Gilbert v. Homar

Although the criminal charges were dismissed on September 1, respondent’s suspension remained in effect while ESU continued with its own investigation. On September 18, Levanowitz and Chief Marazas met with respondent in order to give him an opportunity to tell his side of the story. Respondent was informed at the meeting that the state police had given ESU information that was “very serious in nature,” Record, Doc. No. 26, p..48, but he was not informed that that included a report of an alleged confession he had made on the day of his arrest; he was consequently unable to respond to damaging statements attributed to him in the police report.

In a letter dated September 23, Levanowitz notified respondent that he was being demoted to the position of groundskeeper effective the next day, and that he would receive backpay from the date the suspension took effect at the rate of pay of a groundskeeper. (Respondent eventually received backpay for the period of his suspension at the rate of pay of a university police officer.) The letter maintained

Respondent filed this suit under Rev. Stat. § 1979, 42 U. S. C. § 1983 , in the United States District Court for the Middle District of Pennsylvania against President Gilbert, Chief Marazas, Levanowitz, and a Vice President of ESU, Curtis English, all in both their individual and official capacities. He contended, inter alia, that petitioners’ failure to provide him with notice and an opportunity to be heard before suspending him without pay violated due process. The District Court entered summary judgment for petitioners. A divided Court of Appeals reversed the District Court’s determination that it was permissible for ESU to suspend respondent without pay without first providing a hearing. 89 F. 3d 1009 (CA3 1996). We granted certiorari. 519 U. S. 1052 (1997).

The protections of the Due Process Clause apply to government deprivation of those perquisites of government employment in which the employee has a constitutionally protected “property” interest. Although we have previously held that public employees who can be discharged only for cause have a constitutionally protected property interest in

A

In Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532 (1985), we concluded that a public employee dismissable only for cause was entitled to a very limited hearing prior to his termination, to be followed by a more comprehensive post-termination hearing. Stressing that the pretermination hearing “should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action,” id., at 545-546 , we held that pretermination process need only include oral or written notice of the charges, an explanation of the employer’s evidence, and an opportunity for the employee to tell his side of the story, id., at 546 . In the course of our assessment of the governmental interest in immediate termination of a tenured employee, we observed that “in those situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay.” Id., at 544-545 (emphasis added; footnote omitted).

Relying on this dictum, which it read as “strongly suggesting] that suspension without pay must be preceded by notice and an opportunity to be heard in all instances,” 89 F. 3d, at 1015 (emphasis added), and determining on its own that

It is by now well established that “‘due process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886 , 895 (1961). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471 , 481 (1972). This Court has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide pre-deprivation process, postdeprivation process satisfies the requirements of the Due Process Clause. See, e. g., United States v. James Daniel Good Real Property, 510 U. S. 43 , 53 (1993); Zinermon v. Burch, 494 U. S. 113 , 128 (1990) (collecting cases); Barry v. Barchi, 443 U. S. 55 , 64-65 (1979); Dixon v. Love, 431 U. S. 105 , 115 (1977); North American Cold Storage Co. v. Chicago, 211 U. S. 306 , 314-320 (1908). Indeed, in Parratt v. Taylor, 451 U. S. 527 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U. S. 327 (1986), we specifically noted that “we have rejected the proposition that [due process] always requires the State to provide a hearing prior to the initial deprivation of property.” 451 U. S., at 540 . And in FDIC v. Mallen, 486 U. S. 230 (1988), where we unanimously approved the Federal Deposit Insurance Corporation’s (FDIC’s) suspension, without prior hearing, of an indicted private bank employee, we said: “An important gov

cedural safeguards; and finally, the Government’s interest.” Mathews v. Eldridge, 424 U. S. 319 , 335 (1976).

See also, e. g., Mallen, supra, at 242 ; Logan v. Zimmerman Brush Co., 455 U. S. 422 , 434 (1982).

Respondent contends that he has a significant private interest in the uninterrupted receipt of his paycheck. But while our opinions have recognized the severity of depriving someone of the means of his livelihood, see, e. g., Mallen, supra, at 243 ; Loudermill, 470 U. S., at 543 , they have also emphasized that in determining what process is due, account must be taken of “the length” and “finality of the deprivation,” Logan, supra, at 434 (emphasis added). Unlike the employee in Loudermill, who faced termination, respondent faced only a temporary suspension without pay. So long as the suspended employee receives a sufficiently prompt post-suspension hearing, the lost income is relatively insubstantial (compared with termination), and fringe benefits such as health and life insurance are often not affected at all, Brief for United States as Amicus Curiae 18; Record, Doe. No. 19, p. 7.

On the other side of the balance, the State has a significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers. Respondent contends that this interest in maintaining public confidence could have been accommodated by suspending him with pay until he had a hearing. We think, however, that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense. If his services to the government are no longer useful once the felony charge has been filed, the Constitution does not require the government to bear the added expense of hiring a replacement while still paying him. ESU’s interest in preserving public confidence in its police force is at least as significant as the State’s interest in preserving the integrity of the sport of horse racing, see Barry v. Barchi, supra, at 64 ,

The last factor in the Mathews balancing, and the factor most important to resolution of this case, is the risk of erroneous deprivation and the likely value of any additional procedures. Petitioners argue that any presuspension hearing would have been worthless because pursuant to an Executive Order of the Governor of Pennsylvania a state employee is automatically to be suspended without pay “[a]s soon as practicable after [being] formally charged with ... a felony.” 4 Pa. Code § 7.173 (1997). According to petitioners, supervisors have no discretion under this rule, and the mandatory suspension without pay lasts until the criminal charges are finally resolved. See Tr. of Oral Arg. 20. If petitioners’ interpretation of this order is correct, there is no need for any presuspension process since there would be nothing to consider at the hearing except the independently verifiable fact of whether an employee had indeed been formally charged with a felony. See Codd v. Velger, 429 U. S. 624 , 627-628 (1977) (per curiam). Cf. Loudermill, supra, at 543 . Respondent, however, challenges petitioners’ reading of the Code, and contends that in any event an order of the Governor of Pennsylvania is a “mere directiv[e] which do[es] not confer a legally enforceable right.” Brief for Respondent 20. We need not resolve this disputed issue of state law because even assuming the Code is only advisory (or has no application at all), the State had no constitutional obligation to provide respondent with a presuspension hearing. We noted in Loudermill that the purpose of a pre-termination hearing is to determine “whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” 470 U. S., at 545-546 . By parity of reasoning, the purpose of any pre- suspension hearing would be to assure that there are reasonable grounds to support the suspension without pay.

In Mallen, we concluded that an “ex parte finding of probable cause” such as a grand jury indictment provides adequate assurance that the suspension is not unjustified. Id., at 240-241 . The same is true when an employee is arrested and then formally charged with a felony. First, as with an indictment, the arrest and formal charges imposed upon respondent “by an independent body demonstrate] that the suspension is not arbitrary.” Id., at 244 . Second, like an indictment, the imposition of felony charges “itself is an objective fact that will in most cases raise serious public concern.” Id., at 244-245 . It is true, as respondent argues, that there is more reason to believe an employee has committed a felony when he is indicted rather than merely arrested and formally charged; but for present purposes arrest and charge give reason enough. They serve to assure that the state employer’s decision to suspend the employee is not “baseless or unwarranted,” id., at 240 , in that an independent third party has determined that there is probable cause to believe the employee committed a serious crime.

Respondent further contends that since (as we have agreed to assume) Levanowitz had discretion not to suspend despite the arrest and filing of charges, he had to be given an opportunity to persuade Levanowitz of his innocence before the decision was made. We disagree. In Mallen, despite the fact that the FDIC had discretion whether to suspend an indicted bank employee, see 64 Stat. 879 , as amended, 12 U. S. C. § 1818 (g)(1); Mallen, supra, at 234-235 , and n. 5, we nevertheless did not believe that a presuspension hearing was necessary to protect the private interest. Unlike in the case of a termination, where we have recognized that “the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect,” Loudermill, supra, at 543 , in the case of a suspension there will be ample opportunity to invoke

C

Much of respondent’s argument is dedicated to the proposition that he had a due process right to a presuspension hearing because the suspension was open-ended and he “theoretically may not have had the opportunity to be heard for weeks, months, or even years after his initial suspension without pay.” Brief for Respondent 23. But, as respondent himself asserts in his attempt to downplay the governmental interest, “[b]ecause the employee is entitled, in any event, to a prompt post-suspension opportunity to be heard, the period of the suspension should be short and the amount of pay during the suspension minimal.” Id., at 24-25.

Whether respondent was provided an adequately prompt post-suspension hearing in the present case is a separate question. Although the charges against respondent were dropped on September 1 (petitioners apparently learned of this on September 2), he did not receive any sort of hearing until September 18. Once the charges were dropped, the risk of erroneous deprivation increased substantially, and, as petitioners conceded at oral argument, there was likely value in holding a prompt hearing, Tr. of Oral Arg. 19. Cf. Mal-len, supra, at 243 (holding that 90 days before the agency hears and decides the propriety of a suspension does not exceed the permissible limits where coupled with factors that minimize the risk of an erroneous deprivation). Because neither the Court of Appeals nor the District Court addressed whether, under the particular facts of this case, peti

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The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.