No. 05-828
In the Supreme Court of the United States
WILLIAM D. MORRIS, PETITIONER
v.
DONALD H. RUMSFELD, SECRETARY OF DEFENSE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
MARLEIGH D. DOVER
JONATHAN H. LEVY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether a federal employee who obtains a favorable administrative decision finding discrimination under the Rehabilitation Act but who is not content with the remedy awarded may file a "civil action" under 42 U.S.C. 2000e-16(c) in district court seeking to challenge solely the amount of damages awarded in the administrative process or instead must litigate both liability and remedy de novo in such an action.
In the Supreme Court of the United States
No. 05-828
WILLIAM D. MORRIS, PETITIONER
v.
DONALD H. RUMSFELD, SECRETARY OF DEFENSE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A1- A15) is reported at 420 F.3d 287. The opinion of the dis trict court (Pet. App. C1-C9) is unreported.
JURISDICTION
The judgment of the court of appeals (Pet. App. A16- A17) was entered on August 22, 2005. A petition for re hearing was denied on October 3, 2005. The petition for a writ of certiorari was filed on December 28, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The Rehabilitation Act of 1973, 29 U.S.C. 701 et seq., prohibits covered federal employers (including petitioner's former employer, the Defense Logistics Agency (DLA)), from discriminating against persons with disabilities in matters of hiring, placement, or ad vancement, while at the same time recognizing that em ployers have legitimate interests in performing the du ties of their business adequately and efficiently. In 1978, Congress amended the Rehabilitation Act to spec ify means of enforcement, including making the reme dies of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., available to persons aggrieved by violation of the section of the Rehabilitation Act applica ble to federal employees. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 626 & n.1 (1984).
A federal employee who believes he or she is the vic tim of discrimination in violation of the Rehabilitation Act may present a complaint to the employing agency. See 29 C.F.R. 1614.103, 1614.106. After following speci fied procedures, which may include the intermediary decision of an administrative judge, the agency issues its final decision disposing of such a complaint. See 29 C.F.R. 1614.109-1614.110. If dissatisfied with an agency decision, a federal employee has two choices. First, he or she may file a de novo civil action in federal district court. See 29 C.F.R. 1614.407(a). Second, he or she may appeal the agency decision to the Equal Employment Opportunity Commission (EEOC), see 29 C.F.R. 1614.401(a), in which case he or she may file a de novo civil action after the EEOC issues its final decision on appeal. See 29 C.F.R. 1614.407(c).
In the Civil Rights Act of 1991, 42 U.S.C. 1981a, Con gress expanded the authority of the EEOC to award appropriate remedies, including reinstatement, backpay, and compensatory damages. See West v. Gibson, 527 U.S. 212 (1999). In so doing, Congress intended to "encourag[e] quicker, less formal, and less expensive resolution of disputes within the Federal Government and outside of court." Id. at 219.
Like a private-sector employee, a federal employee "aggrieved by the final disposition of his complaint" in the administrative process "may file a civil action as pro vided in section 2000e-5." 42 U.S.C. 2000e-16(c). In Chandler v. Roudebush, 425 U.S. 840 (1976), this Court explained that the "civil action" conferred in Section 2000e-16(c) "accord[s] a federal employee the same right to a trial de novo as private-sector employees enjoy un der Title VII." Id. at 864. Although the Chandler Court did not directly address the question whether a federal employee may limit a court's review to those aspects of an EEOC decision that he or she wishes to challenge, the Court indicated that prior administrative findings are not binding in district court, but may "be admitted as evidence at a federal-sector trial de novo." Id. at 863 n.39.
Unlike federal employees, federal agencies have no right to challenge adverse EEOC decisions in court. The EEOC's regulations specify that "[f]inal action that has not been the subject of an appeal or civil action shall be binding on the agency." 29 C.F.R. 1614.504(a). See Gib son, 527 U.S. at 222. Moreover, so long as a federal em ployee is not seeking any additional relief beyond that granted in an administrative decision, he or she may go into federal court to "enforce" a binding decision "with out risking de novo review of the merits." Girard v. Ru bin, 62 F.3d 1244, 1247 (9th Cir. 1995) (quoting Haskins v. United States Dep't of the Army, 808 F.2d 1192, 1199 n.4 (6th Cir.), cert. denied, 484 U.S. 815 (1987)); accord Moore v. Devine, 780 F.2d 1559, 1563 (11th Cir. 1986). However, where a federal employee rejects an EEOC decision (or an agency's final action), and files a civil action in district court under Title VII, that action pre vents the underlying administrative decision from be coming final and "binding on the agency." 29 C.F.R. 1614.504(a). Thus, as the EEOC's regulations make clear, a federal employee who obtains a favorable deci sion in the administrative process has several choices: (1) accept that decision and the remedy awarded therein; (2) "file a civil action for enforcement" of that decision in district court if he or she believes the agency is not fully complying with it; or (3) "commence de novo proceedings" in district court. 29 C.F.R. 1614.503(g).
2. In 2001, petitioner William D. Morris filed a law suit under the Rehabilitation Act alleging that his back injury was attributable to the failure of the DLA to ac commodate his degenerative back condition. Pet. App. A3. An administrative judge (AJ) concluded that the DLA had discriminated against petitioner for approxi mately three months in 1992 by failing to accommodate his medical restrictions, and recommended that he be awarded compensatory damages. The DLA issued a final decision rejecting the AJ's determination of dis crimination. Petitioner appealed this final agency deci sion to the EEOC, which reinstated the AJ's determina tion of discrimination, awarded certain relief, and re manded for a determination of appropriate compensa tory damages. After the EEOC rejected the DLA's re quest for reconsideration, the DLA awarded petitioner compensatory damages of $12,500. Id. at A4.
Petitioner filed a lawsuit seeking a jury trial to in crease his damages award. Pet. App. A4. In a summary judgment motion, petitioner sought to bind the DLA to the EEOC's finding of discrimination. The district court granted the motion, holding that because the EEOC's finding of discrimination was made in a separate admin istrative decision from the DLA's award of $12,500 in compensatory damages, petitioner could challenge the damages award without having to litigate liability. Id. at A5.
3. The court of appeals reversed. Pet. App. A1-A15. The court began by observing that petitioner's challenge to the damages award was "not * * * an enforcement action," but rather an action under "42 U.S.C. 2000e- 16(c)'s provision for de novo consideration of discrimina tion claims in the federal courts." Id. at A7. As such, the court explained, petitioner's federal action could not be limited solely to the issue of damages because the statutory language "contemplate[s] that a judicial rem edy must depend on judicial[-]not administrative -findings of discrimination." Id. at A10. In particular, the court pointed to 42 U.S.C. 2000e-5(g)(1) (incorpo rated by reference into the Rehabilitation Act), which authorizes a federal court to provide a remedy "'[i]f the court finds' that discrimination occurred." Pet. App. A10 (quoting 42 U.S.C. 2000e-5(g)(1)).
The court of appeals also observed that petitioner's argument appeared to be inconsistent with this Court's decision in Chandler, since a trial de novo "requires the court to decide the issues essential to the plaintiff 's claims, including liability, without deferring to any prior administrative adjudication." Pet. App. A10. The court of appeals reasoned that this Court's statement in Chan dler that prior administrative findings with respect to an employment discrimination claim may be admitted as evidence at a trial de novo regarding such a claim "clearly implies that agency findings, while pertinent for a reviewing court, are not to be regarded as binding on the court." Id. at A10-A11.
The court of appeals found additional support for its interpretation of the relevant statutory language in re cent decisions of the Tenth and the District of Columbia Circuits, both of which concluded that litigants could not judicially challenge only those parts of an EEOC deci sion that they believed to be wrong, while seeking to bind the government on those issues resolved in their favor. Pet. App. A11-A12 (discussing Timmons v. White, 314 F.3d 1229 (10th Cir. 2003), and Scott v. Johanns, 409 F.3d 466 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1121 (2006)). The court of appeals rejected con trary decisions from the Fourth Circuit on the ground that they failed "to have distinguished between enforce ment actions (which do not provide de novo review) and de novo actions under § 2000e-16(c)," id. at A-13,1 and contrary dictum from the Ninth Circuit, which included no analysis and appeared to be in tension with other Ninth Circuit precedent. See id. at A12-A13 & n.11.
ARGUMENT
Petitioner seeks review of the court of appeals' deter mination that a federal employee who obtains a favor able administrative decision under the Rehabilitation Act may not file a civil action in district court seeking to challenge solely the amount of damages awarded in the administrative process but instead must litigate both liability and remedy de novo. Pet. 7-16. That decision was correct and does not conflict with applicable case law from any other circuit. In addition, this Court re cently denied certiorari in a case, relied on by the court of appeals here (Pet. App. A12), presenting the same issue. See Scott v. Johanns, 409 F.3d 466 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1121 (Jan. 9, 2006) (No. 05- 356). A writ of certiorari is likewise unwarranted here.
1. a. The court of appeals properly held that a fed eral employee who is not satisfied with the amount of damages awarded in an administrative decision under the Rehabilitation Act (which incorporates by reference the cause of action in Title VII) may not seek de novo review of that decision in district court limited solely to the issue of damages. Although federal employees "ag grieved by" an administrative decision (either in whole or in part) may bring a "civil action" in district court, 42 U.S.C. 2000e-16(c), the court may provide a remedy only "[i]f the court finds" that the defendant has unlawfully discriminated, 42 U.S.C. 2000e-5(g)(1) (emphasis added).2 Thus, as the court of appeals correctly recog nized, the language of Title VII (incorporated into the Rehabilitation Act) "contemplate[s] that a judicial rem edy must depend on judicial[-]not administrative- findings of discrimination, and no other statutory lan guage suggests that this requirement should change if a claimant does in fact present an administrative finding of liability to the court." Pet. App. A10. Under peti tioner's theory that administrative findings of discrimi nation are binding in a civil action in which the employee challenges only the administrative remedy he received, "judicial * * * findings of discrimination" would not only be unnecessary but precluded. That result is contra dicted by the plain language of the statute.
Petitioner's position is also inconsistent with this Court's decision in Chandler v. Roudebush, 425 U.S. 840 (1976). Chandler demonstrates in at least three addi tional ways that federal employees may not pick and choose among favorable and unfavorable findings in the administrative process by seeking limited de novo re view of the remedies awarded while simultaneously treating prior liability findings as conclusive in district court. First, Chandler states that the civil action autho rized by Section 2000e-16(c) is a "trial de novo." Id. at 846. That term is generally understood to encompass a new trial on the merits of the entire case, in which a court is not bound by prior findings. See id. at 853-854, 861 (referring to trial de novo as "plenary trial[]" and rejecting a reading of the term "civil action" that would permit "fragmentary de novo consideration of discrimi nation claims where appropriate") (internal quotation marks omitted); Timmons v. White, 314 F.3d 1229, 1233 (10th Cir. 2003) (citing definitions of "trial de novo" in cases and Black's Law Dictionary 1512 (7th ed. 1999)); Pet. App. A10. Second, Chandler makes clear that Sec tion 2000e-16(c) "accord[s] a federal employee the same right to a trial de novo as private-sector employees en joy under Title VII." 425 U.S. at 864; accord Pet. App. A7. That principle would be undermined if federal em ployees could treat the favorable components of admin istrative decisions as binding in district court and liti gate only the unfavorable determinations, because pri vate plaintiffs do not typically obtain any administrative resolution of their claims prior to arriving in district court and thus must litigate both liability and remedy.
Third, allowing federal employees to seek review in district court limited solely to damages would be incon sistent with the Chandler Court's statement that "[p]rior administrative findings made with respect to an employment discrimination claim may, of course, be ad mitted as evidence at a federal-sector trial de novo." 425 U.S. at 863 n.39. See Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 112-113 (1991) (citing Chandler for proposition that "[a]dministrative findings with re spect to the * * * claims of federal employees enjoy no preclusive effect in subsequent judicial litigation"). As the court of appeals recognized, "[i]f agency decisions were intended to have any binding effect, the Court's observation [that such administrative findings may be admitted as evidence] would have been superfluous." Pet. App. A11.
b. Petitioner makes several attempts (Pet. 7-16) to overcome the plain language of Title VII and Chandler. None has any merit. He argues first that requiring a federal employee seeking enhanced damages to face a trial de novo of the entire case "would tend to undermine the remedial scheme of [the statute]," under which EEOC decisions are binding on federal agencies, Pet. 12, and allow agencies to force employees into court sim ply by awarding "ridiculously low" compensatory dam ages. Pet. 13. But the de novo nature of the trial avail able under the Rehabilitation Act does nothing to under mine the EEOC's authority or to force employees into court because the employee always has the option of appealing an agency's award of damages to the EEOC, see 29 C.F.R. 1614.401(a), and the EEOC's decision is binding on the agency, unless the employee decides to file a lawsuit, 29 C.F.R. 1614.504(a). It is petitioner here who circumvented the EEOC by choosing to file an ac tion in district court, rather than appeal the agency's award of damages to the EEOC. Most importantly, in making his statutory argument, petitioner never even addresses the statutory language, quoted above, that requires a judicial finding of discrimination in order to obtain judicial remedies. See 42 U.S.C. 2000e-5(g)(1) (reproduced in note 2, supra).
Next, petitioner contends that the court of appeals misread Chandler's statement that "[p]rior administra tive findings made with respect to an employment dis crimination claim may, of course, be admitted as evi dence at a federal sector trial de novo." Chandler, 425 U.S. at 863 n.39 (quoted in Pet. 13-14). Petitioner as serts (Pet. 14) that the court of appeals was wrong to read that statement to indicate that administrative find ings are not binding on a federal court because, by also stating that "many potential issues can be eliminated * * * in the course of pretrial proceedings," 425 U.S. at 863 n.39, the Chandler Court suggested that administra tive findings may be treated as binding in motions for summary judgment. That reading of Chandler is unten able. If the liability findings have preclusive effect at the pretrial stage, then there would be no basis for liti gating liability at a trial de novo and treating the liabil ity findings merely as "evidence."
2. Petitioner asserts (Pet. 7) that the circuits are divided on the question presented. That is incorrect.
There is a consensus among the courts of appeals that have recently addressed the question that federal employees who have obtained favorable liability findings in the administrative process under Title VII (or the Rehabilitation Act) may not seek de novo review in dis trict court limited solely to the question of damages. In addition to the decision by the Third Circuit below, the Fourth, Tenth, Eleventh, and District of Columbia Cir cuits have recently issued published decisions holding that federal employees who have prevailed in the admin istrative process under Title VII may not tailor a civil action in federal court solely to a request for enhanced remedies. See Laber v. Harvey, No. 04-2132, 2006 WL 348289 (4th Cir. Feb. 16, 2006) (en banc); Ellis v. Eng land, 432 F.3d 1321 (11th Cir. 2005) (per curiam); Scott v. Johanns, 409 F.3d 466 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1121 (2006); Timmons, supra. No court of appeals (or district court) has rejected or even ques tioned the analysis in these decisions, and this Court recently denied a petition for certiorari on the same question presented here in Scott. 126 S. Ct. 1121 (2006).
Petitioner thus relies exclusively (Pet. 4, 7) on claims of conflict with older decisions in various circuits. How ever, a close examination of these cases reveals no con flict. The conflict that the petition suggests between the decision below and the Fourth Circuit's decisions in Morris v. Rice, 985 F.2d 143 (1993), and Pecker v. Heck ler, 801 F.2d 709 (1986), was recently resolved by the Fourth Circuit itself, which expressly overruled both Morris and Pecker in the en banc decision in Laber, su pra. Indeed, the Fourth Circuit expressed its agree ment with the decision below and held that "in order properly to claim entitlement to a more favorable reme dial award, the employee must place the employing agency's discrimination at issue." Laber, 2006 WL 348289, at *12.
Petitioner's reliance (Pet. 4) on Moore v. Devine, 780 F.2d 1559 (11th Cir. 1986), is also misplaced. The Elev enth Circuit recently stated that other circuits had erred in reading Moore "to allow fragmentary de novo review of suits brought, not to enforce an EEOC decision, but rather seeking de novo review of that decision." Ellis, 432 F.3d at 1325. The Eleventh Circuit unequivocally stated that "we do not read Moore as permitting such fragmentary de novo review," and held that federal em ployees may not bring suit under the Rehabilitation Act seeking solely to challenge the amount of damages awarded in the EEOC administrative process. Ibid.
Petitioner's reliance (Pet. 4) on Girard v. Rubin, 62 F.3d 1244 (9th Cir. 1995), is similarly unavailing. Girard did not hold that liability findings in an administrative decision are binding in a damages-only trial in district court; it held only that the government waived a timeli ness defense by failing to appeal a prior (and separate) EEOC decision that the complaint was filed within the statute of limitations. Id. at 1247. Indeed, in an unpub lished decision, the Ninth Circuit underscored the lim ited reach of Girard while affirming a district court holding that a jury was not bound by prior administra tive findings favorable to a plaintiff in a "trial de novo" under Title VII. See Friel v. Daley, No. 99-15733, 2000 WL 1208197, at *1 (Aug. 24, 2000) (230 F.3d 1366 (Ta ble)) ("It is one thing to say that the government loses an affirmative defense by failing to appeal an adverse administrative ruling; it is far different to say that the plaintiff is relieved of proving all the elements of his claim."). Likewise, in a recent published decision, the Ninth Circuit treated the question whether administra tive liability findings are subject to de novo review as an open question in that circuit. See Farrell v. Principi, 366 F.3d 1066, 1068 n.2 (2004) (comparing Morris v. Rice, supra, with Timmons, supra, and reserving judg ment on the issue).
Finally, petitioner asserts (Pet. 4) that the court of appeals' decision in this case is in conflict with Haskins v. United States Department of the Army, 808 F.2d 1192 (6th Cir.), cert. denied, 484 U.S. 815 (1987). But in Haskins, the Sixth Circuit expressly noted that, where an employee seeks de novo review of his discrimination claims, "the district court is not bound by the adminis trative findings." Id. at 1199 n.4. See Pet. App. A12 (distinguishing Haskins).3
CONCLUSION
The petition for a writ of certiorari should be de nied.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
MARLEIGH D. DOVER
JONATHAN H. LEVY
Attorneys
MARCH 2006
1 As noted below, those decisions were recently overruled by the Fourth Circuit, sitting en banc.
2 That provision provides, in relevant part:
(g) Injunctions; appropriate affirmative action; equitable re lief; accrual of back pay; reduction of back pay; limitations on judicial orders
(1) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employ ment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appro priate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay * * * , or any other equitable relief as the court deems appropriate.
42 U.S.C. 2000e-5(g)(1).
3 While the Haskins court did state that "the factual findings underlying an administrative liability determination must be accepted by the district court if the plaintiff so requests," 808 F.2d at 1200, that statement was made in the context of a case in which the government "did not challenge the liability determination," ibid.; see id. at 1195 (noting that "the district court granted [the employee's] motion for partial summary judgment on the question of Title VII liability since the Army had 'admitted discrimination against the plaintiff'"). In this case, by contrast, the government has contested liability.