Arnett v. Kennedy, 416 U.S. 134 (1974), was a United States Supreme Court case in which the Court rejected a nonprobationary federal civil service employee's claim to a full hearing prior to dismissal over charges he had brought the government into disrepute by recklessly accusing a superior of corruption. The governing federal law prescribed not only grounds for removal but also removal procedures. The employee could only be removed for "cause," but the procedures did not provide for an adversarial hearing prior to termination. The Court also rejected the respondent's claim that his First Amendment rights were violated.
The 6–3 decision was widely criticized by legal scholars for Justice William Rehnquist's controversial conceptualization of Kennedy's due process rights in his plurality opinion, joined by only two other justices and explicitly rejected by the others. Rehnquist reasoned that since the state creates property interests such as that Arnett held in his job through its statutes, any procedures the state creates to allow an employee to appeal a termination are thus sufficient to constitute due process. Thus, he wrote, those with such interests "must take the bitter with the sweet".
Justices Byron White and Thurgood Marshall disapprovingly quoted that line in their separate opinions (White concurring that Kennedy's First Amendment rights had not been violated but dissenting from the rest of the holding, while Marshall dissented entirely, joined by two other justices). Justice Lewis Powell, concurring with another justice, also rejected Rehnquist's theory. A later case, Logan v. Zimmerman Brush Co., held differently without explicitly overruling Arnett; in 1985's Cleveland Board of Education v. Loudermill, the Court held that public employees are entitled to some form of hearing before dismissal and formally rejected his "bitter with the sweet" formulation, with Rehnquist (by then Chief Justice) as the only dissenter. Some legal scholars have argued it should have been retained, or that the Court's subsequent disinterest in engaging this question has been to the detriment of its jurisprudence.
The First Amendment aspect of the holding—that the FFLA's provisions that covered employees could only be dismissed for "such cause as will promote the efficiency of the service" was neither overbroad nor so vague that employees lacked notice that speech such as Arnett's could lead to discipline—remains, although it has not been relied on much. After the case was remanded to the district court, Kennedy was again fired. He appealed that to the federal Civil Service Commission and was reinstated with back pay within a year.
Underlying dispute Wayne Kennedy, who had begun his career in federal employment with the Internal Revenue Service in 1964, transferred to the Office of Economic Opportunity (OEO), which administered many of the federal grant programs created under the Johnson Administration's Great Society agenda, four years later. He began as a field representative in Chicago and was promoted to branch manager for Indiana. He was also head of the national council of OEO locals for the American Federation of Government Employees. His position as field representative was characterized as "fairly important", since it primarily entailed representing the agency's positions to the Community Action Agencies it gave grants to. He was a GS-12 on the federal civilian employee pay scale, earning $16,000 ($ in modern dollars).
In 1971 Kennedy was suspended for 60 days after having, nearly a year earlier, advised members of a group that OEO had given money to that they should replace their board of directors completely. This violated OEO policy that its field representatives were not to in any way involve themselves in the internal affairs of the community groups the agency worked with. Johnson had already, according to the government, been warned about this after a previous incident; of several charges brought against him, this was the only one that was sustained after he wrote a lengthy written rebuttal.
In April 1972, three weeks after he had been informed of the suspension, further charges were brought against Kennedy, based on allegations he had accused the regional director of violating treaties in his dealings with some Native groups, and that another OEO official had violated the agency's conflict of interest standards by entering into a contract with an insurance agency her husband had an interest in. After he had received that notice, he then claimed at a union meeting that his superior had offered a $100,000 grant to a tribal official if that person would submit a written statement against Kennedy and another employee active in the union. These claims were reported in a newspaper article; Kennedy also held a press conference, with other union leaders, in the lobby of the building that housed OEO's headquarters where he made the same allegations and passed out copies of documents purporting to support those allegations.
Additional charges were brought against Kennedy. He was, per agency policy, again offered the chance to respond to them within 30 days either verbally or in writing. His entire response was to demand an adversarial hearing, and said the disciplinary proceedings in this instance violated his First Amendment right to free speech. Accordingly, OEO notified him that pursuant to the Lloyd-La Follette Act (LLFA), passed during Progressive Era civil service reform, he was fired.
Under regulations promulgated by the Civil Service Commission (CSC) and the OEO on how he could reply to the charges and appeal any subsequent dismissal, Kennedy appealed to the CSC and filed suit in federal court for the Northern District of Illinois claiming that the discharge procedures authorized by the Act had denied him and others due process of law since it did not allow for an adversarial hearing prior to termination, naming then-OEO director Philip Sanchez as defendant.
District court
Judge Richard Wellington McLaren stayed the case while Kennedy's CSC appeal was pending. After his CSC appeal was denied, Kennedy added to his suit a claim that his First Amendment right to free speech had been violated, since the FFLA's language was so vague and overbroad as to make it impossible to ascertain what speech might lead to disciplinary proceedings.
McLaren convened a three-judge panel, with Seventh Circuit Court of Appeals judge Walter J. Cummings Jr. and fellow district judge Philip Willis Tone, to hear it. Both Kennedy and the government submitted their evidence, made their arguments and moved for summary judgement in their favor. In October, the panel held for Kennedy.
The government had relied on Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, in which the dismissal of a cook employed at a private concession stand on a naval facility after issues came out that led to the revocation of her security clearance, to support its argument that it could summarily dismiss employees. McLaren responded that "[t]he continuing vitality of this rule is seriously in question today owing to recent Supreme Court decisions in the due process area". In that particular case, he conceded, the national security interest may have allowed such decisive action, but it was not a factor in the instant case, and given that other federal agencies allowed their employees similar hearings it was unconstitutional for OEO not to.Kennedy, at 864–66
McLaren agreed with Kennedy on the First Amendment claim as well. The language of the FFLA, that employees could only be disciplined for "such cause as will promote the efficiency of the service" was in his opinion so broad that "there can be little question that [OEO employees] will be deterred from exercising their First Amendment rights to the fullest extent." He allowed that OEO certainly could regulate its employees' speech, but at the same time enjoined the agency from enforcing any rules against speech under the FFLA's current construction.
The OEO was ordered to reinstate Kennedy and grant him full back pay, which it did. The government appealed the case directly to the Supreme Court, bypassing the Seventh Circuit. Since Alvin Arnett had taken over as OEO director by that time, his name was substituted for Sanchez's as the petitioner.
Oral argument
The Court heard oral argument in the case in November 1973. Daniel Mortimer Friedman, later to serve as a federal judge on the Court of Claims and Federal Circuit, argued for the government; Charles Barnhill argued for Kennedy. The National Association of Letter Carriers filed an amicus curiae brief urging affirmance.
Friedman spent most of his argument outlining the facts of the case and clarifying the procedures involved for the justices. Thurgood Marshall was particularly concerned by the absence of any requirement for a pretermination hearing. He asked if, were an employee to show up to work drunk, the government could fire him simply by writing him a letter. Friedman admitted that it was possible but that was not how things were done. "I know, but if you are wrong on this, you are in a little bit of trouble, aren't you?" Marshall responded; Friedman agreed.
Barnhill began by noting that since Kennedy had been reinstated, he had received positive evaluations and gotten another raise; the 60-day suspension had also been reversed, with back pay. Justice William Rehnquist asked him a question he had tried to get Friedman to answer: since the district court's grant of summary judgement required accepting all the facts the government had pleaded as true, did Kennedy accept them as such? Barnhill replied that since the adversarial hearing his client wanted had not yet been held, he considered the alleged misconduct to be merely charges, not facts, and thus irrelevant.
Later the justices questioned him closely on the argument that Kennedy had a property interest in his job, per Board of Regents v. Roth and Perry v. Sindermann, two other recent precedents which had also involved public employees who alleged due process violations during dismissal procedures they claimed were motivated by speech critical of their superiors. Barnhill said those cases required a hearing prior to Kennedy's termination, a provision Friedman had told the Court was in the regulations of eight other federal agencies at that time. "[I]t seems to me that the purpose of the Lloyd-La Follette Act was to protect government employees from being fired arbitrarily", Barnhill said. "If the procedure ... does not assure that an employee will not be fired for cause then the procedure is defective."
"I think the government's argument is very dangerous", Barnhill continued. "[T]here is no question that states and municipalities may take property ... and if the legislature were allowed to condition the taking of this kind of property on the basis of inadequate procedural safeguards, and that somehow composed a right of those persons, any property could be taken without due process." He added that 24 percent of dismissed employees are subsequently reinstated, arguing that proved the system did not adequately protect against wrongful terminations. "The government has no interest in this system as it stands now."
Lastly Barnhill addressed the First Amendment claim. He pointed to previous lower court cases which had similarly found the CSC regulations overly broad and vague and called on the Commission to rewrite them. "The Administrative Conference of the United States (ACUS) has termed it an open invitation to arbitrary action." Friedman, given time to make a rebuttal argument, pointed to the regulation that forbade OEO employees from any action "affecting adversely the confidence of the public in the integrity of OEO and the government."
Opinion of the Court