# Christian v. New York State Department of Labor, Division of Employment

> District Court, S.D. New York · July 24, 1972 · 347 F. Supp. 1158

URL: https://www.frixlaw.com/law-library/cases/9622213

## Case

- **Full name:** Jean CHRISTIAN and Victor L. Green, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. NEW YORK STATE DEPARTMENT OF LABOR, DIVISION OF EMPLOYMENT, Et Al., Defendants
- **Court:** District Court, S.D. New York
- **Decided:** July 24, 1972
- **Citations:** 347 F. Supp. 1158; 1972 U.S. Dist. LEXIS 12639
- **Precedential status:** Published
- **Opinion:** Dissent by Frankel
- **Judges:** Hays, Frankel, Bauman
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Christian v. New York State Department of Labor, 414 U.S. 614 (1974).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9622213

## Opinion text

FRANKEL, District Judge
(dissenting) :
My difference with the majority is not on the questions of constitutional law, which I would not reach. Instead, on grounds like those set out in Smith v. District Unemployment Compensation Board, 140 U.S.App.D.C. 361 , 435 F.2d 433 (1970), I would hold as a matter of statutory construction that the plaintiffs and other federal probationary employees like them are entitled to at least a rudimentary hearing somewhere on “findings” asserted to bar their claims for unemployment compensation.
Dealing as we do here with related statutes enacted at widely separate times, our problem is one on which differences respecting general principles of interpretation may be decisive. Such statutes, though intended to be interconnected, often fail to mesh with automatic precision. The same words or phrases may take varied colors from their varying contexts. Words defining classes of people or things may later need expansive readings to avoid omissions that must fairly be deemed inadvertent, cf. Flora v. United States, 362 U.S. 145 , 80 S.Ct. 630 , 4 L.Ed.2d 623 (1960), or constricted interpretations to avoid a literally required inclusion offensive to informed reason and good sense, cf. Rosenberg v. Fleuti, 374 U.S. 449 , 83 S.Ct. 1804 , 10 L.Ed.2d 1000 (1963). The administration of such measures for the faithful implementation of legislative purposes is among the more challenging and creative of the tasks entrusted to judges. There is no formula that tells how much of literalism and how much of other things may be required for the particular case. The work calls truly for judgment in a field that has fairly been described as being “not a science but an art.” 1
In the instant case, though most respectfully, I think the majority has followed literal meaning and syntax to the point of mistakenly sacrificing goals dominant in the statutory scheme. Specifically, today’s decision excludes a small group of federal employees from the basic right to be heard when (1) Congress evidenced its express purpose to make that right available to all employees, private or public, (2) Congress likewise evinced the aim of avoiding second-class citizenship for federal employees with respect to the elemental need for a dignified form of wage substitute in times of unemployment, (3) *1164 the great bulk of federal employees are in fact upon a substantial par with private workers in having an opportunity to contest factual determinations which, if adverse, may preclude unemployment compensation, (4) the deprived group, probationary employees, appears not to have been specially noticed during the legislative process, and certainly not to have been singled out for the special deprivation to which it is today held subject, and (5) the opposite result from the majority’s, more consonant with the deep commitment of our jurisprudence to fair hearings as prerequisites to adverse determinations, is readily reconcilable with the text and essential objects of the pertinent statutory provisions. These thoughts are elaborated in what follows.
(1) From the inception of the federal legislation for federal funding, and limited federal supervision, of state unemployment compensation programs, one of the few requirements binding the States was that their laws include provision for
“[ojpportunity for a fair hearing, before an impartial tribunal, for all individuals whose claims for unemployment compensation are denied * * Social Security Act of 1935, § 303(a) (3), 49 Stat. 626 , 42 U.S.C. § 503 (a) (3).
At the time of that enactment, almost 40 years ago, our notions of fair procedure embraced a far less sweeping insistence upon the right to be heard than is prevalent today. The emphasis in the statute, moreover, was on broad latitude for state legislative preferences in “all matters in which uniformity is not absolutely essential.” 2 Even in those circumstances, the right of a “fair hearing” was enshrined as a requisite of suitably “high administrative standards” 3 for the envisioned state unemployment compensation programs.
(2) Almost 20 years after providing for workers in private industry, the Congress created the program of unemployment compensation for federal employees, out of which the present ease arises. An obvious and explicit impulse, if somewhat belatedly followed, was the concern for elementary fairness. “[T]he Federal Government should not be in the position of providing less favorable conditions of employment than are required of private employers.” 4 For federal as well as private employees, under either of the alternative plans Congress provided, an employee denied compensation was (and is) to be given a “fair hearing.” 5 U.S.C. §§ 8502 (b), 8503(c).
We come, however, to 5 U.S.C. § 8506 (a), upon which the present controversy centers. As set out in Judge Bauman’s opinion for the court, the “findings” there designated, including those concerning “the reasons for termination of Federal service,” are declared to be “final and conclusive for the purpose of sections 8502(d) and 8503(c)' * * The question before us is whether adverse “findings” which may operate to bar unemployment compensation are thus foreclosed from inquiry anywhere for the narrow group of employees who have never had any opportunity to contest them. 5
(3) When Congress wrote the provisions before us for “federal employees,” it drew no distinction between permanent and probationary workers. Neither the statute nor its history suggests that *1165 anyone had such a distinction, or its possible consequences, in mind. 6 The great majority of federal employees are, of course, those in the permanent category. The prototypical civil servant, the one we are likely to envision when thinking in the global concepts of legislators, is in this group. Given that reality, and given the familiar procedures governing the separation of permanent civil servants, it is reasonable to infer that the “findings” declared “final and conclusive” were conceived as those affecting, and resulting from procedures affecting, permanent civil servants.
The very word “findings” buttresses this inference. If it is not inescapably true, the word commonly refers to resolutions or determinations following deliberations upon evidence in a manner of which the judicial process is the ideal case. See Black’s Law Dictionary 758 (4th ed. 1957), citing cases. If the probable image is not always of a full-scale trial “hearing,” it is certainly not of the simple assertion of a “fact” or merely “the eonclusory statement of a result” where there has been no opportunity for countervailing presentations and no pretense of considering two sides. Coleman v. Brucker, 103 U.S. App.D.C. 283, 257 F.2d 661 , 662-663 (1958); Sims v. Greene, 161 F.2d 87, 89 (3d Cir. 1947). And if the word “findings” means anything more than such untested declarations, it was an apt term for permanent civil servants, but not apt at all for probationary people.
For decades before the enactment of UCFE in 1954, permanent civil servants had a right to contest, and to make presentations opposing, grounds asserted for their dismissal. While the Lloyd-LaFollette Act, August 24, 1912, § 6, 37 Stat. 555 , as amended, 5 U.S.C. § 7501 (b), gave (and gives) no full-scale trial hearing, it required notice and charges in writing, a reasonable time to answer in writing, opportunity to file affidavits and at least an opportunity to seek discretionary grant of a hearing. Executive regulations implementing these rights have continued to expand them. Without tracking every detail, there was a right in 1954 (when the UCFE was enacted) to a written decision stating “the reasons for the action taken and its effective date.” 5 C.F.R. § 9.102 (a) (1) (1949). Beginning in 1962, with Executive Order No. 10987, 27 F.R. 550 (Jan. 18, 1962), permanent employees have had a right to a full “hearing” to contest dismissals, either at the agency stage or on appeal. See 5 C. F.R. § 771.101 etseq. (1972).
(4) Thus, for the overwhelming majority of federal employees, those in the permanent service, the findings declared “final and conclusive” under § 8506(a) have at all times been reached after at least some opportunity for contest. No such opportunity has existed at any time for the probationary employee. Our question is whether plain language or anything else compels the harsh result of denying such an employee unemployment compensation (no question is raised as to the finality of his federal termination) on grounds he has never had a chance to refute.
It is not possible to say with assurance that the “plain language” of § 8506(a) requires a decision against the plaintiffs. The term “findings” fits at best crudely the ex parte declarations upon which plaintiffs were dismissed. But, neatly or not, the word does fit. If textual analysis were the whole of our responsibility, plaintiffs would probably deserve to lose. However, almost every *1166 thing else germane to our problem points the other way.
(5) The strikingly inferior position to which plaintiffs have thus far been relegated for unemployment compensation purposes was never decreed — and seems never to have been considered as a prospect — by the Congress. The explicit purpose of putting public and private employees on a par applies at least as much to probationary workers (whose employment is more precarious) as to permanent workers for purposes of insurance against unemployment. The powerful impetus in our law favoring the right to be heard weighs against the denial of such a right said to be required by a semantic analysis so rickety as that erected upon the word “findings” in the present context. The concern for “uniformity” of federal “findings,” which appears to have prompted the finality provision, is scarcely grazed by allowing a state hearing officer to find out with some decent measure of reliability whether (solely for unemployment compensation purposes) the federal probationary employee in fact drank when he should not haye or was improperly absent without reporting. 7
The arguments against the majority’s conclusion acquire at least some modest support from the constitutional arguments that gave birth to this three-judge court. Though the arguments are today rejected, neither of my distinguished brethren suggests that the issues thus decided lack substance. Thus, the construction I would adopt has the merit of avoiding constitutional doubt. United States v. Thirty Seven Photographs, 402 U.S. 363, 369 , 91 S.Ct. 1400 , 28 L.Ed.2d 822 (1970); Schneider v. Rusk, 390 U.S. 17, 27 , 88 S.Ct. 682 , 19 L.Ed.2d 799 (1968); United States v. Rumely, 345 U.S. 41, 45 , 73 S.Ct. 543 , 97 L.Ed. 770 (1953). More specifically, it is pertinent to recall analogous areas where the Supreme Court has avoided constitutional doubt by discovering upon analysis that the word “final” in a statute should not always be construed to foreclose further review of a disputed question. Estep v. United States, 327 U.S. 114, 122, 127-128 , 66 S.Ct. 423 , 90 L.Ed. 567 (1946); Chin Yow v. United States, 208 U.S. 8 , 28 S.Ct. 201 , 52 L.Ed. 369 (1908) (Holmes, J.)
Finally, it is worth stressing that we deal with a class of necessitous people claiming the benefits of broadly remedial legislation. If there is doubt about the statutory meaning — and I urge at least that, recalling, inter alia, a unanimous D.C. Circuit ruling in conflict with the present majority — it ought to be resolved with liberality toward those for whom the benefit was created. Cf. Voris v. Eikel, 346 U.S. 328, 333 , 74 S.Ct. 88 , 98 L.Ed. 5 (1953); Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414 , 52 S.Ct. 187 , 76 L.Ed. 366 (1932); Wheatley v. Adler, 132 U.S.App.D.C. 177 , 407 F.2d 307 (1968); United States v. Udy, 381 F.2d 455, 456 (10th Cir. 1967); Phoenix Assurance Co. of N.Y. v. Britton, 110 U.S.App.D.C. 118 , 289 F.2d 784, 786 (1961). See also *1167 Pillsbury v. United Engineering Co., 342 U.S. 197, 200 , 72 S.Ct. 223 , 96 L.Ed. 225 (1952).
I would grant judgment for the plaintiffs sustaining their right to a “fair hearing,” like the right of private compensation claimants, unless they are offered a prompt hearing, only for purposes of compensation, by the federal agencies in which they were formerly employed. Cf. Smith v. District Unemployment Compensation Board, supra, 435 F.2d at 438-439 .
. Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 Colum.L.Rev. 1259 (1947).
. Message of the President, Jan. 17, 1935, H.Doc.No.81, 74th Cong., 1st Sess., p. 16.
. Id. at 4.
. S.Rep.No.1794, 83d Cong., 2d Sess., in 3 U.S.Code, Cong. & Ad.News, pp. 3891, 3894 (1954).
. More precisely, plaintiff Jean Christian did have a hearing before a state hearing officer, and she prevailed — i. e., the reason asserted for her dismissal (and denial of unemployment compensation) was determined upon airing to be unfounded. In the view now sustained by a majority of this court, however, the hearing officer was held on an administrative review to have erred in hearing Miss Christian at all, and the denial of compensation payments was held to follow from the untested “finding” of the federal employer.
. I am a long way from sharing the confidence of the majority that Congress “surely was aware” of this distinction at the time of the passage of the UCFE. It is always a risky business to detect sure awareness in a busy Congress where the subject appears never to have been mentioned. The assumption would be arguable if the UCFE legislation had been under the charge of the committee in either house concerned with civil service affairs. That was not the case, however; the responsible committees handling UCFE were House Ways and Means and Senate Finance.
. The majoi'ity says a hearing solely for unemployment compensation purposes “as a practical matter, would limit the Government in the discharge of probationary employees to an extent never previously contemplated by Congress.” It should be stressed, therefore, that nobody claims a right of the probationary employee to test his discharge in a hearing. The only question is as to the availability of a hearing (given to everyone else, public or private) on eligibility for unemployment compensation. When the majority speaks of what is foreseen “as a practical matter,” it evidently reflects the concern, exhibited in arguments to us for defendants, that the prospect of a hearing — even though not testing the discharge or capable of doing so — would make supervisors in the employing agencies timorous about discharging probationary people. This is a regrettable position. Insofar as it is accurate, it portrays a regrettable situation. We ought not to be so “practical” that we fashion legal judgments upon the premise that federal officials commonly fire people upon grounds so tenuous that they would not dare order the firings if they thought someone, somewhere else, without authority to reverse the firings, might so much as air the asserted grounds.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9622213. Public record. Not legal advice.