BROCK, SECRETARY OF LABOR, ET AL. v. ROADWAY EXPRESS, INC.
No. 85-1530
Supreme Court of the United States
Argued December 3, 1986—Decided April 22, 1987
481 U.S. 252
Andrew J. Pincus argued the cause for appellants. With him on the briefs were Solicitor General Fried, Deputy Solicitor General Cohen, George R. Salem, Allen H. Feldman, Mary-Helen Mautner, Steven J. Mandel, and Jeanne K. Beck.
JUSTICE MARSHALL announced the judgment of the Court and delivered an opinion in which JUSTICE BLACKMUN, JUSTICE POWELL, and JUSTICE O‘CONNOR join.
Section 405 of the Surface Transportation Assistance Act of 1982, 96 Stat. 2157,
I
Appellee Roadway Express, Inc. (Roadway), is a large interstate trucking company engaged primarily in cargo transportation; it is subject to the requirements of § 405. See
On February 7, 1984, Hufstetler filed a complaint with the Department of Labor alleging that his discharge had violated § 405. The Occupational Safety and Health Administration notified Roadway of the complaint and began an investigation. An OSHA field investigator interviewed Hufstetler and other Roadway employees and obtained statements substantiating Hufstetler‘s retaliatory discharge claim. Roadway was afforded an opportunity to meet with the investigator and submit a written statement detailing the basis for Hufstetler‘s discharge, but it was not provided with the names of the other witnesses or the substance of their statements. Roadway explained the discharge by reiterating that, as found by the arbitration board, Hufstetler had acted dishonestly in fabricating an equipment breakdown.
Following review of the evidence obtained by the field investigator, the Department of Labor Regional Administrator on January 21, 1985, issued a preliminary decision ordering Hufstetler‘s immediate reinstatement with backpay. Without detailing the evidence relied upon for this decision, the order stated that the Secretary of Labor had found reasonable cause to believe Hufstetler had been discharged in violation of § 405 for having previously complained about the safety of Roadway‘s trucks. The order characterized Roadway‘s asserted basis for the discharge as “conjecture.” App. to Juris. Statement 21a.
Roadway also filed objections to the reinstatement order with the Secretary and requested an evidentiary hearing and final decision. This hearing took place in March 1985, before an Administrative Law Judge, and the Secretary issued a decision on August 21, 1986, again ordering reinstatement with backpay. Roadway‘s appeal from this administrative decision is currently pending in the United States Court of Appeals for the Eleventh Circuit, No. 86-8771.
The Secretary brought this direct appeal from the District Court‘s order granting Roadway summary judgment.
II
As a threshold matter, we conclude that the Secretary‘s issuance of the final order of reinstatement following the evidentiary hearing does not render this appeal moot. We acknowledge that Roadway‘s obligation to reinstate Huf-
III
Section 405 was enacted in 1983 to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles. Congress recognized that employees in the transportation industry are often best able to detect safety violations and yet, because they may be threatened with discharge for cooperating with enforcement agencies, they need express protection against retaliation for reporting these violations. See, e. g., 128 Cong. Rec. 32698 (1982) (remarks of Sen. Percy); id., at 32509-32510 (remarks of Sen. Danforth). Section 405 protects employee “whistleblowers” by forbidding discharge, discipline, or other forms of discrimination by the employer in response to an employee‘s complaining about or refusing to operate motor vehicles that do not meet the applicable safety standards.
Congress also recognized that the employee‘s protection against having to choose between operating an unsafe vehicle and losing his job would lack practical effectiveness if the
The statute does not specify procedures for employer participation in the Secretary‘s investigation, other than to require that the employer be notified of the employee‘s complaint.
Neither set of procedures, however, requires that before ordering preliminary reinstatement the Secretary must hold an evidentiary hearing and allow the employer to cross-examine the witnesses from whom the investigator has obtained statements supporting the employee‘s complaint. Nor do the procedures require the Secretary to divulge the names of these individuals or the substance of their statements before the preliminary reinstatement order takes effect. Roadway claims that the lack of an evidentiary hearing and the confidentiality of the investigator‘s evidence operate to deny employers procedural due process under the Fifth Amendment.
The property right of which Roadway asserts it has been deprived without due process derives from the collective-bargaining agreement between Roadway and its employees’ union. It is the right to discharge an employee for cause. Acknowledging that the first step is to identify a property or liberty interest entitled to due process protections, Cleveland Board of Education v. Loudermill, 470 U. S. 532, 538-539 (1985); Board of Regents v. Roth, 408 U. S. 564, 576-578 (1972), the Secretary concedes that the contractual right to
“Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). Though the required procedures may vary according to the interests at stake in a particular context, Boddie v. Connecticut, 401 U. S. 371, 378 (1971), “[t]he 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); see also Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). Depending on the circumstances, and the interests at stake, a fairly extensive evidentiary hearing may be constitutionally required before a legitimate claim of entitlement may be terminated. See Goldberg v. Kelly, 397 U. S. 254, 266-271 (1970) (suspension of welfare benefits invalid if not preceded by an evidentiary hearing giving the recipient an opportunity to confront witnesses and present evidence and argument orally). In other instances, however, the Court has upheld procedures affording less than a full evidentiary hearing if “‘some kind of a hearing‘” ensuring an effective “initial check against mistaken decisions” is
Determining the adequacy of predeprivation procedures requires consideration of the Government‘s interest in imposing the temporary deprivation, the private interests of those affected by the deprivation, the risk of erroneous deprivations through the challenged procedures, and the probable value of additional or substitute procedural safeguards. Mathews, supra, at 335. In the present case, the District Court assessed these factors and determined that § 405 was “unconstitutional and void to the extent that it empowers [the Secretary] to order reinstatement of discharged employees prior to conducting an evidentiary hearing which comports with the minimum requirements of due process.” 624 F. Supp., at 203. The court concluded that the employer must be given, “at a minimum, an opportunity to present his side and a chance to confront and cross examine witnesses.” Ibid. Our consideration of the relevant factors leads us to a different conclusion.
We begin by accepting as substantial the Government‘s interests in promoting highway safety and protecting employees from retaliatory discharge. Roadway does not question the legislative determination that noncompliance with applicable state and federal safety regulations in the transportation industry is sufficiently widespread to warrant enactment of specific protective legislation encouraging employees to report violations. “Random inspections by Federal and State law enforcement officials in various parts of the country [had] uniformly found widespread violation of safety regulations,” and § 405 was designed to assist in combating the “increasing number of deaths, injuries, and property damage due to commercial motor vehicle accidents.” 128 Cong. Rec. 32509, 32510 (1982) (remarks of Sen. Danforth and summary of proposed statute).
Reviewing this legislative balancing of interests, we conclude that the employer is sufficiently protected by procedures that do not include an evidentiary hearing before the discharged employee is temporarily reinstated. So long as the prereinstatement procedures establish a reliable “initial check against mistaken decisions,” Loudermill, supra, at 545, and complete and expeditious review is available, then the preliminary reinstatement provision of § 405 fairly balances the competing interests of the Government, the employer, and the employee, and a prior evidentiary hearing is not otherwise constitutionally required.
In Loudermill, the Court considered the temporary deprivation of a state government employee‘s right not to be discharged without cause, indicating that the employee was entitled to “oral or written notice of the charges against him, an explanation of the employer‘s evidence, and an opportunity to present his side of the story” before the temporary discharge took effect, though a full evidentiary hearing including the right to confront and cross-examine adverse witnesses could be delayed for a reasonable period. 470 U. S., at 546. Similarly, in Arnett v. Kennedy, 416 U. S. 134 (1974), the Court upheld the procedures upon which a Federal Government employee had been temporarily discharged, where those procedures did not provide for a full evidentiary hearing until after the discharge became effective but did afford the employee “advance written notice of the reasons for his proposed discharge and the materials on which the notice [was] based,” as well as “the right to respond to the charges both orally and in writing, including the submission of affidavits.” Id., at 170 (opinion of POWELL, J.). These cases reflect that the constitutional requirement of a meaningful opportunity to respond before a temporary deprivation may take effect entails, at a minimum, the right to be informed not only of the nature of the charges but also of
The Secretary represents that it is the practice of Department of Labor investigators to inform employers of the substance of the evidence supporting employees’ allegations. Brief for Appellants 40, n. 19. Though we do not find this practice expressed in the field manuals for OSHA investigators or in the Secretary‘s new regulations, we accept the representation as embodying an established, official procedure for implementing § 405 of which employers are specifically made aware. It is undisputed, however, that in this case the procedure was not followed, for Roadway requested and was denied access to the information upon which the Secretary based the order for Hufstetler‘s preliminary reinstatement. 624 F. Supp., at 200. Given this circumstance, the District Court correctly held that Roadway had been denied a due process protection to which it was entitled, and we affirm the order of summary judgment in that respect.
Notice of an employee‘s complaint of retaliatory discharge and of the relevant supporting evidence would be of little use if an avenue were not available through which the employer could effectively articulate its response. On this score, assuming the employer is informed of the substance of the evidence supporting the employee‘s complaint, the Secretary‘s current procedures allowing the employer to submit a written response, including affidavits and supporting documents, and to meet with the investigator to respond verbally to the employee‘s charges and present statements from the employer‘s witnesses, see n. 1, supra; 51 Fed. Reg., at 42093 (proposed
Roadway finally argues that requiring an evidentiary hearing as part of the process leading to preliminary reinstate-
This is not to say, however, that the employer‘s interest in an expeditious resolution of the employee‘s complaint can never provide a basis for a due process violation. At some point, delay in holding postreinstatement evidentiary hearings may become a constitutional violation. See Loudermill, 470 U. S., at 547; Barry v. Barchi, 443 U. S. 55, 66 (1979); Mathews, 424 U. S., at 341-342. The current implementing rules require the evidentiary hearing to take place within 30 days after an employer files objections to a preliminary reinstatement order, unless the employer and employee otherwise agree or good cause is shown. 51 Fed. Reg., at 42093 (proposed
IV
The District Court correctly held that the Secretary‘s preliminary reinstatement order was unconstitutionally imposed in this case because Roadway was not informed of the relevant evidence supporting Hufstetler‘s complaint and therefore was deprived of an opportunity to prepare a meaningful response. The court erred, however, in holding § 405 unconstitutional to the extent as interpreted by the Secretary it does not provide the employer an evidentiary hearing, complete with the right to confront and cross-examine witnesses, before the employee‘s temporary reinstatement can be ordered. Accordingly, the District Court‘s order of summary judgment is
Affirmed in part and reversed in part.
I agree with the plurality‘s conclusion that the Secretary‘s procedures unconstitutionally deprived Roadway of procedural due process by failing to inform Roadway of the substance of the evidence supporting Hufstetler‘s complaint. I disagree, however, with the plurality‘s conclusion that the Secretary may order an indefinite preliminary reinstatement of discharged drivers without first affording employers an opportunity to present contrary testimony and evidence and to cross-examine witnesses.
Here Roadway contested the facts underlying the Secretary‘s preliminary determination that there was reasonable cause to believe that the discharge of Hufstetler was retaliatory. When there are factual disputes that pertain to the validity of a deprivation, due process “require[s] more than a simple opportunity to argue or deny.” Cleveland Board of Education v. Loudermill, 470 U. S. 532, 552 (1985) (BRENNAN, J., concurring in part and dissenting in part). Predeprivation procedures must provide “an initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe that the charges . . . are true and support the proposed action.” Id., at 545-546 (emphasis added). When, as here, the disputed question central to the deprivation is factual, and when, as here, there is no assurance that adequate final process will be prompt, predeprivation procedures are unreliable if they do not give the employer “an opportunity to test the strength of the evidence ‘by confronting and cross-examining adverse witnesses and by presenting witnesses on [its] own behalf.‘” Id., at 548 (MARSHALL, J., concurring in part and concurring in judgment) (quoting Arnett v. Kennedy, 416 U. S. 134, 214 (1974) (MARSHALL, J., dissenting)). Thus, employers such as Roadway are entitled to a fair opportunity to confront the
The adequacy of predeprivation procedures is in significant part a function of the speed with which a postdeprivation or final determination is made. Previously the Court has recognized that “[t]he duration of any potentially wrongful deprivation of a property interest is an important factor in assessing the impact of official action on the private interest involved.” Mackey v. Montrym, 443 U. S. 1, 12 (1979). See also Loudermill, supra, at 547 (“At some point, a delay in the post-termination hearing would become a constitutional violation“). Were there any guarantee that the final hearing would occur promptly—within a few weeks, for example—the procedure endorsed by the Court might suffice. No such guarantee exists.
The statute itself requires that the final hearing be “expeditiously conducted.”
Because I believe that the District Court correctly held that the Secretary may not order preliminary reinstatement without first providing the employer with a chance to confront its accuser, to cross-examine witnesses, and to present its own testimony, I would affirm its judgment. I therefore dissent in part from the plurality opinion and the judgment of the Court.
JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, concurring in part and dissenting in part.
I agree that the District Court erred in holding that a full trial-type hearing was necessary prior to termination, so long as the employer was afforded an adequate posttermination hearing at a meaningful time. I also agree that respondent Roadway Express, Inc., was entitled to notice of Jerry Hufstetler‘s charges and an opportunity to respond to them prior to being ordered to temporarily reinstate him. But, with all respect, I disagree with the plurality‘s conclusion that Roadway was denied due process when it did not have access to the information on which the reinstatement order was based, including the names of witnesses.
The procedures the Due Process Clause requires prior to administrative action such as was taken in this case can vary,
Because I believe that withholding the witnesses’ names and statements prior to ordering temporary reinstatement did not violate respondent‘s due process rights, I find myself in partial dissent from the plurality‘s opinion and judgment.
Section 405 of the Surface Transportation Assistance Act of 1982,
The Government‘s compelling interest in highway safety adequately justifies the creation of a special statutory right to protect truck drivers who share the public‘s vital interest in strict enforcement of motor vehicle safety regulations. That interest, however, does not justify the use of patently unfair procedures to implement that right. Specifically, it does not justify the entry of reinstatement orders on the basis of secret evidence that is neither disclosed to the employer nor tested in an adversary proceeding before the order becomes effective.
The plurality attempts to legitimate this departure from the traditions of due process by asserting that it is essential
In conducting its balancing, the plurality concludes that allowing the parties to test the witnesses through cross-
Cross-examination is a critical element in the truth-determining process. This elementary proposition bears repetition:
“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government‘s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty, or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.” Greene v. McElroy, 360 U. S. 474, 496 (1959).
See also Morrissey v. Brewer, 408 U. S. 471, 489 (1972); Goldberg v. Kelly, 397 U. S. 254, 269 (1970).6 In the words of Dean Wigmore:
“The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.” 5 J. Wigmore, Evidence § 1367 (J. Chadbourn rev. 1974).
Even if there were merit in the plurality‘s novel view that the possibility of delay outweighs the value of confrontation, this reasoning does not justify the Department‘s refusal to provide the parties with a list of the witnesses and a summary of each witness’ testimony, which would at least enable the parties to make oral or written arguments about why the investigator should not credit the witness’ testimony. This would certainly not cause any intolerable delay. This type of hybrid safeguard, although not optimal, is far better than nothing. “Secrecy is not congenial to truth-seeking.” Anti-Fascist Committee v. McGrath, 341 U. S. 123, 171 (1951) (Frankfurter, J., concurring). As I understand the plurality‘s holding, the requirement that the Department disclose the “substance of the evidence” certainly incorporates the disclosure of the witnesses’ names and a summary of their testimony.
The plurality‘s willingness to sacrifice due process to the Secretary‘s obscure suggestion of necessity reveals the serious flaws in its due process analysis. It is wrong to approach the due process analysis in each case by asking anew what procedures seem worthwhile and not too costly. Unless a case falls within a recognized exception, we should
a bit less essential than in other contexts, see Dixon v. Love, 431 U. S., at 113 (records of previous traffic convictions); Mathews v. Eldridge, 424 U. S., at 344-345 (“routine, standard, and unbiased medical reports“), or have involved contexts where cross-examination poses undue hazards to health and safety, see Wolff v. McDonnell, 418 U. S. 539, 567-568 (1974) (prison disciplinary hearings), or other unique institutional considerations, see Goss v. Lopez, 419 U. S. 565, 577-584 (1975) (school suspensions).
“affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” Boddie v. Connecticut, 401 U. S. 371, 379 (1971) (footnote omitted).
Such a hearing necessarily includes the creation of a public record developed in a proceeding in which hostile witnesses are confronted and cross-examined.
Traditions of fairness that have been long honored in American jurisprudence support the strongest possible presumption against ex parte proceedings. There is no support for the plurality‘s approval of the entry of a reinstatement order of indefinite duration7 based on uncross-examined and untested evidence. Therefore, although I agree with the Court to the extent that it affirms the District Court, I, like JUSTICE BRENNAN, believe that the District Court‘s decision should be affirmed in toto.