Arnett v. Kennedy
416 U.S. 134 (1974)
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Rule of Law:
A nonprobationary federal employee's property interest in employment is conditioned by the procedural limitations that accompany the grant of that interest. Therefore, the Due Process Clause does not require a full evidentiary hearing prior to termination when the statute conferring job security does not provide for one.
Facts:
- Wayne Kennedy was a nonprobationary federal employee working as a field representative for the Office of Economic Opportunity (OEO).
- Kennedy publicly stated that his superior, OEO Regional Director Wendell Verduin, and Verduin's administrative assistant had attempted to bribe a representative of a community action organization.
- The alleged bribe consisted of an offer of a $100,000 OEO grant if the representative would sign a false statement against Kennedy and another employee.
- The OEO alleged that Kennedy made these statements "without any proof whatsoever and in reckless disregard of the actual facts."
- Based on these public statements and other charges, Verduin initiated administrative proceedings to remove Kennedy from his position.
- Kennedy was subsequently removed from the federal service pursuant to the provisions of the Lloyd-La Follette Act.
Procedural Posture:
- Wendell Verduin, the OEO Regional Director, provided Wayne Kennedy with a 'Notification of Proposed Adverse Action.'
- Kennedy did not respond to the substance of the charges but asserted a right to a trial-type hearing before removal.
- Verduin notified Kennedy in writing that he would be removed from his position.
- Kennedy sued in the United States District Court for the Northern District of Illinois, seeking injunctive and declaratory relief.
- A three-judge District Court was convened to hear the constitutional claims.
- The District Court granted summary judgment for Kennedy, holding the discharge procedures violated due process and the statutory standard was unconstitutionally vague.
- The District Court ordered Kennedy's reinstatement with backpay and enjoined further enforcement of the Lloyd-La Follette Act.
- The government officials (appellants) filed a direct appeal to the Supreme Court of the United States.
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Issue:
Does the Due Process Clause of the Fifth Amendment require a full evidentiary hearing for a nonprobationary federal employee prior to termination for cause, when the statute granting job security also specifies pre-termination procedures which do not include such a hearing?
Opinions:
Majority - Justice Rehnquist
No. Where a grant of a substantive right, such as job tenure, is inextricably intertwined with limitations on the procedures for its termination, a litigant must take the bitter with the sweet. Kennedy's property interest in his employment was created by the Lloyd-La Follette Act, which simultaneously established the procedures for removal; this interest was conditioned by the procedural limitations that accompanied its grant. Congress was entitled to grant employees protection against removal without cause while expressly withholding a full adversary hearing for the determination of cause. The post-termination administrative appeal is sufficient to protect an employee's liberty interest in clearing his name from stigmatizing charges.
Concurring - Justice Powell
No. While the statute grants a property interest that triggers constitutional due process protection, and the legislature cannot constitutionally authorize the deprivation of that interest without appropriate safeguards, a full evidentiary hearing is not required before termination. The resolution depends on balancing the government's interest in expeditious removal of an unsatisfactory employee against the employee's interest in continued public employment. Given that the employee is entitled to a full post-termination hearing and will receive backpay if reinstated, the pre-termination procedures of notice and an opportunity to respond provide a reasonable accommodation of the competing interests and satisfy due process.
Concurring - Justice White
No, a full trial-type hearing prior to termination is not required, but the process here was deficient. The Constitution requires at least an impartial decision-maker at the pre-termination stage. In this case, Wendell Verduin, the official who made the decision to terminate Kennedy, was the very person Kennedy had accused of bribery and slander. This conflict of interest violated the minimum requirements of due process at the pre-termination stage. Therefore, while the statute itself is not unconstitutional, its application in this specific instance was flawed, and the judgment ordering reinstatement should be affirmed on this narrower ground.
Dissenting - Justice Marshall
Yes. Justice Rehnquist's 'bitter with the sweet' theory is a return to the discredited distinction between rights and privileges. Once a statute creates a legitimate claim of entitlement to continued employment, that interest becomes a property right, and the Constitution, not the statute, dictates the minimum procedures required for its deprivation. The interest of a tenured public employee in their livelihood is a weighty one that cannot be protected by a post-termination hearing. Following precedents like Goldberg v. Kelly, due process requires a full evidentiary hearing, including the rights to confront witnesses and present evidence, before a federal employee can be discharged.
Dissenting - Justice Douglas
Yes. The case involves more than just a job; it involves the fundamental First Amendment right to speak on matters of public concern. Kennedy was punished for making statements about alleged bribery and corruption within a government agency, which is a subject in the public domain. Losing one's job with the Federal Government for discussing such an issue is a clear abridgment of the freedom of speech. Such a vital stake in both livelihood and First Amendment rights cannot be terminated without a full hearing on the merits beforehand.
Analysis:
This case is notable for Justice Rehnquist's plurality opinion introducing the "bitter with the sweet" theory of procedural due process, suggesting that a statutorily created property interest is limited by the procedures in the same statute. Although this rationale did not command a majority, the judgment upholding the pre-termination procedures stood. The theory was later explicitly rejected by the Court in Cleveland Board of Education v. Loudermill (1985), which held that while property interests are created by independent sources like state law, the process due is a question of federal constitutional law. Arnett thus represents a temporary but significant high-water mark for a restrictive view of procedural rights for public employees.
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