# Opposition Brief — Candelario v. Frank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3188%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 499 U.S. 919 ## Text fa) No. 90-863 Jn the Supreme Court of the Anite sores See a rams emmsils lis so ae: OCTOBER TERM, 1990 SABAT QUINONES CANDELARIO, PETITIONER Vv. ANTHONY M. FRANK, POSTMASTER GENERAL OF THE UNITED STATES ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MARLEIGH D. DOVER WENDY M. KEATS Attorneys Department of Justice Washington, D.C. 20530 (202) 514-2217 {7 QUESTION PRESENTED Whether principles of administrative res judicata preclude the Postmaster General from raising a postal employee’s failure to mitigate damages in an action to enforce a deci- sion of the Equal Employment Opportunity Commission. (1) TABLE OF CONTENTS Page Er en l ee nd Sy ake A We'd bk ee Wa v8.08 l eg I ee ee 2 ea in a hk kee eeu eh soak ese 5 re ee red oy aah sae eee eke ke 12 TABLE OF AUTHORITIES Cases: Albermarle Paper Co. .. Moody, 422 U.S. 405 a ER GS oP 8 Federated Dep't Stores \. Moitie, 452 U.S. 394 en eG uw be Cae 0b 60x 10, 11 Frazier v. United States Postal Service, 26 M.S.P.B. ae eg as coe oy Vade oe eulce 6 us 2 8 Gellingtos: v. Department of Justice, 87 Fed. Eq. Op- portunity Rep. (Labor Rel. Press) € 1,040 (Apr. Ne i anaes os ee 7 Hanrahan v. Hampion, 446 U.S. 754 (1980) .... 1} Haskins vy. Department of Army, 808 F.2d 1192 (6th ee te vies sk ae eae eae cae 9-10 Horn v. Duke Homes Div. of Windsor Mobile Homes, Inc., 755 F.2d 599 (7th Cir. 1985) ... 8 Houseton v. Nimmo, 670 F.2d 1375 (9th Cir. ee re wane Le ae ee eae & s 10 International Harvester Co. v. Occupational Health and Safety Review Comm’n, 628 F.2d 982 (7th Cir. ee ee soe ye bats a Lis kb ¢ 1] Kremer v. Chemical Constr. Co., 456 U.S. 461 TN TS ee ee cee base ki 6 Marks v. Pratico, Inc., 633 F.2d 1122 (Sth Cir. Is a ys sc ow Fs «ab e's Cox. Y lV Cases — Continued: Page Moitie v. Federated Dep’t Stores, Inc., 611 F.2d 1267 SC SE no nr caee cals peck ea es eas 10 Moore v. Devine, 780 F.2d 1559 (11th Cir. DE Ue cual uses eee eee as tec eh rene nn 7-8, 9 Pecker v. Heckler, 801 F.2d 709 (4th Cir. DE each Pea asa ncaa neti sk ne ne eco ee 10 Rasimas v. Michigan Dep’t of Mental Health, 714 fg oF fe ae See eee y) Snow v. United States Postal Service, 88 Fed. Eq. Opportunity Rep. (Labor Rel. Press) © 1,030 Se: Se EN ee Laren ey, 4 7 Sullivan v. Hudson, 109 S. Ct. 2248 (1989) .... 11 Taylor v. Philips Indus., Inc., 593 F.2d 783 (7th Cir. i BER ey oe a ere rye SR Pan Pera S Texas State Teachers Ass'n v. Garland Indep. School District, 489 U.S. 782 (1989) ............... 1] United States v. Utah Constr. & Mining Co., 384 See I ns ay Go hove we ke oe eae ees 6,9 University of Tennessee v. Elliott, 478 U.S. 788 SNS Sth c coe OE ka Bs 8 se Re ae 6 Statutes and regulations: Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 eal, Jon Gee ee. Fe) OE ONE.) .. 2.2 eee. a SEED oo kp weo-n ase cooassces Pe oe! es 3, ee MO Or Mees ooo se 3, y. Fon &. Pt. 102: TD SR ee ek sk ooo ee oe a 8 ~ © & WN a ee) re a") Regulations — Continued: Pres ENT a:s7ate ora ack ote slate cal w aie'a ee er Fas ee re ak a eae Oa oe earn Sections 1613.221-1613.234 ........... NN NIN oo owe Sek ceew ences oe | Sections 1613.237-1613.239 ........... ek eo , EE err ee section 1613.271(aM4) .... 2... cccee Section 1613.281 (1986) .............. 3, ( NNN ONNYAnNYANNN Miscellaneous: Restatement (Second) of Judgments (1982) ..... 6 } 7 _ en reliiigs> = Seana Te ee Te Jn the Supreme Court of the Gnited States OcTOBER TERM, 1990 No. 90-863 SABAT QUINONES CANDEI ARIO, PETITIONER v. ANTHONY M. FRANK, POSTMASTER GENERAIL OF THE UNITED STATES ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. Al-A19) is reported at 906 F.2d 798. The opinion of the district court (Pet. App. A22-A46) is reported at 715 F. Supp. 414. JURISDICTION The judgment of the court of appeals was entered on June 26, 1990. A petition for rehearing was denied on September 4+, 1990. Pet. App. A87-A88. The petition for a writ of cer- tiorarl was filed on November 26, 1990. The jurisdiction ot this Court is invoked under 28 U.S.C. 1254(1). (1) STATEMENT 1. Petitioner, a veteran who is partially disabled by a back condition, was hired by the United States Postal Serv - ice as a probationary part-time postal clerk in August 1979. On September 0, 1979, the Postal Service discharged peti- tioner on the basis of a medical determination that his back condition was incompatible with heavy lifting and other physical requirements of the job. Petitioner filed a com- plaint with the Postal Service asserting that the Service had unlawfully discriminated against him on account of his disabHity, in violation of the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 390 (codified at 29 U.S.C. 701 el seq.). See 29 C.F.R. Pt. 1613.' The Postal Service issued a final agency decision finding that petitioner’s termination was not discriminatory. Pet. App. AS5-A6, A23-A25, A64-A69. Petitioner appealed to the Equal Employment Opportuni ty Commission (EEOC), which rendered a decision in his favor in April 1985. Pet. App. A63-A82. The sole issue con- sidered by the EEOC was “whether the record supports a finding of no discrimination.” Jd. at A73. The EEOC deter- mined that petitioner’s discharge was improperly based on his physical condition and ordered the Postal Service to “reinstate [petitioner] at the paygrade he would normally have reached if not terminated, and award him backpay for the period from his termination to his reinstatement.” /d. at A78. The EEOC neither considered nor determined the amount of back pay due petitioner, and the parties presented no argument or evidence on this question. See id. at A37. ' The procedures of 29 C.F.R. Pt. 1613 apply to employment discrimination complaints by tederal employees. The procedures of 29 C.F.R. Pt. 1601 apply to discrimination complaints by state and private employees. 2. The Postal Service reinstated petitioner in June 1985. In accordance with the requirement that “[i]nterim earnings or amounts earnable with reasonable diligence by the per- son * * * discriminated against shall operate to reduce the back pay otherwise allowable,” 42 U.S.C. 2000e-5(g),? the Postal Service asked petitioner to submit proof of his earn- ings and efforts to obtain other employment during the back pay period. Petitioner submitted documents indicating that, apart from 100 hours of part-time work, he had no interim earnings. Petitioner’s submissions showed that he had not sought unemployment compensation during the back pay period, and that he was a full-time university student for three years. See C.A. App. 16-18. In March 1986, the Postal Service determined that petitioner had not made reasonable efforts to obtain other employment and denied him back pay. Pet. App. A27-A28. Petitioner submitted additional documents in August 1986, including undated applications for employment, a let- ter stating that he had been a student in a vocational rehabilitation program, and a handwritten log setting forth the names and business cards of employers that he claimed to have contacted. C.A. App. 20. Upon investigation, the Postal Service determined that the additional materials were Suspect, and again denied petitioner’s claim for back pay. Pet. App. A31l. 3. Petitioner then brought an enforcement action in district court. See 42 U.S.C. 2000e-5(g), 2000e-16(c); 29 C.F.R. 1613.281 (1986). He moved for summary judgment, arguing that the Postal Service had not raised his alleged failure to mitigate damages before the EEOC and therefore was precluded by the doctrine of administrative res judicata from raising the issue in the district court. The district court ? Section 2000e-5(g) is incorporated by reference in the Rehabilita- tion Act. See 29 U.S.C. 794a(a)(1). 4 granted summary judgment for petitioner. Pet. App. A22-A46. The court found that “the EEOC serves in a judicial capacity” and renders a “final judgment [on the merits] with which the Postal Service is obligated to comply.” /d. at A38-A39. Although the district court agreed with the Postal Service that “before the EEOC, there was no inquiry into the reasonable-diligence issue, and there was no calculation of the back pay,” id. at A37, the court con- cluded that the Postal Service was “precluded from raising the reasonable-diligence issue if it could have raised it in the administrative proceeding,” id. at A39. The court held that “[t]he exact construction of the back-pay award [was] a proper subject of the EEOC proceedings,” id. A40-A41, and found “no legislative policy that would favor separate, collateral review of the reasonable-diligence issue,” /d. at A42-A43. 4. The court of appeals reversed. Pet. App. Al-A19. The court of appeals agreed with the district court that “IsJince the EEOC acted in a judicial capacity, any factual determination that it made may be subject to the doctrine of res judicata.” Id. at A1l2. But the court observed that administrative res judicata would not apply to the EEOC proceedings “in the face of contrary public policy,” such as “when it would result in a ‘manifest injustice.’” /d. at A13 (citing cases). The court concluded that to preclude the Postal Service from raising the mitigation issue in a subse- quent enforcement action “would be a ‘manifest injustice’ ” and “would violate the statutory mandate in compliance pro- ceedings brought before the district court [under Section 2000e-5(g)] that ‘[i]Jnterim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.’” Jd. at A13-A14. The court of appeals observed that “[t]he proceeding before the EEOC was concerned with a liability determina- tion, and was not necessarily the appropriate forum for a aA precise determination of [petitioner’s] damages.” Pet. App. Al4. The court also noted that the applicable regulations “[njowhere * * * direct the EEOC to determine in that pro- ceeding the specific amount of back pay due the com- plainant,” ‘bid. nor do they specify “which body [the EEOC or the employing agency] must determine back pay in the first instance,” id. at AlS. Moreover, “in practice, it ap- pears that in typical proceedings the EEOC does not com- pute back pay in the first instance.” /d. at A15-A16. The court concluded that to require the EEOC, contrary to its current practice, to compute the specific amount of back pay due in all future administrative appeals “would not foster administrative efficiency,” because the initial calcula- tion of back pay involves “matters that can best be con- sidered and determined by the agency which had employed the complainant.” /d. at A17-A18. Accordingly, the court of appeals vacated the judgment and remanded the case for further proceedings. ARGUMENT The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court Of appeals. In addition, the court of appeals has remanded this case to the district court for further pro- cecdings. Because petitioner may recover the back pay he secks on remand, interlocutory review of the court of ap- peals’ decision is not warranted. 1. Petitioner contends (Pet. 20-29, 44-60) thai the Postal! Service should have raised his alleged failure to mitigate damages in the EEOC proceedings on the meriis of his discrimination complaint. In petitioner’s view, principles of adiministiative res judicata preclude the Postal Service from raising the mitigation issue in a subsequent enforcement ac- tion. Petitioner further contends (Pet. 29-43) that the court h of appeals erred in declining to apply administrative res judicata here on the basis of public policy and to avoid manifest injustice. These contentions are unpersuasive. a. Administrative res judicata applies “[w]hen an ad- ministrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate.” United States \. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966). See also University of Tennessee v. Elliott, 478 U.S. 788, 797-798 (1986) (issue preclusion applies to factfinding of administrative bodies acting in a judicia! capacity); Aremer. Chemical Constr. Co., 456 U.S. 461, 484-485 n.26 (1982). Although the EEOC acted in a judicial capacity in this case, it did not resolve any disputed issues of fact con- cerning the amount of back pay due. And because the amount of back pay due generally is determined by the employing agency in the first instance, after the EEOC has issued its decision on the merits, the proceedings before the EEOC did not afford the Postal Service an adequate op- portunity to litigate the mitigation issue. The sole issue before the EEOC was “whether the record supports a finding of no discrimination.” Pet. App. A73. The district court expressly found that “[w]hen the present case was before the EEOC, there was no inquiry into the reasonable-diligence issue, and there was no calculation of the back pay owed to [petitioner].”? Jd. at A37. This was consistent with the EEOC’s usual practice. As the court of * Consequently, the district court’s suggestion that principles of col- lateral estoppel (issue preclusion) prevent the Postal Service from rais- wig the mufigation issue in a subsequent proceeding (Pet. App. A35-A38) is plamly incorrect. See Restatement (Second) of Judgments § 27 (1982) fissue preclusion applies to issues “actually litigated and determined” In a prior proceeding). appeals recognized (id. at A1S-A17), the EEOC generally does not compute the amount of back pay due a successful claimant. In Snow v. United States Postal Service, 88 Fed. Eq. Opportunity Rep. (Labor Rel. Press) € 1,030 (Sept. 30, 1987), for example, the EEOC issued an order directing the Postal Service to reinstate an employee and award back pay, and later issued a separate order affirming the Postal Seiv- ice’s denial of back pay for failure to mitigate damages. ' The EEOC’s procedures focus on resolving claims of discrimination on the merits. See 29 C.F.R. 1613.213-1613.218 and 1613.221-1613.234. The regulations provide that, upon a final finding of discrimination, the Commission may order appropriate corrective action, 29 (.F.R. 1613.234 and 1613.271, which ordinarily should in- clude “[pJayment * * * on a make whole basis tor any loss of earnings the person may have suffered as a result of the discrimination.” Section 1613.271(a)(4). The employing agency is required to report to the EEOC within a prescribed time that “the corrective action has been taken.” Section 1613.234(a). If the employee is dissatisfied with the level of compliance, he is entitled to file a civil suit for enforce- ment in district court. 42 U.S.C. 2000e-16(c); 29 C.F.R. 1613.281 (1986). See Moore v. Devine, 780 F.2d 1559, 1563 4 Petitioner attempts to distinguish Snow by noung thai the remedial order in that case directed the Postal Service to award back pay reduced by amounts earned, and the EEOC processed the agency s subsequent back pay determination as an administrative appeal rather than as a compliance report. Pet. 1-53. But the EFOC in Snow clearly treated the back pas calculation as a separate stage of the process that follow ed determination of the employee's claim of discrimination on the merits. In Gellington v. Department of Justice, 87 Fed. ty. Oppor- ‘unity Rep (labor Rel. Press) © 1.040 (Apr. 15, 1987). the EEOC con sidered the mitigation tssuc on the initial appeal because the employs me agency had already tound discrimination aid the cinploysee’s ap peal was trom the agenes’s partial denial of back pay for failure to mitigate (11th Cir. 1986). As the court of appeals recognized (Pet. App. A17-A18), the practice of deferring calculation of back pay until after a determination on the merits of a discrimina- tion claim promotes administrative efficiency by allowing the EEOC to focus its resources on the claimaf elt while the employer, in the first instance, performs the largely ministerial task of assembling the information needed to implement the usual remedy of reinstatement and back pay.° Because the EEOC generally does not calculate the amount of back pay due in the first instance, the parties in this case did not have an adequate opportunity to litigate back pay issues before the EEOC. Indeed, petitioner’s argu- ment, if takgn seriously, would preclude him from recover- ing any back pay because he failed to present evidence con- cerning thefamount of back pay due. See Taylor v. Philips Indus., Inc. , 593 F.2d 783, 787 (7th Cir. 1979) (“Under [Title VII’s make whole] formula, before the court may award damages, plaintiff must first establish that she has, in fact, sustained an economic loss from defendant's discrimination. ~* * Not until the plaintiff establishes what she contends are her damages does the burden of going forward to rebut the damage claim or to show plaintiff's failure to mitigate damages, fall on detendant.”). Accord Horn v. Duke Homies Div. of Windsor Mobile Homes, Inc., 755 F.2d 599, 606 (7th Cir. 1985) (back pay ordinarily is granted Title VII plaintiffs, but “plaintiff has the burden of proving the * Other tederal remedial schemes also provide tor the calculation of _back pay in a separate stage of the proceedings, following a determina- tion of hability. The National Labor Relations Board’s regulations pro mulgated under the National Labor Relations Act (on which Title VII's back pay remedy was expressly modeled. see A/bermarle Paper Co. v. Voodyv, 422 U.S. 408, 419 (1978)). provide for calculation of make- whole damages at a later stage of the proceedings. See 29 C.F.R. 102. 52-102.59. The Meri Systems Protection Board also typically pesoives Puck pay issues ai a separates stage. See fruzier v. United States Postal Service 26 M.S_.P.B. 584. 885-586 (1985). Y damages caused her”); Rasinas v. Michigan Dep’t of Men- tal Health, 714 F.2d 614, 623 (6th Cir. 1983); Marks v. Pratico, Inc. , 633 F.2d 1122, 1125 (Sth Cir. 1981). In short, the doctrine of administrative res judicata does not apply tO questions concerning the amount of back pay due, because the EEOC’s decision did not “resolve[] disputed issues of fact” on that issue, and the parties did not “have * * * an adequate opportunity to litigate” those issues in the prior administrative proceeding, Utah Constr. & Min- ing Co., 384 U.S. at 422.° There is no merit to petitioner’s contention (Pet. 20-29) that the procedure followed in this case permits a federal employer.to overrule a back pay remedy ordered by the EEOC. The employer is bound by the EEOC’s finding of discrimination. See 42 U.S.C. 2000e-16; Moore v. Devine, 780 F.2d at 1562. The employer’s role is limited to making the initial calculation of the amount of back pay due. If the employee disputes the calculation, he has a right to seek resoiution of that dispute by filing an enforcement action in district court (or, under current regulations, by petition- ing the EEOC for enforcement of its order, see note 6, supra). Thus, contrary to petitioner’s assertions (Pet. 20-21, 28-29), the decision in this case does not conflict with deci- sions holding that the EEOC’s final decision in federal sec- tor employment discrimination cases is binding on the employing agency. See Haskins v. Department of Army, * In 1987, after the events at issue in this case, the EEOC issued sup- plemental regulations that make it even clearer that compliance tssues, including mitigation, generally are treated as separate from the merits of a discrimination complaint. The regulations establish a formal pro- cedure by which a claimant may petition the EEOC tor enforcement of a reme tial order, and the EEOC may conduct further fact-finding. See 29 C.F.R. 1613.237-1613.239. Because it ts now clear that federal emplo, ves may return to the EFOC for resolution of compliance issues, petitioner's contentions are of no continuing significance. 10 SO8 F.2d 1192, 1200 (6th Cir. 1987) (EEOC determination “must be reviewed [by a court in an enforcement action] in the contest that i was made; facts which were not re- solved by the KEOC in making such a determination can- not be read into such a finding upon a claimant’s demand”). See also Hlouseton v. Nimmo, 670 F.2d 1375 (9th Cir. 1982); Pecker \. Heckler, 8301 F.2d 709 (4th Cir. 1986). b. Because principles of administrative res judicata do not preclude the Postal Service from raising petitioner's alleged failure to mitigate damages in an enforcement ac- tion, there is no need for this Court to consider petitioner’s additional contention (Pet. 29-44) that the court of appeals should not have recognized an exception to administrative res judicata based on public policy and the avoidance of manifest injustice. But even if administrative res judicata ordinarily would apply here, the court of appeals’ decision would not warrant further review. In Federated Dep't Stores v. Moitie, 482 U.S. 394, 401 (1981), this Court rejected “public policy” and “simple justice” as reasons tor excepting from the effects of res judicata parties who, for tactical reasons, elected not to ap- peal a lower court judgment. The lower court in Moitie had recornized that “strict application of the doctrine of res judicaia would preclude * * * review of the instant deci- sion,” id. at 397 (quoting Mone .. Federated Dep't Stores, Ine., OV F.2d 1267, 1269 (9th Cir. 1980)), yet nevertheless declined to apply the doctrine. This Court held that the con- cededly applicable doctrine of res judicata should have been applied, because the ends of justice are “achieved when a complex body of law developed over a period of years is evenhandedly applied,” and because exceptions to pertinent law should not be invoked based on “any individual judge's ad hoc determination of the equities in a particular case,” 452 U.S. at 401. Voie otters no support tor petitioner’s position. The sourt here did not expressiv hold that res judicata was applicable and then decline to apply the doctrine because of an “ad hoc determination of the equities,” 452 U.S. at 401. Rather, the court determined that in light of the nature of EEOC proceedings res judicata did not apply to such proceedings. See also International Harvester Co. \v. Occupational Health and Safety Review Comin ’n, 628 F.2d 982, 984-986 (7th Cir. 1980) (administrative res judicata does not apply to issues not reached in the previous administrative proceeding). The court of appeals concluded that to preclude the Postal Service from asserting petitioner’s failure to mitigate damages in his enforcement action would torce the EEOC \o adopt less efficient administrative procedures, Pet. App. A17- Al8, and would violate the statutory requirement that back pay must be reduced by the amount which the claim- ant earned, or with reasonable diligence could have earned, in the back pay period. Pet. App. A13-A14. In the absence of a conflict in the circuits, the court of appeals’ decision presents no issue calling for review by this Court. 2. The court of appeals correctly rejected petitioner’s claim (Pet. 64-65) that he is a “prevailing party” in his en- forcement action for purposes of an award of attorney's tees. A plaintift is not a prevailing party unless he has achieved some of the benetit sought in bringing the action. Texas State Teachers Ass'n vy. Garland Indep. School District, 489 U.S. 782, 790-792 (1989); Sullivan v. Hudson, 109 S. Ct. 2248, 2255 (1989). See also Hanrahan \. Hampton, 446 U.S. 754, 759 (1980). Because petitioner has yet to achieve any of the benefit sought in his enforcement action, his claim for attorney’s fees is premature. 12 CONCLUSION The petition for a writ of certiorari should be denied. Respecttully submitted. KENNI IHW. STARR Solicitor General SILART M. GERSON Assistant Attorney General M