Arnett v. Kennedy

416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15, 1974 U.S. LEXIS 125

Opinions

Mr. Justice Rehnquist

announced the judgment of the Court in an opinion in which TiiE Chief Justice and Mr. Justice Stewart join.

Prior to the events leading to his discharge, appellee Wayne Kennedy¹ was a nonprobationary federal employee in the competitive Civil Service. He was a field representative in the Chicago Regional Office of the Office of Economic Opportunity (OEO). In March 1972, he was removed from the federal service pursuant to the provisions of the Lloyd-La Follette Act, 5 U. S. C. § 7501, after Wendell Verduin, the Regional Director of the OEO, upheld written administrative charges made in the form of a “Notification, of Proposed Adverse Action” against appellee. The chárges listed five events occurring in November and December 1971; the most serious of the charges was that appellee “without any proof whatsoever and in reckless disregard of the actual facts” known to him or reasonably discoverable by him had publicly stated that Verduin and his administrative assistant had attempted to bribe a representative of a community action organization with which the OEO had dealings. The alleged bribe consisted of an offer of a $100,000 grant of OEO funds if the representative would sign a statement against appellee and another OEO employee.

Appellee was advised of his right under regulations promulgated by the Civil Service Commission and the OEO to reply to the charges orally and in writing, and to submit affidavits to Verduin. He was also advised that the material on which the notice was based was available for his inspection in the Regional Office, and that a copy of the material was attached to the notice of proposed adverse action.

Appellee did not respond to the substance of the charges against him, but instead asserted that the charges were unlawful because he had a right to a trial-type hearing before an impartial hearing officer before he could be removed from his employment, and because state-merits made by him were protected by the First Amendment to the United States Constitution.². On March 20, 1972, Verduin notified appellee in writing that he would be removed from his position at the close of business on March 27, 1972. Appellee was' also notified of his right to appeal Verduin’s decision either to the OEO or to the Civil Service Commission.

Appellee then instituted this suit in the United States District Court for the Northern District of Illinois on behalf of himself and others similarly situated, seeking both injunctive and declaratory relief. In his amended complaint,³ appellee contended that the standards and procedures established by and under the Lloyd-La Follette Act for the removal of nonprobationary employees from the federal service unwarrantedly interfere with those employees’ freedom of expression and deny them procedural due process of law.. The three-judge District Court, convened pursuant to 28 U. S. C. §§ 2282 and 2284, granted summary judgment for appellee. 349 F. Supp. 863. The cohrt held that the discharge procedures authorized by the Act and attendant Civil Service Commission and OEO regulations denied appellee due process of law because they failed to provide for a trial-type hearing before an impartial agency official prior to removal;.the court also held the Act and implementing, regulations unconstitutionally vague because they failed to furnish sufficiently precise guidelines as to what kind of speech may be made the basis of a removal action. The court ordered that appellee be reinstated in his former position with backpay, and that he be accorded a hearing . prior to removal in any futüre removal proceedings. Appellants were also enjoined from further enforcement of the Lloyd-La Follette Act, and implementing rules, as .“construed to regulate the speech of competitive service employees.”⁴

I

The numerous affidavits . submitted tb the District Court by both parties not unexpectedly portray two widely differing versions of the:facts which jgave rise to this lawsuit. Since the District Court granted sum-' mary judgment to appellee, it was required to resolve all genuine disputes as. to any material facts in favpr- of. appellants, and we therefore take as true for purposes of this opinion the material particulars of appellee’s conduct which were set forth in the notification of proposed adverse action dated February 18, 1972. The District Court’s holding necessarily embodies the legal conclusions that, even though all of these factual statements were true, the procedure which the Government proposed to follow in this case was constitutionally insufficient to accomplish appellee’s discharge, and the standard by which his conduct was to be judged in the course of those procedures infringed his right of free speech protected by the First Amendment.

The statutory provisions which the District Court held invalid are found in 5 U. S. C. § 7501. Subsection (a) of that section provides that “[a]n individual in the competitive service may be removed or suspended without pay only for such'cause as will promote the efficiency of the service.”

Subsection (b) establishes the administrative procedures by which an employee’s rights under subsection (a) are to be determined, providing:

“(b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and to—

“(1) notice of the action sought and of any charges preferred against him;

“(2) a copy of the charges;

“(3) a reasonable time for filing a written answer to the charges, with affidavits; and “(4) a written decision on the answer at the earliest practicable date.

“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. Copies of the charges, the notice of hearing, the answer, the reasons for and the order of removal or suspension without pay, and also the reasons for reduction in grade or pay, shall be made a part of the records of the employing agency, and, on request, shall be furnished to the individual affected and to the Civil Service Commission.”

This codification of the Lloyd-La Foflette Act is now supplemented by the regulations of the Civil Service Commission, and, with respect to the .OEO, by the regulations and. instructions of that agency. Both the Commission and the OEO have by regulation given further specific content to the general removal standard in subsection (a) of the Act. The regulations of the Commission ⁵ and the OEO,⁶ in nearly identical language, require that employees “avoid any action ... . which might result in, or create the appearance of . . . [a]ffecting adversely the confidence of the public in the integrity of [OEO and] the Government,” and that employees not “engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful or other conduct prejudicial to the Government.” The OEO further provides by regulation that"its Office of General Counsel is available to supply counseling on the interpretation of the-laws and regulations relevant to, the conduct of OEO employees.⁷

Both the. Commission and the OEO also follow regulations enlarging the procedural protections accorded by the Act itself.⁸ The Commission’s regulations provide, inter alia, that the employing- agency must give 30 days’ advance written notice to the employee prior to removal, and make available to him the material on which the notice is based.⁹ They also provide that the employee shall have an opportunity to appear before the official vested with authority to make the removal decision in order to answer the charges against'him,¹⁰ that the employee must receive notice of an adverse decision on or before its effective date, and that the employee may appeal from an adverse decision.¹¹ This appeal may be either to a reviewing authority within the employing agency,¹² or directly to the Commission,¹³ and the employee is entitled to an evidentiary trial-type hearing at the appeal stage of the proceeding.¹⁴ The only trial-type hearing available within the OEO is, by virtue of its regulations and practice, typically held after actual removal;¹⁵ but if the employee is reinstated on appeal, he receives full backpay, less any amounts earned by him through other employment during that period.¹⁶

We must first decide whether these procedures established for the purpose of determining whether there is “cause” under the Lloyd-La Follette Act for the dismissal of a federal employee comport- with procedural due process, and then decide whether that standard of “cause” for federal employee dismissals was within the constitutional power of Congress to adopt.

II

For almost the first century of our national existence, federal employment was regarded as an item of patronage, which could be granted, withheld, or withdrawn for whatever reasons might appeal to the responsible executive hiring officer. Following the Civil War, grass-roots sentiment for “Civil Service reform” began to grow, and it was apparently brought to a head by the assassination of President James A. Garfield on July 2, 1881. Garfield, having then held office only four months, was accosted in Washington’s Union Station and shot by a ^dissatisfied office seeker who believed that the President had been instrumental in refusing his request for appointment as United States Consul in Paris. During the summer, while President Garfield lingered prior to his death in September, delegates from 13 Civil Service reform associations met and formed the National Civil Service Reform League. Responding to public demand' for reform led by this organization, Congress in January 1883 enacted the Pendleton Act.¹⁷

While the Pendleton Act is regarded as the keystone in the present arch of Civil Service legislation, by present-day standards it was quite limited in its application. It dealt almost exclusively with entry into the federal service, and hardly at all with tenure, promotion, removal, veterans’ preference, pensions, and other subjects addressed by subsequent Civil Service legislation. The Pendleton' Act provided for the creation of a classified Civil Service, and required competitive examination for. entry into that service. Its only provision with respect to separation was to prohibit removal for' the failure of an employee in the classified service to con-, tribute to a political fund. or to render any political service.¹⁸

For 16 years following the effective date of the Pendleton Act, this last-mentioned provision of that Act appears to have been the only statutory or regulatory limitation on the right of the Government to discharge classified employees. In 1897, President William McKinley promulgated Civil Service Rule 11,¹⁹ which provided that removal from the competitive classified service should not be made except for just cause and for reasons given in writing. While job tenure was thereby accprded protection, there were no administrative appeal rights for action .taken in violation of this rule, and the courts declined to judicially enforce it. Thus matters stood with respect to governmental authority to remóvé federal employees until the enactment of the Lloyd-La Follette Act.

The Lloyd-La Follette Act was enacted as one section of the Post Office Department appropriation bill for the fiscal year 1913. That Act guaranteed the right of federal employees to communicate with members of Con*gress, and to join employee organizations. It also, substantially enacted and enlarged upon Civil Service Rule II. in the following language:

“[N]o person in "the classified civil service of the United States shall be removed therefrom except' for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing; and affidavits in support thereof; but no examination of witnesses nor any trial or hearing shall be required except in the discretion of. the officer making the removal; and copies of charges, notice of hearing, answer, reasons for removal, and of the order of removal shall be made a part of the records of the proper department or office, as shall also the reasons for reduction in rank or gompensation; and copies of the same shall be furnished to the person affected upon request, and the Civil Service Commission also shall, upon request, be furnished copies of the same. . . .”²⁰.

That Act, as now codified, . 5 IT., S. C. § 7501, together with the administrative regulations issued by the. Civil Service Commission and the OEO, provided the statutory, and administrative framework which the Government contends controlled the proceedings against appellee. The District Court, in its ruling on appellee’s procedural contentions, in effect held that the Fifth Amendment to the United States Constitution prohibited Congress, in the Lloyd-La Follette Act, from; granting protection against removal without cause and at the same time — indeed, in the same sentence — specifying, that the determination-of cause should be without the full panoply of rights which attend a trial-type adversary hearing. We do not believe that the Constitution so limits Congress in the manner in which benefits may be extended to federal employees.

Appellee recognizes that our recent decisions in Board of Regents v. Roth, 408 U. S. 564 (1972), and Perry v. Sindermann, 408 U. S. 593 (1972), are those most closely in point with respect to the procedural rights, constitutionally guaranteed public employees in connection with their dismissal from employment. Appellee contends that he had a property interest or an expectancy of employment which could not be divested without first affording him a full adversary hearing.

In Board of Regents V: Roth, we said:

“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source, such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” 408 U. S., at 577.

Here appellee did have a statutory expectancy that he not be removed other than for “such cause as will promote the efficiency of [the] service.” But the very section of the statute which granted him that right, a right which had previously existed only by virtue of administrative regulation, expressly provided also for the procedure by which “cause” was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. In the area of federal regulation of government employees, where in the absence of statutory limitation the governmental employer has had virtually uncontrolled latitude in decisions as to hiring and firing, Cafeteria Workers v. McElroy, 367 U. S. 886, 896-897 (1961), we do not believe that a statutory enactment such as the Lloyd-La Follette Act máy be parsed as discretely as appellee urges. Congress was obviously intent on according a measure of statutory job security to governmental employees which they had not previously enjoyed, but was likewise intent on excluding more elaborate procedural requirements which it felt would make the operation of the new scheme unnecessarily burdensome in practice. Where the focus of legislation was thus strongly on the procedural mechanism for enforcing the substantive right which was simultaneously conferred, we decline to conclude that the substantive right may be viewed wholly apart from the procedure provided for its enforcement. The employee’s statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which Congress has designated for the determination of cause.

The Court has previously viewed skeptically the action of a litigant in challenging the constitutionality of portions of a statute under which it has simultaneously claimed benefits. In Fahey v. Mallonee, 332 U. S. 245 (1947), it was observed:

“In the name and right of the Association it is now being asked that the Act under which it has’ its existence be struck down in important particulars, hardly severable from those provisions which grant its right to exist. ... It would be intolerable that the Congress should endow an association with the right to conduct a public banking business on certain limitations and that the Court at the behest of those who took advantage from the privilege should remove the limitations intended for public protection. It would be difficult to imagine a more appropriate situation in which to apply the doctrine that one who utilizes an Act to gain advantages of corporate existence is estopped from questioning the validity of its vital conditions.” Id., at 255-256.

“It is an elementary rule of constitutional law that, one may not ‘retain the benefits of an Act while attacking. the constitutionality of one of its important conditions.’ United States v. San Francisco, 310 U. S. 16, 29. As formulated by Mr, Justice Brandéis, concurring in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 348, ‘The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.’ ” Id., at 255. .

This doctrine has unquestionably been applied un-. evenly in the past, and observed as often as not in the breach. We believe that at the very least it gives added weight to our conclusion that where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that’ right, a litigant in the position of appellee, must take the bitter with the sweet.

To conclude otherwise would! require us to hold that -although. Congress chose-to enact what was essentially a legislative compromise,, and with unmistakable clarity granted governmental employees security against being dismissed without “cause,” but refused to accord .them a full adversary hearing for the determination of “cause,” it was constitutionally disabled from making such a choice. We would be holding that federal employees had been granted, as a result of the enactment of the Lloyd-La Follette- Act, not merely that which Congress had giyen them; in the first part of a sentence, but that which Congress had expressly withheld from them in the latter part of the same sentence. Neither the language of the Due Process Clause of the Fifth Amendment nor our cases construing it. require any such hobbling restrictions on legislative authority in this area.

Appellees urge that the judgment of<the District Court must be sustained on tjie authority of cases such as Goldberg v. Kelly, 397 U. S. 254 (1970), Fuentes v. Shevin, 407 U. S. 67 (1972), Bell v. Burson, 402 U. S. 535 (1971), and Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). Goldberg held that welfare recipients are. entitled under the Due Process Clause of the Fifth and Fourteenth Amendments to an, adversary hearing before their benefits aré terminated. Fuentes v. Shevin held that a hearing was generally required before one could, have his property seized under a writ-of replevin.- In Bell v. Burson the- Court held that due process required a procedure for determining whether there- was a reasonable possibility of a judgment against a driver as a result of an accident before his license and vehicle registration could be suspended for failure to post security under Georgia’s uninsured motorist statute. And in Sniadach v. Family Finance Corp. 'a Wisconsin statute providing fór pre judgment garnishment without notice to the debtor or prior hearing was struck down as violative of the principles of due process. These cases deal with areas of the law dissimilar to one another and dissimilar to the area of governmental employer-employee relationships with which we deal here. • The types of “liberty” and “property” protected by the Due Process Clause vary widely, and what may be required under that Clause in dealing with one set of interests which it protects may not be required'in dealing with another set of.interests.

“The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U. S., at 895.

Here the property interest which appellee had in his employment' was itself conditioned by the procedural limitations which had accompanied the grant .of that interest. The Government might, then, under our holdings dealing with Government employees in Roth, supra, and Sindermann, supra, constitutionally deal with appellee’s claims as it proposed to do here.²¹

Appellee also contends in this Court that because of the nature of the charges on which his dismissal was based, he was in effect accused of dishonesty, and that therefore a hearing was required before he could be deprived of this element of his “liberty” protected by the Fifth Amendment against deprivation without due process.- In Board of Regents v. Roth, 408 U. S., at 573, we said:

“The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. . In such a case, due process would accord an opportunity to refute the charge before university officials.”²²

The liberty here implicated by appellants’ action is not the elemental freedom from external restraint such as was involved in Morrissey v. Brewer, 408 U. S. 471 (1972), but is instead a subspecies of the right of the individual “to enjoy those privileges long recognized ... as essential to the orderly.pursuit of happiness by free men.” Meyer v. Nebraska, 262 U. S. 390,399 (1923). But that liberty is not offended by dismissal from employment itself, but instead by dismissal based upon an unsupported charge which could wrongfully injure the reputation of'an employee. Since the purpose of the hearing in such a case is to provide the person “an opportunity to clear his name,” a hearing afforded by administrative appeal procedures after the actual dismissal is a sufficient compliance with the requirements of the Due Process Clause. Here appellee chose" not to rely on his administrative appeal, which, if his factual contentions are correct, might well have vindicated his reputation and removed any wrongful stigma from his reputation.

Appellee urges that the delays in processing agency and Civil Service Commission appeals, amounting to more than three months in over 50% of agency appeals,²³ mean that the available administrative appeals do not suffice to protect his liberty- interest recognized in Roth. During the pendency of his administrative appeals, appellee asserts, a discharged employee suffers from both the stigma and the consequent disadvantage in obtaining a comparable job that result from' dismissal for cause from Government employment. We assume that some delay attends vindication of an employee’s reputation ' throughout the hearing procedures provided on appeal, and conclude that at least the delays cited here do not entail any separate deprivation-of a liberty interest recognized in Roth.

Ill

Appellee also contends that the provisions of 5 U. S. C. § 7501 (a), authorizing removal or suspension without pay “for such .cause as will promote the efficiency of the service,” are vagúe and overbroad. The District Court accepted this contention:

“Because employees faced with the standard of 'such cause as will promote the efficiency of the service’ can only guess as to what utterances may cost them their jqbs, ‘there can be little question that they will be deterred from exercising their First Amendment rights to The fullest extent.” 349 F. Supp., at 866.

A certain .anomaly attends appellee’s substantive constitutional attack on Che Lloyd-La Follette Act just as it does his attack on its procedural provisions. Prior to the enactment of this language in 1912, there was no such statutory inhibition on the authority of the Government to discharge a federal employee, and an employee could be discharged with or without causé for conduct which was not protected under the First Amendment. Yet under the District Court’s holding, a federal employee after the enactment of the Lloyd-La Follette Act may not even he discharged for conduct which constitutes “cause” for discharge and which is not protected by" the First Amendment, because the guarantee of job security which Congress chose to accord employees is “vague” and “overbroad.”

We hold the standard of “cause” set forth in the Lloyd-La Follette Act as a limitation on the Government’s authority to discharge federal employees is constitutionally sufficient against the charges both of overbreadth and of vagueness. In CSC v. Letter Carriers, 413 U. S. 548, 578-579 (1973), we said:

“[T]here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us. that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out' in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. ‘[T]he general class of offense to which . . . [the provisions are] directed is plainly within [their] terms . . . , [and they] will not be struck down as vague, even though marginal cases could be put where doubts might arise.’ United States v. Harriss, 347 U. S. 612, 618 (1954).”

Congress sought to lay down an admittedly general standard, not for the purpose of defining criminal conduct, but in order to give myriad different federal employees performing widely disparate tasks a common standard of job protection. We do not believe that Congress was confined to the choice of enacting a detailed code of employee conduct, or else granting no job protection at all. As we said in Cotten v. Kentucky, 407 U. S. 104 (1972):

“The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed, to convert into a constitutional dilemma the practical.difficulties in drawing criminal statutes both general enough-to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Id., at 110.

Here the language “such cause as will promote the efficiency of the service” was not written upon a clean slate in .1912, and it does not appear on a clean slate now. The Civil Service Commission has indicated that what might be said to be longstanding principles of employer-employee relationships, like those developed in the private sector, should be followed in interpreting the language used by Congress.²⁴ Moreover, the OEO has provided by regulation that its Office of General Counsel is available to counsel employees who seek advice on the interpretation of the Act and its regulations.²⁵ We found the similar procedure offered by the Civil Service Commission important in rejecting the respondents’ vagueness contentions in CSC v. Letter Carriers, 413 U. S., at 580.

. The phrase “such cause as will promote the efficiency of the service” as a standard of employee job protection is without doubt intended to authorize dismissal for speech as- well as other conduct. Pickering v. Board of Education, 391 U. S. 563, 568 (1968), makes it clear that in certain situations- the discharge of a Government employee may be based on his speech without offending guarantees .of"the First Amendment:

‘iAt the- same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of" the public services it performs through its employees.”

Because of the infinite variety of factual situations in which public statements by Government employees might reasonably justify dismissal for “cause,” we conclude that the Act describes, as explicitly as is required, the employee conduct which is ground for removal. The essential fairness of this broad and general removal standard, and the impracticability of greater specificity, were recognized by Judge Leventhal, writing, for a panel of the United States Court of Appeals for the District of Columbia Circuit in Meehan v. Macy, 129 U. S. App. D. C. 217, 230, 392 F. 2d 822, 835 (1968), modified, 138 U. S. App. D. C. 38, 425 F. 2d 469, aff’d en banc, 138 U. S. App. D. C. 41, 425 F. 2d 472 (1969):

“[I]t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees include ‘catchall’ clauses prohibiting employee ‘misconduct,’ ‘immorality,’ or ‘conduct unbecoming.’ We think it is inherent in the employment relationship as a matter of common sense if not [of] common law that [a Government] employee . . . cannot reasonably assért a right to keep his job while at the same time he inveighs against his superiors in public with intemperate and defamatory [cartoons]. . . . [Dismissal in such circumstances neither] comes as an unfair surprise [nor] is so unexpected as to chill . . . freedom to engage in appropriate speech.”

Since Congress when it enacted the Lloyd-La Toilette Act did so with the intention' of conferring job protection-rights on federal employees which they had not previously had, it obviously did not intend to authorize discharge under the Act’s removal standard for speech which is constitutionally protected. The Act proscribes only that , public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than,are necessary for the protection of the Government as an employer. Indeed the Act is not directed at speech as such, but at employee behavior, including speech, which is detrimental to the efficiency of the employing agency. We hold that the language “such cause as will promote the efficiency of the service” in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad. Colten v. Kentucky, 407 U. S., at 11L. We have observed previously that the Court has a duty to construe a .federal statute to avoid constitutional questions where such a construction is reasonably possible. United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 n. 7 (1973); United States v. Thirtyseven Photographs, 402 U. S. 363, 368-369 (1971).

We have no hesitation, as did the-District Court, in saying that on the facts alleged in the administrative charges against appellee, the appropriate iribu'nal wo "Id infringe no constitutional right of appellee in concluding that there was “cause” for his discharge. Pickering v. Board of Education, 391 U. S., at 569. Nor have we any doubt that satisfactory proof of these allegations could constitute “such cause as will promote the tfficiency of the service” within.the terms of 5 U. S. C. §7501 (a). Appellee’s contention then boils down to the assertion that although no constitutionally protected conduct of his own was the basis for his discharge on' the Government’s version of the fácts, the statutory language in question must be declared inoperative, and a set of more particularized regulations substituted for it, because the generality of its language might result in marginal situations in which other persons seeking to engage in constitutionally protected conduct would be deterred from doing so. But we have held that Congress in establishing a standard of “cause” for discharge did not intend to include within that term' any coi stitutionally protected conduct. We think that our statement in Colten v. Kentucky, is a complete answer to appellee’s contention:

“As we understand this case, appellant’s own conduct was not immune under the First. Amendment and neither is his ' conviction vulnerable on the ground that the statute threatens constitutionally' protected conduct of others.” 407 .U. S., at 111.

In sum, we hold that the ■ Lloyd-La Follette Act, in at once conferring upon nonprobationary federal employees the right not to be discharged except for “cause” and prescribing the procedural means by which that right was to be protected, did not create an expectancy of job retention in those employees requiring procedural protection under the Due Process Clause beyond that afforded here ¹ by the statute and related agency regulations. We also conclude that the post-termination hearing procedures provided by the Civil Service Commission and the OEO adequately protect .those federal employees’ liberty interest, recognized in Roth,-supra, in not being wrongfully stigmatized by untrue and -unsupported administrative charges. Finally, we hold that the standard of employment protection imposed by Congress in .the Lloyd-La Follette Act, is not impermissibly vague or overbroad in its regulation of the speech of federal employees and therefore unconstitutional on its face. Accordingly, we reverse the decision of the District Court on both grounds on which it granted summary judgment and remand for further proceedings not. inconsistent .with this opinion. .

Reversed and remanded.

1 “Appellee” refers to appellee Wayne Kennedy, the named plaintiff in the original complaint. The participation .of the 18 other named plaintiffs, who were added in the amended complaint, see n. 3, infra, appears to have been little more than nominal. The' amended complaint .alleged that the added named plaintiffs’ exercise of their rights of free speech were chilled-because they feared that any off-duty public comments made by them would constitute -t.sgrounds for discharge or punishment under the Lloyd-La Follette 80 4sfeaoT.wo conclusory affidavits supporting that bare allegation (one ..gjjSignqcj, byiypne of the added named plaintiffs, the other by the remaining 17) were filed 'in connection with plaintiffs’ motion for summary judgment or temporary injunctive relief.

2 Appellee’s response to the “Notification of Proposed Adverse Action,” made through counsel, set forth briefly his position that the charges against hiip were unlawful under the Fifth and First Amendments. One of the three sentences devoted to his First Amendment .claim noted parenthetically that the “conversations . . . with union members and the public” for which he was being punished were “inaccurately set forth in the adverse action.” Appellee's response did not explain in what respects the charges against him were inaccurate, nor did it offer any alternative version of the events described in the charges.

3 Appellee’s original complaint, filed March 27, 1972, contained two counts. In the first count appellee'sought,' on behalf of himself and others similarly situated, to enjoin his removal pending a full, trial-type .hearing before an impartial hearing officer. In the second count appellee sought to enjoin his removal for the exercise of his rights of free speech. The single-judge court referred the constitutional question presented in the first count to a three-judge court, and dismissed the second count pending appellee’s exhaustion of .available administrative remedies before the Civil Service Commission. Appellee then amended the second count of his complaint to allege, on behalf of himself, 18 added named plaintiffs, see n. 1, supra, and others similarly situated, that the Lloyd-La Follette Act’s removal standard was unconstitutionally vague and' overbroad and violated the plaintiffs' First Amendment rights.

4 The court ordered Appellee’s reinstatement but deferred determination whether1 the suit was maintainable as a class action. Appellee’s appeal to the Civil Service Commission was first delayed' as a result, of’the pendency, of this suit,.then “terminated” because of appellee’s reinstatement following the decision of the District Court.

5 5 CFR §§ 735.201a, 735.209. Section 735.201a provides:

“An employee shall avoid any action, ■ whether or not specifically prohibited by this subpart, which might, result in, or create the appearance of:

“(a) Using public office for private gain:

“ (b) Giving preferential treatment to any person;

“(c) Impeding Government efficiency or economy;

“(d) Losing complete independence or impartiality;

“(e) Making a Government decision outside official channels; or “(f) Affecting adversely the confidence of the public in the integrity of the Government.”

Section 735.209 provides:

“An employee shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conc.uct prejudicial to the Government.”

6 45 CFR §§ 1015.735-1,1015.735-24. Section 1015.735-:. provides:

“The purpose of this part is to guide OEO employees toward maintaining the high standard of integrity expected of sll Government employees. It is intended to require that employees avoid any action which might result in, or create the appearance of:

“ (a) Using public office for private gain;

“(b) Giving preferential treatment to any organization or person; “(c) Impeding Government efficiency or economy;

“.(d) Making a Government decision outside official channels; “(e) Losing complete independence or impartiality of action; or

“(f) Affecting adversely the confidence of the public in the integrity of OEO and the Government.”

Section 1015.735-24 provides:

“No employee shall engage in criminal, infamous; dishonest, immoral, or notoriously disgraceful conduct or other conduct prejudicial to the Government.”

7 45 CFR §1015.735-4. Section 1015.735-4 provides:

“The Office of General Counsel of OEO is' available to advise on the interpretation of the provisions of this part and the other laws and regulations relevant to the conduct of OEO employees. The , General Counsel is designated as OEO counselor for this purpose."

8 The Civil Service Commission regulations governing procedures for adverse actions implement, in addition to the Lloyd-La Follette Act, the Veterans’ Preference Act of 1944 and Executive Order No. 11491. The Veterans^ Preference Act, Act of June 27, 1944, c. 287, 58 Stat. 387, imposed procedural requirements for processing adverse actions in addition to those imposed by the Lloyd-La Follette Act. Those additional requirements include an opportunity for the employee to respond orally or in writing to the charges on which his dismissal is based; the Veterans’ Preference Act also authorizes Civil Service Commission appeals from adverse agency decisions. See 5 U.. S. C. § 7701. The Act itself applies only to veterans'óf military service, 5 IT. S. C. §§2108, 7511, but Executive Order No. 11491, printed in note following 5 IT. S. C. § 7301, extends the Act’s protections to all nonpreference eligible employees in the classified service.

9 5 CFR §752.202 (a). Section 752.202 (a) provides:

“(a)'Notice of proposed adverse action. (1) Except as provided in paragraph (c) of this section, an employee' against whom adverse action is sought is entitled to at least 30 full days’ advance written notice stating any and all reasons, specifically and in detail, for the proposed action.

“(2) Subject to the provisions of -subparagraph ..(3) of this paragraph, the material on which the notice is based arid which is relied' on to support the reasons in that 'notice, including statements of •witnesses, documents, and investigative reports or extracts there-. from, shall be assembled and made available to the employee for ‘his review. . The notice shall inform the employee where he may ■review that material.

“1(3) Material which cannot be disclosed to the employee, or to his rdesignated physician under § 294.401 ,of this chapter, may not be used by an agency to support the reasons in the notice.”

10 .5 CFR § 752.202/(b). Section 752.202 (b) provides:

“(b) Employee’s answer. Except as provided in paragraph (c) of this section, an employee is entitled to a reasonable time for answering a notice of proposed adverse action and for furnishing affidavits in support of his .answer. The time to be allowed depends on the facts and circumstances of the case, and shall be sufficient to afford the employee ample opportunity to review the material relied on by the agency to support the reasons in the notice and to prepare an answer and secure affidavits. The agency shall provide the employee a reasonable amount of official time for these purposes if he is otherwise in an active duty status, ff the employee answers, the agency shall consider his answer in reaching its decision. The employee is entitled to answer personally, or in writing, or both personally .and in writing. The right to answer personally includes the right to answer orally in person by being given a reasonable opportunity to make any representations which the employee believes might sway the final decision on his case, but does not include the right to a trial or formal hearing with examination of witnesses. When the employee requests an opportunity to answer personally, the agency shall make a representative or representatives available to hear his answer. The representative or representatives designated to hear the answer shall be persons who have authority either to make a final decision on the proposed adverse action or to recommend'what final decision should be made.”

11 5 CFR § 752.202 (f). Section 752.202 (f) provides:

“(f) Notice of adverse decision. The employee is entitled to notice of the agency’s decision at the earliest practicable date. The agency shall deliver the notice of decision to the employee at or before the time the action will be made effective. The notice shall be in writing, be dated, and inform the employee:

“(1) Which of the reasons in the notice of proposed adverse action have been found sustained and which have been found not sustained;

"(2) Of his right, of appeal to the appropriate office of the Commission;

“(3) Of any right of appeal to the agency under Subpart B of Part 771 of this chapter, including the person with whom, or the office with which, such an appeal shall be filed;

“(4) Of the time limit for appealing as provided in §752.204;

"(5) Of the restrictions on the use of appeal rights as provided in §752.205; and

“(6) 'Where he may obtain information on how to pursue an appeal.”

12 5 CFR §§771.205, 771.208. Section 771.205 provides:

“An employee is entitled to appeal under the agency appeals system from the original decision. The agency shall accept and process a properly filed appeal in accordance with its appeals system.”

Section 771.208 provides:

“ (a) Entitlement. Except as provided in' paragraph (b) of this section, an employee is entitled to a hearing on his appeal before an examiner. The employee is entitled' to appear at the hearing personally or through or accompanied by his representative. The hearing may precede either the original decision or the' appellate ■decision, at the agency’s option. Only one hearing shall be held unless the agency determines that unusual circumstances require a second hearing.

“(b) Denial of hearing. The agency may deny an employee a hearing on his appeal only (1) when a hearing is impracticable by reason of unusual location or other extraordinary circumstance, or (2) when the employee failed to request a hearing offered before the original decisipn.

“(c) Notice. The agency shall notify an employee in writing before the.original decision or before the appellate decision of (1) his right to a hearing, or (2) the reasons for the denial of a hearing.”

13 5 CFR § 752.203. Section 752.203 provides:

“An employee is entitled to appeal to the Commission from an adverse action covered by this' subpart. The appeal shall be in writing and shall set forth the employee’s reasons for contesting the adverse action, with such offer of proof and pertinent documents as he is able to submit.”

Appeals to both the discharging agency and the Commission from an original adverse action will not be processed concurrently, 5 CFR §752.205 (a), and a direct appeal to the Commission from an initial removal decision constitutes a waiver of appeal rights within the employing agency. 5 CFR § 752.205 (b). However, if the employee first appeals within the employing agency, he is entitled, if necessary, to an appeal to the Commission. 5 CFR §752.205 (c).

14 5 CFR §§771.208, 771.210-771.212, 772.305 (c). Sections 771.210-771.212 govern the conduct of hearings by the discharging agency. Those sections provide:

Ҥ 771.210 Conduct of hearing.

“(a) The hearing is not open to the public or the press. Except as provided in paragraph (h) of this section, attendance at a hearing is limited to persons determined by the examiner to have a direct connection with the appeal.

“(b) The- hearing is conducted so as to -bring out pertinent facts, including the production of pertinent records.

“(c) Rules of evidence are not applied strictly, but the examiner shall 'exclude irrelevant or unduly repetitious testimony.

“(d) Decisions on the admissibility of evidence or testimony are made by the examiner.

“(e) Testimony is under oath or affirmation.

“(f) The examiner shall give the parties opportunity to cross-examine witnesses Who appear and testify.

“(g) Th3 examiner may exclude any person from the hearing for contumacious conduct or misbehavior that obstructs the hearing.

“(h) An agency may provide through a negotiated agreement with a labor organization holding exclusive recognition for the attendance at hearings-under this subpart of an observer from that organization. When attendance is provided for, the agreement shall further ^provide that When ,the employee who requested the hearing objects :to the attendance of an observer on grounds of privacy, the examiner .shall determine the validity of the objection and make the decision on the question of attendance.

Ҥ 771.211 Witnesses.

“(a) Both parties are entitled to produce witnesses.

“(b) The agency shall make its employees available as witnesses before an examiner when requested by the éxaminer after consideration of a request by the employee or the agency.

“(c) If the agency determines • that it is not administratively practicable to comply with the request of the examiner, it shall notify him in writing of the reasons for that determination. If, in the examiner’s judgment, compliance with his request is essential to a full and fair hearing, he may postpone' the hearing until such time as the agency complies with his request.

“(d) Employees of the agency are in a duty status during the time they are made available as witnesses.

. “(e) The agency shall assure witnesses freedom from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony.

Ҥ 771.212 Record of hearing.

“(a) The hearing shall be recorded and transcribed verbatim. All documents submitted to and accepted by the examiner at the hearing shall be made a part of the record of the hearing. If the agency submits a document that is accepted, it shall furnish a copy of the document to the employee. If the employee submits a document that is accepted, he shall make the document available to the agency representative for reproduction.

“(b) The employee is entitled to be furnished a copy of the hearing record at or before the time he is furnished a copy of the report of the examiner.”

Section' 772.305 (c) . governs the conduct' of hearings before the Civil Service Commission. It provides:

“(c) Hearing procedures. (1) An appellant is entitled to appear at the hearing on his appeal personally pr through or accompanied by his representative. The agency is also entitled to participate in the hearing. Both parties are entitled to produce witnesses. The Commission is not authorized to subpoena witnesses.

“ (2) An agency shall make its employees available ab witnesses at the hearing, when (i) requested by the Commission after consideration of a request by the appellant or the agency and (ii) it is administratively- practicable to comply with the request of the' Commission. If the agency determines that it is not administratively practicable to comply with the request of the .Commission, it shall submit to the Commission its written reasons for the declination. Employees of the agency shall be in a duty status during the time they are made available as witnesses. Employees of the- agency shall be free from restraint, interference, coercion, discrimination, or reprisal in presenting their testimony.

“(3) Hearings are not open-to the public or the press. Attendance at hearings is limited to persons determined by the Commission to have a direct connection with the appeal.

“(4) A representative of the Commission shall conduct the hearing and shall afford the parties opportunity to introduce evidence (including testimony. and statements by the appellant, his representative, representatives,-of the agency,’ and witnesses), and to cross-examine witnesses. Testimony is under oath or affirmation. Rules of evidence are not'applied strictly, but the representative of the Commission shall exclude irrelevant or unduly repetitious testimony.

“(5) The office of the Commission having initial jurisdiction of the appeal shall determine how the hearing will be reported. When, the hearing is reported verbatim, that office shaE make the transcript a part of the record -of the proceedings' and shall furnish a copy of the transcript to each party. When the hearing is not reported verbatim, the representative of the Commission who. conducts the hearing shall make a suitable summary of the pertinent portions of the testimony. When agreed to in writing by the párties, the summary constitutes the report of the hearing and is. made a part of the record of the proceedings. Each party is entitled to be furnished a copy of the report of the hearing. -' If the representative of the Commission and the parties fail to agree on the summary, the parties are entitled to submit written exceptions to any parts of the summary which are made a part of the record of the proceedings for consideration in deciding the appeal.”

15 OEO Staff Instruction No. 771-2 (1971).

16 5 U. S. C. § 5596.

17 Act of Jan. 16, 1883, c. 27, 22 Stat. 403.

18 Id., §2.

19 Fifteenth Report of the Civil Service Commission 70 (1897-1898). Rule II, § 8, provided: “No removal shall be made from any position subject to competitive examination except for just cause and upon written charges filed with the head of the Department or other appointing officer, and of which the accused shall have full notice and an opportunity to make defense.”

20 Act of Aug. 24, 1912, c. 389, § 6,37 Stat. 555.

21 Our Brother White would hold that Verduin himself might not make the initial decision as to removal on behalf of the agency, because he was the victim of the alleged slander which was one of the bases for appellee’s removal. Because of our holding with respect /t<3 appellee’s property-type expectations under Roth and Sindermann, we do not reach this' question in its constitutional dimension. But since our Brother White suggests that he reaches that conclusion as a matter of statutory construction, albeit because of constitutional emanations, we state our reasons for disagreeing with his conclusion. We, of course, find no constitutional overtones lurking in the statutory .issue, because of our holding as to the nature of appellee’s property interest in his - employment. The reference In the Lloyd-La.Follette Act itself to the discretion “of the officer making the removal” suggests rather strongly that he is likewise the officer who will have brought the charges, and there is no indication that during the 60 years’ practice under the Act it has ever been administratively construed to require the initial hearing on the discharge to be before any official other than the one making the charges. And while our .Brother White’s statement of his conclusion suggests. that it may be limited to facts similar to those presented here, post, at 199, we doubt that in practice it could be so confined. The decision of an employee’s supervisor to dismiss an employee “for such cause as will promote the efficiency of the service” will all but invariably involve a somewhat subjective judgment on the part of the supervisor that the employee’s-performance is not “up to snuff.” Employet-employee disputes of this sort can scarcely avoid involving clashes of personalities, and while a charge that an employee has defamed a supervisor may generate a maximum of personal involvement on the part of the latter, a statement,of more typical.charges. will necessarily engender some degree of personal involvement on the part of the supervisor.

Additional difficulties in applying our Brother White’s standard would surely be found if the official bringing the charges were himself the head of a department or an agency, for in that event none of his subordinates .could be-assumed to have a reasonable degree of detached neutrality, and the initial hearing would presumably have to be.conducted by someone wholly Outside of the department or- agency: We do not believe that Congress, clearly indicating as it did in the Lloyd-LaFollette Act its preference for relatively simple procedures, contemplated or required the complexities which would be injected into the Act by our Brother White.

22 The Court’s footnote there stated:

■. “The purpose of such notice and hearing is to provide the person an opportunity to clear his name.. Once a person has cleared his name at a hearing, his employer, of course, may remain free .to deny hint future employment for other reasons.” 408 U. S., at 573 n. 12.

23 See Merrill, Procedures for Adverse Actions Against Federal Employees, 59 Va. L. Rev. 196,206 (1973).

24 The Federal Personnel Manual, Subchapter S3-1. a., states: “Basically a, ‘cause’ for disciplinary adverse action is a recognizable offense against the employer-employee relationship. Causes for adverse action run the entire gamut of offenses against the employer-employee relationship, including inadequate performance of duties and improper conduct on or off the job. . . .” Supp. 752-1, Adverse Action by Agencies, Feb. 1972.

25 See n. 7, supra.

1 As the Court stated in Boddie v. Connecticut, 401 U. S. 371, 378 (1971), “The formality and procedural requisites for [a due process] hearing can vary, depending upon the'imp anee of the interests involved and the nature of the subsequent proceedings.” In this case, we are concerned with an administrative hearing in the context of appellee’s discharge from public employment.