Quinn v. Muscare – Oral Argument – March 30, 1976

Media for Quinn v. Muscare

Audio Transcription for Opinion Announcement – May 03, 1976 in Quinn v. Muscare

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Warren E. Burger:

We will hear our arguments first this morning in 75-130, Robert Quinn against Muscare.

William R. Quinlan:

Mr. Chief Justice and may it please the Court.

The fundamental issues presented for review here are, one, whether in suspensions of none probationary state and local governmental employees for a cause, Due Process requires a hearing before the suspension become effective.

Secondly, is Due Process satisfied by a co-suspension hearing where, in the event the charges against the employee are disallowed, he is awarded backpay and the suspension is deleted from the employee’s service record.

Additionally because of the context in which this case comes to this Court, there is a collateral issue.

That is whether or not the Municipal Fire Departments can constitutionally promulgate rules requiring as firefighters to limit the amount and location of their facial hair for among other reasons to ensure the efficient operation of gas masks that firefighters are required to wear.

The facts are basically as follows.

The respondent Francis Muscare, a Lieutenant in the Chicago Fire Department has been a firefighter with the Chicago Fire Department since 1955.

The Chicago Fire Department as I alluded to earlier has a rule 511.33, limiting the amount of facial hair that maybe worn by firefighters to at most a small mustache and precisely limited sideburns with no beard.

But from October 1973, until the trial of this cause in March 1974, Lieutenant Muscare wore a goatee.

In fact, some three years before, Muscare had worn the same sort of beard.

At that time he had been ordered to shave it off, but refused.

In consequence at a uniform inspection, the superior officers declined to inspect him.

He then brought himself in to compliance by shaving.

The following year, Mr. Muscare again grew a beard.

This time he was summoned before Departmental Board, consisting of two Fire Chiefs and an instructor in the Fire Academy in the use of safety masks.

At that hearing he was told to shave off the beard again and again Lieutenant Muscare reluctantly complied.

However, in December 1973, when Lieutenant Muscare appeared with his squad at Chicago Fire Department Academy for instruction in a two-day course in the use of self-contained breathing apparatus which were safety masks, he was again wearing a beard.

The instructor was Firefighter, Leonard Johnson.

Later at the trial, Johnson testified that during the class, he informed Muscare on the basis of the instruction material that he had been provided with and his experience that facial hair should not be worn with safety mask.

Muscare disputed this and contented that New York and Boston permitted Firefighters to wear long hair and beards.

Each member of the class was expected to put the apparatus on, charge it and test it to determine whether or not he was getting a good facial fit.

Johnson stated that by watching a firefighter try on the mask, he could tell whether he succeeded in attaining a tight facial seal.

But Muscare failed to test the apparatus in the class at Fire Academy.

I might indicate from the record, it is not clear whether a Lieutenant would be required to do so since he was dealing with the firefighter as an instructor.

However, he did not in fact try on the mask.

On the second day of class, each student was expected to walk up five floors of the Fire Academy building and then back down to the first floor with the gas mask on, sealed and functioning, Muscare did not.

Instructor Johnson stated at the trial that he did not know whether Muscare while wearing his beard could get a good seal on the mask because Muscare did not put the mask on and a gas mask can be tested only by a man putting it on.

In due course, Instructor Johnson reported Muscare’s conduct in the class to the Drill Master.

Muscare was soon in the same month, December 1973, warned that he would not be permitted to continue working unless he shaved off his beard.

William R. Quinlan:

A few days later, Muscare was advised that charges had been filed against him with the Administrative Authorities of the Fire Department.

Because of the fortuitous circumstances, the superior with authority to impose a penalty was taken ill with appendicitis, no further action was taken for more than two months.

Then a suspension of 29 days was issued on February of 1974 to Muscare and he was notified in person by three superior officers who came to his Fire Station and informed him that he was suspended, effective immediately.

A letter subsequently followed on March 4, 1974 from the Chief of Personnel, Chief Brown, indicated that he was charged of violation of three rules.

The first rule was the failure to conform to the grooming code.

The second rule was his violation of conduct unbecoming a Firefighter and the third violation was his disobedience of a direct and lawful order.

Muscare did not ask, exercised his statutory right provided for under the Illinois statute, Chapter 24, Section 18-1 to a hearing before the Civil Service Commission.

The Civil Service Commission is empowered, and in the event it finds the suspension unwarranted, that the employee would be entitled to backpay for the period of the suspension and erasure of the suspension from his employment.

From an adverse determination of the commission, the employee has a statutory right to judicial review with the right of further appeal to the higher court.

Muscare failed to exhaust these remedies.

Instead of exhausting his administrative remedies before the Civil Service Commission, Muscare filed the instant lawsuit under 43 U.S.C. 1983 on March 11.

The basic thrust of the complaint dealt with — asked for declaratory injunctive relief on the grounds that the Grooming Code of the Fire Department infringed upon his constitutional rights and the other two violations that he had been charged with, were both vague, and therefore, overly broad and unconstitutional.

He also indicated that he did receive Due Process of law in the imposition of this penalty.

The District Court denied both a temporary and permanent injunction, upheld the validity of the no-beard rule, indicating that Muscare had been afforded Due Process and entered a judgment in favor of the department.

Primarily the Court did not look to any of the other two reasons that had been alleged for the basis of this grooming code, one of which was the Fire Department was a Paramilitary organization and as such required discipline and to that grooming code was appropriate in a uniformed force.

Potter Stewart:

Did the District Court focus on the procedural Due Process question that became the foundation of Court of Appeals’ opinion?

William R. Quinlan:

That was primarily not the thrust of the argument before the District Court.

It came out on a preliminary injunction and motions were filed in support in opposition to the preliminary injunction.

He determined that the facial or the grooming code of the Department was rationally related to safety measures, although other arguments had been made for.

The issue was raised on a motion for reconsideration and Due Process issues were also raised.

He then indicated that his judgment presumed that the Due Process was satisfactorily to comply with the constitution and accordingly the judgment, I would say, was based both upon those grounds.

Potter Stewart:

There was very much discussion of the question of procedural due process —

William R. Quinlan:

No sir.

Potter Stewart:

— at the District Court level, was it?

William R. Quinlan:

No sir.

That is quite correct.

On appeal, the attention focused then on the Due Process issue as opposed to the validity of the grooming code.

The Court of Appeals for the Seventh Circuit reversed, finding that no hearing of any kind was afforded to the appellant prior to his suspension and that post-suspension review provided by state statute would not satisfy the requirements of Due Process.

The Court of Appeals did not deem it necessary to determine whether a trial type proceeding was essential to due process.

In order, the Court deemed it necessary to pass on the validity of the Fire Department’s no-beard rule.

William R. Quinlan:

The Court here granted certiorari on March 14, 1975.

As we view the issues, there are several considerations that we believe ought to be taken into consideration in resolving this question.

Initially, in a governmental type of employment situation, the argument is raised, whether it is a property interest or some liberty interest violated before Due Process applies.

We believe that under the decisions of this Court in dealing with Governmental employees, that any property interest in the job is determined by a state statute or by contract.

Here we have a state statute which provides for a non-probationary employee to receive certain rights.

One of these rights is a hearing, if he is suspended from more than 5 days subsequent to the suspension with a period from one to five days, no hearing is provided.

For any procedure for a suspension beyond five days, then there is a full blown hearing required before the sanction can be imposed.

He is entitled to counsel, notice of written charges and subpoena powers available both to the Civil Service Commission and to the individual.

So in this context it is our argument that the property right of the individual is determined by the statute.

Once the property right is determined by the statute, the question then becomes what is necessary to accomplish due process of law in that context as we view the case.

Under our interpretation of the cases of this Court, particularly Arnett versus Kennedy, it is not required that the individual have a pretrial or pre-suspension hearing.

Arnett as the Court will recall, was a termination case.

This is a suspension case and under these circumstances we believe that the right to a hearing subsequent to the imposition of a suspension of more than five days is adequate Due Process under these circumstances.

On the five-day position, with one to five days, it would be our contention that the legislature has recognized this as not involving a property right at all.

That this would be reviewable only on the basis of an appeal to the Circuit Court by writ of mandamus or perhaps by filing a 1983 Action in United States District Court to review whether the action taken was arbitrary or capricious.

Byron R. White:

Was it ever indicated below, what the hearing was supposed to be directed at or what was the need for the hearing?

William R. Quinlan:

The post trial hearing or the post —

Byron R. White:

For the pre-suspension hearing that was claimed.

What would be the —

William R. Quinlan:

The contention was that as a matter of constitutional Due Process on the basis of Goss versus Lopez —

Byron R. White:

I understand that, but what would the hearing direct itself to?

William R. Quinlan:

The Court did not answer that question.

Byron R. White:

I did not ask about the Court, about the party, how about the — the one who is claiming the hearing?

William R. Quinlan:

He indicated that he was entitled to some right to notice and opportunity to be heard.

The subject matter to be.

About what?

William R. Quinlan:

About whether — one of his contents is about whether or not the 29-day suspension was a severe suspension under the circumstances also —

Byron R. White:

Let us just say — well, I will put it in another way, was there any factual dispute in the case?

William R. Quinlan:

As to his wearing of the goatee?

No there was not.

Byron R. White:

Or any other factual dispute for that matter?

William R. Quinlan:

There was a factual dispute in relation to whether or not one could get a close fit or a tight fit, even if he had facial hair.

It was admitted by the expert that testified on behalf of the City of Chicago as well as by the Drill Instructor that it was theoretically possible that such an individual could obtain a good or secure fit.

This could not be determined, however, without the individual trying on the masks.

Byron R. White:

(Voice Overlap) question though unless you say that there is some limits on the right of the Fire Department to prevent beards?

William R. Quinlan:

Yes, I think it is two-fold answer to that, Mr. Justice White.

First of all, it was upheld at the District Court level as being a general rule of regulation and as a general rule it could be applied uniformly even though in specific instances, it might not in fact cause any danger or safety problem.

It was generic and uniform rule.

So I think that on that ground that that would be the basis of doing it.

Second of all, I think you are absolutely correct.

There are a number of cases that now suggest that whether or not the right to wear hair or hair style or facial beards is of constitutional dimension in dealing with Police and Fire Departments.

There is obviously a legitimate interest in the State for limiting facial hair.

So in the first point it was general rule that the Court found that was based upon a rational related basis, namely safety and the expert did testify that in his judgment, facial hair would cause difficulties in getting a secure fit on the mask.

However, he indicated that because of the structure of individual faces, because of the differences in the dental structure, chins etcetera, that in a particular instance it might not in fact cause the problem.

But as a general rule it was his opinion that facial hair would prevent or could prevent a close or tight fit on the gas masks.

William H. Rehnquist:

The respondent contends here, does he not, that even though the facts surrounding the gas masks incident maybe undisputed.

He should at least have had a hearing in order to argue whether a penalty should be imposed, in effect argue a mitigation?

William R. Quinlan:

Yes, he does.

He argues for a pre-suspension hearing.

There is a post-suspension hearing procedure provided for by a statute that he did not avail himself of.

So that that could have been reviewed at that time.

It would have been within the propriety of the Civil Service Commission to either remove it completely or lower it, if it did not believe that was the appropriate suspension

Byron R. White:

Is there any opportunity at all before the suspension takes effect for him to write a letter or to say anything at all to anybody?

William R. Quinlan:

There is no formalized procedure Mr. Justice White.

As a matter of fact, he did have these opportunities on other occasions.

He once went before Departmental Review Board to argue the position.

It was rejected by the Departmental Review Board.

From time to time these types of matters have been matters which are discussed within the Department and it possible to secure a meeting with the member who would be in the position to warrant or to issue that particular penalty.

This divorced the record.

There was nothing in the record that support that, but as a practical matter these sources have been available, but it is not a matter of procedure nor a matter of right.

Lewis F. Powell, Jr.:

Mr. Quinlan.

William R. Quinlan:

Yes sir.

Lewis F. Powell, Jr.:

Exactly what issue do you consider to be before us on this appeal?

William R. Quinlan:

Well, Your Honor we consider both issues to be before you.

Lewis F. Powell, Jr.:

The due process issue and the substantive validity of the beard regulation?

William R. Quinlan:

Yes, Your Honor and I believe that this Court of course has the power to review the facial grooming code of the Fire Department even though the Court of Appeals did not pass on it.

Lewis F. Powell, Jr.:

If we agreed with the Court of Appeals, the case was remanded for a due process hearing then that would be the only issue we need to address here, I take it, if the Court agree with the Court of Appeals?

William R. Quinlan:

If the Court agree that the Court of Appeals’ requirement was correct, there was a due process hearing necessary?

Lewis F. Powell, Jr.:

If we agree with the Court of Appeals, do you think we should go ahead and address the substantive due process issue that was not decided by the Court of Appeals?

William R. Quinlan:

Yes, Your Honor.

I think this Court should because that issue then would remain open because even if he were to receive a hearing or this Court will require a pre-suspension hearing, the entire issue then comes back to the one that was ruled upon on the District Court as to whether or not this particular rule was constitutional.

If it were unconstitutional, of course, then whether or not he had a hearing would somewhat irrelevant.

Lewis F. Powell, Jr.:

The respondent did not exhaust administrative remedies.

Are you making that point?

William R. Quinlan:

We did make that point that Your Honor, yes, that he had the choice to secure administrative remedies under the state procedures and he did not do so.

Lewis F. Powell, Jr.:

Do you urge that in this Court?

William R. Quinlan:

Yes sir, we do.

Lewis F. Powell, Jr.:

So, you are presenting three issues?

William R. Quinlan:

Yes sir.

Harry A. Blackmun:

(Inaudible) that the grooming Code is constitutional, what would be the occasion for a hearing on remand?

William R. Quinlan:

The occasion for hearing on remand?

The basis, if this Court were to assume that the Court of Appeals appropriately interpreted Goss versus Lopez and Arnett versus Kennedy, then of course the District — the Court of Appeals would say that you cannot impose penalty of even one day for a suspension without a —

Harry A. Blackmun:

Even if the grooming code —

William R. Quinlan:

Even if the grooming code was constitutional.

Potter Stewart:

But one question would be whether, even assuming it is valid regulation, this hair mustache and goatee regulation, whether or not a 29-day suspension was too harsh a penalty?

That would be one of the questions to be inquired into at any hearing, would it not?

William R. Quinlan:

Yes sir.

Potter Stewart:

Can it involve his good faith belief that it was an invalid regulation or maybe simply might involve a good many of them —

William R. Quinlan:

But we suggest that avenue was open to him by seeking a review before the Civil Service Commission which he did not avail of.

Potter Stewart:

I see.

Potter Stewart:

That is the separate question that is just — by my Brother Powell as to exhaustion of administrative remedies?

William R. Quinlan:

Yes sir.

That is correct.

That would be an issue and that would be one of the things, of course, if he had employed the procedure on a Civil Service Commission.

Civil Service Commission would have to determine whether or not the suspension, the propriety of the suspension —

William H. Rehnquist:

Well, do you understand the respondents to have ever made the contention that a 29-day suspension for a violation of this regulation, assuming that procedural due process was complied with and assuming that the regulation is valid, is some sort of a cruel and unusual punishment or so arbitrary that the punishment itself would violate the United States Constitution?

William R. Quinlan:

No, I do not understand him to make argument.

As I understand him, their argument, Justice Rehnquist, it is that he was entitled to offer evidence in mitigation to determine what might be an appropriate penalty and that perhaps he might have an argument that in his case he could wear the mask or that he was advised by counsel that it was unconstitutional and accordingly these might be grounds upon which the Department would determine that such a suspension was unduly severe.

Lewis F. Powell, Jr.:

In addition to having a beard that appeared to violate the regulation, the respondent declined to obey an express order, did he not?

William R. Quinlan:

That is correct, to shave off the beard.

Lewis F. Powell, Jr.:

Well, I thought the order was to put the gas mask on and he refused to do that?

William R. Quinlan:

No.

There was no evidence that he was ordered to put on the mask.

As I indicated earlier to one of the Justices, there would be some question as to whether or not a firefighter could direct a Lieutenant to do so.

Normally, they will —

Lewis F. Powell, Jr.:

It was a mask drill, was it not?

William R. Quinlan:

It was a masks drill, yes sir.

Lewis F. Powell, Jr.:

And he did not put the mask on?

William R. Quinlan:

No sir, he did not at that time.

He indicated that he subsequently put it on.

Potter Stewart:

There is no claim that he disobeyed an order to put it on at that time?

William R. Quinlan:

No sir, that is not the —

Potter Stewart:

Does the teacher, the instructor was a firefighter as you said this petitioner is or this respondent was a lieutenant and there would be some question about the power of a firefighter to give an order to a lieutenant, even in the environment of a school?

William R. Quinlan:

He probably would have to have the support of the Drill Master under such circumstances.

Normally, they participate in the drill and it takes place and it just goes forward.

In this instance the Lieutenant chose not to do so.

Byron R. White:

They charged that — and he was served with the charges, I take it before his suspension?

William R. Quinlan:

No sir.

He was notified of the suspension.

He was notified first by Chief Morgan that unless he shaved his beard, he could not continue to serve in the Fire Service and a couple of days later he was notified that charges had been tendered to Chief Fire Marshal Foley who was the only one authorized to impose any sanction whatsoever.

William R. Quinlan:

Chief Morgan could not impose any sanction under the rules of the Fire Department.

Byron R. White:

What were the charges that were made against?

William R. Quinlan:

That is not clear.

The charges basically as I understand them, again as it holds the record was on the basis of failure and shave off the goatee on — after receiving a direct order to do so.

Byron R. White:

So that the — what did letter from a Chief of Personnel say?

William R. Quinlan:

The letter from the Chief of Personnel enumerated the three regulations for which he was in violation of, one of which, there was the dress code which specifically provides for a limited wearing of side burns, a mustache that cannot go beyond the lips and the no-wearing face hair on the chin or beard.

Byron R. White:

Did it say that he was in violation of those regulations, did it mention conduct unbecoming an officer?

William R. Quinlan:

Yes sir.

Byron R. White:

And disobedience of orders?

William R. Quinlan:

Yes sir.

Byron R. White:

Well now, how about those later two matters.

That did it indicate — did the letter indicate what those charges consisted of?

William R. Quinlan:

Well, the direct, the lawful one, no, it did not specifically specify.

There were no specifications, they were generic charges.

They would evolve obviously from the situation where he refused the order of Chief Morgan to shave off the goatee and then this would conduct — constitute conduct unbecoming an officer.

Under the State law of Illinois any of the charges, if sufficient, would be grounds for the suspension.

Byron R. White:

Well, do you think that due process question is any different if you are suspended for disobedience to an order than when you are suspended for disobeying the hair code or if you are charged with conduct unbecoming an officer?

William R. Quinlan:

Well, it might be if you are getting into a situation when you are talking about an emergency type of situation because of the context in which it takes place that it might be immediately necessary to summarily remove somebody from that position as a firefighter such as a refuse an order to enter a building or refuse —

Byron R. White:

Based on your record that you have suspended or the conduct unbecoming an officer without being any indication what the conduct was?

That is a little bit different than saying you wore a mustache, it was too harsh?

William R. Quinlan:

Yes it is.

He would have an opportunity if he chose to seek review of that, to have that set forth on the basis of the various charges.

Warren E. Burger:

(Inaudible) in the civil service.

William R. Quinlan:

Yes.

Warren E. Burger:

Now, suppose he had taken that route, asked for a review and they sustained his position, would he have received the backpay for whatever the period had elapsed?

William R. Quinlan:

Yes sir, Mr. Chief Justice he would have and also the disciplinary sanction would have been expunged from his record, so that he would have been right back where he started with as having never been disciplined.

The only problem I have to candidly point out to the —

Warren E. Burger:

(Inaudible) that is asking for the — or is there anything that he is asking for that he could not have got conceivably by the administrative review?

William R. Quinlan:

In my judgment, quite honestly not.

However, he is saying that he has a right before any sanction is imposed to a hearing because the fact of loss wages and because of the interference with his alleged property right.

William J. Brennan, Jr.:

What about the — of the grooming code, could he have had that determined on administrative review?

William R. Quinlan:

He could have raised that issue at that time and the propriety of that would have been reviewed.

I probably would —

William J. Brennan, Jr.:

Maybe Civil Service Commission decide the constitutional question?

William R. Quinlan:

Well, I am just going to say they probably would not have decided on a constitutional basis, but have — would have reviewed it as whether or not it was a reasonable regulation of the Department.

William J. Brennan, Jr.:

(Inaudible) his constitutional challenge?

William R. Quinlan:

No, but he could raise the constitutional challenge on appeals to the Circuit Court.

Potter Stewart:

I am just going to ask if there was, there would have been judicial review of the Civil Service?

William R. Quinlan:

Yes, that is the correct, so that after whatever determination the Civil Service Commission made, he would be entitled to employ judicial review to the Circuit Court.

Mr. Quinlan has the regulations since been changed?

William R. Quinlan:

Yes, Your Honor it has.

And does that affect the posture of this case in anyway?

William R. Quinlan:

It is our judgment, it does affect the posture of this case because that this was a voluntary change on the part of the — now personnel board which has supplanted the Civil Service Commission and the Fire Department.

The basis of it was that case was in conflict with the Koppel case which upheld basically the review after more than five-day suspension plus then we had the case here, Quinn versus Muscare that held that you had to have hearing for even one-day.

Accordingly to avoid any problem with issues of backpay or things to that nature, the department personnel chose to adopt a regulation, authorizing review for suspensions even of a day or more.

It breaks down into three different categories.

If you prevail here, would you go back to the old regulation?

William R. Quinlan:

I doubt that very much.

The procedure has not a long inventory of experience, but this is like any personnel procedure that is adopted.

It seems that once you take a step forward, if it seems to work appropriately and is more satisfactory to the personnel, it would continue to persist.

What if the — with the change in regulations, I just wonder how important this case has become since it was taken?

William R. Quinlan:

Well, I think it is important on two-fold basis.

One of which is the aspect whether or not the burden would be on the employees to seek review.

Under our current rules and regulations for anything under five-days, he must file a written notice within 24 hours with the Department asking for a hearing.

He has a hearing then before a Departmental Officer.

If he concurs in the original judgment that is certified to the personnel board that then imposes it, but if he writes the letter, the sanction is not imposed for 24 hours.

If it is more than five days, he then has 24 hours to ask for review by the Civil Service Commission.

Then it is up to the Civil Service Commission to sustain the finding of the Department or the individual Department.

If it is obviously for more than 30 days between five and 30, it is the personal board that would determine whether the Department’s action is appropriate, he has to request it.

On the other hand if it is more than 30 days then changes must be brought against him officially with the personnel board and that is a full trial type of proceeding.

William H. Rehnquist:

Mr. Quinlan.

William R. Quinlan:

Yes sir.

William H. Rehnquist:

Looking at page nine of the appendix, it appears that respondent did request backpay as a part of his claim for relief in the District Court because he was not given a pre-suspension hearing.

I suppose that element of his claim would survive regardless of the amendment of the regulations?

William R. Quinlan:

I am not sure I understand your question, Mr. Justice Rehnquist.

William H. Rehnquist:

Presumably, if all he sought was an injunction against the enforcement of these regulations and you changed the regulations, the injunctive issue may well be moot, but if he seeks backpay as a result of the application of the injunction that claim survive I would think, even though you changed the regulation, so that injunctive relief would be no longer appropriate?

William R. Quinlan:

If you were to hold that the Due Process requirements require a pre-trial suspension then I think you are correct.

We would then be in a situation where we had suspended him inappropriately and he would be entitled to backpay for that period time, I think you are correct sir.

I would like to save whatever little time I have for rebuttal.

Warren E. Burger:

Ms. Hirshman.

Linda R. Hirshman:

Mr. Chief Justice and may it please the Court.

My name is Linda Hirshman and I represent respondent Lieutenant Francis Muscare in this action.

In light of your questions of Mr. Quinlan, I think would like to begin with the issue of what a hearing might have consisted of, had respondent been allowed or provided with even the most rudimentary hearing prior to his 29-day suspension.

The record in this case demonstrates that respondent was suspended from his employment for 29 days, based on three violations or alleged violations of three Chicago Fire Department rules and regulations, the rule prescribing proper personal appearance, the rule forbidding disobedience of orders and the rule forbidding conduct unbecoming a member or employee of the Chicago Fire Department.

At no time until the hearing in Federal Court on his constitutional claims, did respondent find out from petitioner what underlying facts were involved in their charges against him?

However, based on these charges alone, obviously there are several levels at which respondent could have utilized a prior hearing.

First of all, on the question of proper personal appearance; on the bare facts at issue here, what you have is the administration taking a look at respondent and making their determination without ever finding out from him for example whether his self-contained breathing apparatus fits which he testified without rebuttal at trial, it did with no problem at drill in fighting fires.

William H. Rehnquist:

But Ms. Hirshman there is no proviso in the regulation is that you are exempt from it if your self-contained breathing apparatus fits?

Linda R. Hirshman:

MNow, that really speaks to the fact that of the City — the petitioner adhered so tenaciously to the fact that the only justification for the regulation was the safe use of the self-contained breathing apparatus and indeed we would go to mitigation, if not to the substantive violation.

The Fire Commissioner has a range of penalties which he can impose for violation of the range of rules involved in the Fire Department Rules and Regulations of which respondent was accused of violating three.

He could have chosen a reprimand.

He could have chosen as acting Chief Fire Marshal Foley did initially in December to do nothing to respondent.

Furthermore, respondent had numerous things to say on the subject of disobedience of orders.

Disobedience of orders is a classic factual issue, involving questions of the authority to give the order which we saw — discussed here just a moment ago.

(Inaudible)

Linda R. Hirshman:

Pardon me?

Warren E. Burger:

Are you speaking of the classroom episode?

Linda R. Hirshman:

Either classroom episode or — we do not know Mr. Chief Justice because all we got was a letter that said disobedience of orders.

We never found out any factual basis, what orders were disobeyed, who gave them?

Whether the respondent properly heard them, whether the person was authorized to give respondent an order and so forth.

Linda R. Hirshman:

All things of which you should have properly been notified and given an opportunity to respond to before he was suspended for 29 days.

Warren E. Burger:

You are free to ask for what would be the equivalent of Bill of particulars?

Linda R. Hirshman:

No, Mr. Chief Justice because essentially what he had was, a Chief in December said to him, he did not say to him you cannot continue working for the Fire Department if you continue to wear your goatee, that is not what he said.

If you look at the complaint which is there or — I am sorry, respondent’s affidavit which is the only place where there is any evidence about the encounter between Chief Morgan and respondent Muscare.

You will see that it is not what Chief Morgan said.

He said something like, shave the beard and your working under charges.

Where was the affidavit (Inaudible)?

I thought you are going to refer to something in this?

Linda R. Hirshman:

In the appendix, at page 19, paragraph of the affidavit three, petitioner never brought Chief Morgan to testify at the hearing on preliminary injunction and so respondent’s affidavit stands on rebuttal on the subject of the conversation at any rate.

Working under charges is in a sense part of ongoing employment situation and very different from, you cannot go on working for?

Byron R. White:

(Voice Overlap) as to what kind of hearing you had to have before suspension?

Forget what kind of a hearing you might be entitled to ultimately — whether it better not to say it has given you a specific notice for the charges and said if you have anything to say about this, write us a letter and you have three days to do it?

Linda R. Hirshman:

Well, that is certainly would have been a great improvement to over what they did do.

Byron R. White:

I did not ask — what I ask you is that with —

Linda R. Hirshman:

Mr. Justice White, the Court of Appeals for the Seventh Circuit said —

Byron R. White:

What about — I want your contention is — I want to know what your contention is, what kind of a hearing were you — do you claim you were entitled to?

Linda R. Hirshman:

Well, we have been living with the change procedures in the City of Chicago now for eight months.

They involve a notice of the charges against you and 24 hours to go a hearing before, depending on the length of the suspension, on the internal officer or the personnel board.

That seems to be working satisfactorily and meets the —

Byron R. White:

That may be so, but what is your contention as to what to constitution entitles you to with respect to a pre-suspension hearing?

Linda R. Hirshman:

This is a pre-suspension hearing procedure that has been initiated.

My position would — was through —

Harry A. Blackmun:

Open type hearing, at least?

Linda R. Hirshman:

No, Your Honor we are not asking for a open type hearing.

Harry A. Blackmun:

That is what my Brother White is trying to find out?

Linda R. Hirshman:

We are not.

We are asking for effective notice — well, as this Court pointed out, particularly in a concurring opinion in Arnett versus Kennedy, procedures involving notice of the charges, notice of the material underlying the charges, the opportunity to respond orally or in writing I think depending on the kind of charge that is alleged and an opportunity for a decision.

(Inaudible)

Linda R. Hirshman:

Well, the Seventh Circuit was not specific and we have a graduated procedure, either a hearing Officer or the Personnel board which is presently excellent.

We are not asking for this Court to affirm a neutral hearing examiner.

Linda R. Hirshman:

That is not what is at issue here.

What we have here is that the City did nothing before they suspended Lieutenant Muscare so that we would have —

Byron R. White:

Why do you not just sum up one, two three, what your claim is under the constitution.

What kind of hearing do you think you are entitled to under the constitution?

One, Two, Three, would written notice —

Linda R. Hirshman:

Written notice, and including the underlying facts.

Byron R. White:

And then an opportunity to respond in writing is enough?

Linda R. Hirshman:

I think it depends on what the notice consists of Mr. Justice White because some kinds of things are susceptible to written presentations.

Other kinds of things for example, whether or not Lieutenant Muscare got a good fit —

Byron R. White:

Why do we not talk about this case?

Linda R. Hirshman:

Alright, I think that this case ought to have involved an ability to appear in person.

Byron R. White:

So, you here to say that constitution entitles you to an oral hearing before the suspension in this case?

Linda R. Hirshman:

I am asking you to affirm a Circuit Court opinion that says that this was not enough and we will work out what is enough as we get it on a case basis, but I would say that in this case where you have a question, a disputed question of fact in, for example in mitigation issue in terms of whether or not the man’s safety masks fit.

He ought to have been given a moment in front of someone with the authority to make a decision about the severity of his suspension to show them it is a very simple test that he gets a vacuum seal on his face mask.

The question of disobedience of orders is a very large one and the question of conduct unbecoming a member or employee of the Fire Department is a very large one and I think that depending on what the specifics of the charges were would depend on how much of a hearing he would be asking for.

Byron R. White:

You would not say he was entitled to call any witnesses?

Linda R. Hirshman:

I think it varies as you have said of a Due Process (Voice Overlap) situation.

Byron R. White:

So you are saying — we are talking about this case.

Now, do you think you are entitled to, would have been entitled to call witnesses?

Linda R. Hirshman:

Before he suspended —

Byron R. White:

Not general, but this case?

Linda R. Hirshman:

Well, disobedience of orders might have involved incidence in which calling of witnesses would be very pertinent.

I think that what we have here is a situation where the notice was so inadequate that we cannot really speak to what the hearing would have to consist of until we had a decent notice of what the charges were.

So I think yes.

Warren E. Burger:

Do you emphasize to us paragraph three that is his affidavit, is it not?

Linda R. Hirshman:

Yes

Warren E. Burger:

Precise that the chief instructed him to shave his beard off and that he declined to do so.

Now, what could a notice tell you about that his affidavit did not show?

Linda R. Hirshman:

Well, as it turns out that was not what Acting Chief Fire Marshal Foley had in mind when he decided to suspend Lieutenant Muscare for 29 days.

I think Chief Fire Marshal Foley had in mind two earlier incidences that Chief Foley had not been present at, but that he just heard about, when he determined that 29-day was that proper suspension length for Lieutenant Muscare.

Warren E. Burger:

Where do we find that out?

Linda R. Hirshman:

There is a testimony to that effect at page 134.

Answer: This particular person involved to have been involved in this argument about hair and about the beard prior to this affair had complied by shaving it off.

Now, was the second time around.

Now, Lieutenant Muscare did not have notice that Acting Chief Fire Marshal Foley had in his mind his concept of what had gone before in Lieutenant Muscare’s career, never had a chance to answer him anything about it when he found three Fire Marshals entering his Duty Station and telling him to turn in his badge that he was being suspended for 29-day period, involving a loss a $1,400.00 in pay for him and essentially what we are saying here is that, and by the way just as in a side, we have made that contention that Due Process was violated in the suspension procedures from the very outset of this litigation and that is contained in the complaint and we have consistently litigated the issue and there is a substantial testimony in the —

Byron R. White:

Are the administrative hearings still open to you?

Linda R. Hirshman:

Yes, there is no time when on administrative hearing.

Byron R. White:

And if you succeeded in whatever it was you wanted to present that hearing you would get backpay to the initiation of the suspension?

Linda R. Hirshman:

Yes, the problem with the hearing in addition to the fact that it is not guaranteed at any time relative to the suspension that is at stake.

There is no guarantee of promptness in the statute whatsoever.

Statute is silent about the timing of the later hearing, but in addition to that at the later hearing under the existing law, Lieutenant Muscare has to bear the burden of proving that the suspension was wrongful, based on a letter which had nothing, but three rule numbers on it and with that kind of notice, without ever hearing it, as it turned out, we have found out in the trial in Federal Court, what Chief Foley or part of what Chief Foley had in his mind, but without ever hearing that and nothing, but that letter under the Illinois Law his later hearing, he has to go to the later hearing and disprove for example conduct unbecoming a member employee of the Chicago Fire Department without ever knowing what underlay those charges.

And so the later hearing is obviously insufficient under any circumstances and it is my understanding that there is no issue of exhaustion of administrative remedies here.

First of all, because we are suing under 1983 and secondly because as this Court recently pointed out in Matthews versus Aldrich where you have a claim that your right to a prior hearing has been violated, then you do not have to exhaust in order to bring your constitutional claim.

So I think that the paucity of — the real lack of value of the later hearing is illustrated by all of these things.

William H. Rehnquist:

But does not the avail — the remedies available on the later hearings at least serve to factually distinguish this case from Goss which the Seventh Circuit relied on.

Here, your man can get backpay and he can get expungement whereas I take it in Goss there was no way that a later hearing could have restored the school children to the days they missed in school?

Linda R. Hirshman:

Well, the loss of the pay for 30 days for an adult — he was working and earning, relying on the salaries is a serious deprivation and I do not think that back — I do not think that you can so readily distinguish the issue on the grounds that you could always get backpay because as this Court has noted that backpay does not necessarily make up for the taking away of the property without prior procedures.

In Schneider (ph), the woman might have gotten her wages back in —

Harry A. Blackmun:

In Arnett against Kennedy?

Linda R. Hirshman:

Well, my understanding of Arnett versus Kennedy is that three of the Justices who ruled on Arnett versus Kennedy held that the Federal employee should have been given an evidentiary hearing prior to his discharge and that two of the Justices held that the very protective procedures in Arnett versus Kennedy were sufficient to satisfy — to constitute an accommodation of competing interests and that three of you, directed yourselves to the property issue and —

Harry A. Blackmun:

Your argument that has to do with the deprival of pay until after the hearing and I am asking whether the factual situation in Arnett against Kennedy was not precisely the same in this respect as in this case?

Linda R. Hirshman:

No, Mr. Justice Blackmun because in Arnett versus Kennedy, the federal employee had three days advanced notice of the pending adverse action against him.

He had an opportunity to submit affidavits and to appear orally.

He had a copy of the charges and the material underlying the charges.

He had a really substantially protective procedure before the deprivation was imposed and my understanding of this Court’s recent writing in Boehning, that is the proper pronunciation versus Indiana State Employees Association is that the question of — that Arnett did not determine that a public employee could be suspended or discharged without any prior procedure.

Indeed this Case stands in the most — the greatest contrast to Arnett versus Kennedy because for every protective procedure in Arnett, there is a complete void of protective procedures here.

In place of 30-days advanced notice, Fire Marshals walked into Lieutenant Muscare’s Fire station and told him to turn in his badge.

In place of a copy of the material that the discharge was based on, Lieutenant Muscare did not find out even what Chief Foley had in his mind until we went to Federal Court on a constitutional challenge to the actions against him.

So that if Arnett represent what is acceptable, it seems to me that what was done in this case represents what is not acceptable, it is so devoid.

Byron R. White:

I take it then you think there are factual issues and some real substantive content that a hearing might have.

Byron R. White:

Why should anyone face up to a constitutional issue until you have gone to taken advantage of your administrative remedy and if you succeed, you will be reinstated with backpay, which is all we could do for your client now?

Linda R. Hirshman:

Well, Mr. Justice White when we sued initially in District Court, it was only a few days after Lieutenant Muscare was suspended.

Byron R. White:

You could have then gone ahead and taken your (Voice Overlap).

Linda R. Hirshman:

Right, but there is — unlike the preliminary — we went and asked for temporary restraining order and then for preliminary injunction and unlike that immediate relief what we were looking for is an injunction against the continued imposition of the suspension against Lieutenant Muscare.

Byron R. White:

You wanted more than that?

Linda R. Hirshman:

Well, if they had immediately put him back then the damage issue would be —

Byron R. White:

And what you were not immediately put back?

Linda R. Hirshman:

No.

Byron R. White:

So why did you not pursue your administrative remedies?

Linda R. Hirshman:

Well, first of all, we did not have an adequate notice.

All we have is what happened to come —

Byron R. White:

(Inaudible) would have gotten an adequate notice in the hearing?

Linda R. Hirshman:

Well, we would have to go to a hearing at which we bore the burden of truth for that ever having had adequate prior notice.

Byron R. White:

Nevertheless you might have won?

Linda R. Hirshman:

I suppose, but we still have that option available to us and then we can —

Byron R. White:

Well, why should we decide the constitutionality of that procedure until you have been actually deprived?

Linda R. Hirshman:

The deprivation has taken place.

The deprivation is the deprivation that took place at the moment of the suspension was (Voice Overlap).

Byron R. White:

There is no way we can — the only judicial remedy that can be is to give you — is to reinstatement with backpay, I suppose?

Linda R. Hirshman:

And to expunge the evidence of this suspension from his file.

Byron R. White:

(Voice Overlap) if you do not want a new (Voice Overlap) hearing?

Linda R. Hirshman:

But the — we would have had to go a hearing and dispute the substance after improper procedures had been used and the improper procedures are such that they make it impossible for us to effectively to dispute the substance.

William H. Rehnquist:

But there is and an element about mitigation here, it seems to me along the lines of Justice White’s question.

Even if you are right about the constitutional claim about pre-suspension hearing, what you are asking for now is in effect on award of two years backpay?

Linda R. Hirshman:

Oh! No, he was only suspended for 29 days.

It is 29 days backpay.

William H. Rehnquist:

Well, did he go back to work?

Linda R. Hirshman:

Yes.

William H. Rehnquist:

Well okay, you are asking for 29 days, $1,400.00 backpay whereas for all we know if you had gone for the post-suspension hearing, you might have won and 15 days after the suspension —

Linda R. Hirshman:

No

William H. Rehnquist:

— you might have been reinstated.

How do you know that that is not so?

Linda R. Hirshman:

There is no, there is nothing in the statute to indicate that you could get a hearing let alone a decision within 15 days.

William H. Rehnquist:

Well, but okay, so the statute does not affirmatively grant you the right.

What about the procedures of the Civil Service Commission?

Is there anything in the record that would indicate their calendar was such you could have not been heard?

Linda R. Hirshman:

No.

There is nothing in the record at all, Your Honor.

We had a several valid and serious constitutional claims against the suspension which was being levied against respondent.

We were asking for immediate relief in the form of a temporary restraining order.

It was our judgment at that time and it is absolutely devoid the record and so I really cannot speak to the tardiness of the Civil Service Commission.

You can see that in the statute that there is no guarantee of immediacy.

We went for temporary restraining order which is the fastest kind of relief to get the man reinstated on the grounds that his constitutional rights have been violated.

Repeatedly this Court has ruled that 1983 does not require exhaustion of administrative remedies, particularly not where the administrative remedies are so inadequate as they are here and indeed —

Thurgood Marshall:

(Inaudible) my Brother Rehnquist is trying to say the preliminary, the temporary restraining order, the preliminary injunction, all along are gone as of right now, is that not true?

Linda R. Hirshman:

Yes, that is certainly is true.

Thurgood Marshall:

So, all you have now is what you could get from the commission.

I think that is his point.

That is what he is trying to —

Linda R. Hirshman:

Well, they are — we are talking about a couple of things..

First of all —

Thurgood Marshall:

What else is he asking other than backpay?

Linda R. Hirshman:

We are asking for expungement of the man’s record and we are also asking for a declaratory judgment that the procedures which were used to suspend him are unconstitutional.

Procedures which in their reply brief —

Thurgood Marshall:

Is that for the future that he might get in trouble again?

Linda R. Hirshman:

Well, I would certainly never represent that my client might get in trouble again but Your Honor the continued maintenance of the summary suspension procedures are inherently capable of repetition by the basis of a review because they apply only to short suspensions and by the time you get an appeal, particularly to the Supreme Court, the suspension time is over.

Any suspension of more than 30 days calls into play the protective procedures of the Illinois statute so that —

Lewis F. Powell, Jr.:

Ms. Hirshman, may I interrupt just a minute, please ma’am.

You mentioned the fact that in effect the Illinois statute allows suspension for up to 30 days without a hearing.

Let us assume the statute required a hearing if the suspension exceeded five days, would that be valid in your opinion?

Linda R. Hirshman:

Well, a prior hearing?

Lewis F. Powell, Jr.:

Yes.

No hearing at all, but if the suspension were only for five days?

Linda R. Hirshman:

Well, I think that you run into a de minimis situation there.

Lewis F. Powell, Jr.:

I think five days would probably be alright?

Linda R. Hirshman:

There are suspensions or temporary deprivation, so short and so brief in their nature in effect that you might have a de minimis situation in which case the Due Process protections would not attach.

Now, this was a wage, an earning, a fairly decent living so that you might think that even a week’s pay deprivation would be serious enough to call the Due Process cause into play.

But I think that you could argue that five days was de minimis.

Although in Goss versus Lopez, this Court held that ten days was not de minimis.

So, but I would think that you would have draw the line at some very short period.

Yes.

By selecting 29 days for Lieutenant Muscare’s suspension, the Fire Department suspended him for the longest possible time without according him the statutory protections available under Illinois law for suspensions of over 30 days, they are substantial protective prior procedures but —

Well, there has to be a dividing line somewhere?

Linda R. Hirshman:

And I am — I do not mean to say that they were not under the statute entitled to do as they did.

However, they have contented that they are undertaking with regard to Lieutenant Muscare was somehow and done in great good faith and the greatest of tolerance and I think that selection of 29 days which has no calendar or any kind of inherent integrity to suspend him on when any suspension of over 30 days would have called very different procedures into play is an indication of their desire to be as summary as possible with him.

At that time, the really peculiar thing about it is that Chief Morgan had, according to the record told Acting Chief Fire Marshal Foley about Lieutenant Muscare, something about him we do not know what, in December and Chief Foley had determined that he would not suspend Lieutenant Muscare in December.

Lieutenant Muscare worked through his job fighting fires and wearing his mask according to his un-rebutted testimony without incident.

Two-and-a-half months later, acting Chief Fire Marshal Foley changed his mind and said that — decided that he would suspend Lieutenant Muscare.

Warren E. Burger:

Is there a possibility that the Administration of the Fire Department is concerned that if they let Muscare have a small mustache the next thing they will have is a man who wants a little bit longer one and somebody else a little longer?

Is this not a matter on which administration of the — an organization like this has to have some regulations?

Linda R. Hirshman:

Well, Your Honor, it is — it is our position that this Court is not confronted with the Court of Appeals ruling on the issue of the personal appearance rule.

The personal appearance where the petitioner —

Warren E. Burger:

To do with his – with the matter of obeying orders when his order to dispense with the beard, does it not?

Linda R. Hirshman:

Yes.

The petitioner has argued that the personal appearance rule is constitutional.

They dropped these proceedings.

They have contended that it is justified by safety.

We think it is — the amicus curie have pointed out in their brief that the safety justification simply is not supported by the facts in the record..

But in any case that the procedures used in this case with this permanent public employee are so arbitrary that they represent a level that is below even in most rudimentary requirements of the Due Process clause and that they cannot be sustained and accordingly we would ask that this Court affirm the judgment of Court of Appeals for the Seventh Circuit.

Potter Stewart:

Ms. Hirshman, just before you sit down, I as stated add to your problems but I am having a problem.

Potter Stewart:

In colloquy with my Brother Marshal, you explained that the reason that you were here and the reason that you could get more relief here than you could have in the administrative proceedings was that that this is a situation that is capable of repetition and yet evading review.

And yet as I understand it and as I think you told Mr. Justice Blackmun earlier, the rules have now been changed and they have been changed in a way that would fully, as I understand it fully satisfy your constitutional claim and there is in no indication that they are ever going to be changed back?

Linda R. Hirshman:

Well, there is.

In petitioner’s reply brief, they specifically represent that the rules were changed only for purposes of complying with the Seventh Circuit’s decision in this case last May and that they could not say whether that they had it done it specifically for that purpose that they waiting for this Court to make a determination, that they could not say whether or not they were going to change them back.

So we have an indication from the very people that were responsible for the change that they are seriously considering changing them back.

In addition to the — they specifically say in their brief on page 12, reply brief on page 12, at least until the issues raised had been settled by this Court, this procedural change was adopted as interim measure.

So, we have that and of course we are making a constitutional claim and we are asking for backpay and for expungement of his file, and you know, 42 U.S.C. 1983 does provide that we are properly in the Federal Courts.

Potter Stewart:

I understand, but they are — not every case in which you had a change of the rules of the game and that wholly satisfies your constitutional claim as I understand it, you would — am I correct about that?

Linda R. Hirshman:

We have only started living with the new rules, so —

Potter Stewart:

Have the rules – have these rules been applied to your clients case you would be fully satisfied constitutionally, would you not?

Linda R. Hirshman:

On the whole, although we never — we — again you know since we do not know what was involved, since we had got such an inadequate notice, we do not know what we would have needed because we never found out exactly what it was that the Fire Department had in mind, but in any case —

Potter Stewart:

What in addition to these rules do you claim the constitution requires?

Linda R. Hirshman:

I think it varies from case — from one fact situation to another as I pointed out the — there might be a situation in which for example, a criminal conduct was alleged in which the person might want to bring an alibi witness or something like that.

So I think that it really it is — as this Court has so many times ruled that should be flexible.

I think these are a very good start.

Potter Stewart:

In this case there was not any criminal conduct alleged and there was no — you did not have any alibi claim?

Linda R. Hirshman:

No.

That is right.

I think that Lieutenant Muscare would have faired just fine over this regulation.

Potter Stewart:

I am asking, your client, he would have faired, he would have had everything (Voice Overlap), would he not?

Linda R. Hirshman:

In so far as I can judge from the notice that I got.

Potter Stewart:

Oh! You are a careful lawyer, you had every answer, I will say that.[Laughter]

Linda R. Hirshman:

How can I do that?

Byron R. White:

But you would still need to – you still want some backpay though?

Linda R. Hirshman:

Yes.

I am asking for 29 days backpay and for expungement of his record as this kind of thing is, you know, permanent Civil Servant’s record is very significant to it.

Thurgood Marshall:

You can get that from the commission?

Linda R. Hirshman:

Not necessarily.

Thurgood Marshall:

I said you can though.

Linda R. Hirshman:

They have the power to issue those remedies, but we would be going on a substantive issue with inadequate notice and bearing a burden of proof.

Thurgood Marshall:

Mr. Justice Stewart said, we agree that it is possible that they might perhaps under some circumstances unknown to you get relief?

Linda R. Hirshman:

Yes, Your Honor.

Thurgood Marshall:

Thank you.[Laughter]

Linda R. Hirshman:

Thank you Your Honor.

(Inaudible)

William R. Quinlan:

Just quickly, Your Honor, I just like to note the two things.

One, the reasons for the 29 days as observed on page 134 of the abstract where of this severity of the sanction was given because the fact has occurred before and he had not shaved the beard off at the interim.

Page 105, the abstract indicates that Chief Fire Marshall Foley never indicated that he would not take sanctions.

One of their observations I would like to make is that I think we do have to have some minimal guides in terms to standards in what Due Process requires, when we are talking about applying sanctions to some 40,000 employees and the city decides, the City of Chicago.

Finally, in its order on page 161 of the abstract, the Court of Appeals indicates that he was warned, that he could not continue as a firefighter.

I do not think that whether he was actually warned, he could not continue as a firefighter or not is of any real substantial dimension.

He was told that he was to shave off his beard and the charges had been filed.

Thank you, Your Honors.

Potter Stewart:

The second point I gather is that you agree with your — the counsel — your adversary counsel that this case is here for decision and should be decided?

William R. Quinlan:

Yes Your Honor.

What we are saying is (Voice Overlap).

Potter Stewart:

There is nothing moot about it?

William R. Quinlan:

No.

We adapted the rules as a matter of — if we continue the rules, it would be a matter employer or employee relation.

We are not saying that there of constitutional dimension.

We did have those two Court decisions which required us to do something in the interim.

Warren E. Burger:

Thank you counsel.

The case is submitted.