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October 24, 1972


Before Cummings, Circuit Judge, and McLAREN and Tone, District Judges.

The opinion of the court was delivered by: McLAREN, District Judge.


Kennedy, a non-probationary federal employee in the competitive service, was discharged from his position as field representative with the Chicago branch of the Office of Economic Opportunity (hereinafter "OEO") in March 1972. He then commenced this action on behalf of himself and all others similarly situated for declaratory and injunctive relief on the grounds that the discharge procedure and standards which were followed denied him and his class due process of law, and infringed their rights to freedom of speech.

On April 28, 1972, Kennedy's motion for a temporary restraining order was denied; Count II of the complaint was dismissed for lack of jurisdiction; and Count I was held to present questions of sufficient consequence to require the convening of this three-judge court. Thereafter, Count II was amended by plaintiff and, as amended, was submitted along with Count I to this three-judge court.

The case is now before this Court on cross motions for summary judgment, plaintiff's alternative motion for a preliminary injunction, and on defendants' motions to dismiss for failure to state a claim upon which relief may be granted, and for failure to exhaust administrative remedies.


Count I claims that the procedure by which Kennedy's employment was terminated deprives him and his class (which has not been determined) of due process under the Fifth Amendment by its failure to provide a full evidentiary hearing prior to termination, with the right to be heard by an impartial hearing officer; the right to present witnesses; the right to confront and cross-examine adverse witnesses; and the right to a written decision indicating the reasons for discharge or suspension and the evidence relied upon. This Court agrees.

The challenged discharge procedure is controlled by 5 U.S.C. § 7501 and 7701; Exec. Order No. 11,491, 3 C.F.R. § 1966-70 Comp. 861, 864 (§ 22); Exec. Order No. 10,987, 3 C.F.R. § 1959-63 Comp. 519; Civil Serv. Comm'n Reg., 5 C.F.R. §§ 752.101-402, 777.101-226, and 772.301-308; OEO Instruction 771-2, and Chapter 752 of the Federal Personnel Manual. Briefly, these rules provide that a notice of proposed adverse action shall be given to the employee not less than thirty days prior to the proposed removal. The employee may then respond orally or by filing a written argument with his agency, with affidavits, and he may examine the evidence upon which the proposed action is based. A written decision is then given by the official who initiated the removal proceedings and, if the employee is to be terminated, he is notified of his appeal rights. An OEO employee may appeal his termination either to the local deputy director of OEO or to the Civil Service Commission, where he is afforded a full evidentiary hearing. During the pendency of an appeal, the terminated employee receives no pay and does not continue in active service. Kennedy does not dispute that this procedure has been made available to him.

The government cites Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 896-897, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), for the rule that government employment may be revoked summarily at the will of the appointing officer. The continuing vitality of this rule is seriously in question today owing to recent Supreme Court decisions in the due process area. For example, in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 2000 n. 23, 32 L.Ed.2d 556, the Court stated in dictum:

    "In cases involving deprivation of other interests,
  such as government employment, the Court similarly
  has required an unusually important governmental need
  to outweigh the right to a prior hearing. See, e.g.,
  Cafeteria and Restaurant Workers v. McElroy. . . ."

In discussing and outlining the requirement of a prior hearing before termination of other interests, the Court has referred to Cafeteria & Rest. Workers as an exceptional situation owing to the involvement there of the government's interest in national security. Boddie v. Connecticut, 401 U.S. 371, 379 n. 6, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Goldberg v. Kelly, 397 U.S. 254, 264 n. 10, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The clear implication is that absent such a specialized interest, a prior hearing must be afforded before government employees may be discharged. Of course, not all such persons have a sufficient "property" interest in continued employment to come within the protection of the due process guarantees. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). But, because Kennedy is in the competitive service and could therefore be removed or suspended without pay "only for such cause as will promote the efficiency of the service," 5 U.S.C. § 7501(a), his interest was clearly within those protections. Id. at 2699-2700. Kennedy was therefore entitled to a hearing prior to his discharge. See Ricucci v. United States, 425 F.2d 1252, 1256-1257, 192 Ct.Cl. 1 (1970) (Skelton, J., concurring).

The question therefore becomes one of whether the pre-termination procedure available to individuals in the competitive service — which procedure was used in Kennedy's case — satisfies the requirements of due process.

The concept of due process is flexible. The procedural safeguards called for depend upon a balancing of the governmental and private interests involved. The government's interest is in maintaining efficiency through the prompt removal or suspension of employees who presently contribute to inefficiency because of their past conduct. The employee's interest is in avoiding unwarranted dismissal or suspension "for cause" when it is not warranted by the facts. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972), dealing with parole revocation, and Goldberg v. Kelly, 397 U.S. 254, 267-271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), dealing with the termination of welfare benefits, the Supreme Court listed the "elementary" requirements of due process. These were only partly met in the instant case. As Section 7501 requires, the notice of the proposed action, and of the charges upon which it was based, was given. There was no provision, however, for the decision on removal or suspension to be made by an impartial agency official,*fn1 or for Kennedy (by his own means) to present witnesses; or for his right to confront adverse witnesses. These rights are basic to a fair and effective hearing and must be provided if the employee's interest is to be adequately protected.

The present rules for OEO employees allow thirty days to respond to a notice of proposed adverse action. Informal hearings can be held within that period, thereby causing no delay to the government. We also note that ...

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