Amicus Curiae Brief — Brock v. Roadway Express, Inc.

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. Supreme Court, U.S, |

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No. 85-1530~ oO

| = SEPH F. SPANIOL, JR,

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

WILLIAM E. BROCK, SECRETARY OF LABOR, AND

ALAN C. McMILLAN, REGIONAL

ADMINISTRATOR, OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION,

Appellants,

v.

ROADWAY EXPRESS, INC..,

Appellee.

On Appeal from the United States District Court

for the Northern District of Georgia

BRIEF FOR CENTRAL OHIO COAL COMPANY,

CONSOLIDATION COAL COMPANY, EASTERN

ASSOCIATED COAL CORP., SOUTHERN OHIO COAL

COMPANY, U.S. COAL, INC., and

WINDSOR POWER HOUSE COAL COMPANY AS

AMICI CURIAE IN SUPPORT OF APPELLEE

Alvin J. McKenna

(Counsel of Record)

D. Michael Miller

Mark S. Stemm

PORTER, WRIGHT, MORRIS &

ARTHUR

41 South High Street

Columbus, Ohio 43215

(614) 227-2000

Attorneys for Amici Curia

ES OR ET SE ETN PRT AS SP A Em

COURT INDEX PRESS. IN¢ 215 E. Ninth Street, Cincinnati, Ohio 45202 513) 241-1450

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TABLE OF CONTENTS

Page

THE INTEREST OF AMICI CURIAE............... ]

SUMEMAMS OF ARTSUMIENT .. «occ ccc ci wcsswicues 4

REGIE 6 6 sek EI eee 7

THE SECRETARY'S INTEREST IN NOT AF-

FORDING A MEANINGFUL HEARING PRIOR

TO ORDERING TEMPORARY REINSTATE-

MENT OF AN UNSATISFACTORY EMPLOYEE

IS CLEARLY OUTWEIGHED BY: THE

SUBSTANTIAL INTEREST OF THE PRIVATE

SECTOR EMPLOYER AFFECTED BY THE AC-

TION; AND THE NEED FOR AND

USEFULNESS OF ADDITIONAL PRO-

CEDURAL SAFEGUARDS TO LESSEN THE

RISK OF GOVERNMENT ERROR.............

1. Employers Possess A Substantial Interest In

Avoiding The Erroneous Reinstatement of An

BIGOED «+ 5.00004Kes en eae) eee eee 9

~

bo

The Secretary Has Failed To Demonstrate

That Congress’ Goal Of Promoting Highway

Safety By Using Temporary Reinstatement To

Remedy Employee Discrimination Is Infringed

By Affording An Employer A Meaningful Pre-

SO TT re ee ee es 12

3. A Government Investigation Into The Merits

Of A Private Sector Discharge Which Essen-

tially Dictates The Ex Parte Decision Concern-

ing Temporary Reinstatement And Supports

Any Resultant Prosecution Of The Alleged

Discrimination Violation Creates An Over-

whelming Risk Of Erroneous Deprivation.... 17

CONCEAL AMIOUIN ooo eves acicasevernas eee eee 25

APTENEMS Aso. ieee la

APPENDIX B...... 1 + 2 4 816 3 4 ee eee 2a

TABLE OF AUTHORITIES

Cases: Page

Armstrong v. Manzo.

to cee ec ee sees 7

Arnett v. Kennedy.

access cece eee 10

Barry v. Barchi,

ey eset eee twee 10

Califano v. Yamasaki.

ee eee eee eee 21

Cleveland Board of Education vy. Loudermill.

El ee 20

FMC Corporation,

1977-1978 OSHD § 22,060 (1977).................. 18

Goldberg v. Kelly.

ee aos ee Cee). ........... ee 21

H. B. Zachry Co..

1980 OSHD § 24,196 (1980), affd

eer mem eeem Gar. POG)...................... 18

Kansas Gas & Electric Co. v. Brock.

780 F.2d 1505 (10th Cir. 1985) .................... 23

Landon v. Plasencia,

ce eee 25

Mackey v. Montrym. .

cc cee eee eee 10, 21

Mathews v. Eldridge.

eee passim

Memphis Light. Gas © Water Division v. Craft.

a 21, 24

Mitchell v. W. T. Grant Co..

Neg ck wc eeee eee 21

Southern Ohio Coal Company v. Secretary of Labor.

774 F.2d 693 (6th Cir. 1986), reh. denied and modi-

EE eee 2, 3

United States v. Raines.

tee eee eee

bo

bo

w

Page

Constitution, Statutes, and Regulations:

United States Constitution,

Fifth Amendment ............................. passim

Administrative Procedures Act:

5 U.S.C. § 554(d) 20 ne 23

Clean Air Act:

42 U.S.C. § 7622... 0.00. 13

Energy Reorganization Act of 1974:

42 U.S.C. § SBBL cece ween es 13

42 U.S.C. § B851(d) 6 eee 23

Federal Mine Safety and Health Act of 1977:

30 U.S.C. § 80] et seg. oo nee 2

$O U.S.C. § SISlc) .. «6 eee ete: 2

30 U.S.C. § 819(c)(2) Peer ere rer errr er 13

Occupational Safety and Health Act:

299 U.S.C. § 660(C) oe 18

29 U.S.C. § 660(e)(Z) ee 18

Safe Drinking Water Act:

42 U.S.C. § 300j-9(i).. 2... pay ugapadygeasnases 13

Solid Waste Disposal Act:

42 U.S.C. § GOT1L. 0 cee eee 13

Surface Transportation Assistance Act of 1982:

49 U.S.C. § 2305 .......... 0. eee. passim

49 U.S.C. § 2305(e)(1) 2 ee 6, 18, 19

49 U.S.C. § 2305(c)(2) 06 eee 18

49 U.S.C. § 2305(c)(2)(A) 26 14

49 U.S.C. § 2305(e) 20 ee, 23

Toxic Substance Control Act:

15 U.S.C. § 2622. ....0.0000 00 eee, . 13

Water Pollution Control Act:

33 U.S.C. § 13867200 eee 13

IV

Page

Se: eh pak cin Soe ec ee eee 13

Re ee ee a ee ie ae 14

Se as eS foo on -ee a iw ne ys baveseeaeroeuee 14

Sr ISS oo 5 inks 44 a cach ease ees peewna ke 14

ok SB er er eee vee a

a ek, I, woo ce rks ok ce tbendonees teens 13

i eT er eee error eer Tree 13

Miscellaneous:

51 Federal Register

er eee re rere ere re 2

51 Federal Register

ID I I os eeu snc baveness scenes 13

Rule 65(b) of the Federal Rules of Civil Procedure .... . . 15

OSHA Instruction DIS. 4A:

WRU)... 6 ss. RF A Ae gn PIAe Pe re eatee 18, 23

eer AP Aree ere Te ere eee 18

NRE ET ee ree ey 18, 20

| IRR ROR ne ene er no 18, 19

V-5(D)(4) ...... RAS ee Ar esr Rr e P ee 19

V-7(D)(6)...... RS pe nm tar nari err eee Ar 18, 20

IN og iets eaaina ice ee eie ec aera nia keds 22

WER SS a os ee a ee ee a es 20

EE Eh oS NY Re aiccrtstc arte hae age att eae eee 18

IX-6(D)(9) ........ AHS SAA A Ara 20, 24

eat aS Ae Ot Ae nu aCe Ore 14

Friendly, “Some Kind of Hearing,”

123 U. Pa. L. Rev. 1967 (1075)... ............48.. 16, 19

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

No. 85-1530

WILLIAM E. BROCK, SECRETARY OF LABOR, AND

ALAN C. McMILLAN, REGIONAL

ADMINISTRATOR, OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION,

Appellants,

v.

ROADWAY EXPRESS, INC.,

Appellee.

On Appeal from the United States District Court

for the Northern District of Georgia

BRIEF FOR CENTRAL OHIO COAL COMPANY,

CONSOLIDATION COAL COMPANY, EASTERN

ASSOCIATED COAL CORP., SOUTHERN OHIO COAL

COMPANY, U.S. COAL, INC., and

WINDSOR POWER HOUSE COAL COMPANY AS

AMICI CURIAE IN SUPPORT OF APPELLEE

THE INTEREST OF AMICI CURIAE

Central Ohio Coal Company, Consolidation Coal Com-

pany, Eastern Associated Coal Corp., Southern Ohio Coal

Company, U.S. Coal, Inc., and Windsor Power Coal Com-

pany [hereinafter collectively referred to as “Amici

Employers”] have a very substantial involvement in the

operation of coal mines throughout the United States. Last

|

2

year, Amici Employers collectively produced over sixty-seven

million (67,000,000) tons of coal, accounting for a substantial

portion of the production of all coal mines in the United

States. And, Amici Employers provide jobs to approximately

sixteen thousand (16,000) coal miners.

Like trucking, coal mining is necessarily a very safety-

conscious industry. The Federal Mine Safety and Health Act

of 1977 [“Mine Act”], 30 U.S.C. § 801 et seg., contains the

statutory federal safety standards applicable to coal mines.

Included in the Mine Act is a provision under which tem-

porary reinstatement can be sought for a miner claiming that

his discharge resulted from his making a safety-related com-

plaint. 30 U.S.C. § 815(c). The Secretary of Labor [*Sec-

retary], in conjunction with the Federal Mine Safety and

Health Review Commission [Mine Commission” ], is respon-

sible for enforcing the miner discrimination statute. The

statute provides that if the Secretary, upon investigation,

finds that the discrimination charge was “not frivolously

brought,” the Mine Conimission, “on an expedited basis upon

application of the Secretary, shall order the immediate

reinstatement of the miner pending final order on the [dis-

crimination] complaint.” Id.

The Mine Commission recently revised its procedural rules

governing temporary reinstatement to provide mine operators

an opportunity for an expedited, limited evidentiary hearing

before an administrative law judge prior to the issuance of an

order of temporary reinstatement. The revision was prompted

by the holding of the Sixth Circuit Court of Appeals in

Southern Ohio Coal Co. v. Secretary of Labor, 774 F.2d 693

(1985), reh. denied and modified, 781 F.2d 57 (1986), which

sustained mine operators’ consitutional right to such a hear-

ing.' See, 51 Fed. Reg. 16,022 (1986), (to be codified at 29

C.F.R. § 2700.44).

Amici Employers acknowledge that the procedures under

1 Amici Southern Ohio Coal Company and U.S. Coal, Inc. were ap-

pellees in Southern Ohio Coal.

3

the Mine Act are dissimilar to those utilized under § 405 of

the Surface Transportation Assistance Act of 1982 [“STAA”],

49 U.S.C. § 2305. And, Amici Employers recognize the long-

standing rule of this Court not to formulate a constitutional

ruling broader than is required by the precise facts to which it

is to be applied. United States v. Raines, 362 U.S. 17, 21

(1960). But, Amici Employers are vitally interested in the in-

stant case inasmuch as the Secretary's sweeping attack on

Roadway’s constitutional right to a meaningful pre-

deprivation hearing could be aimed to transcend the confines

of the instant case and adversely implicate the interests of

mine operators who are also subject to a temporary reinstate-

ment procedure — albeit under a different statute. To a large

extent, this concern arose from the Secretary's characteriza-

tion of the issue in the instant case as “closely related to the

constitutionality of the temporary reinstatement remedy

under [the Mine Act}. [Secretary's Jurisdictional Statement,

p. 21].

Inasmuch as the Secretary has persisted in substantially

distorting and confusing the various interests which must be

balanced in order to ascertain the constitutionally mandated

procedural safeguards for federal temporary reinstatement

procedures, Amici Employers believe their views — as

another class of large employers subject to a temporary

reinstatement procedure — may be of aid in achieving an ac-

curate constitutional analysis of the procedures under § 405 of

the STAA. At the same time of course, the appearance of

Amici Employers is warranted in an effort to avoid any at-

tempt by the Secretary to indirectly debilitate mine operators’

recently sustained due process rights by means of a broad-

based attack on Roadway’s identical rights in this proceeding.

This Brief is filed with the consent of the Secretary and

Roadway. [Appendix A and B}.

4

SUMMARY OF ARGUMENT

The overriding question presented by this case is, what pro-

cess is due an employer prior to the Secretary ordering im-

mediate reinstatement of an undesired employee under § 405

of the STAA.

This Court has made clear that the Due Process Clause of

the Fifth Amendment to the United States Constitution en-

titles an aggrieved party to meaningful notice and a mean-

ingful opportunity to present its case prior to the deprivation

of a significant property interest. The parties here do not

dispute that a temporary reinstatement order implicates a

protectible property interest of an employer. Thus, the

essence of the inquiry here is to determine what constitutes

“meaningful” procedural protection under the flexible con-

cept of due process. And, that determination can only be

made properly after a thorough analysis of: the competing in-

terests; and the risk of erroneous deprivation attendant to the

particular application of the temporary reinstatement remedy

of § 405 of the STAA.

An employer's interest centers on its right and concern of

avoiding the substantial impact — on both the operation of

its business and its other employees — of compulsory

reinstatement of an unsatisfactory employee, through the op:

portunity, before the harm is done, to meet the evidence

leveled against it and demonstrate the true nature of the

employee's allegations. Absent adequate procedural

safeguards, law-abiding employers are subjected to what can

be a lengthy — or in the case of § 405, an indefinite — period

of unjustified “temporary” employee reinstatement which

seriously jeopardizes the maintenance of effective business

operations.

The public interest in providing prompt reinstatement of

employees who have been unlawfully discharged for report-

ing safety violations — proffered by the Secretary as the prin-

cipal competing interest to that of the employer — is not im-

paired simply by requiring that an employer be afforded an

5

opportunity for a meaningful hearing prior to ordering

reinstatement. The fear of emplover-caused delays espoused

by the Secretary and Amicus Curiae Teamsters for a

Democratic Union can be obviated easily through the use of

procedures similar to those with which Congress and the

Secretary have substantial experience under other employee

protection statutes. Moreover, the validity of the Secretary's

vigorous challenge to the short time needed for a meaningful

pre-order hearing as destructive of the claimed essence of the

effectiveness of § 405 — promptness — is questionable in-

asmuch as at the same time, the Secretary tolerates an in-

vestigation such as the one here which exceeded the

statutorily-prescribed time period by nine (9) months. Clear-

ly, at some point during what can be a very lengthy in-

vestigatory period — if and when it becomes clear to the in-

vestigator that reasonable cause exists to believe a violation

has occurred — a short time can be set aside to afford an

employer a meaningful hearing opportunity.

Just as the balancing of the competing interests support the

conclusion that a pre-deprivation evidentiary hearing betore

an impartial decision-maker is warranted, the overwhelming

risk of erroneous deprivation inherent ia the mechanism for

temporary reinstatement under § 405 similarly mandates that

procedural safeguard. Section 405 fails to guarantee any pro-

cedural protection of an employer's substantial interest in

avoiding erroneous compulsory reirstatment of a terminated

employee. The statute requires no more than: notification “of

the filing of the complaint;” and an “investigation” by the

Secretary prior to ordering temporary reinstatement. Such

“notice” and the procedure for the Secretary's investigation —

which is seriously deficient both in terms of reliability of

result and fairness — plainly constitute a grossly inadequate

substitute for the constitutional entitlement to meaningful

notice and a meaningful opportunity to be heard.

At no point during the course of the investigation is an

employer afforded a meaningful opportunity to respond. Pur-

suant to the investigatory “guidelines” adopted by the

6

Secretary and contrary to the statutory direction [49 U.S.C.

§ 2305(c)(1)]. the employer routinely is not even contacted

until after the investigator has concluded that the com-

plainant’s allegations establish a prima facie violation,

Moreover, inasmuch as the investigator is not required to

disclose even the substance of the evidence compiled, the

emplover is placed in the untenable position of having to

disprove the complainant's case tithout benefit of knowing

the claimed evidence which is relied upon by the investigator.

The Secretary's “guidelines” are entirely subject to implemen-

tation in a manner fully within the discretion of the in-

dividual investigator and are otherwise ill-suited to insuring a

reliable and impartial decision on the temporary reinstate-

ment issue under § 405. These deficiencies are constitutional-

ly ‘atal to the procedure.

Moreover, the principle of having the same individual in-

vestigate. essentially dictate the decision, and support subse-

quent post-deprivation litigation against the employer is

plainly incompatible with objective adjudication of the tem-

porary reinstatement issue. Absent some procedural regulari-

ty and adversarial input in the process of compiling diverse

information and making the difficult credibility and veracity

judgments inherent in employee discharge cases, the risk of

error is plainly substantial. And, such error is not corrected

by the subsequent “file review” by the investigator's

superiors. The assistance of an adversarial hearing before an

impartial adjudicator, complete with a cross-examination op-

portunity, prior to any order of reinstatment is critical to

minimizing the extremely high risk of error otherwise faced

by an emplover under § 405.

Therefore, the requisite thorough analysis of all the fae-

tors relevant to a due process inquiry clearly indicates that an

employer confronted with the possible reinstatement of a ter-

minated emplovee is entitled, at a minimum, to the pro-

cedural protection which the Court below found to be man-

dated by the Due Process Clause.

ARGUMENT

THE SECRETARY'S INTEREST IN NOT AFFORDING A

MEANINGFUL HEARING PRIOR TO ORDERING TEM-

PORARY REINSTATEMENT OF AN UNSATISFACTORY

EMPLOYEE IS CLEARLY OUTWEIGHED BY: THE

SUBSTANTIAL INTEREST OF THE PRIVATE SECTOR

EMPLOYER AFFECTED BY THE ACTION; AND THE

NEED FOR AND USEFULNESS OF ADDITIONAL PRO-

CEDURAL SAFEGUARDS TO LESSEN THE RISK OF

GOVERNMENT ERROR

The constitutional standard against which any government

temporary reinstatement procedure must be measured is that

established by the Due Process Clause of the Fifth Amend-

ment to the United States Constitution. Inasmuch as there is

no dispute that compulsory temporary reinstatement of a

discharged employee involves a protectible property interest

of an employer [see. Brief of Secretary, p. 16], the only ques-

tion presented by this appeal is, what process is due to protect

against an erroneous deprivation of that interest.

All parties agree that the “fundamental requirement of due

process is the opportunity to be heard ‘at a meaningful time

and in a meaningful manner.” Mathews v. Eldridge. 424

U.S. 319, 333 (1976), quoting Armstrong v. Manzo, 380 U.S.

545, 552 (1965). Thus, more specifically stated, the Court is

being called upon in this case to define the concept of “mean-

ingful” in regard to application of the temporary reinstate-

ment remedy in § 405 of the STAA.

As the Court's previous decisions make clear, due process is

a flexible concept, with the measure of procedural protection

mandated by the Constitution being dependent upon the

specific circumstances and interests involved in the particular

deprivation of property. See. ¢.g.. Mathews, 424 U.S. at 334.

And, a procedural due process analysis requires consideration

of three principal factors:

first, the private interest that will be affected by the of-

ficial action; second, the risk of an erroneous deprivation

8

of such interest through the procedures used, and the

probable value, if any, of additional or substitute pro-

cedural safeguards; and finally, the Government's in-

terest, including the function involved and the fiscal and

administrative burdens that the additional or substitute

procedural requirement would entail.

Mathews. 424 U.S. at 335.

le applying the Mathews criteria, the Court below quite

properly began its analysis with the premise that the dictates

of due process require, at a minimum, that notice and a

meaningful opportunity to be heard precede deprivation of a

significant property interest. {J. S. App. 6a].? And, the

District Court reached its conclusion — that a meaningful

pre-deprivation hearing opportunity for an employer in the

present context must include “an opportunity to present his

side and a chance to confront and cross examine witnesses” —

only after thoroughly considering: the competing interests of

the employer and Secretary; and the risk of erroneous

deprivation attendant to the government's decision concern-

ing temporary reinstatement under § 405. [J.S. App. 6a-9a].

While the Secretary has protested that “rarely” has this

Court required an evidentiary hearing before the government

may temporarily deprive an individual of his property [Brief

of Secretary, p. 19], never before has this Court contrasted a

governmental desire not to hold a pre-deprivation hearing

with a private employer's interest against erroneous com-

pulsory reinstatement. And, never before has this Court con-

sidered whether a government investigation of an employee

discharge in which the investigator both dictates the ex

parte decision on grounds not revealed to the employer and

participates in subsequent litigation as an advocate against

the employer satisfies the requirement of notice and a

meaningful opportunity to be heard.

2 References to those portions of the record reprinted in the Secretary's

Jurisdictional Statement are denoted {].S. App. |. The record contained

in the Joint Appendix is referenced [J.A. |.

9

The Secretary apparently has chosen to argue from: inap-

posite precedent rather than meet the obligation to demon-

strate in a real-world fashion how the balance of the Mathews

factors — with regard to the present circumstances, pro-

cedures, and competing interests under § 405 favors the

Secretary's desire not to conduct some form of fair es identiary

hearing prior to ordering temporary reinstatement. Aruct

Employers submit, however, that an accurate focus in this

case on the Matheu:s factors makes clear that the Secretary

has failed to offer any justifying rationale for the blatant leg:

islative and regulatory disregard of employers’ due process

rights under § 405; and thus, the statute and its implementing

guidelines must be found unconstitutional.

1. Employers Possess A Substantial Interest In

Avoiding The Erroneous Reinstatement Of An

Employee

The merit of the remedy of reinstatement, when war-

ranted. is not debated here by Amici Employers. An em-

ployer found to have violated a law for which reinstatement

is the mandated remedy has no choice but to accept and ad-

just to the resultant impact of compulsory reinstatement.

Nonetheless, the impact on an employer's business when

forced to reinstate a formerly discharged employee cannot be

minimized. The , rivate interest in this case — an interest

shared by all employers — centers on an employer's right and

concern in avoiding the substantial impact of government-

compelled reinstatement —— even on a “temporary” basis —-

by having the opportunity, before the harm is done, to meet

the evidence leveled against it and demonstrate that the

former employee's allegations of an unlawful discharge are

groundless.

Wrongful reinstatement infringes upon an employer's right

to remove employees whose conduct impairs efficient opera-

tion and to do so with promptness. And, absent adequate pro

cedural safeguards, law-abiding emplovers are subjected to

10

what can be a lengthy period’ of unjustified, “temporary”

employee reinstatement which jeopardizes the maintenance

of emplovee efficiency and discipline essential for effective

business operation. Moreover, reinstatement so easily gained

— without substantiation of discrimination through a fair

hearing process — may impress upon other employees the ap-

parent lack of necessity of either maintaining a good work

ethic or adhering to disciplinary policy in order to maintain

their positions. It must be recognized that while a complain-

ant’s fellow emplovees have an interest in a safe environment

and remedying unlawful retaliation, those same employees

have an equal interest in not being forced to work alongside a

person who may be undesirable for any number of reasons

which do not contravene any law. The District Court

summed up these concerns by embracing the sound reasoning

of this Court in Arnett v. Kennedy, 416 U.S. 134, 168 (1974),

which is universally applicable to all employment situations:

[p]rolonged retention of a disruptive or otherwise un-

satisfactory employee can adversely affect discipline and

morale in the work place, foster disharmony, and

ultimately impair the efficiency of an office or agency.

[J. S. App. 7a]

3 In the instant case. nine (9) months elasped between issuance of the pre-

hearing order of temporary reinstatement and the post-hearing recommend.

ed order. |Roadway’s Motion To Affirm, p. 16}. The period of “temporary”

reinstatement under § 405 has no limit under the Secretary's inter pretation.

The Secretary considers the one hundered and twenty (120) day period

within which the statute requires a final order to issue as not commencing

until after the administrative law judge issues a recommended decision. The

time expended by the judge in reaching the recommended decision is entire-

ly unregulated. Therefore. considering the range otf work habits and

caseload of the individual judges, an employer could be exposed to er-

roneous deprivation from several months to several vears. The possible

length of the deprivation — indefinite under § 405 — is an important factor

in assessing the impact on the interest of an employer. Mackey v. Montrym,

443 U.S. 1. 12 (1979). In Barry v. Barchi, 443 U.S. 55, 66 (1979), the tem-

porary suspension of a horse trainer's license was ruled unconsitutional

because the government's post-deprivation procedures (although providing

for a full post-suspension hearing) failed to insure a prompt proceeding and

prompt disposition of all outstanding issues.

1]

Further, the District Court appropriately recognized that.

while the findings of an arbitration board are not given res

judicata or collateral estoppel effect in a subsequent statutory

proceeding [J. S. App. 16a]. an employer has a substantial in-

terest. in not having an arbitration award upset by a

preliminary order issued without first affording the enplover

a meaningful opportunity to be heard. [J. S$. App. ¢al.

The Secretary’s cavalier attempt to minimize the employ-

ers interest by arguing that an employer is not harmed

because it will receive a day's work for a day's pay [Briet of

Secretary. p. 26]. overlooks every one of the employer, and

fellow-ermployvee. concerns described above — and the prac-

tical reality of a business operation,

Moreover, in asserting that temporary reinstatement of an

unsatisfactory emplovee creates only an “incremental reduc-

tion in the emplover’s control of his workforce, which in-

volves one employee out of many . . .” [Brief of Secretary, p.

29). the Secretary cither misapprehends or is choosing to ig-

nore the integral role plaved by an individual employee in the

collective effort. First. an emplovee rarely works in an en-

vironment segregated from others. Employees interact among

themselves and with their supervisors in a working relation-

ship on a frequent basis. Moreover, an employee's individual

contribution is vital to the success of the entire enterprise.

Correspondingly. the impact on a business of the presence of

one unsatisfactory emplovee impedes the collective effort.

Amici Employers strongly dispute that, on balance, the

asserted “benefit” received by an ernployver from the labors of

an unsatisfactory emplovee offsets in any realistic way the ir-

reparable harm caused by a terongful temporary reinstate-

ment.

For these reasons, the District Court in the instant case

properly concluded that Roadway’s interest against being ex-

posed to erroneous reinstatement of an unsatisfactory

emplovee is substantial. [J. S. App. 7a].

12

2. The Secretary Has Failed To Demonstrate That

Congress’ Goal Of Promoting Highway Safety By

Using Temporary Reinstatement To Remedy

Employee Discrimination Is Infringed By Affording

An Employer A Meaningful Pre-Order Hearing

Another factor in the Mathews consideration involves the

governmental interest — including the fiscal and ad-

ministrative burdens associated with an evidentiary hearing

held prior to the issuance of a temporary reinstatement order.

The Secretary and Amicus Curiae, Teamsters For A

-Democratic Union [“TDU”], elaborate in detail the impor-

tance of highway safety and the Congressional objective of

encouraging employee seporting of statutory violations

without fear of reprisal by an employer. [Brief of Secretary,

pp. 30-35; Brief of TDU, pp. 8-9, 15]. Amici Employers fully

agree that there is a statutorily-evidenced strong public in-

terest in: highway safety; encouraging employees to report

violations; and providing prompt reinstatement of employees

who have been discharged for unlawful reasons. However,

Amici Employers take strong exception to the assertions of the

Secretary and TDU that affording an employer a meaningful

pre-deprivation hearing would “thwart” those goals underly-

ing § 405. [Brief of Secretary, p. 37; see generally. Brief of

TDU, pp. 8-9, 15].

Both the Secretary and TDU reason that permitting an

employer a meaningful pre-deprivation hearing will provide

the employer with a means of delaying reinstatement to the

extent of causing intolerably longer periods of unemploy-

ment, thereby discouraging employee-reporting. [/d.| How-

ever, the Secretary and TDU fail to acknowledge that the

delay, if any, which would result trom affording an employer

a pre-order hearing is solely a function of the procedures

established by Congress or the Secretary for adapting the tem-

porary reinstatement process to the dictates of due process.

An employer plays no role in the timing of the hearing and

can be precluded procedurally from causing those delays

feared so disastrous by the Secretary and TDU.

13

The procedure under the Mine Act plainly illustrates how

potential delays can be minimized. If the Secretary concludes

from investigation that an employee's discrimination com-

plaint was “not trivolously brought,” the statute requires the

Mine Commission to decide the Secretary's application for

temporary reinstatement “on an expedited basis.” 30 U.S.C.

§ 815(c)(2). The now-existing procedure implementing the

statute’s temporary reinstatement remedy limits an employer

to ten (10) days in which to request a preliminary evidentiary

hearing on the issue of whether the complaint was frivolously

brought. 29 C.F.R. § 2700.44(b) [51 Fed. Reg. 16,024

(1986)]. The procedure then requires the hearing to be held

no later than ten (10) days from the employer's hearing re-

quest. Id. Only if “compelling reasons are shown” may the

employer obtain an extension of time. Jd. The administrative

law judge is required to issue an order regarding temporary

reinstatement within five (5) days of the close of the hearing.

29 C.F.R. § 2700.44(d) [51 Fed. Reg. 16,024 (1986)].

Although the employer is afforded five (5) days to appeal the

order to the Mine Commission, such an appeal does not stay

the effect of the judge’s order unless the Mine Commission

directs otherwise. 29 C.F.R. § 2700.44(e) [51 Fed. Reg.

16,024 (1986) }.

Moreover, the Secretary has extensive experience in im-

plementing other federal employee-protection statutes under

which a constitutional pre-order evidentiary hearing is con-

ducted without impeding the goal of expeditious reinstate-

ment. Under the employee-protection provisions of the

Energy Reorganization [Atomic Energy] Act of 1974 [42

U.S.C. § 5851], the Clean Air Act [42 U.S.C. § 7622], the

Water Pollution Control Act [33 U.S.C. § 1367], the Safe

Drinking Water Act [42 U.S.C. § 300j-9(i)|, the Toxic

Substance Control Act [15 U.S.C. § 2622], and the Solid

Waste Disposal Act [42 U.S.C. § 6971], the Secretary is

charged with the responsibility of expeditiously handling

employee discrimination complaints. 29 C.F.R. § 24.1(b).

The corresponding procedure promulgated by the Secretary

14

minimizes any delay associated with conducting a pre-order

evidentiary hearing before an administrative law judge. An

emplover must request a hearing within five (5) days of the

Secretary's investigative determination that a violation oc-

curred. 29 C.F.R. § 24.4(d)(3)(i). Following receipt of the

employer's request, the administrative law judge is permitted

seven (7) days. at most, to schedule the hearing. 29 C.F.R.

§ 24.5(a). The parties are entitled to only a five (5) day notice

of the hearing. [d. Because of time constraints imposed upon

the Secretary by the statutes, the procedure provides that “no

requests for postponement shall be granted except for com-

pelling reasons.” Id. Finally, the judge is required to issue a

recommended decision within twenty (20) days of the close of

the evidentiary hearing. 29 C.F.R. § 24.6(a).

Thus, the Secretary's forecast of intolerable employer-

caused delays is contradicted by the Secretary's own pro-

cedural experience under numerous other employee-

protection statutes. Obviously, the health and safety interests

promoted by those other statutes are no less important than

highway safety. And, there is no suggestion —— by Congress,

courts, or anyone else — that the goals of those statutes are

thwarted by providing an evidentiary hearing prior to order-

ing reinstatement.

The Secretary's over-dramatization of the impact of the

short time required for a pre-order hearing under the STAA

also rings hollow when considering the Secretary's own pro-

cedure currently used to implement the goals of § 405. The

procedure defines the sixty (60) day statutory period during

which the investigation is supposed to be completed as only

“directory.” OSHA Instruction DIS. 4A, at IX-7(D)(13). This

guideline instructs that “there may be instances when it is not

possible to meet the directory period set forth in § 405

(2)(A)[sic]”. Id. While Amici Employers do not dispute the

desirability of a thorough investigation, they do question the

validity of the Secretary's vigorous challenge to the short time

needed for a pre-order evidentiary hearing as destructive of

the claimed essence of the effectiveness of § 405 — prompt-

15

ness —— when at the same time, the Secretary, by treating the

sixty (60) day period as “directory,” permitted the time of the

investigation to exceed the statute's suggested period of sixty

(60) days. [Brief of Secretary, p. 41]. There is clearly no ra-

tional explanation for the Secretary's desire to rush in after

eleven (11) months of investigation and demand immediate

reinstatement without a hearing.*

Under all employee-protection statutes, a complaining

employee is faced with some time of unemployment while the

responsible agency investigates the complaint. Certainly, at

some point during what apparently can be a very lengthy in-

vestigatory period — if and when it becomes clear to the in-

vestigator that reasonable cause exists to believe a violation

has occurred — a short tirne can be set aside to hold a hearing

to allow an employer a meaningful opportunity to address the

evidence and present its version of the facts.

Inasmuch as lengthy investigatory delays clearly are

tolerable to the Secretary and any additional delay attendant

to conduct a pre-order evidentiary hearing can be procedural-

ly minimized to be « «gligible in comparison, the obvious

question is: what public interest is at stake when a pre-order

evidentiary hearing is held in these circumstances? Upon full

consideration of the circumstances, the Secretary's seeming

“interest” is simply the “desire” not to have a meaningful

hearing before orHering reinstatement. And, that “interest”

pales in comparison to an employer's interest in having a

meaningful opportunity to defend its discharge of an un-

satisfactory employee before being compelled to reinstate that

employee — even temporarily.

Clearly, the administrative and fiscal burdens associated

4 And, for those rare emergency cases where some reason may exist, pro

vision could be made for a procedure similar to that under Rule 65(b) of the

Federal Rules of Civil Procedure. Linder such a procedure, if the Secretary

could specify the need for immediate reinstatement and the reasons why

notice and an opportunity to respond need not be afferded the employer, an

administrative law judge could order temporary reinstatement pending a

prompt hearing on the matter

16

with affording an evidentiary hearing before an impartial ad-

judicator are not significant factors in the balance. Not sur-

prisingly, the Secretary makes only passing mention of those

factors. [Brief of Secretary, p. 38]. This is not a “mass justice”

type of case as was the situation confronted in Mathews, 424

U.S. at 347, where, in the context of the administration of

social security benefits, the Court noted that the expense of

constitutionalizing the benefit termination procedures would

not be “insubstantial.’”>

In the instant case, the Secretery has not disclosed the

number of discrimination complaints that have been filed

each year under § 405 or, more significantly, how many ex

parte orders of temporary reinstatement have been issued.

Absent such disclosure by the Secretary of the statistics per-

taining to § 405, there is no basis on which to predicate a con-

clusion that any substantial administrative or fiscal burdens

would attend affording employers pre-deprivation hearings

before impartial adjudicators under the STAA. Moreover, as

is the case with avoiding delays, Congress could preclude

what it may perceive as additional fiscal and administrative

burdens by choosing to model an amended § 405 after the

majority cf other federai employee-protection statutes. See,

pp. 13-14, supra.

Regardless of how Congress chooses to implement the re-

quirement of due process in § 405, any burden which might

result clearly fails to outweigh the other factors which plainly

favor affording an emplover meaningful pre-deprivation due

process.

5 Indeed, in 1974 alone, 122,793 hearing requests were received by the

Social Security Administration, representing a 300° increase from only

four year’s earlier. Only 80,779 of those requested hearings were able to be

conducted in that vear. Friendly, “Some Kind of Hearing,” 123 U. Pa. L.

Rev. 1267, 1284, n. 91 (1975). The number of § 405 complaints believed to

be meritorious after investigation for which a hearing opportunity weuld

arise most assuredly would be negligible in comparison.

17

3. A Government Investigation Into The Merits Of A

Private Sector Discharge Which Essentially Dictates

The Decision Concerning Temporary Reinstate-

ment And Supports Any Resultant Prosecution Of

The Alleged Discrimination Violation Creates An

Overwhelming Risk Of Erroneous Deprivation

As a final factor, the Mathews balancing process focuses on

the “risk of an erroneous deprivation of [an employer's] in-

terest through the procedures used [by the Secretary], and the

probable value, if any, of additional or substitute procedural

safeguards.” 424 U.S. at 335. The Secretary has conceded

that an employer possesses a constitutional right to some kind

of hearing prior to being ordered to temporarily reinstate an

unsatisfactory employee. [Brief of Secretary, p. 17]. The

Secretary, however, has claimed that an investigation, which

includes some unregulated contact with the employer, pro-

vides all the pre-deprivation process that is due. [Brief of

Secretary, pp. 17, 39-40]. Amici Employers submit that the

Secretary's argument is meritless. A government investigation

of a factually complex employee discharge by the individual

who essentially dictates the decision concerning temporary

reinstatement and who, at the same time, builds the case for

and participates in subsequent litigation against the employer

plainly cannot satisfy an employer's right to notice and a

meaningful opportunity to be heard.

An examination of the current § 405 pre-deprivation pro-

cedure offers a clear explication of why the government in-

vestigatory process is not sufficiently reliable and why,

therefore, an evidentiary hearing held before an impartial ad-

judicator and prior to the issuance of a temporary reinstate-

ment order is of substantial value. There should be little

dispute that, on its face, § 405 of the STAA fails to guarantee

an employer adequate procedural due process prior to an

order of temporary reinstatement. The statute only requires

that the employer be notified “of the filing of the complaint”

and that an investigation by the Secretary be conducted to

determine “whether there is reasonable cause to believe that

18

the complaint has merit.” 49 U.S.C. §§ 2305(¢)(1) and (2).

This procedure provides an employer neither meaningful

notice nor a meaningful opportunity to be heard. And, the in-

ternal investigatory “guidelines”® relied on by the Secretary to

constitutionalize § 405 also fail to offer an employer any

semblance of the constitutionally required notice or a mean-

ingful opportunity to be heard.

The investigation procedure is the very same as that used to

investigate discrimination complaints under OSHA’s

analogous employee protection statute — § Il](c) [<9 U.S.C.

§ 660(c)]. See, OSHA Instruction DIS. 4A, at IX-5(D)(6).

Unlike § 405, however, there is no provision for ex parte tem-

porary reinstatement under § 11(c). Instead, if the Secretary

concludes from his investigation that a violation of the OSHA

statute has occurred, he must bring an action in a United

States District Court to obtain an order for reinstatement and

backpay. 29 U.S.C. § 660(c)(2). That investigative procedure

for OSHA's § Ll(c) — which, at the outset, sets the focus for

the investigation on building a case against the employer [see,

e.g.. OSHA Instructions DIS. 4A at V-3(D)(1); V-3(D)(2)(c)

(2); V-5(D)(3)(b); V-7(D)(6)] — is entirely ill-suited to quali-

fying as a meaningful opportunity to be heard on an unbiased

basis as is necessary for proceedings under the STAA’s § 405

which does not involve the unbiased forum of a District

Court.

The procedure commences with an instruction to the in-

vestigator that “[t]he complainant's side of the investigation

6 The “guidelines” relied upon by the Secretary are not mandated by any

regulation or statute. They do not have the force and effect of aw, nor do

they confer procedural or substantive rights upon individuals See, 1. B.

Zachry Co.. 1980 OSHD ©24,196 (1980), affd 638 F.2d 812 (5th Cir.

1981); EMC Corp.. 1977-1978 OSHD € 22,060 (1977). And, inasmuch as the

procedure has changed since the investigation pertaining to the case sub

judice. there is absolutely no assurance that such procedure will not change

again. Moreover. the investigator is not even required to adhere to the

“guidelines”; they are just that guidelines, which the investigator has “in-

dividual discretion in implementing.” OSHA Instruction DIS. 4A, at

V-1¢A)(2).

19

shall be developed as thoroughly as possible.” OSHA Instruc-

tion DIS. 4A. at V-5(D)(3)(b). And, although § 405(c)(1) of

the STAA requires the Secretary to notify the employer of the

filing of the complaint upon receiving it, the investigatory

policies direct the completion of the investigation of the com-

plainant’s allegations before making the initial contact with

the employer. See, OSHA Instruction DIS. 4A, at V-5(D)(4).

Thus, employers are further prejudiced by being denied an

early opportunity to gather and preserve evidence.

By the time initial contact is made with the employer. the

investigator already is convinced that the complainant has

established a prima facie violation — or there would be no

reason to contact the emplover. At that point, because the

“guidelines” do not require the investigator to disclose the

substance of the evidence compiled, the employer is placed in

the untenable position of having to disprove — the

complainant's case without benefit of knowing the claimed

evidence which is relied upon by the investigator.” This was

precisely the situation confronted by Roadway in the present

case. [Roadway’s Motion To Affirm, pp. 3, n.2, 4].

There can be no fair dispute over the right to know the

nature of the evidence on which the administrative agency

relies. Friendly, supra. 123 U. Pa. L. Rev. at 1253. In

7 The Secretary has argued that the investigatory “guidelines” include an

“implicit . . . obligation” for the investigator to disclose to the employer the

substance of the evidence against it. [Brief of Secretary, p. 40. n. 19).

However, recognizing the Secretary's apparent regard for confidentiality

(Brief of Secretary. pp. 46-47], it is very unlikely that an investigator will

disclose any more than the “guidelines” actually state — i.c¢.. the “substance

of the complaint.” OSHA DIS. 4A, at V-5(D)(4). In the instant case, the

Secretary had to rely on the parties’ arbitration proceedinss as having pro-

vided Roadway with sufficient notice of the evidence against it. The

Secretary's resort to inferences from broad and discretionary internal

“guidelines” and reliance upon a private arbitration proceeding to satisty

due process highlight not only the deficiencies in the Secretary's procedure

but also the fallacy of the Secretary's ultima'e proposition that his investiga-

tion substitutes as notice and a meaningful opportunity to be heard.

20

Cleveland Board of Education v. Loudermill, 470 U.S. 532,

84 L.Ed.2d 494 (1985), this Court construed the requirement

of a meaningful opportunity to respond to include an ex-

planation of the evidence against the respondent. 470 U.S. at

—_—. 84 L.Ed.2d at 506. Here, the Secretary's procedure

does not require the investigator to reveal even the substance

of the evidence gathered during the investigation prior to

ordering temporary reinstatement. This failure alone plainly

invalidates any suggestion that a meaningful opportunity to

be heard is had during such an investigation.

The risk of error and procedural unfairness arising by ap-

plication of the Secretary's guidelines are further magnified as

the investigation progresses. After the employer is provided

with an entirely ineffective opportunity to respond to

anything more than the bare charge, the Secretary's policies

direct the investigator to give the complainant the final word

in an effort “to resolve any discrepancies or counter-

allevations resulting from contact with the respondent.”

OSHA Instruction DIS. 4A, at V-7(D)(6). And, the investiga-

tion is not to terminate at any stage unless “it can be con-

clusively shown that a prima facie case cannot be developed.”

OSHA Instruction DIS. 4A, at V-4(D)(2)(c)(2). In the end,

the investigator is called upon to prepare a recommendation

for disposition of the case. OSHA Instruction DIS. 4A, at

VI-3(C)(2)(n). The investigator's conclusions, presumably

supported by his investigation file, essentially dictate the ex

parte decision. Subsequent review by supervisory officials

simply consists of weighing the investigator's recommendation

“against the evidence available in the file.” OSHA Instruction

DIS. 4A, at IX-6(D)(9).

This process clearly highlights why the assistance of an

ad -ersarial evidentiary hearing before an impartial ad-

judicator prior to any order of temporary reinstatement Is

critical for lessening what otherwise would remain a substan-

tial risk of erroneous deprivation.

The reliability of the investigator's fact-finding, proffered

as a meaningful! opportunity for the employer to be heard,

necessarily must be examined in light of the nature of the in-

21

quiry involved. Where the basis for administrative action

consists of objective or historical facts that are within the per-

sonal knowledge of the government investigator or readily

ascertainable by him, the risk of error is not as likely. Mackey

v. Montrym, 443 U.S. 1, 13-14 (1979). “It is only where the

inquiry is ‘sharply focused’ and ‘easily documented’ that ex

parte administrative investigations are considered reliable.”

Mathews, 424 U.S. at 343-344. But, where the facts are likely

to be disputed, pre-deprivation procedural protection is re-

quired. Memphis Light, Gas & Water Division v. Craft, 436

U.S. 1, 18 (1978); Goldberg v. Kelly, 397 U.S. 254, 269-270

(1970).

In Califano v. Yamasaki, 442 U.S. 682 (1979), this Court

examined § 204 of the Social Security Act [42 U.S.C. § 404]

pursuant to which there is no recoupment of an erroneous

overpayment of benefits if the recipient requests and is

granted a waiver of recovery by the Secretary of the Depart-

ment of Health, Education, and Welfare. The statute pro-

vides a waiver for “any person who is without fault if such

adjustment or recovery would defeat the purpose of this Sub-

chapter or would be against equity and good conscience.” 42

U.S.C. § 404(b). The issue presented was whether an oral

hearing opportunity had to precede the HEW Secretary's de-

cision on the recipient's written waiver request. 442 U.S. at

695. And, the Court he!d that a pre-waiver decision oral

hearing was required since the HEW Secretary's assessment of

fault, equity, and good conscience “is inherently subject to

factual determination and adversarial input.” 442 U.S. at

696, citing, Mitchell v. W. T. Grant Co., 416 U.S. 600, 617

(1974).8

In reaching its conclusion, the Court expressly recognized

the value of conducting a pre-waiver decision evidentiary

hearing before an impartial decision-maker in observing that

since the HEW Secretary had implemented the hearing re-

quirement mandated by the lower courts —- which included

8 After concluding that “the nature of the statutory standards [made] a

hearing essentia' “ the Court found it unnecessary to also examine the req-

uisites of constitutional due process. 442 U.S. at 693.

29

the opportunity for the recipient to present “testimony and

evidence and cross-examine{ | witnesses” — thirty percent

(30%) of the HEW Secretary's initial determinations had

been reversed. Id.

This rate of reversal confirms the view that, without an

oral hearing, the Secretary may misjudge a number of

cases that he otherwise would be able to assess properly.

Id

As in the instance of the situation in Yamasaki, “questions in-

volved in reinstatement proceedings are ‘inherently subject to

factual determination and adversarial input’,” Southern Ohio

Coal Co.. 774 F.2d at 693, quoting. Mitchell, 424 U.S. at

617: therefore, an adversarial evidentiary hearing prior to the

reinstatement decision similarly is required.

Nevertheless, the Secretary's procedure applicable here ex-

pressly directs the investigator to resolve “(q)uestions of

credibility and reliability of evidence” as part of his investiga-

tion. OSHA Instruction DIS. 4A, at VI-3(C)(2)(1). Moreover,

these questions are resolved in the context of an investigation

which strives to provide the complainant every opportunity to

make his case, including the opportunity for the final word in

response to the employer's position — a position which is

presented without benefit of knowing the evidence relied

upon by the investigator. Even assuming, arguendo, the com-

plete neutrality of the Secretary's investigator when compiling

diverse information and making judgments regarding

credibility and veracity, there plainly is an extremely high

risk of error inherent in the Secretary's proffered decision-

making process.

Moreover, in light of the procedure utilized by the

Secretary, a completely unbiased investigation cannot be so

easily presumed. The risk of error is substantially increased

under that procedure by the joinder of the investigative, pros-

ecutive, and adjudicative functions within one entity.

The prosecutorial emphasis inherent in the Secretary's “in-

vestigative” procedure cannot be overlooked. And, the in-

vestigator/prosecutor essentially dictates the decision regard-

23

ing temporary reinstatement. Simply by working for the

agency responsible for enforcing § 405 and being guided by a

procedure developed to support successful litigation of

discrimination charges, the investigator is almost certain to

develop, through investigative zeal, a “will to win” that is in-

compatible with objective adjudication of the temporary

reinstatement issue.* Inasmuch as the decisien-maker is part

and parcel of the enforcing entity (and thus not removed from

a suspicion of bias), the greater the need for additional pro-

cedural safeguards. And, that need is even more compelling

where, as here, the manner of implementing the applicable

procedural “guidelines” — including those which may pro-

vide some procedural protection for an employer's interest —

rests in large part within the discretion of the individual in-

vestigator. OSHA Instruction DIS. 4A, at V-1(A)(2). In sum,

the field investigation is devoid of any guarantees of pro-

cedural regularity which characterize a hearing before an im-

partial adjudicator.'°

® Significantly, over forty years ago, a provision was included in the Ad-

ministrative Procedure Act [5 U.S.C. § 554(d)] in direct response to this

conflict to provide that “[a]n employee or agent engaged in the performance

of investigative or prosecuting functions for an agency in a case may not, in

that or a factually related case, participate or advise in the decision, recom-

mended decision or agency review. ...” See, Report of the Attorney

General's Committee on Administrative Procedure. $. Doc. No. 8, 77th

Cong., Ist Sess. 50 (1941).

10 Amicus Curiae TDU, although appearing in support of the Secretary,

essentially concedes that due process requirements cannot be satisfied by the

Secretary's investigation. [Brief of TDU, pp. 16-18]. Instead, TDU argues

that an employer, by simply disregarding the Secretary's order of temporary

reinstatement, can receive all the process that is due in the course of an en-

forcement action filed by the Secretary in District Court under § 405(e).

(Id. at pp. 18-20]. However, that suggested alternative is of questionable

viability both in terms of the plain language of § 405 and of placing a party

actually seeking relief in a defensive posture before a court. Moreover, a re-

cent decision construing the virtually identical enforcement mechanism

under the employee-protection provision contained in the Energy

Reorganization Act [42 U.S.C. § 5851(d)] indicates quite clearly that the

District Court's enforcement duty is simply ministerial — thus excluding

any substance from the judicial consideration of the matter. Kansas Gas &

Electric Co. v. Brock, 780 F.2d 1505, 1514-15 (10th Cir. 1985).

24

The procedure following the investigation does not and

cannot correct the errors made during the investigation. The

investigator's superiors base their decision solely on the in-

vestigator’s report and recommendation — the same report

and recommendation which is not disclosed to the employer

to allow for meaningful response. See, OSHA Instruction

DIS. 4A. at IX-6(D)(9). Moreover, post-investigation review

by the Secretary's designees certainly cannot be accepted as

satisfying the concern of the need for impartial review in-

asmuch as those decision-makers then assist in representing

the complainant in the post-deprivation proceedings.

The availability of a full post-deprivation hearing under

§ 405 cannot alone satisfy the requirements of due process.

Only where the “potential length or severity of the depriva-

tion does not indicate a likelihood of serious loss and where

the procedures underlying the decision to act are sufficiently

reliable to minimize the risk of erroneous deprivation” is a

post-deprivation proceeding constitutionally acceptable by

itself. Memphis Light, Gas & Water Division, 436 U.S. at 19.

As discussed above, the deprivation and harm to an employ-

er’s interest in efficiently operating its business caused by tem-

porary reinstatement of an unsatisfactory employee is

substantial. And, the length of that deprivation and harm is

indefinite under the Secretary's interpretation of § 405.

Supra. pp. 9-11. Finally, the Secretary's unreliable and ill-

suited procedure for determining whether reasonable cause

supports an order of temporary reinstatement provides very

little hédge against an erroneous decision resulting from ap-

plication of § 405, which itself fails to guarantee any measure

of due process for an employer.

In sum. these numerous and serious constitutional defects

in the reinstatement procedure under the STAA can only be

eliminated by requiring that a pre-order evidentiary hearing

be afforded an employer under § 405.

25

CONCLUSION

This Court has emphasized repeatedly that the Due Process

Clause entitles the aggrieved party to a meaningful oppor-

tunity to present his case and have its merits fairly judged.

Reflection upon the various interests and circumstances in the

instant context leads to but one reasonable conclusion — a

“meaningful” opportunity to be heard for Roadway (and

other similarly situated employers) must include, at a

minimum, an opportunity to know and respond to the

evidence against it by confronting and cross-examining

witnesses before an impartial decisionmaker and presenting

evidence of its own.

An employer — such as Roadway or any of the Amici Em-

ployers — has a substantial interest against reinstating an un-

satisfactory employee — even on a temporary basis. And, that

interest expands as that “temporary” period lengthens.

Moreover, a procedure like that utilized under § 405 in mak-

ing the decision regarding temporary reinstatement is wholly

unsuited for a valid ex parte decision and presents an over-

whelming risk of producing an erroneous decision. Thus, ad-

ditional safeguards are plainly mandated. And, the

Secretary's interest in not affording a meaningful pre-

deprivation hearing in these circumstances is trivial and has

absolutely no relationship to the statutorily evidenced public

interest in promoting highway safety — or safety concerns in

other business operations. A balancing of the relevant factors

clearly indicates that an employer confronted with the possi-

ble reinstatement — on a temporary or permanent basis — of

a terminated employee is entitled, at a minimum, to the pro-

cedural protection which the Court below found to be man-

dated by the Fifth Amendment to the United States Constitu-

tion. In the specific instance of § 405 of the STAA, it is clear

that the statute, on its face and as applied, plainly fails to

“meet the essential standard of fairness under the Due Process

Clause.” Landon v. Plasencia, 459 U.S. 21, 34 (1982).

26

Accordingly, the judgment of the District Court of the un-

constitutionality of the statute should be affirmed.

Respectfully submitted,

Alvin J. McKenna

(Counsel of Record)

D. Michael Miller

Mark S. Stemm

PORTER, WRIGHT, MORRIS &

ARTHUR

$1 South High Street

Columbus, Ohio 43215

(614) 227-2000

Attorneys for Amici Employers,

Central Ohio Coal Company.

Consolidation Coal Company,

Eastern Associated Coal

Corp., Southern Ohio Coal Company,

U.S. Coal, Inc., and Windsor Power

House Coal Company

APPENDIX A

Letterhead of U.S. Department of Justice

Office of the Solicitor General

July 1, 1986

Alvin J. McKenna, Esquire

Porter, Wright, Morris & Arthur

Twenty-Fifth Floor

1 Riverside Plaza

Columbus, Ohio 43215-2388

Re: No. 85-1530, William E. Brock, et al. v.

Roadway Express, inc.

Dear Mr. McKenna:

As requested in your letter of June 27, I hereby consent

to the filing of a brief amicus curiae on behalf of the Central

Ohio Coal Company, Consolidation Coal Company, Eastern

Associated Coal Corporation, Southern Ohio Coal Company,

U.S. Coal, Inc. and Windsor Power House Coal Company.

Sincerely,

/s/ Charles Fried

Solicitor General

ce: Joseph F. Spaniol, Jr., Esquire

Clerk

Supreme Court of the United States

Washington, D.C. 20543

la

APPENDIX B

Letterhead of Fisher & Phillips

July 3, 1986

Alvin J. McKenna, Esquire

Porter, Wright, Morris & Arthur

25th Floor

One Riverside Plaza

Columbus, Ohio 43215-2388

Re: William E. Brock, et al. v.

Roadway Express, Inc.

Supreme Court of the

United States

Case No. 85-1530

Dear Al

| am in receipt of vour letter on behalf of Central Ohio

Coal Compant. Consolidation Coal Company, Eastern As-

sociated Coa! Corporation, Southern Ohio Coal Company,

U.S. Coal. Inc. and Windsor Power House Coal Company,

indicating that you wish to appear as amicus curiae in the

captioned matter. This letter is to advise you that the Respon-

dent, Roadway Express, Inc., consents to your appearance as

amicus.

By copy of this letter, I am so advising the office of the

Solicitor General of the United States.

Very truly yours,

s/ Michael C. Towers

For FISHER & PHILLIPS

MCT: mhb

ce: Honorable Charles Fried

Solicitor Generai of the United States

2a