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Stephen J. Pollak: If --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Stephen J. Pollak: No.

Well, Your Honor, this is a summary of the proceedings prepared by the examiner and given the counsel for each party and we can only read that in the light of what is here.

And we read it to mean that the request was that the Air Force produce these witnesses as part of its affirmative live case and that that request was denied.

We read it to mean that the petitioner wanted the Air Force to arrange for their appearance as its witnesses and we read no more into it.

The complaint of the petitioner as indicated a little bit thereafter on pages 47 and 48 was that he had had no opportunity to cross-examine the witnesses on whose statement to the Air Force is relying on.

I don't believe that he was contending that the Air Force was there refusing a request for him to call them as his witnesses by him.

For example he made no objection to the proceedings taken place on affidavits.

He did not suggest that the Air Force affidavits which were part of the record before the examiner that should be --

Justice William J. Brennan: (Voice Overlap) I must confess I didn't think there's [Inaudible] can I just sum up the word, what is the government's position, is it that -- is there any premise that he was entitled to have confrontation here or is it the government's position that he's not?

Mr. Stephen J. Pollak: It is the government's position that the regulations here afford cross-examination of witnesses to either party brings to the hearing and that had he asked these witnesses to appear and they appeared why certainly he is entitled to cross-examination.

Justice William J. Brennan: But -- is it the government's position that he followed the regulation and had not been able to get them to appear that the government had no obligation to produce witnesses.

Mr. Stephen J. Pollak: I think they -- I'm not certain that the government would be here and let me state this case.

If you're suggesting that he had -- had he asked them to come that they refused and he addressed to request to the staff judge advocate that staff judge advocate concededly -- and let them to come with -- they were saying, well we can't come because the Air Force says no and had the Air Force declined to permit them.

Justice William J. Brennan: No, I'm not thinking to that.

I gather what you just said is that there's a permission on that part of the witnesses to appear or not as the witnesses.

Mr. Stephen J. Pollak: Yes, which stems --

Justice William J. Brennan: (Voice Overlap)

Mr. Stephen J. Pollak: -- which stems from the lack of a subpoena.

Justice William J. Brennan: Alright, now, what I'm trying to get to in this, if that had happened here, there's been a proper request whatever regulations provide and nevertheless although the Air Force to believe that let them come you said no, I won't come, would the government then decide that you nevertheless have proceeded and dismiss him as he was dismissed without producing?

Mr. Stephen J. Pollak: On the basis of the affidavits of men who refused to appear and who could not be ordered.

Justice William J. Brennan: Yes.

Mr. Stephen J. Pollak: The regulation supports cross-examination of witnesses.

I don't think that that would come within the regulation and I believe that would present a more serious question such as order of this Court based in Green and the McElroy or possibly in some of the considerations which were present in the Vitarelli.

Justice William J. Brennan: Well, am I --

Mr. Stephen J. Pollak: We don't think that question is presented here.

Justice William J. Brennan: Well, am I to infer then from your answer that so far as the government's concern the only question before us is did he or did not apparently he did not this -- to have to ask for those witnesses as the regulation said that he might be and if it's the fact that he did not although he might have under the regulations that are set forth.

Mr. Stephen J. Pollak: That is our position.

I believe that is the case presented on this record.

I --

Justice Byron R. White: I thought you also want us to believe that the [Inaudible]

Mr. Stephen J. Pollak: That's right, sir.

Justice Byron R. White: And that the government presented these by affidavit [Inaudible]

Mr. Stephen J. Pollak: Even though, that's right, that the government may present its case on affidavit and that he is not to direct his request to the government to present a live case but rather to bring the witnesses in and in accordance with the regulations which make this an informal proceeding where the rules of evidence are not strictly enforced where a verbatim transcript need not be necessary.

He may cross-examine them, he may bring them in, call them and then proceed to cross-examine.

Justice Byron R. White: And would you say that if he wants to look at the error, he should pass and arrange [Inaudible]

Mr. Stephen J. Pollak: That is -- yes, the --

Justice John M. Harlan: [Inaudible]

Mr. Stephen J. Pollak: That's right.

The regulation provides and has provided since the Act was passed in 1944 and the regulations were issued in November of 1944 that the employee and his designated representative and the employing agency must make their own arrangements for the appearance of witnesses.

And the interpretation of that regulation has been consistent that each side must if it wishes live witnesses it must bring them to the hearing.

Justice Byron R. White: Did you ever had a perfect right for producing witnesses' affidavits and do not really find the man because [Inaudible] and it has the perfect right to give, to arrange the witnesses to this end where the employee [Inaudible]?

Mr. Stephen J. Pollak: That I believe you've correctly stated what our position is, yes and here, he did not do so as we read this record.

Justice Byron R. White: And the case, you say, isn't here when he tries to go [Inaudible]

Mr. Stephen J. Pollak: The case that isn't here is where he tries to make his own arrangements and the witnesses themselves say, “No, we won't come --”

Justice Byron R. White: Or the government --

Mr. Stephen J. Pollak: Or the government obstructs it, yes, and we state that had he only tried, the Air Force regulations would have required the Air Force to permit them to come and to assist in their coming.

Justice John M. Harlan: But you're not -- you're saying number one, as I get it, that the regulations don't give this man a right to require the government to call a witness for his own case, if they don't want to call.

Mr. Stephen J. Pollak: That's right.

Justice John M. Harlan: And you a fortiori not arguing that if it chooses to hear the affidavits that they then can't say, “Well, since we haven't produced any witness, we don't have to produce these fellows to the cross-examination.”

You're not taking that position.

Mr. Stephen J. Pollak: No.

This light went on and I -- if they only meant that I didn't (Voice Overlap) second question --

Justice John M. Harlan: Well, I guess my question is rhetorical so it's late, [Inaudible]

Mr. Stephen J. Pollak: I wanted to mention one other factor of proceeding.

Following a proceeding before the Air Force which the petitioner chose not to make personal appearance, he was advised of his right to make an immediate appeal or to seek grievance proceedings before an Air Force grievance committee.

He chose with counsel to take an immediate appeal to the Civil Service Commission and that is the proceeding which is the issue here.

Had he chosen to go first to the grievance committee, the Air Force regulation which is cited in this letter advising him that he might seek provide that at that hearing, he might list witnesses whom he wish and that the Air Force grievance committee would order their appearance that had he availed himself of this right to seek grievance proceeding for the Air Force, the confrontation and cross-examination which he is complaining here or lack of it on the appeal would have been afforded in proceedings before the Air Force under Air Force regulations.

These regulations appear in the Air Force Manual 40-1 of public regulation.

We believe that here, the -- there -- we recognize there was no cross-examination or confrontation.

What we believe is that it was the fault of the petitioner that had he sought to ask for these men to appear, had he sought to ask the examiner to give him a continuance to ask them, had he sought to ask that the affidavit to be struck for in any other way to avail himself of a right to cross-examination, it would've been procured or at least an issue farther from that which we're confronted here have been raised.

Chief Justice Earl Warren: [Inaudible]

Mr. Stephen J. Pollak: We believe, Mr. Chief Justice, we believe he did.

Chief Justice Earl Warren: I thought it was his counsel.

Mr. Stephen J. Pollak: Yes.

Chief Justice Earl Warren: So far as the examiner could not go on there and that they were in the academy.

Mr. Stephen J. Pollak: Mr. Chief Justice, counsel did make that -- take that position.

Chief Justice Earl Warren: Yes.

Mr. Stephen J. Pollak: In our view, these witnesses were certainly available to this man.

He was represented by counsel and the Air Force Academy is an open base.

Counsel on business could have proceeded to find the witnesses and asked them to appear.

The petitioner had he not been avail himself of counsel, because he have, could have written, telephoned, telegraphed as indications that these men, the witnesses whom he was seeking, frequently went off the base, the record shows that these alleged incidents occurred off the base and for all the record shows they may have lived off of the base.

We think that petitioner's right to access to these men was very clear.

He had no difficulty for reaching them.

Had he really wanted them a communication to the Staff Judge Advocate on the base from his lawyer, Mr. Williams' attorney would've -- we think had gone right through.

There's no indication, in fact, there is a concession which is reported page 110 of the record in the Court of Appeals opinion that he made no attempt to contact.

He made no attempt to ask them to come; he didn't know if they would come.

I would like only briefly to reply to the contention that the Veterans Preference Act was enacted to set up a trial type hearing.

I think that the brief shows that the words of a statute which state that the employee shall have a right to make a personal appearance.

The legislative history and really all the other pertinent evidence shows that the statute was meant to give a right of personal appearance and no more.

Might I just say that I believe on this record, we must assume that had petitioner asked these witnesses, they would've attended and that the Air Force would've given its permission.

The remote possibility that they might have refuse, that the Air Force would've given permission is not present here because petitioner and his lawyer never asked. We respectfully request the Court to affirm the judgment below.

Chief Justice Earl Warren: Mr. Shapiro.

Rebuttal of David I. Shapiro

Mr. David I. Shapiro: I'd like to read from page 47 of the record if I may.

This is the middle paragraph.

At this time, Mr. Andrews who's the counsel for petitioner before the Commission again made a point of the fact that Airmen, Ryan and Tyler are assigned to duty at the Air Force Academy.

They even know their presence had been requested at the hearing for cross-examination, the Air Force had failed to produce them as witnesses.

Counsel for the appellant contended that the refusal to produce these airmen as witnesses was arbitrary in the best methods of full supply and error.

Again on page 48, second paragraph, at the conclusion of Mrs. Dillon's remarks on behalf of the Department of the Air Force counsel for the appellants initiated the summation of the case by again pointing out “that there's been no opportunity to cross-examine the witnesses on whose statements the removal action have been taken and under the circumstances, the motives of these witnesses were unknown.”

I believe that should put to rest the question for the contention that there has been no request to the Air Force that these witnesses be produced for cross-examination.

It was the two affidavits by two of the accusing witnesses who were in fact Air Force military policemen upon which the removal was sustained and it was these witnesses whom counsel for the petitioner asked the Air Force to produce at the hearing.

Justice John M. Harlan: Well, the trouble is this is ambiguous.

It says their presence was requested have been requested though -- I suppose Mr. Pollak would say to that is that refers to the request previously on, I don't remember that page is that have been made for the government to call him as part of the case.

Mr. David I. Shapiro: No, sir.

Justice John M. Harlan: What is the fact?

Did you asked the Air Force to bring these people (Voice Overlap) --

Mr. David I. Shapiro: Yes sir, at the outset of the hearing right on page 44, the last sentence.

He -- Mr. Andrew stated that in other words, the request which the appellant made for the appearance Ryan, Stevens and Tyler was rejected to which Mrs. Dillon required lineup affirmative and then he goes on to say that he wants them for cross-examination and he's referring back to that same request on 47 and again on 48.

I think it's quite clear from the record that he requested that these people be produced for cross, not for direct and the fact that they had their case in by affidavits would indicate that by failing to make an objection to the use of the affidavits, he wanted to use the affidavits for the purpose of cross.

Justice Byron R. White: But it is perfect [Inaudible]?

Mr. David I. Shapiro: Yes sir, it was at the hearing itself.

Justice Byron R. White: That's another kind of your [Inaudible]?

Mr. David I. Shapiro: Yes sir, after the affidavits were read.

Justice William O. Douglas: Did he ever try to contact the witnesses themselves?

Mr. David I. Shapiro: No sir.

The record does not indicate that he did so.

We take the position however that the Air Force regulation 110-5 required to him to ask the Air Force to produce them because they're precluded from appearing voluntarily if he would've asked them.

110 makes it -- 110-5 required him to asked the Air Force to produce these men at the hearing.

He couldn't just ask them to appear and they would appear because Air Force regulation 110-5 prohibits just that kind of procedure.

Now, that that regulation is set forth in our reply brief and I think it's quite clear (Voice Overlap) --

Justice Tom C. Clark: What was your point about not being able to get on the base?

I thought that was the scope for these people.

Mr. David I. Shapiro: I'm sorry sir.

Justice Tom C. Clark: What was your point about in not being able to get on the base?

You said he was restricted outside the base.

Mr. David I. Shapiro: Yes sir, he was.

We take the point -- we take the position, number one, that the reason he didn't come in and personally appear when he first got the notification of charges because he couldn't come on the base.

As a matter of fact, it appears from 18 to 19 of the record if he did show up on the base, there was an order out for his arrest so he answered the charge in writing.

I think that this arrest order would seriously have inhibited him from talking to the Air Force military policeman on the base who in fact ordered to arrest them and who in fact where the witnesses who were -- the Air Force witnesses at -- who had supplied the affidavits which were used in the Civil Service Commission hearing in Kansas and upon which –-

Justice John M. Harlan: You two gentlemen seem to be and head on collision as I understand it.

Mr. Pollak says that a request had been made to the Air Force, these men did not appear, the government wouldn't be here which is just exactly what I expect to Solicitor General's office to say.

Mr. David I. Shapiro: I hope so.

Justice John M. Harlan: And you say on the contrary that there was a request made and you couldn't get him?

Mr. David I. Shapiro: That's what the record stated (Voice Overlap) Your Honor, that's the way you are --

Justice John M. Harlan: - (Voice Overlap) read the whole record it sounds off [Inaudible] to me because I can't imagine Mr. Pollak getting up in making the statement of that kind that he thought the record can be [Inaudible]

Mr. David I. Shapiro: I think it's quite clear and I would also like to point to page 85 at the record where they explain their failure to produce them to the Civil Service Commission and it said here this witnesses at furnish warrant statements concerning Mr. William's behavior and it was considered unnecessary to bring them to the hearing, whether it was felt that any testimony they would give would be repetitious and it would've made William's case even worse.

Justice Potter Stewart: Well, it doesn't indicate here that Mr. Williams requested?

Mr. David I. Shapiro: No sir but they point out there that the Air Force Academy and here is the important part, knowing the character and reputation of the airmen who were concerned in this matter, it is firmly believe that even had the officials of the academy deem it necessary for them to attend neither the counsel for Williams nor Mr. Williams could have discredited them upon cross-examination.

So, obviously the Air Force knew that the reason that they were being asked to produce these people was for the purpose to cross-examine.

I think when these portions of the record are read together, there can't be really any question about the fact that a request was made and under refusal was also made and made explicit.

Chief Justice Earl Warren: Mr. Pollak, can I ask you about Mr. Justice Harlan was correct here [Inaudible]

Mr. Shapiro, I don't want you to re-argue matter but did he correctly understand you?

Mr. David I. Shapiro: We certainly take the position referring to page 85 which has been cited that there was no desire or intent on the part of any official of the Air Force Academy to preclude the witnesses from appearing.

We are -- we do not believe had a request be directed -- directed to the witnesses or the Staff Judge Advocate that the Air Force would have declined to permit to go [Inaudible]

Justice William J. Brennan: Well, Mr. Pollak --

Chief Justice Earl Warren: For cross-examination?

Mr. David I. Shapiro: For cross-examination, yes Your Honor.

Chief Justice Earl Warren: And you believe they are obliged to do that?

Mr. David I. Shapiro: I believe (Voice Overlap) -- under the Air Force regulation the Air Force would have been obliged to permit them to come and to carry out the policy.

Chief Justice Earl Warren: The Commission -- Commission would have been obliged to see that they got their report for the hearing?

Mr. David I. Shapiro: The Civil Service Commission examiner?

Chief Justice Earl Warren: Yes.

Mr. David I. Shapiro: Well, that --

Chief Justice Earl Warren: Well, I don't mean they could have compelled the Air Force but as an orderly proceeding against this man he would have been entitle to have -- to be there --

Mr. David I. Shapiro: I believe --

Chief Justice Earl Warren: -- for cross-examination of --

Mr. David I. Shapiro: I believe that if he had said at the hearing that we have attempted to make arrangements to have these witnesses attend and we have been unsuccessful with the Air Force at the commissioner (Voice Overlap) --

Justice William J. Brennan: Mr. Pollak, is that the key to your position that he would've had to approach those witnesses first --

Mr. David I. Shapiro: Yes sir.

Justice William J. Brennan: -- before he could make any request to the Air Force for assistance and as this record show and I don't because as I told you I haven't read it, if this record shows that there was a request to the Air Force it was a request without first going to the witnesses to ask them as they be.

Mr. David I. Shapiro: That is what the record show and you are --

Justice William J. Brennan: And your position --

Mr. David I. Shapiro: I don't think we're at [Inaudible] on that (Voice Overlap) there was no request to the witnesses.

Justice William J. Brennan: Alright.

Now, there was no request to the witnesses?

Mr. David I. Shapiro: That's right.

Justice William J. Brennan: Now, your point -- your position as I understand that without a request for the witnesses first he has no case at all.

Mr. David I. Shapiro: Our position is that we -- I would not -- I would like you to -- Court understand that had he made a request first to the Air Force Staff Judge Advocate and said, “We want you to assist us in getting these witnesses.”

That the too raised the question but he did not do that.

He did not approach the witnesses, he did not approach Staff Judge Advocate which the Air Force regulations provide its Air Force regulations provide its Air Force policy for him to permit witnesses to testify.

The orderly procedure would have been to approach the witnesses and ask them to attend.

Justice Potter Stewart: Now, what do you think he did it by a way of request?

Mr. David I. Shapiro: I think he came to the hearing and stated, “The witnesses aren't here, I expect you to produce the witnesses.”

He said that to the Air Force personnel officer who was there and the Air Force personnel officer's stated, “We didn't think it was necessary to produce them as part of our case.”

Justice Arthur J. Goldberg: [Inaudible]

Mr. David I. Shapiro: Well, that --

Justice Arthur J. Goldberg: [Inaudible] --

Mr. David I. Shapiro: I --

Justice Byron R. White: And hadn't you already said that that there wouldn't be a case if that have happened?

Mr. David I. Shapiro: Well, I certainly said that we think it would be very questionable whether the government would be here.

Justice William J. Brennan: Now, I am [Inaudible]

Mr. David I. Shapiro: We -- the Air Force policy would have been to have the witnesses at the airway, had he made a request.

Justice Arthur J. Goldberg: [Inaudible]

Mr. David I. Shapiro: They are members of the airway, that's right.

Justice Arthur J. Goldberg: Or the witnesses have said [Inaudible], is that correct?

Mr. David I. Shapiro: It could have done, yes.

Justice Arthur J. Goldberg: [Inaudible] some of our tax cases that goes within the government [Inaudible], I guess that's your argument though?

Mr. David I. Shapiro: My argument really is I think as I hope I stated that had he ask to witnesses to come, have they not come, had he told the Air Force they weren't coming, the Air Force would've seen that they had come, that they would have come.

Chief Justice Earl Warren: These two men that were at the air academy were really the complaining witnesses, were they not, against him?

Mr. David I. Shapiro: There was a third person that he didn't ask to come, there were three witnesses.

Chief Justice Earl Warren: All three of them?

Mr. David I. Shapiro: And he asked for two of them to come, the third just -- he didn't make a request that the third would be here.

Chief Justice Earl Warren: Was he there?

Mr. David I. Shapiro: The third one was at the Oklahoma base which was somewhat more distant.

He have been subsequently transferred.

Justice William J. Brennan: Where was this hearing?

Mr. David I. Shapiro: This hearing was in Denver, Regional 10 hearing.

May I say further in answer of the question whether they would have been ordered to come, should I take it that on the basis of grievance proceeding hearing where the Air Force would have ordered the witnesses to appear and he availed himself of that procedure that it would have take him the same steps in the order into appear at a civil service hearing had he sought that.

There's no question on the regulation been to order to witnesses to appear at the grievance hearing which is an Air Force procedure.

Therefore, I can make no distinction then, I see no reason why it should have not order them to come, had he asked for them to come at a civil service hearing.

Thank you.

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