Dickey v. Greene

K.K. HALL, Circuit Judge, dissenting: I am at a loss to understand the majority’s refusal to address the merits of this appeal.1 The majority concludes that this case is not reviewable in its present posture. It thus chooses to ignore the undisputed concessions, clearly and repeatedly made by both parties before this Court, that the contents of Dickey’s EEOC complaint were relied upon by the court below in arriving at its decision to dismiss plaintiff’s Title VII claim for lack of subject-matter jurisdiction. Because it is the practice of this Court to rely on the concessions of parties and their counsel, and because there has been no showing that the concessions made in this case are in any way inaccurate, I can only conclude that remanding this case for the reasons cited by the majority is a wasteful and futile act. I, therefore, dissent. In his opening brief filed with this Court, Dickey’s counsel requested us to supplement the record pursuant to Fed.R.App.P. 10(e) with Dickey’s EEOC charge of discrimination. This request was anything but “oblique,” as the majority opinion suggests. Dickey’s counsel specifically directed us in his brief to the following portion of Fed.R.App.P. 10(e), upon which he relied: — 960 — If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals. As grounds for this request, Dickey’s counsel unequivocally stated as follows: [E]ach respondent and the Court below relied on the contents of appellant’s charge of discrimination filed with the EEOC, the contents of said charge are material to both appellant and respondents in that said charge is material to the decision of dismissal of the Court below and this Court’s determination of this appeal. (Emphasis added). In his reply brief, Dickey’s counsel reiterated his motion to supplement the record.2 At oral argument before the panel of judges that initially heard plaintiff’s appeal, Dickey’s counsel provided copies of the EEOC charge to the Court. In response to Judge Murnaghan’s statement that “it’s clear that both parties relied on the document at some time or another,” Dickey’s counsel responded in the affirmative. In response to further questioning by Judge Hall, appellant’s counsel persisted in his request to supplement the record: “I’m asking that the charge be made a part of this record — this charge right here.” Later, during the argument presented by counsel for appellees, the following exchange took place: Judge Mumaghan: I am correct am I not that this [the EEOC charge] was apparently before the court and the court made reference to this particular document in the case as it transpired? Counsel for Appellees: Yes, your honor. Judge Mumaghan: So it really was part of the record, they’re not asking us to expand the record to bring in something that wasn’t before the court. Counsel for Appellees: That’s correct____ Dickey’s counsel did not dispute these statements, although given the opportunity to do so. At the conclusion of appellees’ presentation, when asked by Judge Widener if he had “anything else,” Dickey’s counsel responded “No, sir.” On the basis of these statements, all three members of the panel permitted Dickey to supplement the record with the EEOC charge and proceeded to address the appeal on its merits. Given the foregoing history, the panel’s action was certainly not taken “through inadvertence,” as the en banc majority now concludes. Nothing said later by either party during oral argument of this case at the rehearing en banc contradicts their statements that the EEOC charge was considered by the court below. In response to an innocuous question from Chief Judge Winter, as to how the charge form got before the court below, appellees’ counsel merely stated during her presentation that she did not remember. Dickey’s counsel did not address the point at all. It is, therefore, clear to me that the district court has already considered the charge Dickey filed with the EEOC and has decided the very issue which the majority now remands.3 Requiring further proceed — 961 — ings below at this juncture is both pointless and unprecedented. Furthermore, taken to its logical conclusion, the majority opinion renders meaningless the provisions of Fed.R.App.P. 10(e), which authorize a Court of Appeals to correct omissions from the record and require the appellate Court to hear “[a]ll other questions as to the form and content of the record.” Where, as here, there is no dispute that the contents of the missing document were considered by the court below, I can think of no better case in which this Rule would apply. I would, accordingly, reach the merits and, for the reasons stated in the panel majority opinion, would affirm the judgment below. I am authorized to state that DONALD RUSSELL, WIDENER, and CHAPMAN, Circuit Judges, join in this dissent. Footnotes [1] This appeal was briefed and argued by both sides on its merits and was disposed of by the panel originally assigned to hear the matter likewise on its merits. The panel dissent, upon which Dickey relied in her petition for rehearing and suggestion for rehearing en banc, nowhere mentions the "manifest error" which the en banc majority now suddenly says necessitates a remand. Unquestionably, the judges voting to grant en banc review did so because of the issues presented by Dickey and the panel dissent. In short, the case decided today by the majority bears no similarity whatsoever to the case heard by the panel or to the case which was presented to the Court en banc. [2] I find it significant that Dickey did not proceed under the first sentence of Fed.R.App.P. 10(e), which states that "[i]f any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth.” I can only conclude that Dickey does not dispute what transpired below and, that there is no conflict between the parties’ recollection of the events which took place below, including the fact that the contents of the EEOC charge was considered by the district court. [3] Unlike the majority, I find no error — procedural or otherwise — in the dismissal of Dickey’s Title VII claim "for failure of the plaintiff to allege compliance with the procedural requirements of that Act.” The majority stresses that the matter was disposed of by the magistrate — 961 — and the district judge on the papers without a hearing. This is hardly surprising, given the fact that Dickey's attorney did not request a hearing, did not file any opposition to appellees’ motion, and failed to respond to the magistrate’s recommendation of dismissal.