Nancy C. STILLIANS, Appellant, v. STATE OF IOWA, et al., Appellees.
No. 87-1321.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 3, 1987. Decided March 30, 1988.
843 F.2d 276
Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MAGILL, Circuit Judge.
Moreover, the Appeals Council‘s decision clearly went beyond the district court‘s initial remand order and the ALJ‘s express statement to the claimant concerning the purposes of the second hearing. The majority declines to reach the question of whether the “law of the case” doctrine mandates an award of benefits here, because it was not raised before the district court. The law of the case doctrine prevents the relitigation of settled issues in a case, thus protecting the settled expectations of the parties, ensuring uniformity of decisions, and promoting judicial efficiency. Little Earth of the United Tribes, Inc. v. HUD, 807 F.2d 1433, 1441 (8th Cir. 1986). The Secretary has acknowledged in prior cases that he is bound on remand to follow the law of the case doctrine, Hillhouse v. Harris, 547 F. Supp. 88, 92 (W.D. Ark. 1982), aff‘d, 715 F.2d 428 (8th Cir. 1983), and counsel for the Secretary candidly admitted at oral argument in this case that the doctrine “has a bearing on this matter.”
The expectation of the claimant and her attorney, based upon the express statement of the second ALJ, was that her exertional capacity was no longer an issue in her case. The presentation of evidence by the claimant could well have been affected by this expectation. Yet, the Appeals Council used almost exclusively evidence from the 1984 hearing to overturn the ALJ‘s sedentary exertional ruling.
This Court does not ordinarily consider questions not properly raised below, but has the discretion to do so where, for example, resolution of the question is “beyond any doubt ... or where ‘injustice might otherwise result.‘” Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877-78, 49 L. Ed. 2d 826 (1976) (citations omitted). See Struempler v. Bowen, 822 F.2d 40, 42 (8th Cir. 1987); Parker v. Corrothers, 750 F.2d 653, 658 (8th Cir. 1984); Wright v. Newman, 735 F.2d 1073, 1076 (8th Cir. 1984). I would reach the law of the case issue because I believe it is fundamentally unjust for the Secretary to “reshuffle the cards“—particularly without notice—once Clarke was “dealt a winning hand.” Skelton v. Bowen, 668 F. Supp. 629, 631 (N.D. Ohio 1987); Holst v. Bowen, 637 F. Supp. 145, 146-47 (E.D. Wash. 1986); Davis v. Secretary, Health & Human Services, 634 F. Supp. 174, 178 (E.D. Mich. 1986). See Little Earth of the United Tribes, Inc., 807 F.2d at 1441; Hooper v. Heckler, 752 F.2d 83, 87-88 (4th Cir. 1985); Carrillo v. Heckler, 599 F. Supp. 1164, 1168-69 (S.D.N.Y. 1984).
While application of the law of the case doctrine could mandate an award of benefits in this case, at the very least I would reverse the Appeals Council‘s decision that the claimant can perform her past work and would remand the case to the Secretary for further proceedings without prejudice to the claimant‘s right to raise directly with the district court, should benefits again be denied, the question of whether the Secretary may properly revise his initial determination, implicitly affirmed on appeal to the district court the first time, that this claimant has the exertional capacity to perform only sedentary work.
Artis Reis Breon, Des Moines, Iowa, for appellant.
Scott M. Galenbeck, Asst. Atty. Gen., Des Moines, Iowa, for appellees.
Nancy C. Stillians appeals from an order of the district court1 granting defendants’ summary judgment motion in this suit brought under the Age Discrimination in Employment Act,
I. BACKGROUND
Stillians was employed by the Iowa Arts Council (IAC) from 1972 through June 17,
In March 1985 Jeanann Celli was appointed Director. On April 30, 1985, Stillians filed a charge of age discrimination, retaliation, and harassment with the Iowa Civil Rights Commission and the Equal Employment Opportunity Commission (EEOC) because the IAC failed to select her as Director. The Iowa Civil Rights Commission issued a right to sue letter on those charges.
On June 3, 1985, Stillians was notified that she was dismissed effective June 17, 1985. On June 24, 1985, Stillians alleged discriminatory discharge in filings with the Iowa Civil Rights Commission and the EEOC. On July 3, 1985, she also challenged her dismissal by filing an appeal with the IMEC pursuant to
II. DISCUSSION
On appeal, Stillians argues that her failure to promote claim was not within the jurisdiction of the IMEC and thus could not have been litigated before that body. As to the discharge claim, Stillians argues that the ADEA is so similar to Title VII that we are bound by the Supreme Court‘s decision in University of Tenn. v. Elliott, 478 U.S. 788, 106 S. Ct. 3220, 92 L. Ed. 2d 635 (1986) (Title VII suit not precluded by prior unreviewed state administrative decision).
A. Failure to Promote
Although Stillians argues, and we agree, that her failure to promote claim was not actually litigated, we nevertheless affirm the order of the district court because Stillians’ failure to promote claim is not cognizable under the ADEA. We have no subject matter jurisdiction to hear this claim.
The ADEA defines employee as:
an individual employed by any employer except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer‘s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision.
Thus, the dispositive issues here are whether Stillians was seeking an appointment “on the policymaking level” and whether the appointment was subject to Iowa‘s civil service laws.
Whether the Director of the Iowa Arts Council is on a policymaking level depends on several factors. These include: 1) whether the Director has discretionary, rather than solely administrative powers, E.E.O.C. v. Bd. of Trustees of Wayne Cty. Com. Col., 723 F.2d 509, 511 (6th Cir. 1983); 2) whether the Director serves at the pleasure of the appointing authority, E.E.O.C. v. Reno, 758 F.2d 581, 584 (11th Cir. 1985); and 3) whether the Director formulates pol-
Stillians’ status under the ADEA is, of course, a question of federal law, but we must look to state law to determine the scope of authority given to the Director of the Arts Council. Reno, 758 F.2d at 584.
Under Iowa law, now repealed, the Director of the Iowa Arts Council was appointed by and served at the pleasure of the governor.
Although the Director was a policymaker, he or she nevertheless qualified as an “employee” if the position was “subject to the civil service laws of [the] State.” Once again we must examine Iowa law—specifically
The merit system shall apply to all employees of the state and to all positions in the state government now existing or hereafter established except the following:
* * * * * *
14. All appointments other than boards or commissions which are by law made by the governor or executive council * * * *
In her brief Stillians argues that the IMEC has no jurisdiction over the position of Director because the position was exempt under
B. Discharge
It is undisputed that Stillians’ claim of illegal discharge was actually litigated before the IMEC. After extensive hearings, the hearing officer found that Stillians was discharged for non-discriminatory reasons. This conclusion was adopted by the IMEC. Although appeal to the state district court was permitted under
The district court granted the state‘s motion for summary judgment, holding that the ADEA more closely resembles
In Elliott, the plaintiff filed suit in federal court alleging that his proposed discharge was racially motivated and seeking relief under Title VII and
Initially, the Court noted that
The Court found that preclusion would be inappropriate in Title VII cases because of a conflict between a section of Title VII and the result which would come from application of rules of preclusion.
Regarding
Thus, the most important lesson to be learned from Elliott is that when a federal statute does not specifically address a particular issue, in order to decide that issue we must ascertain Congressional intent. Title VII claims are not precluded because the Court found evidence that Congress intended that result. Likewise, traditional rules of preclusion were left untouched by
Ascertaining Congressional intent is often a difficult endeavor. When a statute does not speak on an issue and the legislative history is silent, we are forced to decide between two conflicting results. Our decision should not be based on our opinion on what direction the statute should take. If the result intended by Congress seems inconsistent with the overall objectives of the statute, so be it. Only Congress legislates and only Congress can amend.
When interpreting a statute we should not forget what existed before it was enacted. “The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific.” Midlantic Nat‘l. Bank v. New Jersey Dep‘t. of Envtl. Protection, 474 U.S. 494, 106 S. Ct. 755, 759-60, 88 L. Ed. 2d 859 (1986). More explicitly, “[s]tatutes which invade the common law * * * are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S. Ct. 1011, 1014, 96 L. Ed. 1294 (1952). In Allen v. McCurry, 449 U.S. 90, 97, 101 S. Ct. 411, 416, 66 L. Ed. 2d 308 (1980), the Court noted that as early as 1871 “res judicata and collateral estoppel could certainly have applied in federal suits following state-court litigation between the same parties or their privies * * * *”3
Although Allen involved preclusion under
The arguments of the parties in this case and the reasoning of the district court all parallel the analysis used by the Seventh Circuit in Duggan v. Board of Educ. of E. Chicago Heights, 818 F.2d 1291 (7th Cir. 1987). Because we believe that Duggan is of dubious validity, we decline to follow it in this case. Our disagreement with Duggan begins with the statement by the court that “[o]ur task is to determine whether there are enough parallels between Title VII and the ADEA to justify the * * * inference [that Congress intended that administrative preclusion should not apply].” Id. at 1294. The court in Duggan found more similarities to Title VII than dissimilarities and from this concluded that preclusion should not apply.
Comparing the ADEA with Title VII and
One of the major factors in the Supreme Court‘s reasoning in Elliott was
We believe that the absence of a similar provision from the ADEA goes far toward resolving the issue before us. While we may not wish to imply Congressional intent from the absence of a similar provision, the applicability of Elliott to the present case certainly is weakened by its absence. When the only statutory language upon which the Court focused is
Keeping in mind the presumption in favor of retaining long-standing common law principles, we find it highly probative that nothing in the ADEA is inconsistent with administrative preclusion. In fact, preclusion is consistent with the ADEA. For example, after the sixty-day period required by
In situations where the state is able to resolve a dispute within sixty days, the petitioner would be barred from federal court, but all of the purposes of the ADEA, including prompt resolution of discrimination claims, would be served.
There is no overriding federal policy that discrimination claims be heard in federal court. For example, under
Finally, Stillians has shown no evidence of Congressional intent to deviate from traditional rules of preclusion. Understandably, her argument is an attempt to discredit the way in which the district court compared and contrasted the ADEA with Title VII. As discussed above, however, we disapprove of this method of analysis. In any event, our research has left us with the firm conviction that Congress did not intend to abrogate the common law when it enacted the ADEA. Whether this was by conscious design or by default is really not important. Prior to the adoption of the ADEA, preclusion was alive and well in the federal common law, and absent a clear showing of Congressional intent to the contrary it should continue on. Such a showing has not been made in this case.
Having determined that the decision of the IMEC may be given preclusive effect, we now must ascertain whether Stillians was given a full and fair hearing before an administrative body, acting in a judicial capacity. If she was provided such a hearing, then the decision of the IMEC must be given the preclusive effect to which it is entitled under Iowa law. As noted in Elliott, 106 S. Ct. at 3227:
‘Perhaps the major purpose of the Full Faith and Credit Clause is to act as a nationally unifying force,’ id. [Thomas v. Washington Gas Light Co., 448 U.S. 261], at 289, 100 S. Ct. [2647], at 2664 (WHITE, J., concurring in judgment), and this purpose is served by giving preclusive effect to state administrative factfinding rather than leaving the courts of a second forum, state or federal, free to reach conflicting results. Accordingly, we hold that when a state agency ‘acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,’ Utah Construction & Mining Co., supra, 384 U.S., at 422, 86 S. Ct., at 1560, federal courts must give the agency‘s factfinding the same preclu-
sive effect to which it would be entitled in the State‘s courts.
(Footnotes omitted).
We agree with the district court that Stillians’ hearing provided her with ample opportunity to present her case. Further, under Iowa law, administrative determinations are entitled to preclusive effect, Toomer v. Iowa Dep‘t. of Job Service, 340 N.W.2d 594, 598 (Iowa 1983). An earlier Iowa case set forth the requirements for issue preclusion:
- the issue concluded must be identical;
- the issue must have have been raised and litigated in the prior action;
- the issue must have been material and relevant to the disposition of the prior action; and
- the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.
Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981). These requirements have been met in this case.
After hearing Stillians’ claim, the IMEC concluded that she had been terminated for good cause. This conclusion necessarily required a rejection of Stillians’ claims of age discrimination and retaliation. Had the IMEC found that Stillians’ discharge was for any illegal purpose—including age—she would have been granted reinstatement.
III. CONCLUSION
The order of the district court is affirmed. First, Stillians’ failure to promote claim is not cognizable under the ADEA and we lack subject matter jurisdiction to hear it. Second, the illegal discharge claim is precluded by the state administrative determination that Stillians was terminated for just cause.
LAY, Chief Judge, dissenting.
I respectfully dissent. The majority holds that resolution of the plaintiff‘s ADEA claim by a state administrative agency provides issue preclusion of that claim filed in the federal court. I am afraid that in the interest of giving a final adjudication due to the weakness of the plaintiff‘s factual case, the majority has written some bad law. The majority‘s analysis and conclusion will cause more direct filings of age discrimination cases in the federal forum and encourage claimants to bypass the opportunity for state EEOC exhaustion, which serves to terminate many cases without federal litigation.
Preclusive Effect
I would adopt the opinions of the Fourth and Seventh Circuits, which contain persuasive analyses as to why there should be no preclusive effect given to a state agency‘s determination in age discrimination cases. The decision in Duggan v. Board of Educ. of E. Chicago Heights, 818 F.2d 1291 (7th Cir. 1987), was rendered by a distinguished panel of the Seventh Circuit composed of Judges Cudahy, Easterbrook, and Posner. In an opinion written by Judge Cudahy, that court made an exhaustive analysis of the case law and legislative intent before concluding that unreviewed administrative decisions would not preclude subsequent actions under the ADEA.1
Judge Cudahy pointed up the similarities in the deferral mechanisms of the ADEA and Title VII. In addition to the fact that both statutes provide a limited opportunity for state agency resolution, the ADEA‘s deferral mechanism “was patterned after and is virtually in haec verba with” the deferral mechanism in Title VII, Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755, 99 S. Ct. 2066, 2071, 60 L. Ed. 2d 609 (1979). The Seventh Circuit noted the Supreme Court‘s holding that, “the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial
Finally, the court concluded that the administrative proceedings under the ADEA were due less deference than such proceedings under Title VII. Under
In a decision predating Elliott, the Fourth Circuit also held ADEA claims to be analogous to Title VII claims and denied any preclusive effect to prior administrative decisions. Rosenfeld v. Department of the Army, 769 F.2d 237 (4th Cir. 1985). The Fourth Circuit relied, in part, on the Supreme Court‘s decision in Chandler v. Roudebush, 425 U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416 (1976) (federal employees entitled to a trial de novo on a Title VII claim, not just judicial review of federal administrative action).
As the majority concedes, the only decision indicating the opposite result is Mack v. South Bay Beer Distrib., 798 F.2d 1279 (9th Cir. 1986). Mack involved a discharged employee who was denied state unemployment benefits by the state‘s Unemployment Insurance Appeals Board. He brought an ADEA claim in federal court. The court of appeals presumed without discussion that Elliott required the agency‘s decision be given issue preclusive effect if the agency had acted in a judicial capacity and if Mack had had an adequate opportunity to litigate. That court concluded, however, that Mack was not precluded from filing his ADEA claim because he had not had an adequate opportunity to litigate the issue before the administrative panel.2
Although we are not bound by our sister
Failure to Promote
The majority finds no subject matter jurisdiction of plaintiff‘s claim that she was additionally discriminated against by IAC‘s failure to promote her to the position of director. This issue of subject matter jurisdiction was not raised in the trial court nor has it been raised on appeal. The issue on appeal relates to the trial court‘s application of claim preclusion in holding that Stillians had had an opportunity to bring the claim before the IMEC. Claim preclusion is inapplicable here. Preclusive effect of an agency‘s decision has been limited by the Supreme Court of the United States to issue preclusion and does not involve the full scope of res judicata. University of Tenn. v. Elliott, 478 U.S. 788, 106 S. Ct. 3220, 92 L. Ed. 2d 635 (1986). The Iowa Supreme Court has held that failure to actually litigate an issue prevents the prior decision from having any preclusive effect. In re Kjos, 346 N.W.2d 25 (Iowa 1984).
The panel finds the position of director to be at the policymaking level and therefore exempt under the ADEA. Because this issue was not raised in the district court and this court‘s resolution of the same will come as a surprise to the litigants, I would make no judgment on the issue. In all fairness to the parties, we should give them an opportunity to address the issue before passing on it. There exists a serious question in my mind whether the panel is right. In any event, judicial fairness requires that the issue be fully addressed by the litigants before final adjudication here.
I therefore dissent from the entire majority opinion.
DONALD P. LAY
CHIEF JUDGE, EIGHTH CIRCUIT