416 U.S. 134 (1974)
Wayne Kennedy served as a nonprobationary field representative in the Chicago Regional Office of the Office of Economic Opportunity.1 In February 1972 he received a Notification of Proposed Adverse Action from Regional Director Wendell Verduin listing five events from November and December 1971.2
The most serious charge alleged that Kennedy had publicly stated, without proof and in reckless disregard of the facts, that Verduin and his administrative assistant had offered a $100,000 OEO grant to a community action representative in exchange for a statement against Kennedy and another employee.3 Kennedy was advised of his rights under the Lloyd-La Follette Act and agency regulations to reply orally or in writing, to submit affidavits, and to inspect the supporting material.4
He did not address the substance of the charges. Instead he asserted that he was entitled to a trial-type hearing before an impartial officer and that his statements were protected by the First Amendment.5 On March 20, 1972, Verduin notified Kennedy in writing that he would be removed effective March 27, 1972, and informed him of appeal rights to the OEO or the Civil Service Commission.6
On the day of his removal Kennedy filed suit in the United States District Court for the Northern District of Illinois on behalf of himself and others similarly situated.7 His amended complaint alleged that the removal procedures and the statutory standard of cause interfered with protected speech and denied procedural due process.8 A three-judge court granted summary judgment for Kennedy, ordered his reinstatement with backpay, required a pre-removal hearing in future proceedings, and enjoined enforcement of the Act and regulations as applied to speech.9
The district court resolved factual disputes in favor of the government for summary judgment purposes and therefore took as true the particulars set forth in the February 18, 1972 notification of proposed adverse action.10 The governing statute, 5 U.S.C. § 7501, provided that an employee could be removed only for such cause as would promote the efficiency of the service and prescribed written notice, a copy of charges, time for a written answer with affidavits, and a written decision.11 Agency regulations added thirty days' advance notice, an opportunity to appear personally before the deciding official, and an evidentiary hearing on appeal, which in OEO practice was typically held after removal but with full backpay if the employee prevailed.12
Whether the procedures established under the Lloyd-La Follette Act and implementing Civil Service Commission and OEO regulations for removing nonprobationary federal employees from the competitive service comport with the requirements of procedural due process?13
The Due Process Clause of the Fifth Amendment requires notice and an opportunity to be heard before deprivation of a property interest.14 The specific procedures required depend on a balancing of the government's interest in expeditious removal against the employee's interest in continued employment.15 Where the statute creates the interest and specifies the procedures, those procedures are sufficient if they provide a meaningful opportunity to contest the charges.16
Yes. The Lloyd-La Follette Act and regulations provide 30 days' advance written notice, an opportunity to reply orally and in writing with affidavits, inspection of materials, and a post-termination evidentiary hearing with backpay if the employee prevails.17 These procedures adequately protect the property interest in employment created by the statute's cause requirement as applied to Wayne Kennedy's removal by Verduin based on the February 18, 1972 notification.18
The procedures established under the Lloyd-La Follette Act and implementing regulations comport with procedural due process.19
Related opinions on this issue
Joined by Justice Blackmun
Justice Powell agreed that the procedures comport with due process.20 He reached that conclusion through a balancing process rather than by conditioning the property interest on the statutory procedures.21 Powell found the government's interest in efficiency substantial because prolonged retention of a disruptive employee can impair office operations.22
He viewed the employee's temporary loss of income as less severe than in welfare cases because the employee may have independent resources or qualify for other employment.23 Powell concluded that the present statute and regulations provide a reasonable accommodation of the competing interests.24
Justice White concluded that a full trial-type hearing must be held at some time before a competitive civil service employee may be finally terminated for misconduct.25 He stated that the Constitution and the Lloyd-La Follette Act converge because a full trial-type hearing is provided by statute before termination from the service becomes final.26 White differed from the plurality on the property interest analysis.27
He maintained that some kind of hearing is required at some time before a person is finally deprived of property interests.28
Whether the statutory standard authorizing removal of such employees only for such cause as will promote the efficiency of the service is unconstitutionally vague or overbroad?29
No. The standard such cause as will promote the efficiency of the service is a general but workable limitation on removal.33 It excludes constitutionally protected speech, provides fair warning to employees, and authorizes dismissal only for speech that improperly damages the reputation and efficiency of the employing agency as applied to the charges against Wayne Kennedy.34
The statutory standard authorizing removal only for such cause as will promote the efficiency of the service is not unconstitutionally vague or overbroad.35
Related opinions on this issue
Joined by Justices Douglas And Brennan
Justice Marshall would have upheld the conclusion of the District Court that the statute is unconstitutionally vague and overbroad.36 He reasoned that the uncertainty of its scope creates a chilling effect on constitutionally protected speech.37 Marshall explained that employees are likely to limit their behavior to that which is unquestionably safe.38
He noted that the dismissal standard hangs over their heads like a sword of Damocles, threatening them with dismissal for any speech that might impair the efficiency of the service.39
Justice Douglas dissented on the ground that the decision deprives federal employees of important First Amendment rights by allowing punishment for speech on a subject in the public domain.40 He emphasized that the stake of the federal employee is not only in a livelihood but in his right to speak guaranteed by the First Amendment.41 Douglas observed that the matter on which Kennedy spoke was in the public domain and that punishing such speech penalizes the employee for exercising the right to speak out.42
Whether a nonprobationary federal employee possesses a property interest in continued employment that requires a trial-type hearing before an impartial decisionmaker prior to removal?43
A nonprobationary federal employee has a property interest in continued employment created by the statutory guarantee that removal may occur only for cause.44 The procedures accompanying that statutory grant are sufficient to satisfy due process when they include notice, an opportunity to respond, and a post-termination evidentiary hearing.45
No. Although Wayne Kennedy possessed a property interest in continued employment by virtue of the Lloyd-La Follette Act's cause requirement, the procedures provided by the statute and regulations, including the opportunity to reply and the post-termination hearing with backpay, satisfy due process and do not require a trial-type hearing before an impartial decisionmaker prior to removal.46
A nonprobationary federal employee possesses a property interest in continued employment but the statutory procedures are sufficient and do not require a trial-type hearing before an impartial decisionmaker prior to removal.47
Related opinions on this issue
Joined by Justice Blackmun
Justice Powell agreed that the procedures comport with due process. He reached that conclusion through a balancing process rather than by conditioning the property interest on the statutory procedures. Powell found the government's interest in efficiency substantial because prolonged retention of a disruptive employee can impair office operations.
He viewed the employee's temporary loss of income as less severe than in welfare cases because the employee may have independent resources or qualify for other employment. Powell concluded that the present statute and regulations provide a reasonable accommodation of the competing interests.
Whether dismissal based on charges of reckless public statements accusing superiors of bribery implicates a liberty interest requiring a pre-removal hearing to clear the employee's name?48
Dismissal based on charges that might seriously damage an employee's standing and associations in the community implicates a liberty interest.49 A hearing afforded by administrative appeal procedures after the actual dismissal is sufficient to provide the employee an opportunity to clear his name.50
No. Although the charges against Wayne Kennedy implicated a liberty interest by accusing him of reckless public statements about bribery without proof, the post-termination administrative appeal procedures available to him, including an evidentiary hearing before the Civil Service Commission with the opportunity to present witnesses and cross-examine, provided a sufficient opportunity to clear his name as required by due process under Board of Regents v. Roth.51
Dismissal based on charges of reckless public statements accusing superiors of bribery implicates a liberty interest but a post-removal hearing is sufficient to satisfy due process.52
Related opinions on this issue
Justice White concluded that a full trial-type hearing must be held at some time before a competitive civil service employee may be finally terminated for misconduct. He stated that the Constitution and the Lloyd-La Follette Act converge because a full trial-type hearing is provided by statute before termination from the service becomes final. White differed from the plurality on the property interest analysis.
He maintained that some kind of hearing is required at some time before a person is finally deprived of property interests.