*1 384 gov argued Appellants States,

of that section in Roth v. United regulating 476, interest in ob 1304, ernmental S.Ct. ju protection of scenity and therefore limited the statute public prohibition dis support veniles and of sufficient a conviction (b). play pandering under Miller of such materials. test In United States rejected Supreme Film, since v. 12 Court has 200-Ft. Reels of gov 123, n.7, the role 2665, 2670, L. S.Ct. Ed.2d so limited. Paris Adult ernment is See Court indicated it Slaton, prepared 49, construe Theatre I terms limiting regulated section 1462 “as ma- patently representa- terial offensive according- Appellants’ convictions are descriptions specific tions or of that ly affirmed as to all counts. given ‘hard-core’ sexual conduct Affirmed. amples in Miller . .” . . The Court reaffirmed this intent Hamling.

Thus appel- both statutes under which satisfy

lants were require- convicted (b).

ments of Miller test listed cer Court Miller, type “plain examples” ma

tain regulate un terial which a statute (b):

der Miller test al., Haywood et representa- J. BULLOCK (a) Patently offensive Appellants, descriptions sex- tions or of ultimate acts, perverted, normal or actual ual Individually or simulated. Quincy MUMFORD, L. al., Congress, et as the Librarian (b) Patently representa- offensive Appellees. masturbation, descriptions

tions No. 71-2058. excretory functions, and lewd exhibi- genitals. tion of the Appeals, Court of United States Circuit. District Columbia at 2615. at Sept. Argued 1974. magazines the basis which formed Decided Oct. described convictions are original opinion. our note Rehearing Denied Nov. magazines readily apparent Rehearing Rehearing En Banc portraying contain material most of Denied Jan. examples” obscenity “plain which support con- held sufficient Miller beyond find a reasonable viction. We reached case would have that this

doubt exactly result had it been tried

using (b) the Miller tests. Unit- U.S.App.D.C. Gower, 164

ed States v. Nothing ap- 503 F.2d 189

proaching the kind of doubt as to

application Miller to the materials

question remand (Pryba Huffman v. United States States),

United in this F.2d 419

case. *2 Hausfeld, Washington, Michael D. D. Jerry

C., with whom S. Cohen and Her- Milstein, C., Washington, bert E. D. brief, appellants. were on the Anthony Steinmeyer, Atty., Dept, J. Justice, III, Gray, L. whom Patrick Atty. Asst. Gen. at time the brief filed, S, Titus, Jr., Harold H. U. Atty., filed, at the time the brief was Hollander, Dept, Atty., Morton Justice, appellees. were on the brief for ROBB, Before LEVENTHAL Cir Judges, NICHOLS,* Judge, cuit United States Court of Claims. Judge: NICHOLS, “deck former at- appellants are employed by the once tendants” sep- Washington, C., D. employment arated from such after demonstrations them and others test during rooms, in the continuing working hours, over days, and refusal them re- several duty do when warned to so. turn They United States District sued seeking Court, dam- reinstatement and ages. the Librarian of Defendants are 293(a). § by designation pursuant Sitting to 28 U.S.C. body policemen end of 24th a read and certain of his subordi- gave minutes an ordinance and them ten court, nates. The trial after considera- plaintiff group vacate, however, sides, denied a places quitting injunction. preliminary in their until remained It found that plaintiffs’ time. The demonstration resumed behavior been had despite suspension. They 25th stoppage and their work unlawful. This *3 Monday, on the same actions unreported court resumed affirmed in orders. 28th, the and received their trial court then dismissed the com- except plaint by day, non- order, for four that proceed- notices without further plaintiffs ings, work. determining who went back to jurisdic- that it lacked tion in that certain had failed al- not the demonstration was That to exhaust administrative remedies ways clear Mr. Bullock. from silent available plainr and also that shouting they had a alterca- On the 23rd generally tiffs had failed to state Congress Library of Guards. tion with upon claim grant- relief could be reading 24th, room On in another the ground. ed. affirm on the latter closed) being apparently (the main one they by the administra- were addressed and that issues Jurisdictional Congressmen. tive three assistants not and to be are raised consent sued day That one of mem- same their female light Asso- of National be in could.not sign carrying a bers arrested for Employees v. of Government ciation White, (cf. 167b), “the crowd became U.S.C. § angry pushing developed. quick- It and ly subsided.” long Plaintiffs, black, had were who they separa- The official reasons for the that victims of racial believed were tions behavior and stressed They were discrimination. dissatisfied stoppage. an work unlawful Library’s progress in the correct- plain- they ing problem. unusual what did case is in that their Just avows, indeed, concedes, tiffs’ disputed in counsel the affidavits. view of below, Library, part disposition that we dis- which is the ultimate Legislative branch, findings preliminary governed in- card junction on regulation. purposes It has for our relevant statute or adopted assume regulations grievance the truth of the version most favorable certain on e., actions, appellants, i. Ac- own. adverse cording they complaint, puts these cept relevant he aside not * * He as to omission therefrom. attempted to make known entirely relies on breaches asserted grievances by staging a sit-in Fifth First and Amendments Library’s reading main room. On if he United States Constitution [1971], plaintiffs 23 and June June claiming ever firings a foundation had sat and stood in the main illegal, based, he were otherwise quietly, room “as monuments of * * * has waived it now. test” They summarily suspended were on June argument summarily until June and then Goldberg (Fifth Amendment) on relies separated. 1011, 25 Kelly, plaintiff, The affidavit of name (1970), the fir that to show Bullock, supplies constitutionally Mr. added details. defec procedure was hearing is clear it the providing demonstration was tive in not working on separation. time and the demon- This advance repeatedly were urged strators told to return force with considerable could be “put or be written, work on There AWOL”. were but Ar briefs when the suggestion is no Kennedy, authorities nett v. time condoned their behavior. Near knocks opinions in Taking S. head. legislation together, held we conclude case infringe separate em- on First Government Amendment freedoms procedure to constitutionally employees. possibly United States Government grounds, argument appellants urged but On oral number of with- on a defective sepa- out much in advance conviction and for the first of a absence apply such a defect time that is not this statute did ration for cause standing alone, Congressional Li- employees. itself. The in and of There is no regula- suggested sponte adopted why reason brary sua has should regard appeals on grievances employees strike its own tions including separa- actions, disciplinary more tolerable than one in the Executive part so too, bind branch. No doubt tion. of Gov- 2101(1) make (Further, them would ernment. a failure follow 5 U.S.C. § *4 Library Congress employees unlawful. Service includes a Dulles, 1152, L 363, 1 within “civil purposes 77 S.Ct. 354 U.S. service” for plaintiff, Miss By 2105(a) One Title gressional Ed.2d 1403 U.S.Code. a Con- § Williams, under “employee”.) a has obtained aide is an The Appeal reasoning procedure. re- majority The Board this port was that right her, largely criticiz- is favorable to the to strike did not exist at com- urging ing Library more granted mon law measures and had to stat- exist, of her. The Librari- ute lenient treatment to and hence could a it not be though an, rejecting right. criti- reasoning some the constitutional This willing re-employ- cisms, dispositive to consider would be of the instant case ing apart has A. statute; her. Plaintiff Mr. John Ross however, from the we proceeding Appeal Judge had an Board Skelly Wright, also note that Circuit sitting to him. Other favorable panel, results as a member of the did not plaintiffs join have followed agreed, however, it. He plaintiffs, who were tem- prohibit route. Several Government em- appeal rights. porary employees, striking. have no fi'om required the scrutinize are not to place, Library, In the second the de- for to search already noted, considered the be regulations, to or failures fects the “disrup havior of the them, specifically pointed out. follow tive”. The court the below so found on appellants application preliminary injunction, other contention for a urge firing Library has, by support that the but with the from affidavits management chilled their First Amendment sources we do not here con speech However, freedom of and association. sider. complaint on consideration of the difficulty place Their is in appellants’ the first protect alone, Amendment does not behav we think would have by legitimate legisla powerful ior made imagination indeed, unlawful suppose, regulation, purposes tion enacted antecedently, possible for that it would be suppression stage unrelated to the free sit-down strike in the main read pression. O’Brien, ing public United States v. room library, of a without disrupting study ^U.S. 88 S.Ct. the in meditation (1968); Adderley Florida, principal activity tended to be the places. carried in such If such an outset, entertained, said idea was ever de the events says, still the demonstration awas scribed in the Bullock affidavit should produced speedy strike such for outlawed have Gov disillusionment. employees by management ernment 7311(3). If reasonably U.S.C. § believed disruptive, United Federation of Post acts were it had Blount, (3 al F.Supp. right Clerks v. to order them the main to vacate judge court, aff’d, room, penalize Dist.Ct.D.C.), U. them re- notwithstanding employees. grievance black fusing so, to do appeals procedure expressly First Amendment. declared complaints to be available for as to dis- extent First Amend- We think respect color, “race, crimination with library environment ment freedoms in ” ** religion Though they etc. analogous closely to their exercise in a many voiced complaints informal In Tinker v. Des Moines School school. District, supervisor, appellants do not seem to have made use of this Supreme Court contrary, during cedure. On the wearing held that of black armbands in sit-down, Library’s Employ- Fair protest school to the Vietnam war was ment forward, Officers themselves came speech, protected but on freedom sponte, get sua try appellants disruption educa- assumption courses, return to lawful and to no Mr. Jus- was involved. tional activities avail, according to Mr. Bullock. The ill neatly the distinction drives tice Fortas self-help procedure advised appel- approv- p. 505, 89 S.Ct. home at lants puts resorted to them companion out court cases reference to with their case. One Byars, reason for F. Circuit, Burnside Fifth having orderly forum for discrimina- v. Issa- and Blackwell 2d 744 complaints Education, is of County course to remove quena Board of any necessity both decided demonstra- *5 tions. day. First same On grounds, of in the absence Amendment Affirmed. enjoined disruption, a board it school prohibiting wearing Appellants’ Rehearing of SNCC On Petition for buttons, prohibi- permitted Suggestion a but such Rehearing for and/or disruption tion another board where En Banc was shown. discussion of these cas- PER CURIAM: Independent es in Butts v. Dallas School Appellants petition have filed a (5th 1971). District, Cir. grounds rehearing, alleging for new complaint Thus the of dismissal is reversal, previously placed not before reaching sustained without the issue pointed opin court. this We out in the exhaustion of remedies. This is more respect ion that with to Fifth Amend complex than substantive be- issues ment, argued appellant employees simply cause there were three classes em- solely process required due a and hearing ployees: employees temporary expressly separation. in advance their right appeal denied the to their dismis- Kennedy, v. Arnett 94 S. regula- Library sal under the relevant came Ct. employees tions, tenured who had such briefing completed, down after the right it, and did not exercise Mr. subsequent appel oral appeal, Ross and Miss Williams who did expand not refine their rea lants did as above stated. The existence impact. soning to its said: avoid temporary category preclude would complete disposition We are not to scrutinize of the case on the procedures process ground to search for due exhaustion alone. regulations, in the or failures defects to also endeavored specifically point to follow not they of racial show that were victims ed out. conditions of discrimination in various process of due defects not prior Assertion employment demon opinion with in the now comes too that, dealt valid think however stration. We late, require charge not our con- may be, does il it does not excuse sideration, require and still did it less legal behavior. In 1971 opin- anticipatory consideration in the courts, Congress, Ex neither the nor precedential as ion filed. The effect to were indifferent ecutive branch complaints the decision will be thus restricted. legitimate discrimination way is in no taken holding balancing tive the dictates of this Congress the post-termination holding termination and task but do fore- not think balancing adverse inquiry action and closes further grievance procedures have been exam- later cases situ- with different factual ined respects and are against proof ations. attack. procedural objection one raised petition rehearing is denied. appellants requires some comment BAZELON, Statement is Judge, the claim that the Chief why post-termination as to procedure he deny hearing voted rehearing en banc: constitutionally that, defective therefore, pretermination hearing is I deny rehearing vote en be banc required. The constitutional defect al cause I think procedures leged is that the Librarian is im challenged in this action should be partial decision-maker, since he sustained reasoning under the of Ar participated original in the decision nett Kennedy, summarily separate appellants is the 1633, 40 The non- authority post-termination final probationary employees given were hearing process. I have no that a doubt hearing after termination and constitutionally acceptable hearing proc there apparently challenge no serious impartial ess must include an decision- hearing with one ex Brewer, Morrissey maker. ception Cf. to be discussed in a moment. 471, 489, import The clear of Arnett and the re appellants’ argument But cent Sampson ease of Murray, slightly different: state 61, 94 impartiality, alleged, lack so right that there pre-termina is no only post- Librarian renders the protection. constitutional I think termination there defective but principle significant is a more than *6 pro fore renders defective the failure to Goldberg erosion of 254, Kelly, pre-termination hearing. vide a With 90 S.Ct. 25 L.Ed.2d 287 allegations particular out bias3 and, indeed, of McElroy, Greene v. light proprietary in nature 3 L.Ed.2d 1377 unwilling Library of I am quite recent Su I feel these accept dis this sufficient alterna opinions leave no preme Court tinction of the constitutional balance proce probationers have tive. by Powell and struck Justice Justice except rights at all dural due in itself Blackmun Arnett since Arnett agen any created are extent involved a that the decision-maker claim Despite regulations.1 cy’s own constitutionality impartial. statement views, am baffled I Library’s post-termination hear argu “knocks [Bullock’s Arnett ing procedures on must considered concurring be the head.” in ment] opinion ground their own consideration in which Jus Powell of Justice post-termi be until the cannot effected clearly indicates joined tice Blackmun proceedings complete, which nation are em federal procedural claims panel opinion are not. The does overtones have constitutional do not, by my reading, opinion any intimate gov against a be balanced must which possible on the merits claim that efficiency.2 think I interest ernment post-termination procedures are sensi- more opinion be Ring 72-3568, Schlesinger, No. analysis Judge Tamm’s seminal Cf. U.S.App.D.C. 19, at opinion Finishing in Cinderella Career & (1974). 482-487 Schools, FTC, U.S.App.D.C. 152, Inc. v. (3970). 425 F.2d 589-592 Compare Pickering Educ., v. Board of process clause the due

inconsistent Amendment. the Fifth claims First

As to the Amendment the tenured probationers and actions

employees, think that I proscribed properly

were conduct is consistent dismissal therefore However, Amendment.4 First

with the panel’s rather with the I am concerned purports language sweeping alone, find, basis of on the fact-finding process, ap

with no

pellant’s activity both constitution symbolic ally disruptive in terms speech precedent also a within strike 7311(3) meaning of 5 U.S.C. § deal Recent cases this Court activity by Amendment with First employees have evidenced a con

federal adjudication be

cern that based governmental complete record so that may properly

and individual interests precedent this should

balanced.5 I think sensitivity “speech

create a similar

plus” us cases such the case before panel opinion

here. I do not think the approach.

here forecloses The facts this being prevent prec case disruptive symbolic speech.

edent on

UNITED STATES of America COX,

Albert a/k/a C. Albert Smith.

No. 73-1571.

United Appeals, States Court of District Columbia Circuit.

Argued June 1974.

Decided Dec. ger, Peterson, U.S.App.D.C. See Waters v. No. Peterson, ; F.2d 91 Waters U.S.App.D.C. 265, 495 F.2d 91 Tygrett Washington, No. 72-1876 (D.C.Cir. Ring 23, 1974) ; Oct. v. Schlesin-