                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2005

Morris v. Secretary Defense
Precedential or Non-Precedential: Precedential

Docket No. 04-1808




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                                        PRECEDENTIAL

   UNITED STATES COURT OF APPEALS FOR THE
               THIRD CIRCUIT


                        No. 04-1808


                  WILLIAM D. MORRIS

                             v.

                DONALD H. RUMSFELD,
               SECRETARY OF DEFENSE,
                      Appellant


      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
            D.C. Civil Action No. 01-cv-01729
            (Honorable Christopher C. Conner)


                    Argued May 9, 2005

      Before: SLOVITER and FISHER, Circuit Judges,
               and POLLAK,* District Judge.


*Honorable Louis H. Pollak, Senior District Judge for the
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
                  (Filed August 22, 2005)

PETER D. KEISLER
Assistant Attorney General

THOMAS A. MARINO
United States Attorney

MARLEIGH D. DOVER
JONATHAN H. LEVY (argued)
Attorneys, Appellate Staff
Civil Division, Room 7231
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001

      Attorneys for Appellant

RALPH B. PINSKEY (argued)
Pinskey & Foster
121 South Street
Harrisburg, PA 17101

      Attorney for Appellee




                OPINION OF THE COURT




                              -2-
POLLAK, District Judge:

        This appeal arises out of efforts by appellee William D.
Morris (“Morris”), a former employee of the federal Defense
Logistics Agency (“DLA”), to recover damages for alleged
disability discrimination in the workplace. Morris obtained a
favorable award from the EEOC, after extensive
administrative proceedings, but now seeks to recover
increased compensatory damages in this federal action under
42 U.S.C. § 2000e-16(c). We must decide whether, in that
context, the District Court may properly accept the EEOC’s
finding of liability as binding, while providing a de novo trial
as to the amount of damages – that figure having been
determined not by the EEOC, but by the DLA. For the
reasons stated herein, we find such a partial de novo trial
inappropriate.

                               I.

        At the time this dispute arose, Morris worked for the
DLA, an agency of the United States Department of Defense,
as a warehouse fork-lift operator.1 Morris is disabled due to
arthritis, degenerative disc disease, and hypertension. In
January and February of 1992, Morris gave the DLA letters
from his doctor stating that Morris needed reasonable
accommodation of his disability, and should be permanently
reassigned to an office job. On February 27, 1992, a DLA


       1
        The version of the facts recounted here is undisputed,
for our purposes.

                              -3-
doctor confirmed this need for reassignment.

        Despite the doctors’ recommendations, Morris was not
reassigned, but remained at work in his warehouse position.
On April 11, 1992, he injured his back in the course of his
duties there. Morris was unable to work or care for himself
for roughly two months after the injury, and he continues to
suffer from its effects.

       Morris filed a complaint with the EEOC on August 25,
1992. On November 27, 1995, after a hearing, an
Administrative Law Judge (“ALJ”) at the EEOC issued a
recommended decision. The ALJ found that Morris was a
“qualified individual with a disability” and that the DLA had
“intentionally discriminated” against him between February
27, 1992, and April 11, 1992, by failing, in spite of his
repeated requests, to make any attempt to accommodate his
medical restrictions. The ALJ found that the DLA had not
discriminated against Morris after April 11, 1992. She
recommended, among other remedies, that the DLA provide
compensatory damages to Morris for his injury.

       On February 5, 1996, the DLA issued a decision that
rejected the ALJ’s recommended finding of discrimination
before April 11, 1992, but accepted her finding of no
discrimination after that date. Morris appealed this finding of
no discrimination to the EEOC.

       In October 1998, the EEOC issued a decision restoring
the ALJ’s recommended finding that the DLA had
discriminated against Morris between February 27 and April

                              -4-
11, 1992. The EEOC awarded some relief directly, but
remanded the matter to the DLA for a determination of the
appropriate compensatory damages amount. The DLA sought
reconsideration of the EEOC’s liability decision, which the
EEOC denied in September 2000.

      In June 2001, the DLA issued a decision awarding
Morris compensatory damages of $12,500.00 for his April
1992 injury. This decision could have been appealed either to
the EEOC or to a federal district court.

       Morris did not appeal the DLA’s compensatory
damages decision to the EEOC. Instead, he filed this action
in the Middle District of Pennsylvania, seeking a jury trial to
determine the amount of compensatory damages that he
should receive. The DLA has paid the $12,500 that it
determined was due to Morris, and complied with the other
forms of relief awarded by the EEOC, but Morris seeks a
higher damages award.

                               II.

       In the District Court, Morris moved for partial
summary judgment as to liability, contending that the DLA
was bound by the EEOC’s finding of intentional
discrimination. The District Court granted Morris’s motion
on September 9, 2003, finding that because two separate
administrative orders had been issued regarding Morris’s
claim – the EEOC determination of liability, and the DLA
determination of damages – Morris could appeal the second,
without permitting the court to re-examine the first.

                               -5-
       On December 23, 2003, the District Court granted the
DLA’s motion to certify the summary judgment decision for
interlocutory appeal. In March 2004 this court granted
permission for the interlocutory appeal. We have jurisdiction
under 28 U.S.C. § 1292(b).

                              III.

        This appeal presents a question of first impression in
this court: whether, when pursuing an employment
discrimination claim in federal court, a federal employee may
elect to enforce only the liability determination of an EEOC
ruling, while seeking a de novo jury trial on the question of
damages. In reviewing an interlocutory appeal under 28
U.S.C. § 1292(b), this court exercises plenary review over the
question certified. Pub. Interest Research Group of N.J., Inc.
v. Hercules, Inc., 50 F.3d 1239, 1246 (3d Cir. 1995).

A. The District Court’s Decision

       As a federal employee, Morris brought his disability
discrimination claim under the Rehabilitation Act, which
provides federal employees protection from discrimination
similar to that available to private sector employees under the
Americans with Disabilities Act. See 29 U.S.C. § 791(g)
(Rehabilitation Act anti-discrimination standard); 42 U.S.C. §
12112 (ADA standard).

       Although the Rehabilitation Act provides essentially
the same relief as the ADA, the administrative process is
more complex under the Rehabilitation Act. See 29 C.F.R. §§

                              -6-
1614.101 et seq. A federal employee must first bring a claim
of discrimination on grounds of disability to an internal
complaints process within the employing agency. 29 C.F.R. §
1614.106. If dissatisfied with the agency’s resolution, the
employee may then bring the claim to the EEOC, which will
investigate the claim, conduct a hearing if the employee so
requests,2 and issue a recommended decision. Id.; 29 C.F.R. §
1614.109. The agency then reviews the EEOC
recommendation, and issues another decision. 29 C.F.R. §
1614.110. The employee may again appeal to the EEOC, as
Morris did here. The EEOC’s second decision may complete
the administrative adjudicatory process, or may, as happened
here, lead to remand of some aspect of the matter to the
agency, so that the agency’s decision on remand at last
concludes the administrative adjudicatory process. Id.

        On conclusion of the administrative proceeding, a
district court may provide two distinct forms of relief. First, a
federal employee who prevails in the administrative process
may sue in federal court to enforce an administrative decision
with which an agency has failed to comply. Such an
enforcement action does not trigger de novo review of the
merits of the employee’s claims. See, e.g., Moore v. Devine,
780 F.2d 1559, 1563 (11th Cir. 1986); Haskins v. U.S. Dep’t
of the Army, 808 F.2d 1192, 1199 (6th Cir. 1987).


       2
        Either sua sponte or at a party’s request, the ALJ
reviewing the claim may decline to conduct a hearing, or limit
the hearing’s scope, on finding that material facts are not in
genuine dispute. 29 C.F.R. § 1614.109.

                               -7-
Alternatively, a federal employee unhappy with the
administrative decision may bring his or her claims to a
district court, under Section 505(a) of the Rehabilitation Act,
29 U.S.C. § 794a(a), and receive the same de novo
consideration that a private sector employee enjoys in a Title
VII action, under 42 U.S.C. § 2000e-16(c).3 Chandler v.
Roudebush, 425 U.S. 840, 863 (1976) (finding that 42 U.S.C.
§ 2000e-16(c) provides a trial de novo).

       As the District Court recognized, this case does not
involve an enforcement action.4 Rather, the basis for Morris’s
claims is 42 U.S.C. § 2000e-16(c)’s provision for de novo


       3
       The precise language of Section 505(a) of the
Rehabilitation Act reads, in relevant part, as follows:
      [T]he remedies, procedures, and rights set forth
      in section 717 of the Civil Rights Act of 1964
      (42 U.S.C. 2000e-16) . . . shall be available,
      with respect to any complaint under section 791
      of this title [for disability discrimination], to any
      employee or applicant for employment
      aggrieved by the final disposition of such
      complaint, or by the failure to take final action
      on such complaint.
29 U.S.C. § 794a(a)(1).
       4
       As it is undisputed that the DLA has paid the entire
amount of compensatory damages awarded to Morris in the
administrative process, as well as providing the other relief
awarded, there is nothing left for the District Court to enforce.

                               -8-
consideration of discrimination claims in the federal courts,5
as it applies to disability discrimination claims under Section
505(a) of the Rehabilitation Act. Citing Black’s Law
Dictionary, the District Court observed that as a general
matter de novo consideration means “a new trial on the entire
case - that is, on both questions of fact and issues of law -
conducted as if there had been no trial in the first instance,”
noting that “[s]everal federal courts have determined that a
plaintiff who seeks de novo review of a damage award must
also re-litigate the merits of the underlying discrimination
claim.” However, the District Court decided to “limit its de
novo review . . . to the issue of compensatory damages,”
because the EEOC finding of liability and the DLA
compensatory damages award had been issued in separate
administrative decisions. The District Court based its
approach on the route followed by the district court in
Malcolm v. Reno, 129 F. Supp. 2d 1 (D.D.C. 2000). In that
case, plaintiff Malcolm had claimed disability discrimination
after the FBI retracted a job offer on discovering that he had
chronic lymphocytic leukemia. Id. at 2. As in this case, the
administrative decision of Malcolm’s claim was made in two
parts: an administrative determination of liability and some
remedies, which Malcolm did not appeal, followed by a


       5
         The statute itself does not specify the scope of the
district court’s inquiry, stating only that an aggrieved
employee “may file a civil action as provided in section
2000e-5 of this title.” 42 U.S.C. § 2000e-16(c). Chandler
established that this provision should be viewed as creating a
right to de novo consideration of the employee’s claims.
Chandler, 425 U.S. at 863.
                                 -9-
decision on compensatory damages, which he sought to
challenge in the district court without upsetting the earlier
liability ruling. Malcolm also sought to enforce the earlier
administrative ruling’s requirement that he be allowed to
participate in the next scheduled session of special agent
training.6 The FBI had refused to comply with this
requirement.

        The Malcolm court granted Malcolm’s motion for a
declaratory judgment that he need not re-litigate liability. The
court also granted his request for immediate injunctive relief
to enforce the administrative award of remedies, requiring the
FBI to permit him to participate in the next scheduled session
of the special agent training program.7


       6
        Malcolm had requested immediate relief because no
other training sessions were scheduled before his 37th
birthday. Under FBI rules, Malcolm would be ineligible to
begin the training after that date.
       7
        Although the District Court here did not discuss it,
Malcolm’s declaratory relief – which declared that the
administrative finding of liability was binding on the FBI,
despite Malcolm’s de novo suit for increased damages – was
short-lived. The Malcolm court amended its order less than a
week after it was issued, and vacated the declaratory relief,
after concluding “that it was premature in the context of
granting the plaintiff’s motion for a preliminary injunction to
also grant the plaintiff’s requested declaratory relief and order
the defendant to comply with the May 3, 1999 decision [that
contained the administrative finding of disability].” Malcolm,
                               -10-
       Relying on Malcolm, the District Court found in the
case at bar that “[s]eeking de novo review of the June 11,
2001 final agency decision [by the DLA] does not place the
EEOC’s discrimination determination at risk of de novo
review.”

B. The Scope of Trial Under 42 U.S.C. § 2000e-16(c)

        The language of the statutory provision – 42 U.S.C. §
2000e-16(c) – that provides the foundation for Morris’s suit is
in some tension with the District Court’s approach. Section
2000e-16(c) allows an employee in Morris’s position to “file a
civil action as provided in section 2000e-5,” 8 governed,
according to 42 U.S.C. § 2000e-16(d), by “[t]he provisions of
section 2000e-5(f) through (k) of this title, as applicable.”
Morris’s suit is thus subject to 42 U.S.C. § 2000e-5(g), which


129 F. Supp. 2d at 11.
       8
       More fully, 42 U.S.C. § 2000e-16(c) provides as
follows:
      [Subject to certain time limitations,] an
      employee or applicant for employment, if
      aggrieved by the final disposition of his
      complaint, or by the failure to take final action
      on his complaint, may file a civil action as
      provided in section 2000e-5 of this title, in
      which civil action the head of the department,
      agency, or unit, as appropriate, shall be the
      defendant.

                             -11-
authorizes a federal court to provide a remedy “[i]f the court
finds” that discrimination occurred. This language appears to
contemplate that a judicial remedy must depend on judicial –
not administrative – findings of discrimination, and no other
statutory language suggests that this requirement should
change if a claimant does in fact present an administrative
finding of liability to the court.

        The relevant case law is not monolithic. But we find
that the cases that have analyzed the issues in greatest depth
have come to conclusions harmonious with what seems the
clear import of the statutory language. We turn now to the
case law.

        Federal courts try plaintiffs’ claims de novo in actions
under 42 U.S.C. § 2000e-16(c). Chandler, 425 U.S. at 863.
Trial de novo means trial “as if no trial had been had in the
first instance,” and requires an independent judicial
determination of the issues in the case. See Timmons v.
White, 314 F.3d 1229 (10th Cir. 2003) (collecting cases, and
citing Black’s Law Dictionary). Thus, it would seem that a de
novo trial under 42 U.S.C. § 2000e-16(c) requires the court to
decide the issues essential to the plaintiff’s claims, including
liability, without deferring to any prior administrative
adjudication.

       Although the Supreme Court has not directly addressed
the precise issue before us, dictum of the Court in Chandler
clearly implies that agency findings, while pertinent for a
reviewing court, are not to be regarded as binding on the
court. In the course of its analysis, the Court observed that

                              -12-
“[p]rior administrative findings made with respect to an
employment discrimination claim may, of course, be admitted
as evidence at a federal-sector trial de novo.” Chandler, 425
U.S. at 863 n.39. If agency decisions were intended to have
any binding effect, the Court’s observation would have been
superfluous.

        Two courts of appeals have taken this view of the
statute and of Chandler in cases presenting the same question
we consider here.9 In Timmons, the Tenth Circuit reviewed
the case of a plaintiff who claimed disability and age
discrimination after his temporary appointment at an
Oklahoma ammunition plant was not renewed. Timmons, 314
F.3d at 1230-31. The employing agency eventually complied
in full with the relief ordered by the EEOC, but Timmons
remained dissatisfied with that relief. Id. at 1231. Reviewing
the district court’s grant of summary judgment to the
government, the Tenth Circuit found that fragmented review




       9
         In circuits in which courts of appeals have not yet
spoken, the prevailing trend among the district courts, too, is
to refuse to allow fragmented review of the type Morris seeks
here. See, e.g., John v. Potter, 299 F. Supp. 2d 125 (E.D.N.Y.
2004); Simpkins v. Runyon, 5 F. Supp. 2d 1347, 1351 (N.D.
Ga. 1998). Two decisions from courts within this circuit are
in this group. Ritchie v. Henderson, 161 F. Supp. 2d 437
(E.D. Pa. 2001); Cocciardi v. Russo, 721 F. Supp. 735, 738
(E.D. Pa. 1989).
                               -13-
was not available.10 Id. at 1233. Addressing the differing
conclusions reached by other courts that had already
confronted the issue, the Tenth Circuit concluded that “the
better-reasoned cases hold that a plaintiff seeking relief under
§ 2000e-16(c) is not entitled to litigate those portions of an
EEOC decision believed to be wrong, while at the same time
binding the government on the issues resolved in his or her
favor.” Id. at 1233. Very recently, the D.C. Circuit reached
the same result in Scott v. Johanns, 409 F.3d 466 (D.C. Cir.
2005). Like Timmons, the Scott court held as follows:
        Under Title VII, federal employees who secure
        a final administrative disposition finding
        discrimination and ordering relief have a choice:
        they may either accept the disposition and its
        award, or file a civil action, trying de novo both
        liability and remedy. They may not, however,
        seek de novo review of just the remedial award.

Id. at 471-72.

        Timmons and Scott built on earlier decisions that had
hinted at the same result, in contexts that did not demand a
direct resolution of the issue. In Moore v. Devine, 780 F.2d
1559, 1564 (11th Cir. 1986), the Eleventh Circuit had


       10
         The court also found, as an initial matter, that
Timmons’s action was properly characterized as a civil action
under 42 U.S.C. § 2000e-16(c), not an enforcement action.
Id. at 1232. To the extent that Morris attempts to characterize
his federal action as an enforcement action, we follow
Timmons in finding this unpersuasive.
                              -14-
distinguished between enforcement and de novo actions,
finding that when a plaintiff “proceeds to trial de novo on the
very claims resolved by the EEOC, he or she cannot complain
when the district court independently resolves the claims on
the merits.” Id. Likewise, in another early case, Haskins v.
Department of the Army, 808 F.2d 1192 (6th Cir. 1987),
which involved an enforcement action, the Sixth Circuit noted
that where an employee seeks a de novo trial of discrimination
claims, “the district court is not bound by the administrative
findings.” Id. at 1199 n.4.

       A few decisions by other courts, led by Pecker v.
Heckler, 801 F.2d 709 (4th Cir. 1986), have relied on Moore
and Haskins to endorse limited review in de novo actions
under 42 U.S.C. § 2000e-16(c). We find those decisions
unpersuasive, however, because they appear not to have
distinguished between enforcement actions (which do not
provide de novo review) and de novo actions under § 2000e-
16(c).11


       11
          In Pecker, the Fourth Circuit cited Moore in a
footnote stating, without qualification, that “the defendants
are bound by the EEOC’s findings of discrimination and
retaliation,” and that the plaintiff was therefore entitled to an
order from the district court affirming the EEOC’s liability
ruling. Pecker, 801 F.2d at 711 n.3. However, the portion of
Moore that Pecker cites refers to enforcement suits: it states
that federal law “require[s] that the district courts enforce
final EEOC decisions favorable to federal employees when
requested to do so.” See Pecker, 801 F.2d at 711 n.3
(emphasis added). Also, in Pecker, “[l]iability was not
                                -15-
        Although it does not lead us to a different result, this
case presents one small complication not addressed by the
other courts of appeals. Morris argues that because the
liability ruling and the compensatory damages ruling in his
case were made in two separate decisions, he is entitled to
enforce the liability ruling while challenging the
compensatory damages ruling. All of the decisions discussed
above that reject “limited de novo” trials are logically
incompatible with this position, since they propose judicial


contested in the district court,” id. at 710, which may help
explain the court’s reluctance to allow the government to
contest liability on appeal.
        Another Fourth Circuit panel followed Pecker’s lead in
Morris v. Rice, 985 F.2d 143 (4th Cir. 1993). Morris
expressly found, citing Haskins and Moore, that “the plaintiff
may limit and tailor his request for de novo review, raising
questions about the remedy without exposing himself to a de
novo review of a finding of discrimination.” Id. at 145.
However, neither Haskins nor Moore supports such a broad
right.
        Similarly, in dictum, the Ninth Circuit has cited
Haskins and other cases as allowing partial de novo review,
with apparent approval. Girard v. Rubin, 62 F.3d 1244, 1247
(9th Cir. 1995). However, Girard offers no analysis, and
appears to be in some tension with other Ninth Circuit
precedent. See Plummer v. Western Int’l Hotels Co., Inc., 656
F.2d 502 (9th Cir. 1981) (holding that in a private employee’s
Title VII action, administrative findings were not binding in a
trial de novo); cf. Williams v. Herman, 129 F. Supp. 2d 1281,
1284 (E.D. Cal. 2001).
                                -16-
review entirely independent of the administrative proceedings.
However, one district court case, John v. Potter, 299 F. Supp.
2d 125 (E.D.N.Y. 2004), is of particular interest in light of
Morris’s argument. John applied the Timmons approach to a
situation that, like this one, clearly involved separate
administrative decisions addressing liability and damages.12
Because, under 42 U.S.C. § 2000e-16(c), a federal court must
conduct a de novo trial of a plaintiff’s claims – rather than an
appellate review of a particular administrative result – we,
like the John court, find it immaterial whether any prior
administrative proceedings resulted in multiple decisions, or
only one.

                              IV.

       We hold that, when a federal employee comes to court
to challenge, in whole or in part, the administrative
disposition of his or her discrimination claims, the court must
consider those claims de novo, and is not bound by the results
of the administrative process, whether that process culminated
in one administrative decision, or in two or more decisions.
Therefore, we will reverse the District Court’s grant of partial
summary judgment, and remand the case for further


       12
         Of course, even where the published decisions do not
make it crystal clear, other cases may also have involved
multiple decisions, given the back-and-forth between agencies
inherent in the Rehabilitation Act administrative process. See
Ritchie v. Henderson, 161 F. Supp. 2d 437, 441-42 (E.D. Pa.
2001) (outlining administrative process involving several
rounds of rulings).
                               -17-
proceedings consistent with this opinion.




                             -18-
