On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil No. 84-5242.
Before: SEITZ, GIBBONS, and HUNTER, Circuit Judges
1. This case arises out of events surrounding the 1984 Philadelphia Police corruption trials. In those two trials, United States v. Martin and United States v. Volkmar, government witnesses identified appellants, who were then officers in the Philadelphia Police Department, as recipients of unlawful bribes. The two trials were monitored by investigators for the Philadelphia Police Ethics Accountability Division ("EAD"). When the witnesses identified the officers, the EAD investigators immediately reported the witnesses' testimony to the Police Commissioner and to the commanding officer of the EAD, Inspector Andreas Hantwerker.*fn1 Thereupon, the interview each officer.
2. The next day Inspector Hantwerker executed a "Notice of Suspension with Intent to Dismiss" for each officer. He then summoned the officers to appear at EAD headquarters. Each officer appeared with counsel, and each was called in individually to he Inspector's office. Hantwerker advised each officer that he had been identified in federal court testimony as the recipient of bribes and that he was the subject of a criminal investigation. Each was given his Miranda warnings and was asked if he wished to make a statement. On advice of counsel each chose to remain silent.*fn2 Thereupon, Hantwerker gave each his "Notice of Suspension with Intent to Dismiss" effective immediately, with suspension to be without pay and to last for 30 days or until dismissal.
3. Four days later the officers were served "Notices of Intention to dismiss" which specified the charges against each officer and which stated that if the recipient thought that dismissal was unjustified he had, under the regulations of the Civil Service Commission, ten days to submit to the Commissioner his reasons in support of his belief that dismissal was unjustified. None of the officers exercised his right to make a submission within ten days. Each was officially dismissed when the ten day period expired.
4. All six appellants lodged grievances with the Police Commissioner challenging the dismissals. The grievances were submitted to arbitration. The arbitrator ruled that three of the officers were dismissed with just cause and that two were not. One case is still pending.
5. In April, 1985, the Fraternal Order of Police, the individual appellants herein, and three other officers who do not participate in this appeal filed suit in United States District Court for the Eastern District of Pennsylvania against the City of Philadelphia and various city officials (hereinafter collectively referred to as "the city"). They alleged, inter alia, that the manner in which they were dismissed from the police force constituted violations of their rights to due process and equal protection, and violated the fifth amendment's prohibition of compelled self-incrimination. The district court granted defendants' motion for summary judgment on all claims. Gniotek v. City of Philadelphia, 630 F. Supp. 827 (E.D. Pa. 1986). On appeal, only the due process and self-incrimination claims are pressed. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982).
6. The only due process issue in this case is whether appellants received adequate predeprivation hearings. All parties agree that appellants have a cognizable property interest in their jobs and that the City of Philadelphia provides adequate post-deprivation remedies.*fn3
7. In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985), the Supreme Court held that when threatened with dismissal, a public employee with a property interest in his job is entitled to "a pretermination opportunity to respond, coupled with post-termination administrative (or judicial) procedures." Id. at 1496. The predeprivation hearing need not be elaborate, but it is necessary, even if extensive post-deprivation remedies are afforded.*fn4 Id. at 1495. Prior to deprivation "the tenured public employee is entitled to notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Id.
8. The district court held that appellants received adequate predeprivation hearings. However, the district court deemed that the deprivation occurred when appellants were officially dismissed, not when they were suspended without pay. Gniotek, 630 F. Supp. at 834. Thus, the court held that the 10 day opportunity to respond in writing which the appellants were given (and which the Civil Service regulations require) constituted adequate predeprivation hearings. Appellants urge, however, that the suspension with intent to dismiss were de facto dismissals and the deprivation, therefore, occurred when they were suspended, i.e., before they were given 10 days to respond.*fn5 The appellants' argument has merit. The Fifth Circuit addressed a similar argument in Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976). vacated on other grounds, 438 U.S. 901, 57 L. Ed. 2d 1144, 98 S. Ct. 3118 (1978). Thurston involved a tenured public employee who was suspended for thirty days without pay, and the suspension automatically became a termination if the employee failed to successfully appeal the suspension within the 30 days. The Fifth Circuit held that he suspension was the functional equivalent of permanent discharge subject to a condition subsequent; therefore, the employee threatened with "suspension" was entitled to the same predeprivation process required when an employee is threatened with discharge. At least one district court in this circuit has accepted the reasoning of Thurston. See Hopkins v. Mayor & Council of Wilmington, 600 F. Supp. 542 (D. Del. 1984) (due process violation when policeman is suspended without pay after being arrested for drug possession). The Thurston rule prevents the government employer from circumventing the pretermination hearing requirement, and we adopt it here. Accordingly, we hold that before appellants were suspended with intent to dismiss they were entitled to whatever pretermination procedures the Constitution mandates prior to actual dismissal.
9. Our inquiry, therefore, is narrowed to the question whether the interviews that the individual appellants had with Inspector Hantwerker were sufficient, under Loudermill, to discharge the city's duty to provide pretermination hearings. The adequacy of any hearing must be evaluated in reference to the "two essential requirements of due process, . . . notice and an opportunity to ...