Arnett v. Kennedy

Mr. Justice Marshall,

with whom Mr. Justice Douglas and Mr. Justice Brennan concur, dissenting.

I would affirm the judgment of the District Court, both in its holding that a tenured Government employee must be afforded an evidentiary hearing prior, to a dismissal for cause and in its decision that 5 U. S. C. § 7501 is unconstitutionally vague and overbroad as a regulation of employees’ speech.

I

The first issue in this case is a relatively narrow one— whether a federal employee in the competitive service, entitled by statute to serve in his job without fear of *207dismissal except for cause,1 must be given an evidentiaryhearing before he is discharged. We are. hardly writing on a clean slate in this area. In just the last five years, the Court has held that such a hearing must be afforded before- wages can be garnished, Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); welfare benefits terminated, Goldberg v. Kelly, 397 U. S. 254 (1970); a driver’s license revoked, Bell v. Burson, 402 U. S. 535 (1971.); consumer goods repossessed, Fuentes v. Shevin, 407 U. S, 67 (1972); parole revoked, Morrissey v. Brewer, 408 U. S. 471 (1972); or a tenured college professor fired by a public educational institution, Board of Regents v. Roth, 4Ó8 U. S. 564 (1972); Perry v. Sindermann, 408 U. S. 593 (1972).

A

In the Roth and Sindermann cases, Mr. Justice Stewart established the framework for analysis to determine in what circumstances the Due Process Clause demands a hearing. He observed that although due process is a flexible concept, it is not unlimited in application. “The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” . Roth, supra, at 569.. Thus the first issue to be decided is. whether appellee had an interest in his tenured Government employment such that his discharge amounts to a deprivation of liberty or property.

The decisions of this Court have given constitutional recognition to the fact that in our complex modern society, wealth and property take many forms.2 We *208have said that property interests requiring constitutional protection “extend well beyond actual ownership of real estate, chattels, or money.” Roth, supra, at 572. They extend as well to “safeguard . . . the security of interest's that á person has already acquired in specific benefits.” Id., at 576. The test for whether a protected interest has been infringed reflects this broad- concept of “property”:

“To have a property interest in a benefit, a person . . . must . . . have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.” Id., at 577.

Accordingly, in Goldberg v. Kelly, supra, the Court found that public assistance recipients had such a claim of entitlement to welfare benefits grounded in the statute defining eligibility. In Bell v. Burson, supra, the Court held that a driver’s license, once issued, becomes an important property interest because its “continued possession may become essential in the pursuit of a livelihood.” 402 U. S., at 539. More to the point, in Roth the Court *209surveyed the constitutional restraints applicable in the area of public employment:

“ [T] he Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U. S. 551, and college professors and staff members dismissed during the terms of their contracts, ' Wieman v. Updegraff, 344 U. S. 183, have interests in continued employment that are safeguarded by due process.” 408 U. S., at 576-577.

See also Connell v. Higginbotham, 403 U. S. 207 (1971). In Perry v. Sindermann, supra, we found a property interest in the implied tenure policy' of a state university.

We have already determined that a legitimate claim of entitlement to continued employment absent “sufficient cause” is a property interest requiring the protections of procedural due process.3 Thus, there can be little doubt that appellee’s tenured Government employment, from which he could not legally be dismissed except for cause, must also be a “property” interest for the purposes of the Fifth Amendment. The job security appellee enjoyed is clearly one of “those claims upon which people rely in their daily, lives.” Roth, supra, at 577. And appellee’s interest in continued public employment encompassed more than just the periodic accrual of wages. His dismissal also affects his valuable statutory entitlements to retirement credits and benefits, 5 U. S. C. §§ 8301, 8311-8322, 8331-8348; periodic salary increases, 5 U. S. C. § 5335; and life and health insurance, 5 U. S. C. §§ 8701-8716, 8901-8913 (1970 ed. and Supp II).

We are in agreement that appellee does have a claim of entitlement to his Government job, absent proof of *210specified misconduct. Mr. Justice Rehnquist explains, however, that this claim is founded only in statute, and that the statute which guarantees tenure also provides that a hearing is not required before discharge. He concludes that “the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest,” ante, at 155, wryly observing that “a. litigant in the position of appellee must take the bitter with the sweet,” ante, at 154.

Courts once considered procedural due process protections inapplicable to welfare on much the same theory^— that “in accepting charity, the appellant has consented to the provisions of the law under which charity is bestowed.”4 Obviously, this Court rejected that reasoning in Goldberg, supra, where we held that conditions under which public assistance was afforded, which did hot include a pretermination hearing, were violative of due process.5 In Sindermann, supra, the Court held that the Constitution required a hearing before dismissal even where the implicit grant of tenure did not encompass the right to such a hearing. In Morrissey v. Brewer, 408 U. S. 471 (1972), the Court held that although the limited grant of liberty afforded by parole was conditioned by statute on the possibility of revocation without a prior evidentiary hearing, such a hearing was. constitutionally. required. In Bell v. Burson, supra, the *211state statute under which drivers’ licenses were issued provided for the suspension of an uninsured motorist’s license without a prior hearing. The Court nonetheless held that a hearing was required before the suspension could be effected. In none of these cases did the Court consider a statutory procedure to be an inherent limitation on the statutorily created liberty or property interest.6 Rather, once such an interest was found, the Court determined whether greater procedural protections were required by the Due Process Clause than were accorded by the statute.

Applying that analysis here requires us to find that although appellee’s property interest arose from statute, the deprivation of his claim of entitlement to continued employment would have to meet minimum standards of procedural due process regardless of the discharge procedures provided by the statute. Accordingly, a majority of the Court rejects Mr. Justice Rehnquist’s argument that because appellee’s entitlement arose from statute, it could be conditioned on a statutory limitation of procedural due process protections, an approach which would render such protection inapplicable to the deprivation of any statutory benefit — any “privilege” extended by Government — where a statute, prescribed a termination procedure, no matter how arbitrary or unfair. It would amount to nothing less than a return,' albeit in somewhat different verbal garb, to the thoroughly discredited distinction between rights and privileges which once seemed to govern the applicability of procedural due process.7

*212B

We havq repeatedly observed that due process requires that a hearing be held “at a meaningful time and in a meaningful manner,” Armstrong v. Manzo, 380 U. S. 545, 552 (1965), but it remains for us to give content to that general principle in this case by balancing the Government’s asserted interests against those'of the discharged employee. Goldberg v. Kelly, 397 U. S., at 263; see Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961).

The interests of a public employee in a secure Government job are as weighty as other interests which we have found to require at least the rudimentary protection of an evidentiary hearing as a precondition to termination.

“This Court has often had occasion to note that the denial of public employment is a serious blow to any citizen. . . . Employment is one of the greatest, if not the greatest, benefits that governments offer in modern-day life.” Roth, 408 U. S., at 589 (Marshall, J., dissenting).

See Perry v. Sindermann, supra; Connell v. Higginbotham, 403 U. S. 207 (1971); Keyishian v. Board of *213Regents, 385 U. S. 589 (1967); Cramp v. Board of Public Instruction, 368 U. S. 278, 288 (1961); Anti-Fascist Committee v. McGrath, 341 U. S. 123, 185 (1951) (Jackson, J., concurring); United States v. Lovett, 328 U. S. 303, 316-317 (1946). The Court has recognized the vital importance of employment in related contexts. In Sniadach v. Family Finance Corp., the Coürt expressed its particular concern that “garnishment [of wages] often meant the loss of a job,” 395 U. S., at 340, and in Bell v. Burson, supra, we relied heavily on the fact that a driver’s license may be “essential in the pursuit' of a livelihood,” 402 U. S., at 539. In Greene v. McElroy, 360 U. S. 474, 508 (1959), the Court construed federal security clearance regulations to avoid the constitutional issues that would be presented if the petitioner were deprived “of his job in a proceeding in which he was not afforded the safeguards of [procedural due process].” See id., at 506-507; Willner v. Committee on Character, 373 U. S. 96, 103-104 (1963).

An exhaustive study by the United States Administrative Conference of the problem of agency dismissals led the author of the Conference’s report to observe:

“One cannot escape the conclusion, however,-that the government employee who is removed from his job loses something of tremendous value that in a market of declining demand for skills may not be replaceable.” 8

And the report also observes:

“[0]ne must acknowledge what seems to be an accepted, if regrettable, fact of life: Removal from ■government employment for cause carries a stigma *214that is probably impossible to outlive. Agency personnel officers are generally prepared to concede . . . that it is difficult for the fired government worker to find employment in the private sector.” 9

Dismissal from public employment for cause may also, therefore, implicate liberty interests in imposing on the discharged employee a stigma of incompetence or wrongdoing that forecloses “his freedom to take advantage of other employment opportunities.” Both, supra, at 573; see Wisconsin v. Constantineau, 400 U. S. 433, 437 (1971).

Given the importance of the interest at stake, the discharged employee should be afforded an opportunity to test the strength of the evidence of his misconduct by confronting and cross-examining adverse witnesses and by presenting witnesses in his own behalf, whenever there are substantial disputes in testimonial evidence. See Morrissey v. Brewer, 408 U. S., at 487. A dismissal for cause often involves disputed questions of fact raised by accusations of misconduct. Mistakes of identity, distortions caused by the failure of information sources, faulty perceptions or cloudy memories, as well as fabrications born of personal antagonisms are among the factors which may undermine the accuracy of the factual determinations upon which dismissals are based. The possibility of error is not insignificant. Almost a fourth of all appeals from adverse agency actions result in reversal.10

In our system of justice, the right of confrontation *215provides the crucible for testing the truth, of accusations such as1 those leveled by appellee’s superior and strenuously denied by appellee. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U. S., at 269.(citations omitted).11 The Goldberg Court’s citation to a well-known passage from Greerie v. McElroy, 360 U. S. 474 (1959), is equally applicable to a dismissal from public employment for cause as to a. termination of welfare benefits.

“ ‘Certain principles have remained immutable iii our jurisprudence. One of these-is that where government action seriously injures an individual, and the reasonableness of the action depends on fact findings. the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty .or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination.’ ” Id., at 496-497, quoted in Goldberg v. Kelly, supra, at 270.

See also Chambers v. Mississippi, 410 U. S. 284, 295-298 (1973); Pointer v. Texas, 380 U. S. 400 (1965).

*216This case and Goldberg involve the termination of income, whether in salary or public assistance payments, upon which the recipient may depend for basic sustenance. A person should not be deprived of his livelihood “in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.” Greene, supra, at 508; see Jenkins v. McKeithen, 395 U. S. 411, 423-429 (1969); Willner v. Committee on Character, 373 U. S., at 103. • The stakes are just too high and the possibility of misjudgment too great to allow dismissal' without giving the tenured public employee an opportunity to contest its basis and produce evidence in rebuttal. See Goldberg, supra, at 266.

It also seems clear that for the hearing to be meaningful, the hearing officer must be independent and unbiased and his decision be entitled to some weight. We addressed the importance of this element of due process in' Goldberg, supra, where we found the requirements of due process were not met by the review, of a welfare termination decision by the caseworker who was, in effect, also the complainant. 397 U. S., at 271. In Morrissey v. Brewer, supra, we held that an independent decisionmaker must determine whether reasonable grounds exist for parole revocation because an “officer directly involved in making recommendations cannot always have complete objectivity in evaluating them.” 408 U. S., at 486. The need for an independent decisionmaker is particularly crucial in the public employment context, where the reason for the challenged dismissal may well be related to some personal antagonism between the employee and his superior, as appears to be the case here.12 See Pickering v. Board of Education, 391 U. S. 563, 578-579, Appendix n. 2 (1968).

*217c

A discharged federal worker in the competitive service is, in fact, guaranteed a full evidentiary hearing before an impartial decisionmaker whose report is entitled to considerable weight.13 But the timing of the hearing is discretionary with the employing agency, see 5 CFR § 771.208 (a) (1972), and in many agencies, such as the OEO, the hearing comes long after the employee has been removed from the Government service and payroll. In a sense, then, the real issue is not whether appellee must be accorded an evidentiary hearing, but only whether that hearing should have been afforded before his discharge became effective. Although the nature of the hearing required by due process is determined by a balancing process, that hearing must be held at a meaningful time. Accordingly, the Court has embraced a general presumption that one who is constitutionally entitled to a hearing should be heard before the deprivation of his liberty or property takes place. Thus, >in Boddie v. Connecticut, 401 U. S. 371 (1971), the Court observed that, the fact that “the hearing . . .- is not fixed in form does not affect its root require*218ment that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations- where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” Id., at 378-379. (Emphasis in orginal.) In Bell v. Burson, supra, we held that “except in emergency situations '. . . due process requires that when a State seeks to terminate an [important property] interest... it must afford ‘notice and opportunity for hearing . . .’ before the termination becomes effective.” 402 U. S., at 542 (emphasis in original) (footnote omitted). In Goldberg v. Kelly, supra, the Court found that an evidentiary hearing held after the termination of welfare benefits was inadequate to satisfy constitutional requirements.14

Even if we accept appellants’ assertion that a subsequent hearing affords the discharged employee an opportunity to clear his name,15 the worker still has a significant interest in retaining his job pending a full hearing.16 Almost a fourth of all appeals from agency *219dismissals result in a finding that the termination was illegal.17 And, the delay from discharge to ultimate vindication at a hearing on appeal is far from insubstantial. More than 75% of adverse personnel actions take more than two months to process; over half take more than three months and a not insignificant number take more than a year.18 The longer the period between the discharge and the hearing, the more devastating will be the impact of the loss óf employment.

During the period of delay, the employee is off the Government payroll. His ability to secure. other employment to tide himself over may be significantly hindered by the outstanding charges against him.19 Even aside from the stigma that attends a dismissal for cause, few employers will be willing to hire and train a new employee knowing that he will return to • a former Government position as soon as an appeal is successful.20 *220And in many States, including Illinois, where appellee resides, a worker discharged for cause is not even eligible for unemployment compensation.21

Many , workers, particularly those at the bottom of the pay scale, will suffer severe and painful economic dislocations from even a temporary loss of wages. New public employees earn more than enough to pay their expenses from month to month.' See Sampson v. Murray, 415 U. S. 61, 97 (1974) (Marshall, J., dissenting). Like many of us, they may be required to meet substantial fixed costs on a- regular basis and lack substantial savings to meet those expenses while not receiving a salary. The loss of income for even a few weeks may well impair their ability to provide the essentials of life — to buy food, meet mortgage or rent payments, or procure medical services. Ricucci v. United States, 192 Ct. Cl. 1, 9-11, 425 F. 2d 1252, 1256-1257 (1970) (Skelton, J., concurring) . The plight of a discharged employee may not be far different from that of the welfare recipient in Goldberg who, “pending resolution of a controversy . . . may [be] deprive [d] ... of the very means by which to live while he waits.” 397 U. S., at 264. Appellee, although earning an annual salary of $16,000 before his dismissal, far above the mean salary for federal employees,22 was nonetheless driven to the brink of financial ruin while he waited. . He had to borrow money to support his family, his debts went unpaid, his family lost the protection of his health insurance and, finally, he was forced to apply for public *221assistance. App. 128 et seq. In this context justice delayed may well be justice denied.

To argue that a dismissal from tenured Government employment is not a serious enough deprivation to require a prior hearing because the discharged employee may draw on the welfare system in the interim, is to exhibit a gross insensitivity to the plight of these employees. First, it assumes that the discharged employee will be eligible for welfare. Often welfare applicants must be all but stripped of their worldly goods before being admitted to the welfare roles, hence it is likely that the employee will suffer considerable hardship before becoming eligible. He may be required not only to exhaust his savings but also to convert many of his assets, into cash for support before being able to fall back on public assistance. He may have to give up his home or cherished personal possessions in order to become eligible. The argument also assumes all but instant eligibility which is, sadly, far from likely even when all the employee’s other sources of support have been depleted. Moreover, rightly or wrongly, many people consider welfare degrading and would decline public assistance even when eligible. Finally, the level of subsistence provided by welfare is minimal, certainly less than one is apt to expect from steady employment. The substitution of a meager welfare grant for a regular paycheck may bring with it painful and irremediable personal as well as financial dislocations. A child’s education may be interrupted, a family’s home lost, a person’s relationship with his friends and even his family may be irrevocably affected. The costs of being forced, even’ temporarily, onto the welfare rolls because of a wrongful discharge from tenured Government employment cannot be so easily discounted.

Nor does the availability of backpay upon an ultimate *222finding that the dismissal was improper alleviate the compelling nature of the employee’s plight. Cf. Sampson v. Murray, 415 U. S., at 97 (Marshall, J., dissenting), In Sniadach v. Family Finance Corp., supra, the Court recognized that the employee had an interest in the enjoyment of his wages as they accrued and noted that even a temporary loss of salary could put a wage earner below the poverty level or “drive a wage-earning family to the wall.” 395 U. S., at 341-342. Thus, we held that a wage earner is entitled to a hearing prior ibo the garnishment of his wages even though he would ultimately get his frozen earnings back when and if he prevailed in a suit on the merits. See also, id., at 343 (Harlan, J., concurring). And, in Fuentes v. Shevin, 407 U. S. 67 (1972), the Court' held that due process required a hearing before a seizure of property by writ of replevin, observing:

“If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual’s possessions can be returned to him if they were unfairly or mistakenly taken in the first p^ce. Damages may even be awarded to hi*^ for wrc gful deprivation. But no later hearing and no iamage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process had already occurred. ‘This Court has not . . . embraced the general proposition'ühat a wrong may be done if it can be undone.’ Id., at 81-82.

The Fuentes Court', applying these considerations, albeit •in dicta, observed that, "[i~}n cases involving depri-. vatioris 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.” Id., at 91 n. 23.

*223The Court has recognized a number of instances where a vital ^governmental interest may outweigh the right to a prior hearing, including the need to seize property to “collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against the economic disaster of a bank failure, and to. protect the public from misbranded drugs and contaminated foods.” Id., at 92 (footnotes omitted).23 Such a vital interest is .clearly lacking here.

The Government’s asserted interests in not affording a predismissal hearing are twofold. First, appellants argue that the delay in holding the hearing makes the functioning of the agency more efficient. We rejected a similar rationale in Goldberg, 397 U. S., at 266, and observed in Fuentes, supra:

“A prior hearing always imposes some costs in time, effort, and expense, and it is often more efficient to dispense with the opportunity for such a hearing. But these rather ordinary costs cannot outweigh the constitutional right. Procedural due process is not intended to promote efficiency or accommodate all possible interests: it is intended to protect the particular interests of the person whose possessions [or property] are about to be taken.
“ ‘. [T]he Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre *224ones.’” 407 U. S., at 90-91, n. 22 (citations omitted).

Moreover, the Government’s interest in efficiency in this case is entirely unconvincing. The applicable statute does not prohibit prior hearings but rather makes them discretionary with the agency. Nine federal agencies, including the FCC, NLRB, HUD, HEW, the Department of Justice, and the Civil Service Commission itself, regularly accord evidentiary hearings prior to the dismissal of a tenured employee.24 The Administrative Conference of the United States, on the basis of its exhaustive study'of federal agency proceedings for the dismissal of employees in the competitive service, strongly recommended that evidentiary hearings be held prior to discharge.25

The Administrative Conference found that the evidence, although inconclusive, indicates that the agencies that provided pretermination hearings closed adverse action proceedings more quickly than those which did not hold an evidentiary hearing until after the dismissal had been effected. It also found that the delays in closing cases involving hearings are typically caused not by the length of the hearings — almost all are completed within a day — but rather by scheduling difficulties. And those agencies which take three months or more to hold post-termination hearings have little incentive, to decide dismissal cases more promptly, since the employee has already been discharged and he bears most of the costs of delay. If the hearing were required before termination,, agencies would have a far greater incentive to decide *225these cases expeditiously.26 Finally,, providing an evidentiary hearing before the disehargé might well obviate the practical and constitutional need for a full post-termination proceeding.27

The Government also argues that if a supervisor were unable to effect -an immediate removal of a troublesome employee from his -agency, the discipline and. efficiency of thé whole office might be disrupted. Under the prevailing practice, an agency may not dismiss an employee until 30 days after he has received notice of the charges against him and has had an opportunity to reply. Thus, fellow workers and supervisors must now function with the threatened employee in their midst for at least a month, and there seems little reason why a hearing could not be held during that 30-day period.28 If the employee actually threatens to disrupt the operation of the office, he could be put on administrative leave or temporarily assigned to a less sensitive position pending his hearing, as currently provided for, by regulation. 5 CFR §752.202 (d).

*226The only pretermination proceeding accorded appellee was a “right of reply,” see 5 CFR § 752.202 (b), but the “right of reply” falls far short of being the meaningful hearing which, in my view, is constitutionally required. As the author of the Administrative Conference Report observed:

“In most agencies ... an employee’s right to reply simply means that he may meet informally with a representative of the agency and advance oral representations that he hopes will sway the final decision. He has no right at this stage to present witnesses or to confront and cross-examine the agency’s witnesses.” 29 (Footnotes omitted.)

The agency official before whom the employee appears need not be the decisionmaker; he need only be able to recommend a decision. Moreover, the hearing examiner or the person responsible for the decision to discharge the employee may well be the complainant or his direct subordinate. In the case before us, for example, the decision as to whether appellee should be discharged was made by the OEO Regional Director whom appellee had accused of misconduct. The Regional Director assembled the evidence against appellee, proposed the .dismissal, thén decided it should be effected; he acted as complaining witness, prosecutor, and judge. The meaningless bureaucratic^ paper ..shuffling afforded appellee before his discharge would surely not alone satisfy the stringent demands of due process when such an important interest is at stake.

The decisions of this • Court compel the conclusion that a worker with a claim of entitlement to public employment absent specified cause has a property interest protected by the Due Process Clause and there*227fore the right to an evidentiary hearing before an impartial decisionmaker prior to dismissal. Accordingly, I would affirm the decision of the court below that appellee had been discharged in violation of his procedural, due process rights.

II

The court below also held that the provision of the Lloyd-La Follette Act which authorizes dismissal of tenured Government employees for “such cause as will promote the efficiency of the service” is unconstitutionally vague and overbroad.30

There is no dispute that 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,” ante, at 160. The majority finds this permissible because in Pickering v. Board of Education, 391 U. S. 563, 568 (1968), we observed 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 the regulation of the speech of the citizenry in general.” But, the majority seems to have ignored the passage in Pickering that directly precedes the quoted material:

“[T]o suggest that teachers may constitutionally be compelled to relinquish the'First Amendment rights. *228they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, . . . proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E. g., Wieman v. Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U. S. 479 (1960); Keyishian v. Board of Regents, 385 U. S. 589 (1967).” 391 U. S., at 568.

The importance of Government employees’ being assured of theii right to freely comment on the conduct of Government, to inform the public of abuses of power and of the misconduct of their superiors, must be self-evident in these times. In Pickering, this Court specifically upheld the right of a public employee to criticize the conduct of his superiors. Id., at 573-574. In fact, it appears that one of the primary purposes of' the Lloyd-La Follette Act was to protect such criticism from official retribution. Senator La Foliette gave the following example of an abuse sought to be cured by the bill:.

“The cause for [the employee’s] dismissal was that he gave publicity to the insanitary conditions existing in some part of the post-office building in Chicago where the clerks were required to perform their services. .■.. [¶] e furnished some facts to the press of Chicago, and the publication was made of the conditions. They were simply horrible .... The public health officers of Chicago, as soon as their attention was called to the conditions, condemned the situation as they found it; and yet this young man, one of the brightest fellows I have met, was removed from the service because, he had given publicity to these outrageous conditions.” 48 Cong. Rec. 10731 (1912).

*229The “efficiency of the service” standard would appear to bring within its reach, as permissible grounds for dismissal, even truthful criticism of an agency that in any way tends to disrupt its operation. One can be sure, for example, that the young man’s criticism in Senator La Follette’s example disrupted the operation of the Chicago Post Office. It seems clear that the standard could be construed to punish such protected speech.

The majority purports to solve this potential over-breadth problem merely by announcing that the standard in the Act “excludes protected speech.” Nonetheless, it leaves the statutory standard intact and offers no guidance other than general observation as to what conduct is or is not punishable.31 The Court’s answer is no answer at all. To accept this response is functionally to eliminate overbreadth from the First Amendment lexicon. No statute can reach and punish constitutionally protected speech. The majority has not given the statute a limiting construction but merely repeated the obvious.

The majority misunderstands the overbreadth principle which concerns the potential deterrent effect on constitutionally protected speech of a statute that is overbroad or vague on its face The focus of the doctrine is not on the individual actor before the court but on others who may forgo protected activity rather than run afoul of the statute’s proscriptions. Hence, the Court has reversed convictions where the subject speech could have been punished under a • more narrowly drawn staf ute' because the statute as drawn purported to cover, and *230might deter others from engaging in, protected speech. The Court explained this vagueness-overbreadth relationship in Keyishian v. Board of Regents, 385 U. S., at 603-604:

“We emphasize once again that ‘ [precision of regulation must be the touchstone in an area, so closely-touching our most precious freedoms,’ N. A. A. C. P. v. Button, 371 U. S. 415, 438; ‘[f]or standards of permissible statutory vagueness are strict in the area of free expression. . . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’ Id., at 432-433. When one must guess what conduct or utterances may lose him his position, one necessarily will ‘steer far wider of the unlawful zone.....’ Speiser v. Randall, 357 U. S. 513, 526. For ‘[t]he threat of sanctions may deter .. . almost as potently as the actual application of sanctions.’ N. A. A. C. P. v. Button, supra, at 433. The danger of that chilling effect upon the exercise of vital First -Amendirient rights'must be guarded against by sensitive tools which clearly inform [public employees] what is being proscribed.”

By the uncertainty of its scope, the standard here creates the very danger of a chilling effect that concerned the Court in Keyishian.32 ’ Employees are likely to limit *231their behavior to that which is unquestionably safe, for “the threat of dismissal from public employment is ... a potent means of inhibiting speech.” Pickering, 391 U. S., at 574. 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.” That this Court will ultimately vindicate an employee if his speech ,is constitutionally protected is of little consequence — for the value of a sword of Damocles is that it. hangs — not that it drops. For every employee who risks his job by testing the limits of the statute, many more will choose the cautious path and not speak at all.

The District Court found that “[bjecause 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 jobs, there can be little question that they will be deterred from exercising their First Amendment rights to the fullest extent.” I agree with that characterization of the effect of the standard and would, therefore, uphold the conclusion of the District Court that the statute is unconstitutionally vague and overbroad.

I respectfully dissent.

5 U. S. C. §7501 (a). '

One noted commentator has observed:

“Changes in the forms of wealth are not remarkable in themselves; the forms are constantly changing and differ in every culture. But today more and more of our wealth takes the form *208of rights or status rather than of tangible goods. An individual’s profession or occupation is a prime example. To many others, a job with a particular emploj'er is the principal form of wealth. A profession or job is frequently far more valuable than a house or bank account, for- a new house can be bought, and a new bank account created, once a profession or job is secure.” Reich, The New Property, 73 Yale L. J. 733, 738 (1964).
“Society today is built around entitlement [and m]any of the most important of .these entitlements now flow from government .... Such sources of security . . . are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully deserved, and in no sense a form of charity.” Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 -Yale L. J. 1245, 1255 (1965).

Board of Regents v. Roth, 408 U. S. 564, 576-578 (1972); Perry v. Sindermann, 408 U. S. 593, 599-603 (1972).

Wilkie v. O’Connor, 261 App. Div. 373, 375, 25 N. Y. S. 2d 617, 620 (1941).

The meohanism for welfare terminations is described in Goldberg v. Kelly, 397 U. S. 254, 258-260 (1970). In short, the procedure involved prior notice and an opportunity to respond in writing before termination as well as a full trial-type hearing before' an independent state official after the termination had been effected. If the recipient prevailed at the later hearing he would be entitled to recover any funds wrongfully withheld.

Although Perry v. Sindermann, supra, did not involve a statutorily created interest, it is plainly analogous in that the de jacto tenure program on which Sindermann’s claim of entitlement was grounded did not explicitly include the right to a hearing.

In a leading case decided many years ago, the Court of Appeals for the District of Columbia Circuit held that procedural due *212process protections did not apply to Government employment be-:' cause it was merely a privilege and not a right. Bailey v. Richardson, 86 U. S. App. D. C. 248, 182 F. 2d 46 (1960), aff’d by an equally divided Court, 341 U. S. 918 (1951). As we have previously observed, “[t]he basis of this holding has been thoroughly undermined in the ensuing years.” Board of Regents v. Roth, 408 U. S., at 571 n. 9. “[T]he Court has fully and finally rejected the wooden distinction between ‘rights’ and ‘privileges’. .Id., at 571. For example, the Court has found constitutional restraints applicable to disqualification for unemployment compensation, Sherbert v. Vemer, 374 U. S. 398 (1963); denial of a tax exemption, Speiser v. Randall, 357 U. S. 513 (1958); termination of welfare benefits, Goldberg v. Kelly, supra; and dismissal from public employment, e. g., Slochower v. Board of Higher Education, 350 U. S. 551 (1956).

Merrill, Report in Support • of Recommendation 72-8, Procedures for Adverse Actions Against Federal Employees, in 2 Recommendations and Reports of the Administrative Conference of the United States 1007, 1015 (1972) (hereinafter Merrill).

Ibid. The report of the Administrative Conference seems to bear out my Brother Douglas’ recent observation:

“Once there is a discharge from a . . . federal agency, dismissal may be a badge that bars the employee from other federal employment. The shadow of that discharge is cast over the area where private employment may be available.” Sampson V. Murray, 415 TJ. S. 61, 95 (1974) (dissenting). '

Merrill 1014 n. 33.

This case presents no question as to. the requirements of due process “where there are no factual issues in dispute or where. the application of the rule of law is not intertwined with factual issues.” Goldberg v. Kelly, 397 U. S., at 268 n. 15; see Mills v. Richardson, 464 F. 2d 995, 1001 (CA2 1972); cf. FCC v. WJR, 337 U. S. 265, 275-277 (1949); 1 K. Davis, Administrative Law Treatise 412 (1958).

See ante, at 137-138. Cf. T. Arnold, Fair Fights and Foul 151 (1965) (describing the potential abuse in a situation where the head *217•of a department is the decisionmaker in a public employee discharge proceeding).

The discharged employee is entitled to, a full trial-type proceeding before a single examiner who may not occupy a position ^directly or indirectly under the jurisdiction of the official who proposed the dismissal or who bears ultimate responsibility for . that decision.' The examiner’s decision is afforded substantial weight; if it is rejected, the rejection must be accompanied by a full statement of.reasons that is subject to review. Both the employee and the agency may produce, examine, and cross-examine witnesses under oath'or affirmation, and documentary evidence.may also be introTluced.' Rigorous trial formality is avoided and care taken not to place an uncounseled employee at a disadvantage. See Merrill •1038-1040; 5 CFR §§771.209-771.211 (1972).-

The procedure in Goldberg also involved a pretennination right ■ of reply and a full trial-type hearing after termination, see n. 5, supra, but the scheme was nonetheless found not to satisfy due process requirements and a full pretermination hearing was required. See O’Neil, Of Justice Delayed and Justice Denied; The Welfare Prior Hearing Cases, 1970 Sup. Ct. Rev. 161,169.

See n. 9, supra, and n. 19, infra.

Both- Mr. Justice Rehnquist and Mr. Justice White dismiss -the need for a full prior hearing partially by reference to the Court’s decision in Cafeteria Workers v. McElroy, 367 U. S. 886. (1961). That case is entirely inapposite. First, it involved not the dismissal for cause of a tenured civil service employee, but rather the withdrawal of the security clearance of the employee of a private contractor, which, in effect, barred the worker from her job in the commissary at a military base. The- employer was prepared to employ the worker at another of his restaurants, so the withdrawal of her security clearance was not *219apt to cause the. serious financial hardship that appellee’s dismissal from public employment might entail. See Board of Regents v. Roth, 408 U. S., at 584-585 (Douglas, J., dissenting). Moreover, the Court has since read Cafeteria Workers to be a ease where the Government’s “exceptional” interest in national security justified an abridgment of the right to a hearing. Fuentes v. Shevin, 407 U. S. 67, 91 n. 23 (1972); see Boddie v. Connecticut, 401 U. S. 371, 379 (1971).

Merrill 1014 n. 33.

Id., at 1016.

My Brother Rehnquist argues, that the stigma imposed by dismissal is only temporary in that the discharged employee can clear his name at the post-hoc. hearing, hence does not “foreclose his freedom to táke advantage of other employment opportunities.” Board of Regents v. Roth, 408 U. S., at 573; see n. 9, supra. But the stigma, of outstanding charges would nonetheless be borne by the employee in the interim period while he waits for his hearing and seeks alternative employment to tide himself over.

See, e. g., Hearings on Postal Labor Relations and Employee Morale before the Subcommittee on Postal Operations of the House *220Committee on Post Office and Civil Service, '91st Cong., 1st Sess. (1969); Kennedy, Adverse Actions in the Agencies — Words and Deeds — Postal Adverse Action Procedures, 19 Am. U. L. Rev. 398, 412 (1970).

See, e. g., Ill. Rev. Stat., c. 48, §432,(1973); see Christian v. New York Dept. of Labor, 414 U. S. 614 (1974). /

See Mandate for Merit: 1972 Annual Report of/the United States Civil Service Commission 64-65. /

See, e. g., Central Union Trust Co. v. Garvan, 254 U. S. 554, 566 (1921); Phillips v. Commissioner, 283 U. S. 589, 597 (1931); Ewing v. Mytinger & Casselberry, 339 U. S. 594 (1950).

Merrill 1056.

Recommendation 72-8, Adverse Actions Against Federal Employees^ in 2 Recommendations and Reports of the Administrative Conference of the United States 73-75 (1972).

Merrill 1017, 1056-1057, 1060. Scheduling problems might be largely overcome by more skillful use of personnel. See Goldberg v. Kelly, 397 U. S., at 266.

As we observed, id., at 267 n. 14, due process does not, of course, require two hearings. Under current procedures, an employee is afforded one and sometimes two post-hoc evidentiary hearings (one before the agency and the other before the Civil Service Commission) . See Merrill 1013, 1043. If an adequate review mechanism is maintained, a single pretermination hearing might obviate the need for these later proceedings.

See, e. g., U. S. Dept. of Justice, Adverse Action Hearings, Appeals and Grievance Policies and Regulations, c. 2 (Sept. 28, 1972) ; Recommendation 72-8, n. 25, supra, at ¶ B, 74. The notice requirement need not be any impediment to holding the hearing within the 30-day period. In Goldberg v. Kelly, supra, at 268, for example, the Court found a seven-day period between notice and termination hearing constitutionally permissible.

Merrill 1033.

Other cases in this area hardly provide substantial guidance as to what speech is or is not protected. See, e. g., Pickering v. Board of Education, 391 U. S. 563, 570 n. 3 (1968). Nor do the extant regulations provide substantial guidance; they merely repeat the language of the statute and provide examples as'.unelucidating as the particular regulation relevant to this case which T>ro•scribed “any action . . . which might result in, or create the apr pearance of . . . (c) [i]mpeding Government efficiency or economy ... [or] (f) [a]lfecting adversely the confidence of the public in the integrity of the Government.” 5 CFR § 735.201a; see 45 CFR § 1015.735-1.

The Administrative Conference Report reserved particularly harsh criticism for the "efficiency of the service” standard, terming it "deficient both as a guide to agency management and as a warning to employees of the sorts of behavior that will get them in trouble,” warning that it is “an invitation to arbitrary action by government agencies.” Merrill 1054; see id., at 1053.

Further refinement of the statutory “efficiency of the service” standard, is not, as the majority implies, impossible. The Administrative Conference points out that the agencies apd the Civil Service Commission “have developed a large, still essentially secret body of law on the meaning of ‘efficiency.’ ” Merrill 1054. Reférence to this body of precedent might well serve as a basis for the amplification of the statutory standard. Relevant guidelines might, for .example, distinguish between statements made in an official as opposed' to a private capacity, see Pickering v. Board of Education, 391 U. S. 563 (1968); between knowingly false statements and those *231which are reasonably believed to be true, see, e. g., Pickering, supra, at 569; New York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964); cf. Garrison v. Louisiana, 379 U. S. 64 (1964); Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971); and between statements which pertain to a legitimate subject of public comment and those which disclose confidential Government information, see Pickering, supra, at 570 n. 3 and 571-572; cf. Time, Inc. v. Hill, 385 U. S. 374 (1967).