dissenting.
I respectfully dissent on the basis that Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) governs the disposition of this case.
The issue as I see it is simply whether the suspension of City of Chicago firefighters for non-residency without either a presuspension or a prompt postsuspension hearing violates the Due Process Clause of the Fourteenth Amendment. I believe it does under Barry v. Barchi.
This appeal is from the granting of a preliminary injunction on behalf of three intervening fire lieutenants, enjoining the City and its agents from suspending them and “persons similarly situated in their employment as career-service employees of the Chicago Fire Department” prior to a hearing and decision of the Chicago Personnel Board.
I
It was stipulated that the intervenors “are permanent career service employees of the City of Chicago who cannot be disciplined, suspended or discharged without just cause . .. [who therefore] have a property interest in their job which . . . cannot *1061be taken without due process of law.” Tr. 72.
Section 25-30 of the Municipal Code of the City of Chicago provides that “officers and employees in the . . . service of the city shall be actual residents of the city” and any such officer or employee “who shall fail to comply with the provisions of this section shall be discharged from the service of the city in the manner provided by law.” The Chicago Fire Department regulations also define as an offense under Section 61.030, an employee’s “failure to reside within the corporate boundaries of the City of Chicago.” The City of Chicago Personnel Rules also provide that “[e]ach of these circumstances is a sufficient cause for disciplinary action against an offending employee: ... Failure to be an actual resident of the City of Chicago.” Rule XVI, Section l(u).
The Fire Commissioner established in the spring of 1978 a Division of Internal Affairs to investigate and determine the authenticity of numerous complaints that members of the Fire Department were non-residents. The policy within the Fire Department from May, 1978, to September 1, 1979, regarding residency, was that when complaints were received that an employee was not a resident, the employee was advised of the complaint and was encouraged to comply in the unspecified future. Tr. 114-15.
On August 15,1979, the Fire Commissioner notified all members of the department that effective September 1, 1979, “any member found in violation of the residency requirement . .. will be suspended by the Commissioner for thirty (30) days and charges will be filed with the Personnel Board of the City of Chicago seeking said member’s discharge.” Joint Ex. 7.
In other words, prior to the September 1, 1979, order by the Commissioner, time was given to comply, and if compliance was not forthcoming, charges of non-residency were filed before the Personnel Board and a full evidentiary hearing was held before the board, during which time the accused member of the department retained his position and remained on the payroll. Tr. 121, 144-45. Effective September 1, 1979, the member is suspended first and the “due process hearing” takes place thereafter.
II
In Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979), the state board empowered to license horse trainers and others participating in harness horse-race meets in New York, issued rules forbidding the drugging of horses within 48 hours of a race and establishing a rebuttable presumption that the horse’s trainer is responsible for unlawful drugging.
A horse trained by Barchi was determined by a postrace test to contain drugs, for which Barchi was suspended for 15 days. Under New York law a suspended licensee is entitled to a postsuspension hearing, but pending the hearing the suspension remains in full force and effect.
Barchi brought suit in the District Court which held the state procedure unconstitutional for permitting suspension without a presuspension or a prompt postsuspension hearing. The Supreme Court, with four justices disagreeing, upheld the state’s imposition of interim suspension without a presuspension hearing, given the magnitude of the state’s interest in regulating horse-racing.1
A unanimous Court, however, affirmed the District Court insofar as it held that due process requires a prompt postsuspension hearing. The Court said:
Yet, it is possible that Barchi’s horse may not have been drugged and Barchi may not have been at fault at all. Once suspension has been imposed, the trainer’s interest in a speedy resolution of the controversy becomes paramount, it seems to us. We also discern little or not state interest, and the State has suggested none, in an appreciable delay in going forward with a full hearing. On the con*1062trary, it would seem as much in the State’s interest as Barchi’s to have an early and reliable determination with respect to the integrity of those participating in state-supervised horse racing.
In these circumstances, it was necessary that Barchi be assured a prompt postsuspension hearing, one that would proceed and be concluded without appreciable delay. Because the statute applied in this case was deficient in this respect, Barchi’s suspension was constitutionally infirm under the Due Process Clause of the Fourteenth Amendment.
Id., at 66, 99 S.Ct. at 2650.
The New York statute providing for the postsuspension hearing “specifies no time in which the hearing must be held, and it affords the Board as long as 30 days after the conclusion of the hearing in which to issue a final order adjudicating a case.” Id., at 61, 99 S.Ct. at 2647.
In the present case, City of Chicago Personnel Rules provide that “the date for a hearing on discharge, demotion or suspension of more than thirty (30) days will be established with six calendar weeks of date of the notice of disciplinary action” and no time is specified within which the board shall render a decision. Rule XVI, Section 4(b)(1).2
This case fits squarely into the principle announced in Barry v. Barchi and I would affirm the District Court on that basis alone. Moreover, I would conclude that the city’s interest in suspending a non-resident but experienced firefighter is so appreciably less than New York’s interest in upholding the integrity of horse-racing and gambling thereon, that this case also constitutionally warrants a presuspension hearing.3
Ill
The City has tried to create the illusion that an “informal hearing” was held in each case before charges were filed. Captain Ryan, the Director of Internal Affairs of the Chicago Fire Department, testified that prior to each intervenor’s being served with notice of the charges against him, Ryan called each intervenor in and advised him that he had some evidence that indicated non-residency.
In the case of Lieutenant O’Boyle, for example, Ryan said that he learned that although O’Boyle’s automobiles were registered to a Chicago address, one automobile was registered to a Palos Hills address. Tr. 82. Ryan then asked O’Boyle to come in, without telling him what the nature of their meeting was to be. O’Boyle guessed, however, that it might involve residency so he brought material with him. He testified:
A I had everything that [I] thought imaginable for residency. I had everything-
*1063Q Would you just describe the nature of the material that you had with you that you offered to submit to him?
THE COURT: Identify the documents.
BY THE WITNESS:
A Well, I have the gas bills of where I live, my electric bills and all of my mail, my taxes, my water bill. I am separated from my wife. I have my separation papers, I had junk mail. I had everything that I thought would pertain to residence.
BY MR. SUGARMAN:
Q Did you have income tax forms?
A I had income tax forms, my driver’s license, my other utilities and I got a composite of every bill that was paid since I moved into my building.
Q When you say “my building,” where is that?
A Where I live.
Q Which is where?
A 2535 W. 59th.
THE COURT: Do you own that building?
THE WITNESS: Yes, sir. My father and I own it.
THE COURT: What?
THE WITNESS: My father and I own the building.
BY MR. SUGARMAN:
Q Didn’t you offer that to Cpt. Ryan, that material you had with you?
A Yes. I had it all in-I had electric bills in one section and gas bills in another section. Everything was prepared and ready to lay on the table.
Q Did you offer that to him?
A Yes, sir.
Q Did he receive it? Did he accept it?
A No, sir. He told me I would have my chance to show that at my hearing.
Q Did he indicate to you what, if any, evidence he had against you?
A No, sir. The only thing he talked about was that he had 40-some phone calls that somebody had called up and said that I was not a resident, and I said, “Well, I was No. 1 on the captain’s list and it had a lot to do with that.”
Q How did that meeting end? What did he say to you and what did you say to him?
A I said, “I’ve got my proof and so on and so forth.” And he says, “Well, that is all that is necessary.” He told me what was going to transpire.
Q What did he say?
A That I was going to be fired and they were going to seek my discharge-I mean, I was going to be suspended and they were going to seek my discharge to be fired. And I say, “Okay. Is that it?” And he says, “Yes.” And I walked out of the room. It was only a matter of 5, 6 or 7 minutes.
Tr. 175-79.
Captain Ryan conceded that none of the intervenors was given notice of the nature of the meeting with him. Tr. 113,167. See also Tr. 173-74. He admitted that at the time of each meeting no charges had yet been filed (Tr. 166), complaining witnesses were not identified (Tr. 141), specifics of the proposed charges were not revealed (Tr. 140-41), no statements were taken (Tr. 133), and the person brought in was not told what type of evidence he should submit (Tr. 156-57). The person whom Ryan met with was not told to bring an attorney, was not confronted with witnesses or specific evidence or charges, nor in fact was anything in the way of due process provided. Each person was simply told that he was about to be suspended and that he would be accorded a postsuspension hearing. Since Ryan was the investigator who instituted the eventual charges, he could hardly be characterized as an unbiased presiding officer.
Under the very minimum tests for evaluating a presuspension hearing, the Ryan-intervenor meetings could not possibly qualify. Goldberg v. Kelly, 397 U.S. 254, 266-71, 90 S.Ct. 1011, 1019-22, 25 L.Ed.2d 287 (1970). Furthermore, in requiring a prompt postsuspension hearing in Barchi, the Court nevertheless noted that Barchi “was given more than one opportunity to present his side of the story to the State’s investigators.” 443 U.S. at 65, 99 S.Ct. at 2649.
*1064IV
Finally, there is the question of whether the intervenors were irreparably harmed by the suspension in order to warrant the granting of the preliminary injunction.
In Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), a federal probationary employee was terminated after four months’ service for insubordination. In the course of its opinion, the Supreme Court said:
We have held that an insufficiency of savings or difficulties in immediately obtaining other employment-external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself-will not support a finding of irreparable injury, however severely they may affect a particular individual.
Id. at 92 n.68, 94 S.Ct. at 953 n.68.
This strong and seemingly conclusive language must be read in its full context. First, it appears in a footnote. The corresponding language in the body of the opinion is far less encompassing:
Assuming for the purpose of discussion that respondent had made a satisfactory showing of loss of income and had supported the claim that her reputation would be damaged as a result of the challenged agency action, we think the showing falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case.
Id., at 91-92, 94 S.Ct. at 953.
“This type of case” is a federal probationary employee terminated after four months’ service for insubordination. The balance of the footnote language also indicates that the sweeping language of the footnote is limited to the facts of “this type of case.”
But we do not wish to be understood as foreclosing relief in the genuinely extraordinary situation. Use of the court’s injunctive power, however, when discharge of probationary employees is an issue, should be reserved for that situation rather than employed in the routine case.
Id., at 92 n.68, 94 S.Ct. at 953 n.68 (emphasis added).
Recently, both the Fifth and Eighth Circuits have sought to limit the effect of Sampson’s footnote language to federal probationary employees. Garza v. Texas Educational Foundation, Inc., 565 F.2d 909, 911 (5th Cir.1978); Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 712 (8th Cir.1979).
In addition, the Court in Sampson relied upon the federal Back Pay Act, 5 U.S.C. § 5596, saying:
This Act not only affords monetary relief which will prevent the loss of earnings on a periodic basis from being “irreparable injury” in this type of case, but its legislative history suggests that Congress contemplated that it would be the useful, if not the exclusive, remedy for wrongful discharge.
Id., at 90-91, 94 S.Ct. at 952-953.
In the present case, we have city non-probationary permanent employees. All three of the intervenors are lieutenants earning $2,000 per month and with tenure of 29 years, 15 years and 13 years. App. 85, 103, 105. They are not charged with insubordination but with non-residency. Whereas “the government’s interest in being able to act expeditiously to remove and unsatisfactory employee is substantial,” Arnett v. Kennedy, 416 U.S. 134, 168, 94 S.Ct. 1633, 1651, 40 L.Ed.2d 15 (1974) (emphasis added), the state’s interest in acting expeditiously to remove experienced and useful employees is nonexistent. For example, Lieutenant O’Boyle was number one on the captain’s promotion list, meaning that he competed with some 500 individuals in a competitive examination and was graded the highest of all. App. 93. In October, 1977, O’Boyle received the Lambert Tree Award, the highest award the City of Chicago bestows once a year for an act of heroism. App. 93-94. O’Boyle also received five other awards for heroism. App. 94.
Finally, under my view of this case, the intervenors would be denied due process unless the granting of the preliminary in*1065junction was affirmed. Deprivation of a constitutional right “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976).
I would affirm the judgment.
. “In such circumstances, the State’s interest in preserving the integrity of the sport and in protecting the public from harm becomes most acute.” 443 U.S. at 65, 99 S.Ct. at 2649. See also at 71 n.3, 99 S.Ct. at 2652 n.3 (Brennan, J., concurring in part).
. The rule speaks of suspensions of more than 30 days and the intervenors were suspended for only 30 days. The rules also authorize indefinite suspension until the board hearing terminates with a resulting decision. Rule XVI, Section 4(b)(2). As a matter of practice, suspensions are indefinite in duration and board decisions ordinarily require more than six months from the time of filing of charges. App. 110, 112.
. In Muscare v. Quinn, 520 F.2d 1212, 1215 (7th Cir.1975), a panel of this court which included Mr. Justice Clark and Mr. Justice (then Judge) Stevens held that:
Public employees facing temporary suspension for less than 30 days have interests qualifying for protection under the Due Process Clause, and due process requires at the minimum that they be granted a hearing pri- or to suspension where they may be fully informed of the reasons for the proposed suspension and where they may challenge their sufficiency.
In Quinn v. Muscare, 425 U.S. 560, 562-63, 96 S.Ct. 1752, 1753, 48 L.Ed.2d 165 (1976), the Supreme Court said:
. . . [a]fter the grant of certiorari, this Court was informed that the Civil Service Commission of the City of Chicago had revised its rules to provide for pre-suspension hearings in all nonemergency cases. While this voluntary rule change was subject to rescission, counsel for the petitioner candidly advised the Court at oral argument that even if the petitioner should prevail, it was very doubtful that the Commission would revert to its former suspension procedures.
In view of these developments, the writ of certiorari is dismissed as improvidently granted.