Section 405 of the Surface Transportation Assistance Act of 1982
forbids the discharge of employees in the commercial motor
transportation industry in retaliation for refusing to operate
motor vehicles that do not comply with applicable safety standards
or for filing complaints alleging such noncompliance. The statute
provides for the Secretary of Labor's initial investigation of an
employee's discharge and, upon a finding of reasonable cause to
believe that the employee was discharged in violation of the Act,
requires the Secretary to order the employee's temporary
reinstatement by the employer, who may then request an evidentiary
hearing and a final decision from the Secretary. This request does
not operate to stay the preliminary reinstatement order. The
statute requires that the employer be notified of the employee's
complaint, but does not specify procedures for employer
participation in the Secretary's initial investigation. After
appellee, a trucking company subject to § 405's requirements,
discharged one of its drivers for allegedly intentionally damaging
his assigned truck, the employee unsuccessfully sought relief under
a governing collective bargaining agreement, contending that he was
discharged in retaliation for having previously complained of
safety violations. He then filed a complaint with the Department of
Labor alleging that his discharge violated § 405. Appellee was
notified of the complaint, and a field investigator, pursuant to
pertinent Department rules, interviewed the discharged employee and
other employees, obtaining statements substantiating the
retaliatory discharge claim. Appellee was afforded an opportunity
to meet with the investigator and submit a written statement
detailing the basis for the employee's discharge, but it was not
provided with the substance of the evidence collected by the
investigator. Ultimately, a preliminary administrative order was
issued ordering the employee's reinstatement with backpay. Appellee
then filed this action in Federal District Court, seeking
injunctive relief and a declaratory judgment that § 405, to the
extent it empowered the Secretary to order temporary reinstatement
without first conducting an evidentiary hearing, deprived appellee
of procedural due process under the Fifth Amendment. The court
granted an injunction and, later, summary judgment for
appellee.
Page 481 U. S. 253
Held: The judgment is affirmed in part and reversed in
part.
624 F.
Supp. 197, affirmed in part and reversed in part.
JUSTICE MARSHALL, joined by JUSTICE BLACKMUN, JUSTICE POWELL,
and JUSTICE O'CONNOR, concluded that:
1. The Secretary's issuance, after entry of the District Court's
judgment, of a final reinstatement order following an evidentiary
hearing requested by appellee pursuant to § 405 does not render
this appeal moot. Although appellee's obligation to reinstate the
employee with backpay now flows from the Secretary's final order,
not the preliminary order to which the District Court's injunction
and order of summary judgment were directed, the controversy
between appellee and the Secretary as to the constitutional
adequacy of the Secretary's procedures prior to the issuance of the
preliminary reinstatement order falls within the "capable of
repetition, yet evading review" exception to the actual
case-and-controversy requirement. Pp.
481 U. S.
257-258.
2. The District Court properly held that the Secretary's § 405
procedures unconstitutionally deprived appellee of Fifth Amendment
procedural due process by failing to provide appellee with the
substance of the evidence supporting the employee's complaint
before ordering the employee's temporary reinstatement. However,
the lack of an evidentiary hearing before temporary reinstatement
did not deny procedural due process. Pp.
481 U. S.
258-268.
(a) Determining the adequacy of the preliminary reinstatement
procedures requires consideration of the Government's interests in
promoting highway safety and protecting employees from retaliatory
discharge; the employer's interest in controlling the makeup of its
workforce and, in this case, appellee's property interest --
concededly entitled to due process protections -- in its
contractual right to discharge employees for cause; the employee's
interest in not being discharged for having complained about unsafe
conditions; the risk of erroneous deprivations through the
challenged procedures; and the probable value of additional or
substitute procedural safeguards. Pp.
481 U. S.
262-263.
(b) In view of the legislative balancing of interests here, due
process requires pre-reinstatement notice of the employee's
allegations, notice of the substance of the relevant supporting
evidence, an opportunity to submit a written response, and an
opportunity to meet with the investigator and present statements
from rebuttal witnesses. These procedures provide a reliable
initial check against mistaken decisions,
cf. Cleveland Board
of Education v. Loudermill, 470 U. S. 532;
Arnett v. Kennedy, 416 U. S. 134, and
minimum due process in this context does not require employer
confrontation and cross-examination of witnesses before preliminary
reinstatement, where a prompt post-reinstatement evidentiary
hearing is available. Appellee's contention that requiring
Page 481 U. S. 254
an evidentiary hearing as part of the process leading to
preliminary reinstatement would not impose a significant additional
burden on the Secretary, since § 405 provides that a subsequent
evidentiary hearing, if requested by the employer, must be
"expeditiously conducted" in any event, is not persuasive. Pp.
481 U. S.
263-267.
JUSTICE BRENNAN agreed that the Secretary's procedures
unconstitutionally deprived appellee of procedural due process by
failing to inform it of the substance of the evidence supporting
the employee's complaint, but concluded that where, as here, there
are factual disputes pertaining to the validity of a deprivation of
a property interest, and there is no assurance that adequate final
process will be prompt, the pre-reinstatement procedures are
unconstitutional unless they 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. Pp.
481 U. S.
269-271.
JUSTICE WHITE, joined by THE CHIEF JUSTICE and JUSTICE SCALIA,
concluded 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 post-termination hearing at a
meaningful time, and also expressed the view that withholding the
witnesses' names and statements prior to ordering the temporary
reinstatement, in light of § 405's purpose, did not violate
appellee's due process rights. Pp.
481 U. S.
271-272.
JUSTICE STEVENS agreed with the Court's judgment insofar as it
affirmed the District Court, but concluded that the District
Court's judgment should be affirmed
in toto, expressing
the view that, in this case, the Government's interest in highway
safety did not justify the entry of a reinstatement order on the
basis of evidence that was not disclosed to the employer and tested
by cross-examination in an adversary proceeding before the order
became effective. Pp.
481 U. S.
273-278.
MARSHALL, J., announced the judgment of the Court and delivered
an opinion in which BLACKMUN, POWELL, and O'CONNOR, JJ., joined.
BRENNAN, J., filed an opinion concurring in part and dissenting in
part,
post. p.
481 U. S. 269.
WHITE, J., filed an opinion concurring in part and dissenting in
part, in which REHNQUIST, C.J., and SCALIA, J., joined,
post, p.
481 U. S. 271.
STEVENS, J., filed an opinion dissenting in part,
post, p.
481 U. S.
273.
Page 481 U. S. 255
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, 49 U.S.C.App. § 2305, protects employees in
the commercial motor transportation industry from being discharged
in retaliation for refusing to operate a motor vehicle that does
not comply with applicable state and federal safety regulations, or
for filing complaints alleging such noncompliance. The statute
provides for an initial investigation of an employee's discharge by
the Secretary of Labor and, upon a finding of reasonable cause to
believe that the employee was discharged in violation of the Act,
requires the Secretary to issue an order directing the employer to
reinstate the employee. The employer may then request an
evidentiary hearing and a final decision from the Secretary, but
this request does not operate to stay the preliminary order of
reinstatement. The issue presented in this appeal is whether the
failure of § 405 to provide for an evidentiary hearing before
temporary reinstatement deprives the employer of procedural due
process under the Fifth Amendment.
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 49 U.S.C.App. §
2301(3). On November 22, 1983, Roadway
Page 481 U. S. 256
discharged one of its drivers, Jerry Hufstetler, alleging that
he had disabled several lights on his assigned truck in order to
obtain extra pay while waiting for repairs. Hufstetler filed a
grievance, contending that he had not been discharged for an "act
of dishonesty" as defined in the governing collective bargaining
agreement, but rather had been discharged in retaliation for having
previously complained of safety violations. The grievance was
submitted to arbitration, which ultimately resulted in a ruling on
January 30, 1984, that Hufstetler had been properly discharged.
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.
Page 481 U. S. 257
Roadway then filed the present action in Federal District Court,
seeking an injunction against enforcement of the Secretary's order
and a declaratory judgment that § 405 was unconstitutional to the
extent it empowered the Secretary to order temporary reinstatement
without first conducting an evidentiary hearing. The District Court
granted Roadway's motion for a preliminary injunction,
Roadway
Express, Inc. v. Donovan, 603 F.
Supp. 249, and subsequently granted its motion for summary
judgment,
624 F.
Supp. 197 (ND Ga.1985).
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. 28 U.S.C. § 1252.
We noted probable jurisdiction, 476 U.S. 1113 (1986), and now
affirm in part, agreeing with the District Court that the
Secretary's procedures unconstitutionally deprived Roadway of
procedural due process by failing to provide Roadway with the
substance of the evidence supporting Hufstetler's complaint, and
reverse in part, rejecting the District Court's conclusion that §
405 is constitutionally infirm because it empowers the Secretary to
order preliminary reinstatement without first conducting an
evidentiary hearing and affording Roadway an opportunity to
cross-examine witnesses.
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 Hufstetler
Page 481 U. S. 258
and pay back wages now flows from the Secretary's final order,
and not the preliminary order to which the District Court's
injunction and order of summary judgment were directed.
Nonetheless, the controversy between Roadway and the Secretary as
to the constitutional adequacy of the Secretary's procedures prior
to the issuance of the preliminary reinstatement order falls within
the "capable of repetition, yet evading review" exception to the
actual case-and-controversy requirement.
Southern Pacific
Terminal Co. v. ICC, 219 U. S. 498,
219 U. S. 515
(1911). The duration of the preliminary order was too short for
Roadway's challenge to be fully litigated, yet it can reasonably be
expected that Roadway, one of this Nation's largest interstate
trucking companies, will be subjected to similar preliminary orders
in the future.
See Weinstein v. Bradford, 423 U.
S. 147,
423 U. S. 149
(1975). Accordingly, we proceed to the merits of this appeal.
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. 49 U.S.C.App. §§
2305(a), (b).
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
Page 481 U. S. 259
employee could not be reinstated pending complete review. The
longer a discharged employee remains unemployed, the more
devastating are the consequences to his personal financial
condition and prospects for reemployment. Ensuring the eventual
recovery of backpay may not alone provide sufficient protection to
encourage reports of safety violations. Accordingly, § 405
incorporates additional protections, authorizing temporary
reinstatement based on a preliminary finding of reasonable cause to
believe that the employee has suffered a retaliatory discharge. The
statute reflects a careful balancing of the relative interests of
the Government, employee, and employer. It evidences a legislative
determination that the preliminary investigation and finding of
reasonable cause by the Secretary, if followed "expeditiously" by a
hearing on the record at the employer's request, provide effective
protection to the employee and ensure fair consideration of the
employer's interest in making unimpaired hiring decisions. 49
U.S.C.App. § 2305(c)(2)(A).
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.
49 U.S.C.App. § 2305(c)(1). The Secretary has assigned the
investigative responsibilities to OSHA field investigators, 48
Fed.Reg. 35736 (1983) (Secretary's Order 9-83), who followed
standard OSHA procedures until the Secretary issued formal
implementing rules for § 405, effective December 22, 1986.
See 51 Fed.Reg. 42091 (1986) (proposed 29 CFR pt.1978).
The standard procedures which governed the investigation of
Hufstetler's complaint against Roadway in this case required that
Roadway be notified "of the complaint and of the substance of the
allegation," and also that the field investigator consult with
Roadway to obtain its explanation for the discharge before the
Secretary made any findings and issued a preliminary reinstatement
order. OSHA Instruction CPL 2.45A CH-4, p. X-5 (Mar. 8, 1984); OSHA
Instruction DIS.6, pp. 4, 8, 9 (Dec. 12, 1983); OSHA
Page 481 U. S. 260
Investigative Manual, pp. V-l, VI-3, VI-4 (1979). The current
implementing rules provide for similar participation by the
employer, including an opportunity to meet with the investigator
and submit statements from witnesses supporting the employer's
position. 51 Fed.Reg. at 42093 (proposed 29 CFR § 1978.103).
[
Footnote 1]
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,
470 U. S.
538-539 (1985);
Board of Regents v. Roth,
408 U. S. 564,
408 U. S.
576-578 (1972), the Secretary concedes that the
contractual right to
Page 481 U. S. 261
discharge an employee for cause constitutes a property interest
protected by the Fifth Amendment. [
Footnote 2] Brief for Appellants 16.
"Once it is determined that due process applies, the question
remains what process is due."
Morrissey v. Brewer,
408 U. S. 471,
408 U. S. 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,
401 U. S. 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, 424 U. S. 333
(1976), quoting Armstrong v. Manzo, 380 U.
S. 545, 380 U. S. 552
(1965); see also Mullane v. Central Hanover Bank & Trust
Co., 339 U. S. 306,
339 U. S. 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, 397 U. S.
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
Page 481 U. S. 262
provided before the deprivation occurs, and a prompt opportunity
for complete administrative and judicial review is available.
Loudermill, supra, at
470 U. S. 542,
470 U. S. 545,
quoting
Roth, supra, at
408 U. S.
569-570;
see also Mathews, supra, at
424 U. S.
349.
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
424 U. S. 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).
Page 481 U. S. 263
We also agree with the District Court that Roadway's interest in
controlling the makeup of its workforce is substantial. 624 F.
Supp. at 202. In assessing the competing interests, however, the
District Court failed to consider another private interest affected
by the Secretary's decision: Hufstetler's interest in not being
discharged for having complained about the allegedly unsafe
condition of Roadway's trucks. This Court has previously
acknowledged the "severity of depriving a person of the means of
livelihood."
Loudermill, 470 U.S. at
470 U. S.
543.
"While a fired worker may find employment elsewhere, doing so
will take some time, and is likely to be burdened by the
questionable circumstances under which he left his previous
job."
Ibid. In light of the injurious effect a retaliatory
discharge can have on an employee's financial status and prospects
for alternative interim employment, the employee's substantial
interest in retaining his job must be considered along with the
employer's interest in determining the constitutional adequacy of
the § 405 procedures. The statute reflects a careful balancing of
"the strong Congressional policy that persons reporting health and
safety violations should not suffer because of this action" and the
need "to assure that employers are provided protection from
unjustified refusal by their employees to perform legitimate
assigned tasks." 128 Cong.Rec. 32510 (1982) (summary of
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 pre-reinstatement
procedures establish a reliable "initial check against mistaken
decisions,"
Loudermill, supra, at
470 U. S. 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.
Page 481 U. S. 264
We thus confront the crucial question whether the Secretary's
procedures implementing § 405 reliably protect against the risk of
erroneous deprivation, even if only temporary, of an employer's
right to discharge an employee. We conclude that minimum due
process for the employer in this context requires notice of the
employee's allegations, notice of the substance of the relevant
supporting evidence, an opportunity to submit a written response,
and an opportunity to meet with the investigator and present
statements from rebuttal witnesses. The presentation of the
employer's witnesses need not be formal, and cross-examination of
the employee's witnesses need not be afforded at this stage of the
proceedings.
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
470 U. S. 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
416 U. S. 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
Page 481 U. S. 265
the substance of the relevant supporting evidence. If the
employer is not provided this information, the procedures
implementing § 405 contain an unacceptable risk of erroneous
decisions.
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 29 CFR § 1978.103), satisfy the due
process requirements for reliability. Except for the Secretary's
failure to inform Roadway of the evidence supporting Hufstetler's
complaint, similar procedures were followed in this case.
Page 481 U. S. 266
Roadway contends that, absent an opportunity for the employer to
confront and cross-examine the witnesses whose statements support
the employee's complaint, the Secretary's preliminary procedures
will produce unreliable decisions. We conclude, however, that, as a
general rule, the employer's interest is adequately protected
without the right of confrontation and cross-examination, again so
long as the employer is otherwise provided an opportunity to
respond "at a meaningful time and in a meaningful manner."
Armstrong, 380 U.S. at
380 U. S. 552.
Providing the employer the relevant supporting evidence and a
chance to meet informally with the investigator, to submit
statements from witnesses and to argue its position orally,
satisfies the constitutional requirement of due process for the
temporary deprivation under § 405. Each of these procedures
contributes significantly to the reliability of the Secretary's
preliminary decision without extending inordinately the period in
which the employee must suffer unemployment. To allow the employer
and employee an opportunity to test the credibility of opposing
witnesses during the investigation would not increase the
reliability of the preliminary decision sufficiently to justify the
additional delay. Moreover, the primary function of the
investigator is not to make credibility determinations, but rather
to determine simply whether reasonable cause exists to believe that
the employee has been discharged for engaging in protected conduct.
Ensuring the employer a meaningful opportunity to respond to the
employee's complaint and supporting evidence maintains the
principal focus on the employee's conduct and the employer's reason
for his discharge. Final assessments of the credibility of
supporting witnesses are appropriately reserved for the
administrative law judge, before whom an opportunity for complete
cross-examination of opposing witnesses is provided.
Roadway finally argues that requiring an evidentiary hearing as
part of the process leading to preliminary reinstatement
Page 481 U. S. 267
would not impose a significant additional burden on the
Secretary, since a subsequent evidentiary hearing must be
"expeditiously conducted" in any event. 49 U.S.C.App. §
2305(c)(2)(A). Again, however, Roadway's suggested approach would
undoubtedly delay issuance of the Secretary's order of
reinstatement. [
Footnote 3] In
addition to the extra time required for the hearing itself, this
approach would provide an incentive for employers to engage in
dilatory tactics. Added delay at this stage of the Secretary's
proceedings would further undermine the ability of employees to
obtain a means of livelihood, and unfairly tip the statute's
balance of interests against them.
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 post-reinstatement evidentiary hearings may become a
constitutional violation.
See Loudermill, 470 U.S. at
470 U. S. 547;
Barry v. Barchi, 443 U. S. 55,
443 U. S. 66
(1979);
Mathews, 424 U.S. at
424 U. S.
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 29 CFR 1978.106(b)). The administrative
law judge is allowed an additional 30 days to issue a decision,
again unless the parties otherwise agree or good cause is
shown.
Page 481 U. S. 268
51 Fed.Reg. at 42094 (proposed 29 CFR § 1978. 109(a)). The
Secretary then must issue a final order within 120 days. 51
Fed.Reg. at 42094 (proposed 29 CFR § 1978.109(c)). The Secretary
interprets these time requirements not as mandatory, but rather as
"directory in nature." 51 Fed.Reg. at 42095 (proposed 29 CFR §
1978.114). Once the Secretary orders preliminary reinstatement, an
incentive for delay lies naturally with the employee, and
intentional foot-dragging may entitle the employer to challenge the
delay. In this case, however, due to the District Court's
injunction, the Secretary's preliminary reinstatement order never
became effective. Moreover, the record does not reflect why it took
the Secretary 19 months to issue a final decision ordering
reinstatement. The litigation before the District Court may have
been a distraction, Roadway's natural incentive to delay may have
played a part, and Labor Department personnel may have acted with
extreme inefficiency. Because the procedural posture of this case
has not allowed factual development on the issue, we decline to
decide whether the delay Roadway has encountered, or the delays
authorized in the Secretary's new regulations, are so excessive as
to constitute a violation of due process.
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.
Page 481 U. S. 269
[
Footnote 1]
The new rules provide:
"Within twenty days of his or her receipt of the complaint the
[employer] may submit to OSHA a written statement and any
affidavits or documents explaining or defending his or her
position. Within the same twenty days the [employer] may request a
meeting with OSHA to present his or her position. The meeting will
be held before the issuance of any findings or preliminary order.
At the meeting the named person may be accompanied by counsel and
by any persons with information relating to the complaint, who may
make statements concerning the case."
51 Fed.Reg. 42093 (1986) (proposed 29 CFR § 1978.103).
[
Footnote 2]
Though we accept the Secretary's concession, we do not accept
Roadway's separate assertion that it has a property interest in
being able to rely exclusively on the contractually mandated
arbitration procedures to determine the propriety of a discharge.
The essence of this assertion is that, for purposes of enforcing §
405, the Secretary of Labor and the courts should give collateral
estoppel or
res judicata effect to decisions reached by
arbitration boards. Under the Secretary's implementing rules,
issues of collateral estoppel and
res judicata may be
raised before the Secretary as part of a § 405 proceeding, and the
Secretary's decision may be reviewed by the appropriate Court of
Appeals.
See 51 Fed.Reg. at 42095 (proposed 29 CFR §
1978.112) (interpreting § 405 to allow concurrent jurisdiction over
employee complaints before arbitration boards under collective
bargaining agreements and before the Secretary under the
statute).
[
Footnote 3]
We do not agree with JUSTICE STEVENS,
post at
481 U. S.
274-275, that the length of a preliminary investigation
deemed necessary by the Secretary in a complex case should become
the rationale for extending it even further by making a full
evidentiary hearing a constitutional requirement. Additional delay
can only increase the financial hardship to the employee. The
record here does not indicate what factors were responsible for the
extended investigation. It was certainly not against Roadway's
interest to delay the investigation. But even if the delay resulted
solely from bureaucratic lethargy, it neither defines nor
diminishes the importance of Hufstetler's interest in
reinstatement.
JUSTICE BRENNAN, concurring in part and dissenting 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,
470 U. S. 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
470 U. S.
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
470 U. S. 548
(MARSHALL, J., concurring in part and concurring in judgment)
(quoting
Arnett v. Kennedy, 416 U.
S. 134,
416 U. S. 214
(1974) (MARSHALL, J., dissenting)). Thus, employers such as Roadway
are entitled to a fair opportunity to confront the
Page 481 U. S. 270
accuser, to cross-examine witnesses, and to produce contrary
records and testimony.
*
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,
443 U. S. 12
(1979).
See also Loudermill, supra, at
470 U. S. 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." 49 U.S.C.App. § 2305(c)(2)(A). But, as
the plurality states, the Secretary's implementing rules expressly
allow a total delay of six months between the order of preliminary
reinstatement, the holding of the postdeprivation hearing, the
issuance of the administrative law judge's opinion, and the final
order of the Secretary.
Ante at
481 U. S.
267-268. Moreover, the Secretary interprets the overly
generous time requirements in the implementing rules as merely
Page 481 U. S. 271
"directory in nature," rather than mandatory. One of these
regulatory time requirements -- that, "[u]pon the conclusion of
[the final] hearing, the Secretary of Labor shall issue a final
order within one hundred and twenty days" -- is found not only in
the Secretary's implementing rules but also in the statute. 49
U.S.C.App. § 2305(c)(2)(A). Leaving aside the dubious validity of
this cavalier treatment of a statutory imperative, the fact that
the Secretary regards the time periods governing final relief as
directory reveals that the final decision will not be reached
within six months, let alone promptly. The combination of
uncertainty and delay inherent in the Secretary's regulatory scheme
eliminates any possibility that it might compensate for the
inadequacy of the predeprivation hearing.
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.
* The employer's property interest -- its right to discharge an
employee for cause under the collective bargaining agreement -- is
less substantial than other interests which may not be impaired
without confrontation and cross-examination.
See, e.g.,
Goldberg v. Kelly, 397 U. S. 254,
397 U. S.
266-271 (1970). Moreover, the property interest is less
weighty here, because it must be balanced against the Government's
interest in highway safety and the wrongfully discharged employee's
interest in retaining his or her job. The less substantial weight
of the property interest, however, is not dispositive. When the
validity of
any deprivation depends on the resolution of a
factual dispute, the initial check against mistaken decisions is
inadequate unless either a fair opportunity for confrontation,
cross-examination, and presentation of testimony is provided or an
evidentiary hearing and final disposition follow on the heels of
the preliminary determination.
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 post-termination 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,
Page 481 U. S. 272
depending upon the precise nature of the government function
involved, the importance of the private interests that have been
affected by governmental action, and the nature of subsequent
proceedings.
Cleveland Board of Education v. Loudermill,
470 U. S. 532,
470 U. S. 545
(1985);
Cafeteria Workers v. McElroy, 367 U.
S. 886,
367 U. S. 895
(1961). Thus, what may have been required in
Loudermill or
Arnett v. Kennedy, 416 U. S. 134,
416 U. S. 170
(1974), is no sure guide to resolving the present case. The
plurality ably articulates the Government's purpose underlying §
405:
"Section 405 protects employee 'whistle-blowers' 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."
Ante at
481 U. S. 258.
And the employee himself has substantial interest in not being
terminated, and in being paid his wages or the remuneration. On the
other side of the scale is Roadway's interest in not having an
unsatisfactory employee on the job pending a full evidentiary
hearing. That interest, however, is protected by requiring a
reasonable cause finding by the Secretary prior to the issuance of
his order, by notice of the charges, and by the opportunity for
Roadway to present its side of the case. That is the balance struck
by the statute, and the Secretary's regulations and due process
require no more, even though, in most cases, the Secretary may
voluntarily reveal the evidence supporting the charge. Given the
purpose of § 405, I would not ignore the strong interest the
Government may have in particular cases in not turning over the
supporting information, including the names of the employees who
spoke to the Government and who corroborated Hufstetler's claims,
prior to conducting the full administrative hearing.
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.
Page 481 U. S. 273
JUSTICE STEVENS, dissenting in part.
Section 405 of the Surface Transportation Assistance Act of
1982, 49 U.S.C.App. § 2305, is an extraordinary piece of
legislation. In most organized industries, employees are adequately
protected against wrongful discharge by the arbitration machinery
that has been established pursuant to collective bargaining
agreements, and by their unions. In the motor carrier industry,
however, § 405 provides every driver with a special statutory right
to reinstatement if an agent of the Secretary of Labor determines
that there is "reasonable cause to believe" that the driver was
discharged because he reported a safety violation. It was on the
basis of this statute that the Department of Labor conducted an
11-month
ex parte investigation which culminated in its
ordering Roadway Express to reinstate Jerry Hufstetler to his job
as a driver. The Department heard testimony of witnesses in the
course of the investigation, but Roadway was never given a record
of the evidence or a list of the witnesses, much less afforded the
opportunity to confront the witnesses. Yet, based on a
"preliminary" decision reached through these procedures, Roadway
was required to continue employing Hufstetler, who it claims is a
dishonest employee, for an indeterminate period pending an eventual
hearing at which the truth might eventually be established.
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
Page 481 U. S. 274
for the Department of Labor to be able to act swiftly; any
delays in reinstatement, it is feared, will deter drivers from
reporting safety violations. There are, of course, situations in
which the threat of irreparable injury justifies the entry of
temporary orders that are not preceded by an adequate hearing.
[
Footnote 2/1] Similarly,
government's special interest in the efficient management of
programs that it administers sometimes makes it appropriate to
briefly postpone an adjudication of the rights of an employee, a
program beneficiary, or a licensee, until after an initial
determination has been made. [
Footnote
2/2] In this case, however, it is ludicrous for the Secretary
to rely on an "emergency" or "necessity" justification for a
reinstatement order entered 14 months after the discharge. It is
clear
Page 481 U. S. 275
that the Department of Labor does not attempt to take immediate
action to reinstate fired employees. Rather, "preliminary"
investigations often drag on for months and months. In the case of
Jerry Hufstetler, for example, there was an 11-month delay between
the filing of his complaint and the Department's decision that he
deserved temporary reinstatement pending an eventual determination
of why Roadway Express discharged him. [
Footnote 2/3] Obviously, ample time is available for
full and fair predeprivation process under these circumstances,
[
Footnote 2/4] and the plurality's
reliance on the Secretary's vague assertion that providing a more
meaningful hearing would cause delay is misguided. [
Footnote 2/5]
In conducting its balancing, the plurality concludes that
allowing the parties to test the witnesses through
cross-examination
Page 481 U. S. 276
would not "increase the reliability of the preliminary decision
sufficiently to justify the additional delay."
Ante at
481 U. S. 266.
Aside from exaggerating the element of delay, this reasoning unduly
minimizes the critical role that cross-examination plays in
accurate factfinding. The plurality suggests that
"the primary function of the investigator is not to make
credibility determinations, but rather to determine simply whether
reasonable cause exists to believe that the employee has been
discharged for engaging in protected conduct."
Ibid. Yet how is the investigator possibly to decide
between conflicting accounts of witnesses without making
credibility determinations? Should the testimony of one witness who
could easily be impeached (if cross-examination were allowed) be
sufficient to establish "reasonable cause"?
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 factfindings, 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,
360 U. S. 496
(1959).
See also Morrissey v. Brewer, 408 U.
S. 471,
408 U. S. 489
(1972);
Goldberg v. Kelly, 397 U.
S. 254,
397 U. S. 269
(1970). [
Footnote 2/6] In the words
of Dean Wigmore:
Page 481 U. S. 277
"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,
341 U. S. 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
Page 481 U. S. 278
adhere to the strongest presumption that the Government may not
take away life, liberty, or property before making a meaningful
hearing available. The flexibility on the fringes of due process
cannot
"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,
401 U. S. 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 duration [
Footnote 2/7]
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.
[
Footnote 2/1]
See Ewing v. Mytinger & Casselberry, Inc.,
339 U. S. 594
(1950);
North American Cold Storage Co. v. Chicago,
211 U. S. 306
(1908). Federal Rule of Civil Procedure 65(b) provides a sense of
the narrow circumstances in which such action may be taken. That
Rule allows a judge to grant a temporary restraining order (TRO)
only "if it clearly appears" that "immediate and irreparable
injury, loss, or damage will result" otherwise. The TRO expires
after 10 days or less, and an adversarial hearing must be scheduled
"at the earliest possible time," taking precedence over "all
matters."
[
Footnote 2/2]
See, e.g., Cleveland Board of Education v. Loudermill,
470 U. S. 532
(1985);
Mathews v. Eldridge, 424 U.
S. 319 (1976);
Barry v. Barchi, 443 U. S.
55 (1979);
Dixon v. Love, 431 U.
S. 105 (1977). Cases dealing with the pretermination
procedures that must be made available to those deprived of
employment, benefits, or other forms of "new property," are not
necessarily controlling on the level of procedures required when
the government exercises its classic police power to interfere with
transactions and matters involving private parties. We have
explained that "the precise nature of the governmental function
involved" is a relevant factor in due process analysis,
Cafeteria Workers v. McElroy, 367 U.
S. 886,
367 U. S. 895
(1961), and have recognized the unique burdens that face the
Government in its roles as employer and distributor of benefits.
See Arnett v. Kennedy, 416 U. S. 134,
416 U. S. 168
(1974) (opinion of POWELL, J.). In expanding the type of property
interests protected under the Due Process Clause, we must be
cautious to avoid diluting the procedural protections the Clause
has traditionally guaranteed when the Government takes action such
as that under § 405.
[
Footnote 2/3]
The Secretary contends that this delay was unusual. According to
the Secretary's statistics, § 405 investigations are now quicker --
the average length of recent investigations has been 102 days.
Moreover, recently promulgated regulations provide that a decision
is to be reached within 60 days of the filing of the complaint.
See 51 Fed.Reg. 42093 (1986) (proposed 29 CFR § 1978.104).
No matter which of these figures is considered, these types of
delay fly in the face of the Secretary's claim that immediate
action is necessary to mitigate the impact of a wrongful
termination.
[
Footnote 2/4]
The Speedy Trial Act, for example, demands that a criminal
defendant be tried within 70 days of his indictment, or his first
appearance before a judge or magistrate.
See 18 U.S.C. §
3161
et seq. (1982 ed. and Supp. III). Is it possible that
expedited trials are feasible in the criminal context, but
affording carriers a predeprivation confrontational hearing is
impossible?
[
Footnote 2/5]
The plurality is concerned about the financial implications that
any delay may have on the discharged driver.
Ante at
481 U. S. 267.
While I share in this concern, the answer is for the Department of
Labor to avoid these delays by devoting sufficient resources to its
§ 405 program. The carriers should not be forced to bear the burden
of the agency's lethargy. It is also worth pointing out that short
delays will not necessarily wreak havoc with a driver's ability to
make do. In this case, for example, Hufstetler's annual earnings
were in the $50,000 range, App. to Juris. Statement 37a, and a
driver is, in any event, guaranteed full backpay with interest if
the Department actually finds that he or she was discharged in
violation of § 405.
[
Footnote 2/6]
The cases in which this requirement has been relaxed have
typically involved objective issues, where the Court has deemed
cross-examination a bit less essential than in other contexts,
see Dixon v. Love, 431 U.S. at
431 U. S. 113
(records of previous traffic convictions);
Mathews v.
Eldridge, 424 U.S. at
424 U. S. 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,
418 U. S.
567-568 (1974) (prison disciplinary hearings), or other
unique institutional considerations,
see Goss v. Lopez,
419 U. S. 565,
419 U. S.
577-584 (1975) (school suspensions).
[
Footnote 2/7]
Additionally, the Secretary offers no excuse for the inordinate
delay that occurs between a preliminary finding (when an employee
is temporarily reinstated) and an actual decision on the merits. In
this case, the Administrative Law Judge did not even submit a
recommended decision for over seven months, and a 19-month period
elapsed before the Department of Labor announced its final
decision. As JUSTICE BRENNAN explains,
ante at
481 U. S.
270-271, this apparently routine and unjustified delay
in the postdeprivation decision is an independent reason for
striking down the scheme.