Ruth E. Buck, Plaintiff-Appellant-Appellee v. The Board of Education of the City of New York, Defendant-Appellant-Appellee, Dr. Bernard E. Donovan

OAKES, Circuit Judge

(dissenting):

It is conceded by all that, as the majority opinion states, “Mrs. Buck’s position as a *321 tenured guidance counselor is indisputably a property interest encompassed within the fourteenth amendment’s due process protection” and that “[her] interest in retaining her job was ... a strong one.” The majority and I are also in agreement that the federal courts should avoid “excessive interference” with constitutionally adequate local procedures, a proposition with which Judge Judd below expressed concurrence. He wrote:

The question is not . . . the discretion of the Board of Education in determining the outcome, but the procedure of the Board in deciding a contested matter without affording plaintiff a proper hearing.

On this question, the majority and I part company.

It is important at the outset to emphasize the nature of the procedure at stake in this ease. The majority speaks of the due process clause as not mandating a “rigid rule,” but it never indicates how the School Board would have been burdened by sending to Mrs. Buck, prior to the Board meeting, a copy of the trial examiner’s report that it sent to her after the meeting. Nor does the majority indicate what rigidity would arise from allowing a tenured teacher or counsel- or facing possible dismissal to respond, either orally or in writing, to charges in the examiner’s report before the Board makes a final decision. In contrast to the situation in Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), where it appeared that the Government would have to spend substantial additional sums if the procedures at issue were adopted, see id. at 348-49 , 96 S.Ct. 893 , here there is little likelihood that any additional sums will be spent if the State is required to give a tenured teacher or counselor the examiner’s report and an opportunity to respond prior to dismissing him or her.

The majority opinion repeats several times its conclusion that Mrs. Buck did have an opportunity to respond prior to the Board’s decision, an opportunity that, one would gather from the majority opinion, she lost only because of her own tardiness (she arrived at the Board meeting 15 minutes late). This conclusion, however, ignores both common sense and trial court findings of fact that we are bound to accept unless “clearly erroneous,” Fed.R.Civ.P. 52(a). The majority offers no explanation as to how one can intelligently respond to a report one has not seen, particularly when, as Judge Judd found here, the one who is supposed to be responding has “no idea” what the report contains. 1 See In re Gault, 387 U.S. 1 , 33-34 & n. 54, 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967). Even the most skilled of lawyers might have difficulty accomplishing such a feat. Moreover, even assuming that she knew what the report contained as to facts, without seeing it she could not know what recommendations were made by the trial examiner.

As for Mrs. Buck’s tardiness in attending the Board meeting, it was essentially irrelevant. The majority does not challenge Judge Judd’s finding, based on the testimony of a Board member, that the actual decision to fire Mrs. Buck was made at an informal meeting prior to the public, formal meeting at which Mrs. Buck appeared. Hence the “opportunity” to which the majority refers was at best an opportunity to respond to a fait accompli on a subject as to which she was given no guidance until after the time for response had passed.

It is true that, as the majority opinion emphasizes, Mrs. Buck had a hearing before *322 a Board-appointed trial examiner. The adequacy of that hearing is not questioned, but it hardly follows that the hearing alone meant there was, in the majority’s words, “little practical risk that she would be erroneously discharged.” The reasoning of the Supreme Court in Gonzales v. United States, 348 U.S. 407 , 75 S.Ct. 409 , 99 L.Ed. 467 (1955), cited by the court below, is instructive on this question. In Gonzales , a man contesting his draft board’s denial of conscientious objector status was given a hearing before an examiner as part of the administrative process. The examiner’s report and the ensuing Justice Department recommendation based on it were forwarded to an “Appeal Board,” which in such cases acted not in an appellate capacity but rather as “the only decision-making body to pass on the entire file.” Id. at 413 , 75 S.Ct. at 412 . Neither the report nor notice of the recommendation was “given petitioner prior to the Appeal Board’s decision.” Id. at 410-11 , 75 S.Ct. at 411 . The Supreme Court held that, under the statute in question as well as “underlying concepts of procedural regularity and basic fair play,” the petitioner had to be given “a copy of the recommendation of the Department . at the time it is forwarded to the Appeal Board, and ... an opportunity to reply.” Id. at 412 , 75 S.Ct. at 412 . The constitutional due process underpinning of this holding has been recognized explicitly by the First Circuit, Crotty v. Kelly, 443 F.2d 214, 217 (1st Cir. 1971), and implicitly by our court and the Third Circuit, Rohe v. Froehlke, 500 F.2d 113, 116 (2d Cir. 1974); Hoffmann-LaRoche, Inc. v Kleindienst, 464 F.2d 1068 , 1072 & n. 6 (3d Cir. 1972).

The reasons advanced by the Gonzales Court for imposing procedural requirements similar to those sought by Mrs. Buck go directly to the possibility of an erroneous decision, which the majority here treats so lightly. The Court pointed out that, if a person is not “cognizant of all the facts” possessed by the final decisionmaking body and of the position of the one recommending a decision, he or she cannot present an effective case, and the decisionmakers cannot be sure that they possess “all of the relevant data.” 348 U.S. at 413 , 75 S.Ct. 409 . (emphasis in original). Particularly given the advisory nature of the Justice Department’s recommendation, the Gonzales Court ruled, it was essential that the person affected “be given an opportunity to rebut [the] recommendation when it comes to . the agency with the ultimate responsibility for [decision].” Id. at 412 , 75 S.Ct. at 412 . Similarly, in the instant case the School Board had “ultimate responsibility,” Buck v. Brown, No. 11086/69 (N.Y. Sup.Ct. Mar. 20, 1970), with the examiner’s report being advisory, as he recognized by making “recommendations” to the Board.

Before ... a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit .

exceptions to the . . . recommended decisions of subordinate employees . and

supporting reasons for the exceptions

The risk of error here is even more significant than in Gonzales , moreover, since here there was testimony from a Board member that only one of the five members would read the material in a given case. It is obvious from this testimony that the Board placed principal reliance on the trial examiner’s report, rather than on the record developed at the hearing, and in such circumstances it becomes particularly critical that the person affected be given an opportunity to challenge the examiner’s findings and conclusions before any decision is made. Without such an opportunity, the entire decision rests on the findings of one person, the trial examiner, who, no matter how conscientious, will occasionally make mistakes. Compare Mathews v. Eldridge, supra, 424 U.S. at 343-47, 349 , 96 S.Ct. 893 (procedures for making initial disability determination were very reliable, and claimant had right to full hearing and judicial review before denial of claim became final). 2

*323 The degree of risk of error deemed acceptable, of course, is related to the seriousness of the consequences for the individual if an erroneous decision is made. See Mathews v. Eldridge, supra, 424 U.S. at 341-42 , 96 S.Ct. 893 ; Friendly, “Some Kind of Hearing," 123 U.Pa.L.Rev. 1267, 1278, 1295-1304 (1975). Here the Board’s action — dismissal from a tenured position— was plainly quite serious, as the majority recognizes; the dismissal “depriv[ed] a person of a way of life to which [s]he has devoted years of preparation and on which [s]he and [her] family have come to rely,” Friendly, supra, 123 U.Pa.L.Rev. at 1297 (revocation of professional licenses). When such serious consequences are involved, procedures that substantially reduce the risk of error at low or no cost to the public are mandated by the due process clause. See Mathews v. Eldridge, supra, 424 U.S. at 334-35 , 96 S.Ct. 893 .

Because I conclude that Mrs. Buck was denied due process of law, this dissent must reach two other issues raised by the School Board. The first involves the argument that, because Mrs. Buck brought certain state actions in which she could have, but did not, raise her Fourteenth Amendment claim, she is barred by res judicata from raising that claim here. As the Board recognizes, however, the identical argument was rejected by this court in Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974), cert.denied, 420 U.S. 976 , 95 S.Ct. 1400 , 43 L.Ed.2d 656 (1975), an action brought under 42 U.S.C. § 1983 , and the Lombard holding was applied to actions brought directly under the Fourteenth Amendment by the panel majority in Brault v. Town of Milton, 527 F.2d 730 , 733 n. 5 (2d Cir.), rev’d en banc on other grounds, 527 F.2d 736 (2d Cir. 1975). I would follow these cases here and hold that Mrs. Buck’s federal action is not barred by the doctrine of res judicata.

The second issue raised by the Board involves the validity of a direct suit under the Fourteenth Amendment in a situation in which, because of the doctrine of municipal immunity, Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961), applied by our court to school boards in Monell v. Department of Social Services, 532 F.2d 259 (2d Cir. 1976), cert. granted, 429 U.S. 1071 , 97 S.Ct. 807 , 50 L.Ed.2d 789 (1977), a suit under 42 U.S.C. § 1983 cannot be brought. 3 The panel majority in Brault v. Town of Milton, supra, held that such a direct suit was available, and the en banc majority, in reversing, explicitly declined to reach the question, 527 F.2d at 738 . I would follow the Brault panel decision in this case. The decision is directly supported by Judge Moore’s decision for a unanimous panel in Matherson v. Long Island State Park Commission, 442 F.2d 566 (2d Cir. 1971), as well as by a “well-developed body of case law” in other circuits, 1 N. Dorsen, P. Bender & B. Neuborne, Political and Civil Rights in the United States 1543 (4th ed. 1976). See e. g., Cox v. Stanton, 529 F.2d 47, 50-51 (4th Cir. 1975); Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 718-19, n. 7 (7th Cir. 1975) (Stevens, J.), cert. denied, 425 U.S. 916 , 96 S.Ct. 1518 , 47 L.Ed.2d 768 (1976); authorities cited in Brault v. Town of Milton, supra, 527 F.2d at 744 (dissenting opinion). I would therefore hold that Mrs. Buck may sue the School Board under the Fourteenth Amendment, with jurisdiction premised on 28 U.S.C. § 1331 . 4

In all other respects, I agree with Judge Judd. I would affirm his judgment for Mrs. Buck and therefore I dissent.

. The judge’s finding in his Memorandum of Decision of December 2, 1974, was:

No explanation is given of how plaintiff is supposed to have known the contents of a report which had not been disclosed to her. Her affidavit of May 7, 1974 states that she had no idea what t'-j report contained and no idea that she was actually being dismissed. Nothing to the contrary was developed at the hearing before the court.

[Mrs. Buck’s attorney] wrote to the Board on July 27, 1970, after receiving the report, and pointed out that plaintiff had not been given a new opportunity to submit to a medical examination as had been recommended by the trial examiner, and that she was now ready to submit.

. See also Administrative Procedure Act, 5 U.S.C. § 557 (c), which provides in part:

. In Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977), the Supreme Court expressly left “for another day” — which evidently is not far away — the questions whether a school board is a “person” for purposes of 42 U.S.C. § 1983 , and, if it is not, whether a suit against the Board may nevertheless be sustained as a direct constitutional action, with jurisdiction premised on 28 U.S.C. § 1331 . At 279, 97 S.Ct. 568 .

. Mrs. Buck alleged (and was awarded) damages substantially in excess of $10,000.