Before Cummings, Circuit Judge, and McLAREN and Tone, District
The opinion of the court was delivered by: McLAREN, District Judge.
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
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
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 ...