# Jadallah v. District of Columbia Department of Employment Services

> District of Columbia Court of Appeals · May 8, 1984 · 476 A.2d 671

URL: https://www.frixlaw.com/law-library/cases/9635565

## Case

- **Full name:** Ata F. JADALLAH, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent
- **Court:** District of Columbia Court of Appeals
- **Decided:** May 8, 1984
- **Citations:** 476 A.2d 671; 1984 D.C. App. LEXIS 395
- **Precedential status:** Published
- **Opinion:** Concurrence by Ferren
- **Judges:** Ferren, Terry, Reilly
- **Cited by:** 50 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/9635565

## How later opinions describe it (automated extraction)

- stating hearsay cannot effectively refute “the direct sworn testimony of a witness on a crucial fact . . . when the party relying on such statements [was] in a position to call the declarant”
- declining to hold that the direct sworn testimony of a witness on a crucial fact can be refuted by hearsay from a declarant available for trial
- stating hearsay cannot effectively refute “the direct sworn testimony of a witness on a crucial fact ... when the party relying on such statements [was] in a position to call the declarant”
- reversing a finding of misconduct grounded on testimony “not based upon [ ] personal knowledge of events, but rather on a written statement that petitioner ■ signed outside [the witness’s] presence”
- reversing a finding of misconduct grounded on testimony “not based upon [] personal knowledge of events, but rather on a written statement that petitioner signed outside [the witness‟s] presence”

## Opinion text

FERREN, Associate Judge,
concurring.
I have no disagreement with the approach taken in the opinion for the court, and accordingly I join in that opinion. As the court points out, the fact that hearsay evidence is admissible at an administrative hearing does not alter the requirement that an agency decision be supported by substantial evidence on the record. That requirement is not met where — as in this case — the only record evidence supporting an administrative decision is both hearsay in nature and unreliable. Absent some in-dicia of reliability, hearsay evidence alone should not be permitted to offset the sworn testimony of a witness and to constitute substantial evidence in support of an agency position. I write (1) to make clear my understanding that the disposition in this case turns on an assessment of the reliability of the hearsay evidence relied on by DOES, and not on an acceptance of the overly rigid and outdated “residuum rule” of administrative procedure; and (2) to set forth standards to guide agencies in the evaluation of the reliability of hearsay evidence.
Despite the potential probative value and well-recognized admissibility of hearsay evidence in agency proceedings, see ante at 676, many courts have held that an administrative decision can never rest solely on such evidence. Unless hearsay evidence is corroborated by some residuum of legally competent evidence — evidence that would be admissible in court — courts have held there is not substantial evidence to support an agency decision. For a number of years this rule, referred to as the residuum rule, was the dominant position in most federal 1 *678 and state 2 jurisdictions. Although this court has never expressly adopted the residuum rule, it has stated a general disapproval of agency decisions relying solely on “uncorroborated hearsay.” E.g., Wallace v. District Unemployment Compensation Board, 294 A.2d 177, 179 (D.C.1972).
During the past 25 years, the residuum rule has come under increasingly heavy criticism. Commentators have found the rule unnecessarily rigid and have argued that the weight properly accorded hearsay evidence, like that accorded other forms of evidence, should range from minimal to substantial based on case-by-case evaluation of the reliability and the probative value of the evidence, not upon wholesale characterization of the evidence as unreliable hearsay. 3 More importantly, a growing number of courts have abandoned the “per se approach” of the residuum rule, e.g., Johnson v. United States, 202 U.S.App. D.C. 187, 190-91, 628 F.2d 187, 190-91 (1980) (leading case), including those courts responsible for the origin and the past widespread acceptance of the rule. 4
In place of the residuum rule, courts have adopted a more flexible approach to determining whether uncorroborated hearsay amounts to substantial evidence adequate to convince a reasonable mind to support an agency conclusion. Johnson, supra, 202 U.S.App.D.C. at 190-91 , 628 F.2d at 190-91 . This approach focuses on the “truthfulness, reasonableness, and credibility” of each item of hearsay relied upon. Id.; see generally Richardson v. Perales, 402 U.S. 389, 402-06 , 91 S.Ct. 1420, 1427-1430 , 28 L.Ed.2d 842 (1971). It is an application of this flexible approach— rather than any reliance on the time-worn residuum rule — that leads me to conclude that the hearsay evidence relied on by DOES in this case does not rise to the level of substantial evidence on the record.
Although this flexible approach rejects any rigid threshold requirement of competent corroborating evidence, it nevertheless recognizes the potential shortcomings of relying on hearsay evidence. An adverse party is unable to cross-examine a nontesti-fying declarant regarding the substance of a hearsay statement — a right that is recognized as important in the context of administrative proceedings. General Railway Signal Co. v. District Unemployment Compensation Board, 354 A.2d 529, 532 (D.C.1976); D.C.Code § 1-1509(b) (1981). Thus, an agency factfinder will not be able fully to explore and evaluate shortcomings in the original declarant’s perception, memory, and veracity, as well as any defect in the transmission of information between the original declarant and the testifying witness. Because of these inherent impediments to a factfinder’s ability to investigate the reliability of hearsay evidence, a factfinder should look carefully for independent indicia of reliability — which may *679 offset concerns about untested perception, memory, veracity and transmission — in determining the weight to accord such evidence.
An agency should, for example, consider whether the witnesses involved were biased or disinterested; whether statements made outside the proceedings were consistent with other evidence; and whether opposing counsel was made aware of, and given access to, the statements before the hearing so as to facilitate verification of, or challenges to, the hearsay statements. Johnson, supra, 202 U.S.App.D.C. at 191 , 628 F.2d at 191 . Some consideration also should be given to the availability of “other and better evidence.” Wallace, supra, 294 A.2d at 179 ; Calhoun v. Bailar, 626 F.2d 145, 149 (9th Cir.1980), cert. denied, 452 U.S. 906 , 101 S.Ct. 3033 , 69 L.Ed.2d 407 (1981). When the original declarant is readily available and the introduction of hearsay does not result in a more efficient or effective presentation of evidence, the use of hearsay should be discouraged. To the extent that these factors — or other circumstantial guarantees of trustworthiness 5 — bolster the reliability of particular hearsay evidence, that evidence may be relied upon in the same manner as nonhear-say evidence.
In the absence of some assurance of its “truthfulness, reasonableness, and credibility,” Johnson, supra, 202 U.S.App.D.C. at 190-91 , 628 F.2d at 190-91 , hearsay evidence should not be given substantial weight. See Williams v. District Unemployment Compensation Board, 383 A.2d 345 , 348 n. 3 (D.C.1978); Wallace, supra, 294 A.2d at 179 ; General Railway Signal Co., supra, 354 A.2d at 531-32 ; Hill v. District of Columbia Unemployment Compensation Board, 281 A.2d 433, 434 (D.C.1971); see also Hoska v. United States Dep’t of the Army, 219 U.S.App. D.C. 280, 287-88, 677 F.2d 131, 138-39 (1982). As the opinion of the court points out, when the hearsay evidence relied on here is evaluated in light of the factors discussed above, the record in this case is simply “too thin” to support a conclusion that appellant acted dishonestly.
. See 2 K. Davis, Administrativi- Law Triiatisr § 14.11 (1958); Annot., 6 A.L.R.Fi-n. 76, § 7 (1971).
. See 2 K. Davis, supra note 1 at § 14.12; 1 F. Cooper, State Administrative Law 406-10 (1956); Annot., 36 A.L.R.3d 12 § 7 (1971).
. See e.g., 4 B. Mezines, J. Stein & J. Gruff, Administrative Law § 26.02 (1983); 3 K. Davis, Administrative Law Treatise §§ 16.6-.7 (1980); 2 K. Davis, supra note 1, §§ 14.10-.il (1958 & Supps.1970, 1976); 1 F. Cooper, supra note 2, 410-11.
. The residuum rule was first enunciated by the New York Court of Appeals in Carroll v. Knickerbocker Ice Co., 218 N.Y. 435 , 113 N.E. 507 (1916). The rule received widespread acceptance after it was apparently endorsed in a 1938 decision by the United States Supreme Court. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 230 , 59 S.Ct. 206, 217 , 83 L.Ed. 126 (1938) ("Mere uncorroborated hearsay or rumor does not constitute substantial evidence.”). The New York Court of Appeals has now expressly discarded the residuum rule. 300 Gramatan Avenue Associates v. State Div. of Human Rights, 45 N.Y.2d 176 , 179 n. *, 379 N.E.2d 1183 , 1185 n. *, 408 N.Y.S.2d 54 , 56 n. * (1978). The Supreme Court, while not expressly rejecting the continued validity of the residuum rule, has reinterpreted its language in Consolidated Edison Co., supra, as simply a condemnation of hearsay evidence that lacks "rational probative force,” rather than a blanket rejection of administrative decisions based on uncorroborated hearsay. Richardson v. Perales, 402 U.S. 389, 407-08 , 91 S.Ct. 1420, 1430-1431 , 28 L.Ed.2d 842 (1971). See 3 K. Davis 1980, supra note 3, at § 16.07 (Richardson moved federal law very close to an unqualified rejection of the residuum rule).
. The ability of judges and other trained fact-finders to evaluate "circumstantial guarantees of trustworthiness" with respect to hearsay evidence is well recognized. See Fhd.R.Evid. 803(24) and Rule 803 advisory committee note. In the context of the rules of evidence, such guarantees of trustworthiness are the basis for the numerous exceptions to the general rule against the admissibility of hearsay. Id. Although the admissibility of hearsay evidence is not restricted in administrative hearings, ante at 9, these same types of reliability factors should be considered by agencies in determining what weight is to be given to such evidence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9635565. Public record. Not legal advice.