# Porter v. Califano

> Court of Appeals for the Fifth Circuit · March 26, 1979 · 592 F.2d 770

URL: https://www.frixlaw.com/law-library/cases/8908843

## Case

- **Full name:** Ella S. PORTER v. Joseph A. CALIFANO, Jr., Individually and in his capacity as Secretary of the U. S. Department of Health, Education, and Welfare
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** March 26, 1979
- **Citations:** 592 F.2d 770
- **Precedential status:** Published
- **Opinion:** Concurrence by Skelton
- **Judges:** Goldberg, Skelton
- **Cited by:** 126 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8908843

## How later opinions describe it (automated extraction)

- stating that in reviewing agency action — the suspension of a government employee allegedly because of exercising her First Amendment rights — under the Administrative Procedure Act, the district court must conduct the balancing test prescribed in Pickering after determining t…
- reversing summary judgment for defendants in a suit by a clerk-typist suspended for writing a letter critical of her superiors because at a minimum, the state must “clearly demonstrate that the employee’s conduct substantially and materially interferes with the discharge of du…
- holding that “courts should make an independent assessment of a citizen’s claim of constitutional right when reviewing agency decision-making” under 5 U.S.C. § 706(2)(B)
- holding agency factfinding procedures were inadequate where the officials accused of corruption by the plaintiff played a "pervasive role" in the factfinding

## Opinion text

SKELTON, Senior Judge,
specially concurring:
I concur with the result reached in the opinion in this case because, among other reasons, I basically disapprove of the discharge or suspension of a Government employee where the employee has not been granted an evidentiary hearing with the rights of confrontation and cross-examination of witnesses. See my dissenting opinion in McGlasson v. United States, 184 Ct.Cl. 542 , 397 F.2d 303 (1968), in which Judge Durfee joined, and my concurring opinion in Scroggins v. United States, 184 Ct.Cl. 530 , 397 F.2d 295 (1968), in which Judges Durfee and Collins joined. 1
I agree with the Supreme Court decision in Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970), that a meaningful hearing must be granted, at some stage of the proceedings, to a plaintiff whose property rights are involved. That was not done in this case.
It may be that the agency was justified in suspending the appellant for 30 days. Whether or not this is so will now be determined in a meaningful hearing held in the district court. Consequently, it would be inappropriate for us to express an opinion on the merits of the case.
. Immediately after the issuance of these opinions, the Civil Service Commission promulgated new disability retirement regulations, effective July 1, 1968, which provided for hearings in disability retirement cases. See: 33 F.Reg. 7715-17 (May 25, 1968). Hearings were not granted in such cases prior to the issuance of these new regulations.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8908843. Public record. Not legal advice.