Brock v. Roadway Express, Inc.

481 U.S. 252, 107 S. Ct. 1740, 95 L. Ed. 2d 239, 1987 U.S. LEXIS 1814, 2 I.E.R. Cas. (BNA) 1, 55 U.S.L.W. 4530, 1987 CCH OSHD 27,883, 13 OSHC (BNA) 1535, 125 L.R.R.M. (BNA) 2001

• Court: Supreme Court of the United States
• Decided: April 22, 1987
• Docket: 85-1530
• Status: Published

Opinions

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 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. Huf-stetler 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.

Roadway then filed the present action in Federal District Court, seeking an injunction against enforcement of the Sec-rétary’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 evi-dentiary 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 Huf-stetler 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, 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, 149 (1975). Accordingly, we proceed to the merits of this appeal.

I — I L-J

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 “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. 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 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 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).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, 538-539 (1985); Board of Regents v. Roth, 408 U. S. 564, 576-578 (1972), the Secretary concedes that the contractual right to discharge an employee for cause constitutes a property interest protected by the Fifth Amendment.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, 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 provided before the deprivation occurs, and a prompt opportunity for complete administrative and judicial review is available. Loudermill, supra, at 542, 545, quoting Roth, supra, at 569-570; see also Mathews, supra, at 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 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).

We also agree with the District Court that Roadway’s interest in controlling the makeup of its work force 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 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 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.

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 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 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.

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 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 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.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 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 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. 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 ease 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.

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).

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).

3 We do not agree with Justice Stevens, post, at 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.