Hartman v. Duffey, 95-5030

• Decision Date: 19 July 1996
• Docket Number: No. 95-5030,95-5030
• Citation: 88 F.3d 1232,319 U.S.App.D.C. 169
• Parties: 69 Empl. Prac. Dec. P 44,280, 319 U.S.App.D.C. 169 Carolee Brady HARTMAN, et al., Appellees, v. Joseph DUFFEY, Director, United States Information Agency, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1232

88 F.3d 1232

69 Empl. Prac. Dec. P 44,280, 319 U.S.App.D.C. 169

Carolee Brady HARTMAN, et al., Appellees, v. Joseph DUFFEY, Director, United States Information Agency, Appellant.

No. 95-5030.

United States Court of Appeals, District of Columbia Circuit.

Argued April 12, 1996.

Decided July 19, 1996.

Rehearing Denied Oct. 23, 1996.

Appeal from the United States District Court for the District of Columbia (No. 77cv02019).

Robert L. Shapiro, Assistant United States Attorney, Washington, DC, argued the cause, for appellant. With him on the briefs were Eric H. Holder, Jr., United States Attorney, R. Craig Lawrence and Daniel F. Van Horn, Assistant United States Attorneys.

Bruce A. Fredrickson, Washington, DC, argued the cause for appellees. With him on the brief was Susan L. Brackshaw.

Before: SILBERMAN, STEPHEN F. WILLIAMS and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

This case appears before us on appeal for the third time. A sex discrimination class action against the United States Information Agency ("USIA"), it has been working its way up and down the system for nearly 20 years. The end may be at hand--or at least further progress into the remedial phase may be. We find most of defendant's arguments--which concern both certification and liability--to be either waived or barred by law of the case. We affirm the judgment except as it concerns the individual claim of plaintiff Carolee Brady (Hartman) and the decision setting aside 39 foreign service officer slots to be filled by class members.

* * * The facts and procedural posture of this case are described at length in our second pass at it, Hartman v. Duffey, 19 F.3d 1459, 1461-63 (D.C.Cir.1994), so we will give only a brief summary here. In November 1977 Carolee Brady Hartman ¹ filed a sex discrimination class action against the USIA, and in April 1978 the district court conditionally certified a class of women under F.R. Civ. Pro. 23(b)(2). After the parties agreed to bifurcate the trial into a liability and a remedy stage, the district court held a bench trial on class liability and found that plaintiffs had failed to establish a prima facie case of sex discrimination. De Medina v. Reinhardt, 21 Fair Empl. Prac. Cas. (BNA) 75, 1979 WL 39 (D.D.C.1979). On the first appeal, we reversed the dismissal of the hiring discrimination claim because we found error in the court's treatment of the statistical evidence. De Medina v. Reinhardt, 686 F.2d 997, 1002 (D.C.Cir.1982). On remand, the district court found that the USIA had discriminated against women in hiring for six occupational categories. Hartman v. Wick, 600 F.Supp. 361 (D.D.C.1984). In 1988 the district court laid out the framework for relief, Hartman v. Wick, 678 F.Supp. 312 (D.D.C.1988), ruling that unless the parties agreed otherwise, class members who applied for civil service positions were to be given "Teamsters" hearings to determine relief on an individual basis. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 372, 97 S.Ct. 1843, 1873, 52 L.Ed.2d 396 (1977). ² For applicants for foreign service jobs, the district court in 1992 set aside 39 slots to be filled by class members over the next three years. Hartman v. Gelb, No. 77-2019 (D.D.C. July 9, 1992) ("July 1992 order"). The USIA appealed.

On the second appeal, we addressed only the question of class certification, saying that the record did not adequately demonstrate that a class existed. 19 F.3d at 1472. We remanded, holding that "plaintiffs must make a significant showing to permit the court to infer that members of the class suffered from a common policy of discrimination that pervaded all of the employer's challenged employment decisions." 19 F.3d at 1472 (analyzing General Tel. Co. v. Falcon, 457 U.S. 147, 159, 102 S.Ct. 2364, 2371, 72 L.Ed.2d 740 (1982)).

After our remand, twenty class members representing the six job categories petitioned for intervention as named plaintiffs, and the district court approved intervention as of right under F.R. Civ. Pro. 24. Hartman v. Duffy, 158 F.R.D. 525, 535-36 (D.D.C.1994). He further found that the class was properly certified both in 1978 and now, holding that plaintiffs had identified four discriminatory practices that demonstrated a common policy of discrimination sufficient to support the initial class certification. Id. at 538-39. (We return to these practices later.)

The USIA now appeals again, asserting a variety of errors. Primarily because of law of the case and waiver, we reject all of defendant's arguments except those specifically concerning Hartman herself and the 39 foreign service slots.

I. Vicarious Exhaustion of Administrative Remedies

The USIA argued to the district court on the latest go-around that class members should not be permitted to intervene as additional named plaintiffs because they had failed to exhaust their administrative remedies. 158 F.R.D. at 535. The district court applied this court's doctrine of vicarious exhaustion--that exhaustion of administrative remedies by one member of the class satisfies the requirement for all others with sufficiently similar grievances, see Foster v. Gueory, 655 F.2d 1319, 1322-23 (D.C.Cir.1981)--and therefore allowed the intervention. On this appeal, the USIA disputes the district court's application of the vicarious exhaustion doctrine, claiming among other things that the few administrative complaints actually filed were not precise enough to fulfill the purposes of the doctrine, such as putting the agency on notice and allowing for administrative resolution of the claims.

We do not reach the merits of defendant's arguments on this issue because of the defendant's failure to pursue it in its prior appeal. "[W]here an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand." Northwestern Indiana Tel. Co. v. FCC, 872 F.2d 465, 470 (D.C.Cir.1989). The rule serves judicial economy by forcing parties to raise issues whose resolution might spare the court and parties later rounds of remands and appeals. Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 740 (D.C.Cir.1995).

The USIA had ample opportunity to raise the exhaustion issue on its previous appeal when it challenged class certification. Its theory here depends simply on the absence of individual exhaustion and on the vagueness of the administrative complaints of those who did exhaust. As the vast majority of the members of the class have not exhausted their administrative remedies (and in fact the intervenors are and have always been members of the class), the filing of petitions for intervention as named plaintiffs did nothing to enhance defendant's ability to raise the issue of exhaustion by plaintiffs who in fact failed to exhaust their remedies personally. By arguing the exhaustion point at the appropriate (much earlier) juncture, the USIA could perhaps have undone certification at one stroke. Instead, the agency waited to raise this issue until this late date, almost two decades into litigation and after our second opinion in this case focusing almost exclusively on class certification. The omission is all the more striking because the issue had come up in the course of the litigation before with respect to one named plaintiff. See De Medina, 686 F.2d at 1012-13 (finding that the vicarious exhaustion doctrine of Foster applied to named plaintiff Kobylinski, whose claims were "virtually identical" to those of named plaintiff Martinez, who had exhausted). We therefore find no error in the district court's order permitting the intervention of additional named plaintiffs.

We note that plaintiffs did not raise this waiver problem. We have in some instances found such silence to be a waiver of a waiver, see, e.g., Belton v. WMATA, 20 F.3d 1197, 1202 (D.C.Cir.1994); Fox v. District of Columbia, 83 F.3d 1491, 1496 (D.C.Cir.1996), but we do not do so here. ³ We think it would be in only the most extraordinary case that a second-time appellant could escape the consequences of its earlier omission at the end of nearly twenty years of litigation.

II. Hartman's Individual Claims

We do find one aspect of defendant's arguments about lack of vicarious exhaustion to be not waived--and persuasive: that Hartman herself is out of the case because the district court had earlier found that she was not qualified for the job she sought. The only personnel action that Hartman claimed had injured her was rejection of her application for a job on Horizons Magazine, a USIA publication. In its 1979 opinion rejecting class certification, the district court noted that "[b]oth Ms. Dorothy Crook, then Senior Editor of Economic Impact, another Agency publication, and Mr. Robert Korengold, then Editor of Horizons Magazine, testified that Ms. Hartman could not have been seriously considered for the position as she did not possess sufficient professional journalism experience." 21 Fair Empl. Prac. Cas. at 80. The court credited this testimony, writing: "The Court conclusively accepts the testimony of Ms. Crook and Mr. Korengold on this matter." Id. (emphasis added).

That conclusion lay fallow in the record until the most recent remand, when the trial court's apparent change of mind surfaced accidentally. The government pointed out the prior conclusive finding against Ms. Hartman in connection with the analysis of typicality (for certification purposes), 158 F.R.D. at 545, only to be told by the district court: "[T]his Court neither heard nor made a final determination on the merits of Ms. Hartman's individual claim. Ms. Hartman's claim, like those of every other class member who applied for a civil service position, is subject to an individual Teamsters hearing before the Special Master." Id. at 546.

We do not understand in what sense the district court can mean that its prior "conclusive[ ]" finding was non-final....