# Ralph M. Hackley v. Richard L. Roudebush, Administrator of Veterans Affairs

> Court of Appeals for the D.C. Circuit · September 29, 1975 · 520 F.2d 108

URL: https://www.frixlaw.com/law-library/cases/9461975

## Case

- **Full name:** Ralph M. HACKLEY, Appellant, v. Richard L. ROUDEBUSH, Administrator of Veterans Affairs, Et Al., Appellees
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** September 29, 1975
- **Citations:** 520 F.2d 108; 171 U.S. App. D.C. 376; 1 Fed. R. Serv. 170; 10 Empl. Prac. Dec. (CCH) 10,403; 11 Fair Empl. Prac. Cas. (BNA) 487; 1975 U.S. App. LEXIS 12583
- **Precedential status:** Published
- **Opinion:** Concurrence by Leventhal
- **Judges:** Wright, Leventhal, Davis
- **Cited by:** 156 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9461975

## How later opinions describe it (automated extraction)

- explaining that 42 U.S.C. § 2000e-5(f)(5) authorizes the appointment of a Special Master in non-exceptional circumstances when a District Court is unable to comply with Title VII’s mandate to expedite discrimination cases
- noting that transcripts from underlying administrative hearings “may be admissible under [Federal Rule of Evidence] 803(6) or (8)(B)”

## Opinion text

LEVENTHAL, Circuit Judge
(concurring):
Since I agree generally with Judge Wright’s opinion, and certainly agree with its significant points, I am joining in that opinion. This is subject to a significant exception as to Judge Wright’s discussion in Part II B(2) (171 *170 U.S.App.D.C. pp. ---, 520 F.2d pp. 136-142) of the performance of the Civil Service Commission after the passage of the 1972 act. These, I think, are the significant aspects of the case.
1. Although the text of the statute can be argued either way, it is more natural to consider a statute providing for “an action” in the district court as one that permits a de novo presentation unless there is some other indication to the contrary. The “as applicable” language of the statute relied upon by the District Court and appellees is too general to constitute a significant contrary indication.
2. Here the most important indicator of meaning is legislative history. While there are some passages of this history that support the District Court’s view, the predominant impact of the legislative history, set out at length in Judge Wright’s opinion in order to present the full picture, seems to me to lead fairly to the conclusion that what was contemplated by the legislature was a de novo trial in the district court on a charge of racial discrimination in employment, for government employees as for employees in the private sector.
3. What apparently set District Judge Gesell on a contrary course was the conviction that a compulsory de novo trial in every case was an unnecessary and unproductive, indeed counter-productive, drain on the resources of all concerned.
For these claims of racial discrimination in employment, as for other civil rights cases, Congress has contemplated a more searching and active role of the courts than for litigation generally or for reyiew of other kinds of governmental action. Judge Gesell recognized this when he provided a broader standard of judicial consideration (preponderance of evidence) than is normally provided for judicial review of agency action (substantial evidence standard 1 ).
Moreover, Judge Gesell stated that the judge would be obligated to permit supplementation of the administrative record unless non-discrimination was established by the “clear weight of the evidence.” 360 F.Supp. at 1252. This is offset, however, by his procedure for making that determination on the basis of the administrative record, without any right of discovery, and in the case at bar Judge Gesell went so far as to find that the non-discrimination was “crystal clear” and to grant defendant’s motion for summary judgment without even providing for oral argument on the motion by plaintiff’s counsel.
For me the path to de novo action for Federal employees is illuminated by Alexander v. Gardner-Denver Co. 415 U.S. 36 , 94 S.Ct. 1011 , 39 L.Ed.2d 147 (1974), which rejected the contention that in actions under Title VII district judges should defer to arbitral decisions rendered after hearings on discrimination claims. 2
*171 The case is not squarely in point since the complaint hearing before a Government agency is more formal than an arbitration, and is a statutory rather than a contract procedure. On the other hand, the complaint hearing falls short of a Title VII action in certain of the crucial respects stressed in Alexander v. Gardner-Den ver — the lack of compulsory process, except ás to government employees; the dispensation with usual rules of evidence; and particularly the lack of discovery procedures. Significantly, the agency complaint hearing has been structured to avoid an “adversary” quality. The nature and purpose of the hearing are described in the Examiner’s Manual thus: “The hearing is an adjunct to the investigation. It is not an adversary proceeding but is an administrative procedure designed to provide additional evidence.” And the Manual virtually instructs the Examiner in terms that equate a finding of discrimination with a situation in which there is no reasonable doubt to the contrary. 3
This is not to say that the agency hearings, and appeals taken to the Civil Service Commission, must be blanked out. In contrast with the former practice of an extremely informal procedure, without a verbatim transcript, and with the employee and agency appointing representatives who agreed on a hearing officer, now the examiner is assigned to the case by the Civil Service Commission, from among a certified list; this official has no other duties before the agency; he takes testimony under oath and insures a transcript.
The informal means available to a judge to shape the course of a trial would ordinarily suffice to obviate duplication without a purpose, just as a judge routinely takes steps to avoid cumulative testimony. But that does not warrant omission of the testimony of crucial witnesses, whose demeanor is of manifest importance to the factfinding function. And the significant discovery right should not be impaired.
Finally, insofar as Judge Gesell values the benefit of the expertise of the Civil Service Commission, particularly for those cases involving the intracacies of regulations governing job qualification selection for, e. g., training and promotion, it may be considered by the judge. 4 Indeed, Judge Gesell’s approach is likely to undercut availability of the Commission’s expertise by encouraging government employees to exercise their option to proceed to court forthwith, for immediate relief, without pursuing an appeal to the Civil Service Commission.
The approaches of this court and the district court may not differ so much in practical result, for the bulk of cases. To the extent there is a difference, it would seem to come closer to the intent of Congress if the Federal employee can proceed in court like any other litigant, subject to informal steps to avoid what is shown to be an unnecessary duplication of the administrative record, rather than be required to make an affirmative showing persuading the judge that there is a “need” before he can exercise procedures routinely accorded to civil litigants.
*172 4. I do not join in Judge Wright’s opinion in regard to his characterization of the recent course of the Civil Service Commission. In my view, it is not necessary to speak to that matter in this case; it is a matter that is in flux; and if it were to be raised directly in a case I should also like to have before me a complete picture of what the Commission is doing, or more likely is trying to get the several government agencies to do. This would embrace, e. g., the developments in regard to affirmative action plans:
. The only softening of Judge-participation results from the provision in § 706(f)(5), 42 U.S.C. § 2000e-5(f)(5), that relaxes the stringent requirements of Rule 53, F.R.Civ.P., to permit the appointment of a master in order that the case might be heard within 120 days after issue is joined. But even this provision does not permit routine referrals to masters, under a general rule for all Title VII cases that could not be heard within 120 days, for that would undercut the Congressional “preference to have the case heard by a judge.” See Flowers v. Crouch-Walker Corp., 507 F.2d 1378, 1380 (7th Cir. 1974).
. The Court said, inter alia ( 415 U.S. at 57-59 , 94 S.Ct. at 1024-1025 ):
“Moreover, the factfinding process in arbitration usually is not equivalent to judicial factfinding. The record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable. * * * [A] standard that adequately insured effectuation of Title VII rights in the arbitral forum would tend to make arbitration a procedurally complex, expensive, and time-consuming process.”
. The pertinent, and somewhat involuted, language appears at p. 62.
“If a reasonable and unprejudiced mind could not infer from the facts so assembled that the agency was free from discrimination in the matter, then the Examiner should make a finding of discrimination.”
. The expertise of an agency may be considered on an advisory basis even when a court has plenary jurisdiction. Best v. Humboldt Placer Mining Co., 371 U.S. 334, 338 , 83 S.Ct. 379 , 9 L.Ed.2d 350 (1963); Wheelabrator Corp. v. Chafee, 147 U.S.App.D.C. 238, 248 , 455 F.2d 1306, 1316 (1971). I do not suggest that the District Court could or should stay its hand pending an appeal to the Commission. This would conflict with the “statute’s express aim” of expedition. Grubbs v. Butz, 169 U.S.App.D.C. 82 , 514 F.2d 1323, 1331 (1975). Congress deliberately gave the employee an option not to appeal, and to file an action in District Court either on agency denial, or on its failure to act within 180 days, and directed the court to expedite its consideration of the action.
As Judge Wright’s opinion notes, the judge in a Title VII action could elicit the views of the Civil Service Commission as amicus curiae.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9461975. Public record. Not legal advice.