[4] Under regulations promulgated by the Civil Service Commission (CSC) and the OEO on how he could reply to the charges and appeal any subsequent dismissal, Kennedy appealed to the CSC and filed suit in federal court for the Northern District of Illinois claiming that the discharge procedures authorized by the Act had denied him and others due process of law since it did not allow for an adversarial hearing prior to termination, naming then-OEO director Philip Sanchez as defendant.

[4] Later the justices questioned him closely on the argument that Kennedy had a property interest in his job, per Board of Regents v. Roth[10] and Perry v. Sindermann,[11] two other recent precedents which had also involved public employees who alleged due process violations during dismissal procedures they claimed were motivated by speech critical of their superiors.

"The plurality would thus conclude that the statute governing federal employment determines not only the nature of appellee's property interest, but also the extent of the procedural protections to which he may lay claim", a conclusion he said was at odds with Roth and Perry.

"Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency.

He broke the case down to three questions: First, does the Due Process Clause require that there be a full trial-type hearing at some time when a Federal Government employee in the competitive service is terminated?

"The rationale of this position quickly leads to the conclusion that even though the statute requires cause for discharge, the requisites of due process could equally have been satisfied had the law dispensed with any hearing at all, whether pretermination or post-termination.

White distinguished some cases, such as Fahey and North American Cold Storage Co. v. City of Chicago,[25] due to the exigent circumstances that required the government not wait till a hearing to take constructive possession of property.

The previous year, he had dissented when the Court, in United States Civil Service Commission v. National Ass'n of Letter Carriers[28] held that the Hatch Act's ban on active participation in political campaigns by federal employees was constitutional.

"We are hardly writing on a clean slate in this area", he observed, citing not just Roth and Perry but other recent cases where the Court had held an adversary hearing was a necessary prerequisite of the adverse government action.

Marshall characterized Rehnquist's "bitter with the sweet" as a "wry" phrase, but took exception to the concept, noting that until Goldberg the same standard had been used to limit the due process rights of welfare recipients.

Accepting it, as he noted the majority of the justices had not, "would amount to nothing less than a return, albeit in somewhat different verbal garb, to the thoroughly discredited distinction between rights and privileges which once seemed to govern the applicability of procedural due process.

The Court, Marshall reminded his fellow justices, had understood as much in Sniadach v. Family Finance Corp.[33] where it had held an employee facing garnishment of his wages was entitled to a hearing beforehand for that reason.

As to the second reason, the possibility of an employee facing termination becoming disruptive, "he could be put on administrative leave or temporarily assigned to a less sensitive position pending his hearing, as currently provided for by regulation.

For every employee who risks his job by testing the limits of the statute, many more will choose the cautious path and not speak at all.After the case was remanded to the district court, it voided its reinstatement order.

[45][46][47] In a case where he and his colleagues had unanimously held for a dismissed psychiatric aide at a state hospital, Justice Kenneth J. O'Connell of the Oregon Supreme Court took exception to Powell's contention that requiring pretermination hearings could increase administrative costs and drag disciplinary processes out, given that the ACUS study referred to by Barnhill at oral argument showed that the opposite was true.

Circuit, Judge Roger Robb dissented in a case where the court had ordered the petitioner be granted a hearing on his dismissal from both his positions as an Air Force civilian employee and reserve officer, noting that Arnett did not apply to the military.

The fire department was not, as the majority admitted, a military unit so Parker could not be so readily applied, and he distinguished Arnett by noting that the Pendleton Act's language was supported by longstanding guidance from the CSC and other agencies.

"A property interest in employment can, of course, be created by ordinance, or by an implied contract", Justice John Paul Stevens, who had replaced Douglas, wrote for a 5-4 majority that affirmed the Arnett plurality.

"[62] Two years later, the Court heard Memphis Light, Power & Gas Division v. Craft, the appeal of a public utility's proposal to interrupt service to a customer over a disputed portion of their bills.

Craft and the other customers argued that they had a property interest in continued service and that was, as with the welfare payments in Goldberg, a basic enough necessity as to require the pretermination hearing the majority had found unnecessary in Arnett.

The petitioner, having alleged the respondent fired him due to his disability, had filed a timely complaint with a state administrative agency that was required to hold a fact-finding conference within 120 days.

[71] Loudermill could have sought state judicial review but instead filed a Section 1983 suit in federal court for the Northern District of Ohio, alleging that his rights had been violated when he was dismissed not only without a pretermination hearing but an opportunity to respond.

It was dismissed for failure to state a claim, with the court holding to the Arnett precedent that despite his clear property interest in the job he was not entitled to those processes absent statutory language allowing them.

Were the rule otherwise, the Clause would be reduced to a mere tautology.For this reason, White concluded, some form of hearing, not fully adversarial but at least notice and an opportunity to respond to any charges underlying termination, was required of public employers.

"[77] Marshall concurred in the judgement, but restated his belief that public employees were entitled to a full adversarial hearing if they wanted one prior to termination since they might be facing a potentially catastrophic loss of income, even temporarily.

"[I]n requiring only that the employee have an opportunity to respond before his wages are cut off, without affording him any meaningful chance to present a defense, the Court is willing to accept an impermissibly high risk of error with respect to a deprivation that is substantial", he wrote.

He also felt the record was insufficient for the majority to have so lightly dismissed the issue of the long delay both respondents faced in getting a hearing after termination and would have remanded the case to district court to better develop the evidence.

Rather than limiting the constitutional protections applicable to disciplined federal employees, Congress just as readily may be presumed to have been providing civil servants with procedural safeguards which they had not enjoyed previously.

"[81] "The lack of a uniform rationale among the opinions emphasiz[es] the likelihood that Kennedy perhaps would not be followed were even a slightly different state government employee removal statute to be challenged", the comment concluded.

"[84] In a 1982 paper, Emory professor Timothy Terrell said that the Arnett plurality at least acknowledges a reality of property that Logan and later decisions avoided discussing: the connection between substance and procedure.