Amicus Curiae Brief — Gilbert v. Homar

In THE

Supreme Court af the Butted States

OCTOBER TERM, 1996

JAMES E. GILBERT, et ai.,

ra Petitioners,

RICHARD J. HOMAR,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF THE

NATIONAL EDUCATION ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

ROBERT H. CHANIN

(Counsel of Record)

JOHN M. WEST

BREDHOFF & KAISER, P.L.L.C.

1000 Connecticut Avenue, N.W.

Suite 1300

Washington, D.C. 20036

(202) 833-9340

Counsel for Amicus Curiae

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TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .........000........cccccccceee 1

SUMMARY OF ARGUMENT. .............-.00....00cc0ce0cc.cceec-.-000 2

FE i ne Oi LS ae SY 3

PETITIONERS’ INTEREST IN IMMEDI-

ATELY SUSPENDING RESPONDENT FROM

HIS EMPLOYMENT DUTIES DID NOT ALSO

JUSTIFY SUSPENDING HIM FROM PAY

STATUS WITHOUT A PREDEPRIVATION

HEARING

A. The Analytical Framework .................... sc ahieeanaicl 3

B. The Mathews v. Eldridge Balancing Test...... 6

C. The Clear and Workable Principle Articu-

lated by the Third Circuit .........................02...... 14

| sentiatidieean 17

ii

TABLE OF AUTHORITIES

CASES Page

Barry v. Barchi, 443 U.S. 55 (1979) ~...--.----.---cc0 13

Boddie v. Connecticut, 401 U.S. 371 (1971) ............ 3,4

Board of Regents v. Roth, 408 U.S. 564 (1972)...... 16

Cleveland Board of Education v. Loudermill, 470

(AIRS EE passim

Engdahl v. Department of Navy, 900 F.2d 1572

(Fred. Clr. 1908) ..cecccccccsosescesecesrsesesnersssesisnsnscenssensnnnios 16

FDIC v. Mallen, 486 U.S. 230 (1988)......................- passim

Homar v. Gilbert, 89 F.3d 1009 (3d Cir. 1996)........ passim

Mathews v. Eldridge, 424 U.S. 319 (1976) ........... passim

Mullane v. Central Hanover Bank & Trust Co., 339

IR, y——————————————— EEE 3

Parratt v. Taylor, 451 U.S. 527 (1981)................-..- 5

United States v. James Daniel Good Real Property,

Ve 7) 4

STATUTES AND REGULATIONS

I ——————————————————EE 12

9A, OEE 16

I EEE 12

YS? AA, oe 9

OTHER AUTHORITIES

Ellen Graham, What Money Just Can’t Buy, Wall

Street J., Sept. 20, 1996, 1996 WL-WSJ

| se 7

In THE

Supreme Court of the United States

OcToBer TERM, 1996

No. 96-651

JAMES E. GILBERT, et ai.,

2 Petitioners,

RICHARD J. HoMar,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF THE

NATIONAL EDUCATION ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

This brief amicus curiae is filed by the National Edu-

cation Association (“NEA”), with the written consent of

the parties, in support of respondent Richard J. Homar.

INTEREST OF AMICUS CURIAE

NEA is a nationwide employee organization with a

current membership in excess of 2.2 million persons, the

vast majority of whom are employed by public school dis-

tricts, colleges, and universities throughout the United

States. NEA (through a network of affiliated state and

local associations) represents its members in dealing wiih

2

their employers in regard to salaries, hours, and working

conditions. This representation often is based on rights

that are guaranteed to public employees by the United

States Constitution, including the right to procedural due

process under the Fourteenth Amendment.

SUMMARY OF ARGUMENT

In Mathews v. Eldridge, 424 U.S. 319 (1976), this

Court set forth a three-factor balancing test to be used

in “consider[ing] the extent to which due process requires

an evidentiary hearing prior to the deprivation of some

type of property interest even if such a hearing is pro-

vided thereafter.” Id. at 333. Applying these factors to

the termination of a tenured public employee in Cleveland

Board of Education v. Loudermill, 470 U.S. 532 (1985),

this Court held that a minimal predeprivation “hearing”

—i.e., notice and an opportunity to Tespond—is constitu-

tionally required.

When respondent Homar, a “tenured” public employee

within the meaning of Loudermill, was arrested on drug

charges, he was suspended—both from his employment

duties as a member of petitioners’ police force and from

pay status—without a predeprivation hearing. Although

this case differs from Loudermill in that the deprivation

Homar suffered was not termination of his employment,

but rather suspension without pay, a predeprivation hear-

ing would be required unless, under the exception recog-

nized in FDIC v. Mallen, 486 U.S. 230, 240 (1988),

the necessity for immediate governmental action justified

postponement of that hearing. There is no dispute about

the fact that petitioners’ interest in maintaining public

safety and preserving the integrity of their police force

justified the immediate suspension of Homar from his

duties as a police officer. But neither that interest—nor

any other government interest—justified petitioners in sus-

pending Homar’s pay without first affording him the

minimal due process requirements of notice and an op-

portunity to respond.

3

The principle adopted by the Third Circuit—that, as a

general matter, a public employer must provide notice

and an opportunity to respond before suspending a ten-

ured employee from pay status—provides clear constitu-

tional guidance to public employers who must make day-

to-day employment decisions. The Third Circuit’s prin-

ciple is, moreover, eminently workable, as evidenced,

inter alia, by the fact that it parallels the regulations that

govern federal employment.

ARGUMENT

PETITIONERS’ INTEREST IN IMMEDIATELY

SUSPENDING RESPONDENT FROM HIS EMPLOY-

MENT DUTIES DID NOT ALSO JUSTIFY SUS-

PENDING HIM FROM PAY STATUS WITHOUT A

PREDEPRIVATION HEARING

A. The Analytical Framework

The issue presented in this case can be appropriately

framed by setting forth certain fundamental propositions

as to which there is no dispute:

1. As a general rule, due process requires that depri-

vation of a constitutionally protected property interest

must “be preceded by notice and opportunity for hearing

appropriate to the nature of the case.” Loudermill, 470

U.S. at 542 (quoting Mullane v. Central Hanover Bank

& Trust Co., 339 U.S. 306, 313 (1950)). This Court

repeatedly has made clear that “ ‘the root requirement’ of

the Due Process Clause [is] ‘that an individual be given

an opportunity for a hearing before he is deprived of any

significant property interest.’” Loudermill, 470 U.S. at

542 (quoting Boddie v. Connecticut, 401 U.S. 371, 379

(1971)) (emphasis in original).

2. The requisite predeprivation “hearing” need not be

elaborate. In holding that a hearing was required prior

to termination of the employment of a tenured public

4

employee,’ this Court stated that a “full evidentiary hear-

ing” is not required prior to the deprivation. Loudermill,

470 U.S. at 545. Rather, “something less,” id. (quoting

Mathews, 424 U.S. at 343), is sufficient: “[{T]}he pre-

termination hearing need not definitively resolve the

propriety of the discharge. It should be an initial check

against mistaken decisions . . . .” Loudermill, 470 U.S.

at 545. This Court then described the required predepri-

vation hearing as follows:

The essential requirements of due process . . . are

notice and an opportunity to respond. . .. The ten-

ured public employee is entitled to oral or written

notice of the charges against him, an explanation of

the employer's evidence, and an opportunity to pre-

sent his side of the story.

Id. at 546 (emphasis added). Certainly no more would

be required here, when the issue is suspension as opposed

to termination.

3. Although the requirement for this minimal pre-

deprivation hearing is not absolute, this Court has em-

phasized the exceptional nature of any departure from

the requirement:

We tolerate some exceptions to the general rule

requiring predeprivation notice and hearing, but only

in “ ‘extraordinary situations where some valid gov-

ernmental interest is at stake that justifies postponing

the hearing until after the event.’ ”

United States v. James Daniel Good Real Property, 510

U.S. 43, 53 (1993) (quoting Boddie, 401 U.S. at 379).

One circumstance—and the only one even arguably ap-

1In this brief, we use the term “tenured”—as this Court used

the term in Loudermill—as a shorthand designation for an em-

ployee who, by virtue of applicable state law, has a property inter-

est in continued employment. There is no dispute that Homar

had such a property interest. See Homar v. Gilbert, 89 F.3d 1009,

1014 (3d Cir. 1996).

5

plicable here—under which a postdeprivation hearing

will be held to satisfy constitutional requirements is where

“the necessity of quick action by the State,” Parratt v.

Taylor, 451 U.S. 527, 539 (1981), precludes a predepri-

vation hearing. Thus, “[a]n important government inter-

est, accompanied by a substantial assurance that the

deprivation is not baseless or unwarranted, may in lim-

ited cases demanding prompt action justify postponing the

opportunity to be heard until after the initial deprivation.”

Mallen, 486 U.S. at 240.

4. There is no contention in this case that petitioners

were required to provide Homar with a hearing before

suspending him from his employment duties: petitioners’

interest in maintaining public safety and preserving the

integrity of their police force surely justified this action

immediately upon Homar’s arrest on drug charges. See

Homar v. Gilbert, 89 F.3d 1009, 1015 (3d Cir. 1996)

(“We agree with the district court that there was a com-

pelling govecnamental interest which supports ESU’s deci-

sion to suspend Homar [from his employment duties]

immediately and without a hearing pending further in-

vestigation.” ).

It is within the analytical framework established by the

foregoing propositions that we turn to the narrow ques-

tion this case presents: whether the government interest

that justified petitioners’ departure from the general rule

of a predeprivation hearing in suspending Homar from

his duties as a police officer, also justified suspending

Homar from pay status without first affording him the

minimal due process rights set out by this Court in

Loudermill—i.e., notice of the charges against him and

an opportunity to present his side of the story to the deci-

sionmaker. See 470 U.S. at 546. As we now show, the

answer to this question is “no.”

6

B. The Mathews v. Eldridge Balancing Test

In Mathews v. Eldridge, supra, this Court set forth a

three-factor balancing test to be used in “consider|ing]

the extent to which due process requires an evidentiary

hearing prior to the deprivation of some type of property

interest even if such a hearing is provided thereafter.”

Mathews, 424 U.S. at 333. These factors are:

First, the private interest that will be affected by the

official action; second, the risk of an erroneous dep-

rivation of such interest through the procedures used,

and the probable value, if any, of additional or sub-

stitute procedural safeguards; and finally, the Gov-

ernment’s interest, including the function involved

and the fiscal and administrative burdens that the

additional or substitute procedural requirement would

entail.

Id. at 335 (emphasis added). Application of these fac-

tors led this Court in Loudermill, supra, to conclude that

a predeprivation hearing—i.e., notice and an opportunity

to respond—is constitutionally required when government

seeks to terminate the employment of a tenured public

employee. 470 U.S. at 542-45. The same conclusion

follows in the present context.

1. This case differs from Loudermill in regard to “the

private interest that [is] affected by the official action,”

470 US. at 335, in that the deprivation suffered by Homar

was not termination of employment, but rather—as per-

tinent to the issue that is before this Court—suspension

from pay status. Although the district court thought it

“unclear whether due process protections extend to em-

ployment discipline short of termination,” Pet. App. at

59a, the Third Circuit had no doubt on this score, “find-

[ing] the requirements of Loudermill to be applicable in

this instance.” 89 F.3d at 1014. The Third Circuit

clearly was correct: Homar had a property interest in

his continued employment, and he was deprived of a sub-

stantial aspect of that property interest—i.e., his right

7

to an uninterrupted flow of income. As this Court ob-

served in Loudermill:

We have frequently recognized the severity of depriv-

ing a person of the means of livelihood. While a fired

worker may find employment elsewhere, doing so will

take some time and is likely to be burdened by the

questionable circumstances under which he left his

previous job.

470 U.S. at 543 (citations omitted).

As to an employee’s ability to “find employment else-

where,” the stigma of a suspension from employment

hardly will be less than that which stems from a termina-

tion of employment. One can readily recognize the diffi-

culties Homar would have encountered had he informed

potential employers that he was look’ng for a new job

because he had been suspended from his position as a

police officer as a result of his arrest on drug charges.

Even after the criminal charges against him were dis-

missed, the stigma likely would have remained. Indeed,

although both a terminated and a suspended employee

doubtless would hope to resume their prior employment,

because of the inherent ambiguity of a suspension, the

latter would, if anything, be less likely than the former

to seek—much less be successful in obtaining—alternative

interim employment.

Nor can it be determinative that a suspension is, by

definition, temporary, for even a temporary loss of income

can be as ruinous as a termination of employment. As a

recent study has confirmed, a large proportion of Ameri-

cans—about one-third—live from paycheck to paycheck

(or worse), unable to accumulate savings that would ab-

sorb the impact of even a temporary loss of income. See

Ellen Graham, What Money Just Can’t Buy, Wall Street J.,

Sept. 20, 1996, 1996 WL-WSJ 11799143. The “severity

of depriving a person of the means of livelihood” that

this Court recognized in Loudermill, 470 U.S. at 543,

may be tempered, but it hardly is obviated, by the tem-

porary nature of the deprivation.

That is particularly the case where, as here, the sus-

pension is of indeterminate duration. Homar’s pay was

suspended “pending further investigation and disposition

of the criminal charges” against him. 89 F.3d at 1012.

Had his case gone to trial, Homar’s suspension could well

have continued for months, or conceivably even years.

Moreover, as the letter of suspension informed Homar,

petitioners’ action would not necessarily “coincide” with

the disposition of the criminal charges. Jd. The suspen-

sion was thus truly of indefinite duration—and in fact it

was prolonged well past the time the state court ordered

the criminal charges dismissed. Jd. Under such circum-

stances, the interest of Homar that was affected by peti-

tioners’ action clearly is substantial.

2. The risk of “an erroneous deprivation” of the em-

ployee’s interest is the second factor in the Mathews bal-

lancing test. As this Court observed in Loudermill, “some

opportunity for the employee to present his side of the

case is recurringly of obvious value in reaching an accurate

decision.” 470 U.S. at 543. That is so, this Court noted,

both because of the possibility of factual disputes relating

to the basis for the disciplinary action, and because a

hearing before the discipline takes effect is likely to be

the employee’s “only meaningful opportunity to invoke

the discretion of the decisionmaker.” /d.

Petitioners contend that analysis of the second Mathews

factor in this case is controlled by Mallen, supra, rather

than Loudermill. In Mallen, this Court indicated that in

exceptional cases where an important government interest

demanded immediate action, a predeprivation hearing

could be dispensed with if there were “a substantial as-

surance that the deprivation is not baseless or unwar-

ranted.” 486 U.S. at 240. Unlike Mallen, however,

where the “substantial assurance” derived from the fact

that “[a] grand jury had determined that there was prob-

9

able cause to believe that appellee had committed a

felony,” id. at 241, there was no such judicial determina-

tion of probable cause in this case. Homar’s arrest was

based solely on the decision of the policeman who found

Homar at the scene of a drug raid. And when Homar’s

case was brought before the judiciary at a hearing six

days after his arrest, the court dismissed all charges against

him. See 89 F.3d at 1012. Inasmuch as there never was

any judicial determination of probable cause, and the

charges against Homar were dismissed as soon as they

came before a court, the suggestion of petitioners and

their amici that the same “substantial assurance” was

present here as in Mallen is, to say the least, unconvincing.

Petitioners also suggest that a hearing would have been

of little value in this case because applicable state regula-

tions required petitioners to suspend Homar without pay

“as soon as practicable” after his arrest on a felony charge.

Brief for Petitioners at 20-21 (quoting 4 Pa. Code

§ 7.173); see id. at 3-4. Thus, petitioners argue that the

decision to suspend Homar from pay status involved no

discretion, and turned only on the undisputed fact that

he had been arrested on a felony charge. But the record

does not support this argument.

In the first place, petitioner Levanowitz—the Director

of Human Resources who made the decision to suspend

Homar—was equivocal on whether he believed the regu-

lation in question (part of the Governor’s Code of Con-

duct for Appointed Officials and State Employees) was

binding upon him. Levanowitz testified on deposition

that, while he “did refer to this [regulation] and let it guide

my actions somewhat in this case,” Joint Appendix at 67a

(emphasis added), he was “not sure” that he was “obliged”

to follow it in suspending Homar. /d. at 66a-67a. Indeed,

if the regulation petitioners cite had been the basis for

Homar’s suspension, the suspension would have been

lifted when the criminal charges against him were dis-

missed. But it was not. In informing Homar of his sus-

pension, Levanowitz stated that the university’s action

10

would not necessarily “coincide with the disposition of

those [criminal] charges through the legal process,” 89

F.3d at 1012, and although all criminal charges against

Homar were dismissed six days after his arrest, the sus-

pension without pay remained in effect for another 23

days. Id.

In short, whether Levanowitz thought himself bound by

the state regulation or not, he imposed a suspension with-

out pay that was to (and did) remain in effect well be-

yond the regulation’s requirements. Far from the almost

ministerial act petitioners portray, Levanowitz’ decision

to suspend Homar for an indefinite period independent

of the resolution of the criminal charges against him—

and the decision to continue the suspension even after the

criminal charges were dismissed—quite evidently involved

both the consideration of factual issues other than simply

Homar’s arrest, and the exercise of discretion on the part

of Levanowitz. In respect to these decisions, the oppor-

tunity for Homar to present his side of the story would

have been of “obvious value in reaching an accurate de-

cision.” Loudermill, 470 U.S. at 543.

3. In this case, it is the third factor of the Mathews

balancing test—i.e., “the Government's interest, including

the function involved and the fiscal and administrative

burdens that the additional or substitute procedural re-

quirement would entail,” Mathews, 424 U.S. at 335—

that is decisive. Only an “important government inter-

est,” one “demanding prompt action,” will “justify post-

poning the opportunity to be heard until after the initial

deprivation.” Mallen, 486 U.S. at 240 (emphasis added).

See also Brief for the United States at 14, 20 (requisite

government interest must be “weighty”.

In applying this factor, we reiterate that the question in

this case is not whether there was a sufficiently “important

government interest” to justify suspending Homar from

his employment duties without notice and an opportunity

to be heard—it is conceded that such an interest existed.

11

The question concerns Homar’s suspension from pay

Status, and in this regard one searches in vain for any—

much less an “important” or “weighty’—government in-

terest.

In purporting to find the necessary government interest,

the district court commented as follows:

Homar was certainly charged with important law

enforcement responsibilities and the preservation of

public safety. His arrest on a drug-related charge

implicated important governmental interests in main-

taining public confidence in our law enforcement

agents.

Pet. App. at 61a. Those interests, to be sure, were suf-

ficient to justify petitioners’ decision to suspend Homar

from his duties as a police officer without a predeprivation

hearing. But they do not speak to Homar’s immediate

Suspension from pay status. As the Solicitor General puts

it in his brief on behalf of petitioners, “[{t]he district court

appeared to assume interests in law enforcement integrity

and public safety that address the suitability of Homar

remaining in a duty status but that do not concern the

appropriateness of his being suspended without pay.”

Brief for the United States at 24 ( emphasis added).

While it is true, as another of petitioners’ amici points

out, that “[t}he Court’s cases recognize that even as sub-

Stantial an interest as maintaining one’s livelihood must

at times yield to the government's interest in taking prompt

action,” Brief of the International City-County Manage-

ment Association et al. at 6, those interests simply are not

in conflict here. The government's concededly important

interest in ensuring that a police officer arrested on felony

drug charges does not continue to function as a police

Officer can be fully vindicated by immediately suspending

him from his employment duties—without also suspending

the officer’s pay before affording him notice and an op-

portunity to respond.

The only interest that even arguably might militate

against a suspension with pay pending a hearing is peti-

12

tioners’ fiscal interest in avoiding the expense of paying

Homar while he was not performing any employment

duties. But recognition of the nature of the “hearing”

in question makes it clear that this fiscal interest is truly

de minimis. As we have previously noted, the hearing

to which the employee is entitled prior to suspension from

pay status is not a full adversary hearing, but simply “no-

tice and an opportunity to respond.” Loudermill, 470

U.S. at 546. Nor is this a hearing at which the employer

need “definitively resolve the propriety” of the suspension

from pay status; rather, it is merely “an initial check

against mistaken decisions.” /d. at 545. Thus, the em-

ployer is under no compulsion, prior to this hearing, to

investigate the matter fully, to prepare a case for presenta-

tion to a hearing officer, or even to gather any additional

evidence beyond that which sparked the proposed sus-

pension. The Due Process Clause requires, at this point,

only that the employer stay its hand until notice of the

proposed action has been given to the employee, and the

employer has listened to what the employee has to say

in response."

Absent unusual facts (such as, for example, an em-

ployee at a distant location), such a hearing need delay

the employer’s action by no more than a few days.’ Ac-

cordingly, even when an important government interest

2 Because of the minimal and preliminary nature of the pre-

deprivation hearing at issue, the considerations here are quite

different from those that were before this Court when it consid-

ered the timing of a postdeprivation hearing in Mallen. Inasmuch

as that hearing was to render “the ultimate decision” on Mallen’s

suspension, 486 U.S. at 244, this Court observed that “(t]he mag-

nitude of the public interest in a correct decision counsels strongly

against any constitutional imperative that might require overly

hasty decisionmaking.” /d.

8 As the Solicitor General points out, the “reasonable time to

answer” that federal regulations provide for federal employees

threatened with suspension (of 14 days or less) is defined as “not

less than 24 hours.” Brief for the United States at 4 (citing 5

U.S.C. § 7503 (b) ; 5 C.F.R. § 752.203 (c) ).

13

requires that an employee be suspended from his employ-

ment duties before a hearing can be held, the cost of con-

tinuing the employee in pay status until he can be given

notice and an opportunity to respond will be minimal.

As in Loudermill, “affording the employee an oppor-

tunity to respond prior to termination would impose

neither a significant administrative burden nor intolerable

delays.” 470 U.S. at 544.

In support of their position, petitioners rely on two

cases in which this Court has held suspensions permissible

without a predeprivation hearing. See Mallen, supra

(Federal Deposit Insurance Corporation (“FDIC”) order

suspending officer of federally insured bank); Barry v.

Barchi, 443 U.S. 55 (1979) (state racing board suspen-

sion of horse trainer’s license). But this reliance is mis-

placed, Neither Mallen nor Barry involved the govern-

ment interest in suspending the employees’ pay;* both

were concerned with the admittedly more weighty govern-

ment interest in removing the employees from their em-

ployment duties. Mallen, in particular, points up the

dispositive significance of this difference.

In Mallen, the FDIC, acting pursuant to federal law,

ordered the immediate suspension of a bank president and

director from any further participation in the bank’s af-

fairs (or the affairs of any other federally insured bank),

upon his indictment for making false statements to the

FDIC and the bank. 486 U.S. at 236-38. While the

issue before this Court was the timing of the postdepriva-

tion hearing to which Mallen was entitled, this Court

observed along the way that postponement of the hearing

*This undoubtedly was because the action in both cases was

taken not by the employers, but by government regulatory agen-

cies. Whether the employees continued to be paid by their em-

ployers during the suspensions probably was a matter as to which

the government agencies were indifferent; as far as can be dis-

cerned from the case reports, at any rate, the issue was not raised

by the suspension orders.

14

until after the suspension took effect clearly was justified

by “the congressional finding that prompt suspension of

indicted bank officers may be necessary to protect the

interests of depositors and to maintain public confidence

in our banking institutions.” Jd. at 240-41. That obser-

vation was eminently understandable, because the gov-

ernment interest simply could not accommodate a delay

in suspending Mallen from involvement with the banking

industry. In this case, the equally important government

interest was fully vindicated by suspension of Homar

from his duties as a police officer. Postponement of the

only thing that is at issue here—Homar’s suspension from

pay status—in no way impairs that government interest.

In sum, petitioners can take no comfort in Mallen and

Barry. Indeed, by contrast to the facts of this case, Mal-

len and Barry reinforce the conclusion that the govern-

ment interest involved here in no way justified postpone-

ment of Homar’s hearing until after his suspension from

pay status took effect.

C. The Clear and Workable Principle Articulated by

the Third Circuit

The Third Circuit resolved this case on the basis of the

general principle that “a governmental employer may not

suspend an employee without pay unless that suspension

is preceded by some kind of pre-suspension hearing, pro-

viding the employee with notice and an opportunity to be

heard.” 89 F.3d at 1016. As we have just shown, that

principle derives from a faithful application of the

Mathews balancing test, which this Court traditionally

has used to determine what process is due in a given set

of circumstances.

Petitioners and their amici assert that the Third Circuit

deviated from the “flexible” analysis called for in

Mathews, and instead adopted a “rigid” “per se rule”

that “depart[s] from Mathews” and “carve[s] out an

exception to the Eldridge balancing test.” See Brief for

15

Petitioners at 17-18; Brief for the United States at 14;

Brief of the States of Alabama ef al. at 7-8. This “flexi-

bility” argument is a red herring. The principle articu-

lated by the court below is no more a departure from

Mathews than is, for example, the principle adopted by

this Court in Loudermill that the Due Process Clause

“requires ‘some kind of hearing’ prior to the discharge

of an employee who has a constitutionally protected

property interest in his employment.” 470 U.S. at 533

(syllabus of the reporter) (emphasis added). In both

cases, the requirements of the Due Process Clause have

been interpreted with respect to a particular class of

cases.

There simply is no merit to the contention, implicit in

the briefs of petitioners and some of their amici, that

courts may not interpret the requirements of the Due

Process Clause by developing general categorical rules,

but rather must decide every case from scratch through

a balancing of the Mathews factors. E.g., Brief of the

States of Alabama ef al. at 4. Such an approach would

place public employers, who must apply this Court's

decisions on a day-to-day basis, in an untenable position.

As petitioners themselves have observed, “[w]hen these

situations arise, it is important that officials know what

they may and may not do, consistent with the Constitu-

tion, to protect the public.” Petition for Certiorari at

12-13. The principle articulated by the Third Circuit

provides precisely such guidance.

That principle is also one that is workable for the

government employers who must apply it—as is evident

from the Solicitor General’s assurance that “[t]he proce-

dural safeguards currently provided in routine federal dis-

5 Obviously, the articulation of a general principle, such as that

set forth by this Court in Loudermill or the Third Circuit here,

does not preclude a court from considering whether a different

result is required on facts that differ in some pertinent respect

from those previously considered.

16

ciplinary actions generally comport with the [Third Cir-

cuit’s] rule.” Brief for the United States at 2; see also id.

at 4-5.° There is no reason to think that state and local

public employers could not comply with the demands of

due process as well as does the federal government.’

* Tellingly, the Solicitor General is able to identify only two

circumstances under which the principle articulated by the court

below would impinge on “congressionally mandated procedures.”

Brief for the United States at 21-23. The first is in the case of

probationary employees—-but because such “nontenured” em-

ployees have no property right in continued employment, the

principle articulated by the Third Circuit simply has no applica-

tion to them. Board of Regents v. Roth, 408 U.S. 564 (1972). As

to suspensions for national security reasons under 5 U.S.C. § 7532,

there may or may not be a constitutional basis for making an

exception in such cases to the general principle articulated by the

Third Circuit. But that question can await resolution until a case

presenting it arises; that such a national security exception might

be appropriate in no way undermines the principle applicable gen-

erally to tenured public employees.

7A case from the federal sector illustrates the appropriate

manner—both constitutionally and administratively—of dealing

with an employee who must be suspended from duty without delay.

Upon his arrest on charges of rape and other sex offenses, the

employee in Engdahl v. Department of Navy, 900 F.2d 1572 (Fed.

Cir. 1990),

was placed on administrative leave (non-duty/with pay) until

further notice. . . . On January 7, 1988 Engdahl received

notice that the government intended to suspend him without

pay. Engdahl was then provided an opportunity to reply,

which he personally did to government officials on January 25.

... The government issued a decision letter on January 29,

1988 suspending Engdah! without pay, effective February 1,

1988.

Id. at 1573.

17

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals for the Third Circuit should be affirmed.

Respectfully submitted,

ROBERT H. CHANIN

(Counsel of Record)

JOHN M. WEST

Brepuorr & KaIser, P.L.L.C.

1000 Connecticut Avenue, N.W.

Suite 1300

Washington, D.C. 20036

(202) 833-9340

Counsel for Amicus Curiae