University of Tennessee v. Elliott Brief for Petitioners

    No. 85-588

In the Supreme Court of the United States
OCTOBER TERM , 1985

THE UNIVERSITY OF TENNESSEE, et al., Petitioners,
v.

ROBERT B. ELLIOTT, Respondent.

O n W rit of Certiorari to the United States 
Court of A ppeals for the S ixth  Circuit

B R IE F FOR PETITIONERS

Of Counsel
W, J. M ichael Cody
Attorney General 

& Reporter
State of Tennessee
450 James Robertson 

Parkway
Nashville, Tennessee 

37219
John L. Sobieski, Jr .
Professor of Law
The University of 

Tennessee
1505 W. Cumberland 

Avenue
Knoxville, Tennessee 

37996

January 1986

B eauchamp E. Brogan* 
General Counsel 
A lan  M. P arker*
Associate General Counsel 
Catherine S. M izell 
Associate General Counsel 
The University of Tennessee 
810 Andy Holt Tower 
Knoxville, Tennessee 37996 
(615) 974-3245
G. R ay  B ratton*
1620 First Tenn. Bank Bldg. 
165 Madison Avenue 
Memphis, Tennessee 38103
N. R ichard G la ssm a n * 
John B arry B urgess*
26 N. Second Street 
Memphis, Tennessee 38103 

Attorneys for Petitioners 
* Counsel of Record

T o m m y  Coley 
532 Smith Lane 
Jackson, Tennessee 38301 

Pro Se Petitioner

E. L. M endenhall,  I nc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8030



QUESTIONS PRESENTED

1. Whether traditional principles of full faith and 
credit apply in federal civil rights actions under the Re­
construction statutes to issues fully and fairly litigated 
before a state agency acting in a judicial capacity.

2. Whether traditional principles of full faith and 
credit apply in Title VII actions to issues fully and fairly 
litigated solely at the insistence of the aggrieved employee 
before a state agency acting in a judicial capacity outside 
the Title VII enforcement scheme.



n

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................... ...... ....... . i
TABLE OF CONTENTS .................................................. n
TABLE OF AUTHORITIES ..............................................  xv
OPINIONS BELOW ..........................................       1
JURISDICTION ....................................................................  2
CONSTITUTIONAL PROVISION AND STATUTES

INVOLVED ........................................................    2
STATEMENT OF THE CASE ..........................    2
SUMMARY OF ARGUMENT ...................................... -  12

ARGUMENT

I. TRADITIONAL PRINCIPLES OF FULL 
FAITH AND CREDIT APPLY IN FEDERAL 
CIVIL RIGHTS ACTIONS UNDER THE RE­
CONSTRUCTION STATUTES TO ISSUES 
FULLY AND FAIRLY LITIGATED BEFORE 
A  STATE AGENCY ACTING IN A JUDI­
CIAL CAPACITY .............................................. 16

A. This Court Has Consistently Held That 
Civil Rights Actions Under The Recon­
struction Statutes Are Not Categorically 
Exempt From Traditional Principles Of
Full Faith And Credit..................................  16

B. Traditional Principles Of Full Faith And 
Credit Apply To The Final Judgment Of 
A  State Agency Acting In A Judicial 
Capacity .........................................................  22

1. This Court Has Never Recognized An 
Artificial Distinction Between State 
Agency Adjudications And State Court



in

Adjudications For Full Faith And
Credit Purposes ......................................  22

2. Denial Of Full Faith And Credit To 
The Final Agency Judgment In This 
Case Would Seriously Undermine The 
Integrity Of State Agency Adjudica­
tions Conducted For The Purpose Of 
Protecting Fourteenth Amendment 
Due Process Interests   ................ 27

II. TRADITIONAL PRINCIPLES OF FULL 
FAITH AND CREDIT APPLY IN TITLE 
VII ACTIONS TO ISSUES FULLY AND 
FAIRLY LITIGATED SOLELY AT THE IN­
SISTENCE OF THE AGGRIEVED EM­
PLOYEE BEFORE A STATE AGENCY ACT­
ING IN A JUDICIAL CAPACITY OUTSIDE 
THE TITLE VII ENFORCEMENT SCHEME 31

A. Title VII Actions Are Not Categorically
Exempt From Traditional Principles Of 
Full Faith And Credit _____ _________ _ 31

B. No Provision Of Title VII Required Re­
spondent To Litigate The Issue Of Racial 
Discrimination In The State Agency Pro­
ceeding; Nor Does Any Provision Of Title 
VII Specify The Effect Of The Final 
Agency Judgment ................ ....................... 32

C. Full Faith And Credit Applies To Issues 
Properly Before And Fully And Fairly 
Adjudicated By A State Agency Acting In
A Judicial Capacity ........... ...... .......... .........  35

D. The Issue Of Racial Discrimination Was 
Fully And Fairly Litigated In The State 
Proceeding .................... ......... - ................... 38

CONCLUSION ................................ -........ -.......................... 43



IV

TABLE OF AUTHORITIES

Cases

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 30
Allen v. McCurry, 449 U.S. 90 (1980) ...................... passim
Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S.

522 (1931) .......................................................................  30
Board of Regents v. Roth, 408 U.S. 564 (1972) ........... 28
Bottini v. Sadore Management Corp., 764 F.2d 116

(2d Cir. 1985) .................................................................  35
Bowen v. United States, 570 F.2d 1311 (7th Cir. 1978) 26
Buckhalter v. Pepsi-Cola General Bottlers, Inc., 768

F.2d 842 (7th Cir. 1985), petition for cert, filed ,.......
U.S.L.W......... (U.S. Dec. 23, 1985) (No. 85-6094) .......  35

Chicago R.I. & P. Ry. v. Schendel, 270 U.S. 611 (1926)
........................................................................................... .13, 22

Delamater v. Schweiker, 721 F.2d 50 (2d Cir. 1983) 26
Elliott v. University of Tennessee, 766 F.2d 982 (6th

Cir. 1985) ....................................................................... 23,24
FTC v. Ruberoid Co., 343 U.S. 470 (1952) ......................  28
Fourakre v. Perry, 667 S.W.2d 483 (Tenn. App. 1983) 20
Gear v. City of Des Moines, 514 F. Supp. 1218 (S.D.

Iowa 1981) .......................................................................  23
Gulf Oil Corp. v. FPC, 563 F.2d 588 (3d Cir. 1977),

cert, denied, 434 U.S. 1062 (1978) .............................. 26
Heath v. John Morrell & Co., 768 F.2d 245 (8th Cir.

1985) ...................................................................................  35
International Wire v. Local 38, IBEW, 357 F.Supp. 1018 

(N.D. Ohio 1972), affd, 475 F.2d 1078 (6th Cir.),
cert, denied, 414 U.S. 867 (1973) ....    26

Johnson v. Railway Express Agency, Inc., 421 U.S.
454 (1975) 30



V

Jones v. Progress Lighting Corp., 595 F. Supp. 1031
(E.D. Pa. 1984) ................................... ............................ 35

Kremer v. Chemical Construction Corp., 456 U.S. 461
(1982) ........................................................................... passim

Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943)
.......................................................................................13, 22, 23

Marrese v. American Academy of Orthopaedic Sur­
geons, .......U.S.......... , 105 S. Ct. 1327 (1985) ....15, 27, 36, 37

McCulloch Interstate Gas Corp. v. FPC, 536 F.2d 910
(10th Cir. 1976) ..........................................    26

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) ............................................................................... 41

Migra v. Warren City School District, 465 U.S. 75
(1984) ...........  ...passim

Moore v. Bonner, 695 F.2d 799 (4th Cir. 1982) ............. 23
New York Gaslight Club, Inc. v. Carey, 447 U.S. 54

(1980) ............................................................................... 37
O’Connor v. Mazzullo, 536 F. Supp. 641 (S.D.N.Y.

1982) ............................................................................................. 23
O’Hara v. Board of Education, 590 F. Supp. 696 (D.N.J.

1984), aff’d mem., 760 F.2d 259 (3d Cir. 1985) ......... 35
Pacific Seafarers, Inc. v. Pacific Far East Line, Inc.,

404 F.2d 804 (D.C. Cir. 1968), cert, denied, 393 U.S.
1093 (1969) .........................     26

Painters District Council No. 38 v. Edgewood Contract­
ing Co., 416 F.2d 1081 (5th Cir. 1969) ................   26

Parker v. National Corp. for Housing Partnerships, 619
F. Supp. 1061 (D.D.C. 1985) .. .......................................  35

Patsy v. Board of Regents, 457 U.S. 496 (1982) ..........  21
Pettus v. American Airlines, Inc., 587 F.2d 627 (4th

Cir. 1978), cert, denied, 444 U.S. 883 (1979) ............... 26
Polsky v. Atkins, 197 Tenn. 201, 270 S.W.2d 497 

(1954) 20



VI

Purcell Enterprises, Inc. v. State, 631 S.W.2d 401 (Tenn.
App. 1981) .........................................................................  20

Reedy v. Florida, 605 F. Supp. 172 (N.D. Fla. 1985) 35
Riley v. New York Trust Co., 315 U.S. 343 (1942) .... 24 
Snow v. Nevada Department of Prisons, 543 F. Supp.

752 (D. Nev. 1982) .................................................... .23,35
Steffen v. Housewright, 665 F.2d 245 (8th Cir. 1981) 23
Stone v. Powell, 428 U.S. 465 (1976) ................. ........ . 17
Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981) ............. ............. ...... ............... ........  41
Thomas v. Washington Gas Light Co., 448 U.S. 261

(1980) ............................... - ............. -............................13,22
United Farm Workers v. Arizona Agricultural Employ­

ment Relations Board, 669 F.2d 1249 (9th Cir. 1982) 26
United States v. Karlen, 645 F.2d 635 (8th Cir. 1981) 26
United States v. Utah Construction & Mining Co., 384

U.S. 394 (1966) ............. ...... - ....... ......... -.... -.... -.... —.13, 25
Zanghi v. Incorporated Village of Old Brookville, 752 

F.2d 42 (2d Cir. 1985) ........................ .................. .....  23

Constitutional Provision

U.S. Const, art. IV, § 1 ........ .............................. ...... ....... 2, 12

Federal Statutes

28 U.S.C. § 1254(1) (1982) ......    2
28 U.S.C. § 1738 (1982) ...........................................................................................2,12,17
The Reconstruction Civil Rights Statutes, 42 U.S.C.

§§ 1981, 1983, 1985, 1986, 1988 (1982) ...................passim
Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. (1982) ..................     passim
42 U.S.C. § 2000e-5(b) (1982) .............................   2,34
42 U.S.C. § 2000e-5 (c), (d) (1982) .................................... 2,33



VII

State Statutes

Tenn. Code Ann. § 4-5-102(3) (1985) ......................... .2,24
Tenn. Code Ann. §§ 4-5-301 through-323 (1985) .........2,4,

6, 29
Tenn. Code Ann. § 4-5-302 (1985) .................................. 6
Tenn. Code Ann. § 4-5-315 (1985) .................................. 10
Tenn. Code Ann. § 4-5-317 (1985) .................................. 10
Tenn. Code Ann. § 4-5-322 (1985) .................................. 11
Tenn. Code Ann. § 4-5-322(h) (1) (1985) .................7,15,36
Tenn. Code Ann. § 4-21-202 (1985)........................ .. ......  33

Miscellaneous

1 K. Davis, Administrative Law Treatise (1983) ........... 29
Restatement (Second) of Judgments (1982) ............... 29
2 J. Cook & J. Sobieski, Civil Rights Actions (1985)

.... .................................................................................. ..... 30, 31



No. 85-588
In the Supreme Court of the United States

OCTOBER TERM, 1985

THE UNIVERSITY OF TENNESSEE, et al., Petitioners,
v.

ROBERT B. ELLIOTT, Respondent.

On W rit of Certiorari to the United States 
Court of A ppeals for the S ixth  Circuit

BRIEF FOR PETITIONERS

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth Cir­
cuit is reported in 766 F.2d 982 (6th Cir. 1985). A  copy 
of the slip opinion and the judgment of the Court of Ap­
peals appear in the Appendix to the Petition for Certiorari. 
(P.A. 1-25; 183-184)1 The memorandum decision of the 
United States District Court for the Western District of 
Tennessee was not reported but appears in the Appendix 
to the Petition for Certiorari. (P.A. 26-32) The judgment 
of the District Court appears in the Joint Appendix. (J.A. 
32) The final agency order in the contested case hearing 
under the Tennessee Uniform Administrative Procedures 
Act appears in the Appendix to the Petition for Certiorari. 
(P.A. 33-35)

1. References to the Joint Appendix are cited as “ J.A.” 
References to items reproduced in the Appendix to the Petition 
for Certiorari are cited as “P.A.”



2

JURISDICTION

The judgment of the Court of Appeals for the Sixth 
Circuit was entered on July 9, 1985. The petition for a 
writ of certiorari was filed on October 3, 1985, and granted 
on December 2, 1985. This Court’s jurisdiction is invoked 
under 28 U.S.C. § 1254(1) (1982).

CONSTITUTIONAL PROVISION AND 
STATUTES INVOLVED

The text of the following constitutional provision and 
statutes relevant to the determination of this case are set 
forth in appendices to this brief: U.S. Const, art. IV, § 1;
28 U.S.C. § 1738 (1982); 42 U.S.C. § 2000e-5(b), (c), (d) 
(1982); Tenn. Code Ann. § 4-5-102(3) (1985); Tenn. Code 
Ann. §§ 4-5-301 through -323 (1985).

STATEMENT OF THE CASE

This is an action under the Reconstruction civil rights 
statutes, 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988 
(1982), and Title VII of the Civil Rights Act of 1964, 42 
U.S.C. § 2000e et seq. (1982), in which respondent, Robert
B. Elliott, alleges that petitioners2 have engaged in racial 
discrimination against him. Petitioners seek application 
of issue preclusion in this action on the ground that a

2. Petitioners are all defendants below—The University of 
Tennessee, The University of Tennessee Institute of Agriculture, 
The University of Tennessee Agricultural Extension Service, 
University officials (M. Lloyd Downen, Willis W. Armistead, 
Edward J. Boling, Haywood W. Luck, and Curtis Shearon), mem­
bers of the Madison County Agricultural Extension Service Com­
mittee (Billy Donnell, Arthur Johnson, Jr., Mrs. Neil Smith, 
Jimmy Hopper, and Mrs. Robert Cathey), Murray Truck Lines, 
Inc., Tom Korwin, and Tommy Coley.



3

prior state adjudication, voluntarily invoked by respondent 
under the Tennessee Uniform Administrative Procedures 
Act for the purpose of defending his liberty and property 
interests under the Due Process Clause of the Fourteenth 
Amendment, is entitled to full faith and credit in federal 
court.

A. Respondent’s Proposed Termination.

Respondent is employed as an Associate Extension 
Agent with The University of Tennessee Agricultural Ex­
tension Service. During 1981 respondent’s superiors ob­
served what in their judgment were instances of inade­
quate work performance and improper job behavior. Re­
spondent’s immediate supervisor and the Dean of the 
Agricultural Extension Service instituted the University’s 
multi-step disciplinary process in an effort to improve 
respondent’s performance and behavior. These efforts 
were unsuccessful, however, and instances of inadequate 
performance and improper behavior continued. (J.A. 21) 
In December 1981, the University proposed to terminate 
respondent’s employment.3 (J.A. 21-23)

In a letter dated December 18, 1981, the University 
notified respondent of the disciplinary charges and his 
right to a due process hearing prior to the proposed termi­
nation. (J.A. 21-23) On December 22, 1981, in a written 
response made by his attorney, respondent demanded a

3. The disciplinary charges included allegations of failure 
to carry out specific work assignments in a timely and proper 
manner; insubordination; engaging during University working 
hours in a personal custom cabinet business; playing golf without 
permission during working hours; making anonymous harassing 
phone calls to a private citizen in violation of University work 
rules; public verbal abuse of private citizens; unexcused ab­
sences; and unauthorized use of official University telephone for 
personal long distance calls. (P.A. 39-43)



4

formal, trial-type hearing under the contested case pro­
visions of the Tennessee Uniform Administrative Proce­
dures Act, Tenn, Code Ann. §§ 4-5-301 through -323 (1985), 
to contest the disciplinary charges. Respondent also stated 
that he intended to prove in the contested case hearing 
that the University was guilty of racial harassment of 
him. (Dist. Ct. Nr. 8, Exhibit M to Affidavit of M. Lloyd 
Downen, filed Feb. 18, 1982)

B. Respondent’s District Court Complaint.

On January 5, 1982, before the due process hearing 
was convened,4 and before the EEOC had taken any ac­
tion on the discrimination charge he had filed in late De­
cember 1981, respondent filed this federal court action 
under the Reconstruction civil rights statutes and Title VII. 
(J.A. 2-18) Respondent’s complaint sought to enjoin the 
University from taking any employment action against 
him, one million dollars in damages, and certification of a 
class action.5 (J.A. 17-18)

Respondent’s complaint included allegations of racial 
discrimination against him based on the same incidents 
out of which the University’s disciplinary charges arose. 
Respondent alleged that these incidents, and the disciplin­
ary charges themselves, were acts of racial discrimination 
and harassment against him by the University, University 
officials, and the other petitioners.

On January 19, 1982, the district court entered ex parte 
a temporary restraining order prohibiting the University 
from taking any disciplinary action against respondent. 
(Dist. Ct. Nr. 4) The University responded with a motion

4. The hearing was not convened because of the holiday 
season.

5. The district court did not certify a class action.



5

to dissolve the temporary restraining order, to dismiss the 
complaint, and for summary judgment, asserting that re­
spondent did not meet the prerequisites for preliminary 
injunctive relief nor the jurisdictional prerequisites for a 
Title VII action. (J.A. 19-20) The district court, without 
ruling on the University’s motion to dismiss and for sum­
mary judgment, dissolved the temporary restraining order, 
ruling that respondent was not entitled to preliminary in­
junctive relief. (Dist. Ct. Nr. 12, Feb. 23, 1982)

C. Respondent’s Departure From The Available Fed­
eral Forums To Invoke The State Due Process
Hearing.

Upon dissolution of the temporary restraining order, 
respondent completely abandoned his Title VII and Re­
construction civil rights claims. Respondent did not seek 
a Title VII right-to-sue letter at that time or otherwise 
press his claim within the Title VII enforcement scheme. 
Nor did he in any way prosecute in federal court his claims 
under the Reconstruction civil rights statutes. Respon­
dent instead departed entirely from the available federal 
forums to contest the disciplinary charges in a due process 
hearing under the Tennessee Uniform Administrative Pro­
cedures Act.

The due process hearing convened on April 26, 1982,6 
well past the time when respondent could have requested 
a Title VII right-to-sue letter. With various recesses, the 
hearing continued intermittently until October 1982 for 
a total of twenty-eight days of testimony and argument. 
(P.A. 36-37)

6. The hearing was a public hearing held in Jackson, 
Tennessee (over 300 miles from the University headquarters in 
Knoxville) for the convenience of respondent and his multitude 
of witnesses.



6

In compliance with Tenn. Code Ann. §§ 4-5-301 through 
-323 (1985), the hearing was conducted with procedural 
rights which in all respects were identical to those avail­
able to civil trial litigants under the Tennessee and Fed­
eral Rules of Civil Procedure. These trial-like procedural 
rights included discovery in accordance with the Ten­
nessee Rules of Civil Procedure; compulsory process to 
discover and produce documents and witnesses for trial; 
examination and cross-examination of witnesses; applica­
tion of rules of evidence; and filing of pleadings, motions, 
objections, briefs, proposed findings of fact and conclusions 
of law, and proposed orders. In addition, under the pro­
visions of Tenn. Code Ann. § 4-5-302 (1985), respondent 
could have petitioned for disqualification of the Admin­
istrative Law Judge for “ bias, prejudice, interest . . .  or 
for any cause for which a judge may be disqualified.”

Respondent did not petition for disqualification of the 
Administrative Law Judge. Nor did he ever challenge the 
procedural adequacy or fairness of the state proceedings. 
To the contrary, he fully availed himself of the trial-like 
procedural rights provided by the Administrative Proce­
dures Act, as is demonstrated by the voluminous hearing 
record. The transcript alone consists of 55 volumes, in­
cluding 159 exhibits7 and 5,000 pages of testimony (P.A. 
27) from 104 witnesses, 93 of whom were produced by 
respondent. Over 100 witness and document subpoenas 
were issued at respondent’s request. Respondent’s coun­
sel filed briefs, supplemental briefs, and lengthy proposed 
findings of fact and conclusions of law.

7. The vast majority of exhibits were entered by respon­
dent. Some contained over 100 parts, including photographic 
prints, slides, and even videotapes displayed in the open hearing.



7

D. Litigation Of The Issue Of Racial Discrimination
As An Affirmative Defense To The Disciplinary
Charges.

As the charging party in the due process hearing, the 
University carried the same burden of persuasion as a 
plaintiff in a civil trial. The University was required to 
prove the disciplinary charges by a preponderance of the 
evidence. Respondent had the right under Tenn. Code 
Ann. § 4-5-322 (h) (1) (1985) to defend the charges on 
the basis that the agency was acting “ [i]n violation of 
constitutional or statutory provisions.” Availing himself 
of this right, respondent defended on the ground that the 
charges were racially motivated.

On the first day of the due process hearing, respondent 
sought to file countercharges of racial discrimination to be 
tried in the due process hearing. The Administrative Law 
Judge refused to allow the filing of countercharges, ruling 
that he was not empowered to dispose of respondent’s Re­
construction civil rights or Title VII claims. The Ad­
ministrative Law Judge further ruled, however, that he was 
empowered to determine the issue of discrimination as an 
affirmative defense to the disciplinary charges. (P.A. 
44-45, 171)

Respondent fully pursued this affirmative defense 
and introduced voluminous evidence as to the allegations 
of individual racial discrimination included in his federal 
court complaint. Through direct or cross-examination of 
all 104 witnesses, respondent’s counsel sought to establish 
the discriminatory intent of all parties named as defen­
dants in the federal court complaint with respect to the 
allegations of individual discrimination alleged in the com­
plaint.



8

E. Findings Of The Administrative Law Judge.

In a lengthy order including extensive findings of 
fact and conclusions of law, the Administrative Law Judge 
found that the University had sustained its burden of 
persuasion on four charges of improper job behavior.8 
With respect to the other disciplinary charges, the Ad­
ministrative Law Judge found that the University either 
failed to sustain its burden of persuasion or had not pro­
vided proper supervision of respondent’s work performance. 
(P.A. 166-170)

The Administrative Law Judge made extensive find­
ings on respondent’s affirmative defense that the dis­
ciplinary charges were racially motivated. Addressing first 
the appropriate burden of persuasion with respect to the 
affirmative defense, the Administrative Law Judge ruled 
that

[sjince this is not a civil rights case under Title VII 
of the Civil Rights Act of 1964 as amended, 42 U.S.C. 
Sec. 2Q00e, et seq., nor under 42 U.S.C. Sec. 1983, in 
order to successfully defend [sic] charges of race 
discrimination, employee must prove by a preponder­
ance of the evidence that the disciplinary actions taken

8. Specifically, the Administrative Law Judge found (1) 
that respondent was guilty of playing golf without permission 
during working hours and in violation of University policy; (2) 
that respondent falsely made written, public accusations that a 
private livestock judge refused to make judging decisions in 
favor of black 4-H youths, the contrary facts being publicly 
available to respondent; and that respondent’s public, profane 
epithets in front of the livestock judge and false accusation “ were 
unjustified and not protected freedom of speech under the con­
stitution, and evidenced traits undesirable in an AES employee” ; 
(3) that respondent’s conduct in front of the private livestock 
judge constituted disorderly conduct and abusive language in 
violation of University rules; and (4) that respondent made nu­
merous personal long distance calls from a University business 
phone in violation of University rules. (P.A. 177-178)



9

against him were because of his race, and that his 
supervisors only used the charges of improper job 
behavior and inadequate job performance as a pretext 
to propose his termination because he is black. Thus, 
in his defense, Elliott had the same burden of proving 
pretext as contained in McDonnell Douglas Corp. v. 
Greene, 411 U.S. 792 (1973) and Texas Department 
of Community Affairs v. Burdine, 101 S.Ct. 1089 
(1981).

(P.A. 171)

After a thorough review of the evidence, the Ad­
ministrative Law Judge made the following ultimate find­
ing on respondent’s affirmative defense to the disciplinary 
charges:

An overall and thorough review of the entire 
evidence of record leads me to believe that employer’s 
action in bringing the charges against employee, re­
sulting in these proceedings were based on what it, 
through its administrative officers and supervisors per­
ceived as improper and/or inadequate behavior and 
inadequate job performance rather than racial dis­
crimination. I therefore conclude that employee has 
failed in his burden of proof to the claim of racial 
discrimination as a defense to the charges against 
him.

(P.A. 177)

Despite finding that the University’s proposal to termi­
nate respondent was for valid disciplinary reasons and was 
not racially motivated, the Administrative Law Judge or­
dered that respondent be given another chance to improve 
his job behavior. The Administrative Law Judge ordered, 
therefore, that respondent not be terminated but instead



10

transferred to the same position in another county under 
new supervisors. (P.A. 180-181)

F. Appeal Of The Findings To The Agency Head.

Pursuant to Tenn. Code Ann. § 4-5-317 (1985), both 
respondent and the University petitioned the Administra­
tive Law Judge to reconsider his initial order. The Uni­
versity challenged the decision not to terminate respon­
dent. Respondent, on the other hand, challenged the 
decision to transfer him and urged once again that the 
disciplinary charges were racially motivated. The Ad­
ministrative Law Judge denied both petitions, and respon­
dent then appealed to the Agency Head under the pro­
visions of Tenn. Code Ann. § 4-5-315 (1985). The Agency 
Head affirmed the findings of the Administrative Law 
Judge and made the following independent finding on 
the issue of racial discrimination:

I am also convinced from my review of the record 
that the action of the Extension Service in proposing 
the termination of employee’s services was not moti­
vated by employee’s race but by a desire to terminate 
employee for what the Extension Service sincerely 
believed to be inadequate job performance and inade­
quate job behaviour.

(P.A. 34) The Agency Head also affirmed the Adminis­
trative Law Judge’s conclusion that respondent be trans­
ferred to another county on the ground that the proof 
“was not sufficient under the circumstances to warrant 
dismissal.” (P.A. 34) Respondent’s employment was never 
interrupted during the state proceedings and continues 
today.



11

G. Respondent’s Return To Federal Court After The
Final Agency Judgment.

Tenn. Code Ann. § 4-5-322 (1985) provides that the 
only available method of judicial review of a final agency 
order is by the filing of a petition for review in state 
chancery court within sixty days of the order. Respon­
dent did not file a timely petition for judicial review. 
Instead, two months after his transfer had taken place, 
and eighty-four days after the final agency judgment had 
been entered, respondent returned to federal district court 
in late October 1983. (P.A. 29) Eighteen months had 
passed from the time respondent had departed from the 
available federal forums to press the issue of racial dis­
crimination in the due process hearing.

Upon returning to the district court, respondent did 
not seek de novo review of the issue of racial discrimina­
tion. Instead, consistent with his earlier departure from 
the federal forums, respondent filed a motion simply seek­
ing review of the merits of the final agency judgment 
on the basis of the voluminous record of the state pro­
ceedings. (J.A. 24-30) Respondent never filed a Title 
VII right-to-sue letter in the district court or otherwise 
requested a de novo review of his Title VII or Recon­
struction civil rights claims in the district court.

H. The Decisions Below.

On May 12, 1984, the district court granted summary 
judgment in favor of all defendants, holding that it lacked 
jurisdiction to review the merits of the final agency order 
and that res judicata precluded relitigation of the issue 
of racial discrimination fully and fairly adjudicated in 
the due process hearing. (P.A. 26-32)



12

Respondent appealed to the Court of Appeals for 
the Sixth Circuit and for the first time contended that 
he was entitled to de novo review of the issue of racial 
discrimination under Title VII and the Reconstruction 
statutes. The Sixth Circuit reversed the district court 
and held that, in the absence of state court review, no 
issue adjudicated by a state administrative agency is ever 
entitled to preclusive effect in a subsequent employment 
discrimination action under Title VII or the Reconstruction 
statutes. (P.A. 1-25)

SUMMARY OF ARGUMENT

Although no provision of the Reconstruction civil 
rights statutes, Title VII, or any other federal law 
required him to do so, respondent purposefully de­
parted from the available federal forums and fully litigated 
the issue of racial discrimination in a state agency adju­
dication conducted for the purpose of protecting his Four­
teenth Amendment liberty and property interests. The 
final agency judgment is entitled to preclusive effect in 
Tennessee state courts and thus is also entitled, under 
the full faith and credit clause, U.S. Const, art. IV, § 1, 
and statute, 28 U.S.C. § 1738 (1982), to preclusive effect 
in respondent’s subsequent federal court action under the 
Reconstruction statutes and Title VII.

This Court’s decisions in Allen v. McCurry, 449 U.S. 
90 (1980), and Migra v. Warren City School District, 465 
U.S. 75 (1984), demonstrate a firm commitment to tradi­
tional principles of full faith and credit in civil rights 
actions and unequivocally establish that the Reconstruc­
tion statutes do not repeal the mandate of full faith and 
credit. Emphatically rejecting the notion that state ad­
judication of a federal right cannot be trusted, the



13

Allen and Migra decisions clearly articulate the full faith 
and credit analysis required of federal courts: Whether
the prior state adjudication is entitled to preclusive effect 
in the courts of the state in which it was rendered and, 
if so, whether the party against whom preclusion is as­
serted had a full and fair opportunity to litigate in the 
state forum. The Sixth Circuit failed to apply the full 
faith and credit analysis prescribed by Allen and Migra 
and denied issue preclusion in this case even though the 
prior adjudication unquestionably is entitled to preclusive 
effect in Tennessee courts and even though the federal 
district court itself found that respondent had received 
full procedural due process in the state proceeding.

Decisions of this Court not only establish that there 
is no exception to traditional principles of full faith and 
credit for Reconstruction civil rights actions, but also 
that there is no exception to the full faith and credit due 
an adjudication of issues by a state agency acting in a 
judicial capacity. See Thomas v. Washington Gas Light 
Co., 448 U.S. 261 (1980); Magnolia Petroleum Co. v. 
Hunt, 320 U.S. 430 (1943); Chicago R.I. & P. Ry. v. 
Schendel, 270 U.S. 611 (1926); see also Kremer v. Chemical 
Construction Corp., 456 U.S. 461, 485 n.26 (1982); United 
States v. Utah Construction & Mining Co., 384 U.S. 394, 422 
(1966) (traditional rules of issue preclusion apply to de­
cisions by agencies acting in a judicial capacity). Indeed, 
the very purpose of full faith and credit—to place national 
sanction behind state laws of preclusion—can be accom­
plished only if the effect of a state judgment, whether 
rendered by a court or by an agency acting in a judicial 
capacity, is determined according to the rules of preclu­
sion of the state in which it was rendered.



14

Distrust of a state agency adjudication is completely 
unwarranted when the adjudication is provided by state 
law for the express purpose of protecting an individual’s 
constitutional and statutory rights against arbitrary state 
action. When the state proceeding, voluntarily invoked, 
provides all the procedural safeguards of a federal court 
proceeding, the policy considerations supporting rules of 
preclusion as well as concerns of comity and federalism 
demand that federal courts apply full faith and credit 
to the final agency judgment.

This Court’s commitment to traditional principles of 
full faith and credit extends to Title VII actions as well 
as actions under the Reconstruction statutes. In Kremer 
v. Chemical Construction Corp., 456 U.S. 461 (1982), this 
Court squarely held that Title VII does not expressly 
repeal the mandate of full faith and credit. This Court 
also held in Kremer that Title VII does not impliedly 
repeal the full faith and credit due a state court judgment 
in a subsequent Title VII action.

Full faith and credit is equally mandated with re­
spect to the Title VII action in this case. No provision of 
Title VII can be construed as an express or implied repeal 
of the full faith and credit due the final agency judgment 
in this case. Nothing in Title VII required respondent 
to invoke the state proceedings or to litigate the issue 
of racial discrimination there. The only state proceedings 
which must be invoked under Title VII are those estab­
lished by state law to remedy employment discrimination. 
Respondent, however, invoked a state statutory proceeding 
provided for the protection of his liberty and property in­
terests under the Fourteenth Amendment. No provision of 
Title VII repeals the full faith and credit owing a state



15

agency adjudication voluntarily invoked by a state em­
ployee outside the Title VII enforcement scheme.

There is no question that the issue of racial discrim­
ination was properly before and wholly within the com­
petence of the state tribunal voluntarily invoked by re­
spondent. Under state law, respondent was entitled to 
show that the University’s proposed termination of his 
employment would be “ [i]n violation of constitutional or 
statutory provisions.” Tenn. Code Ann. § 4-5-322(h) (1) 
(1985). Respondent in fact defended on the ground that 
the University’s actions were racially motivated, and pur­
suant to the requirements of state law, voluminous evi­
dence of alleged racial discrimination was admitted in 
support of respondent’s affirmative defense to the disci­
plinary charges. The fact that the state tribunal was not 
empowered to determine respondent’s Title VII claim in 
no way detracts from the full faith and credit due the 
findings made within the conceded competence of the 
tribunal to adjudicate respondent’s affirmative defense. 
As this Court recently reaffirmed in Marrese v.
American Academy of Orthopaedic Surgeons, .......  U.S.
......., 105 S. Ct. 1327 (1985), absent an exception to the
statutory command of full faith and credit, state law de­
termines the issue preclusion effect of a state judgment 
even with respect to claims within the exclusive jurisdic­
tion of the federal courts.

There can be no doubt in this case that respondent 
had every opportunity to and did litigate the issue of 
racial discrimination fully and fairly in the state proceed­
ings. The state proceedings were conducted in virtually 
the same manner as a trial in state or federal court. Re­
spondent was represented by counsel at every stage of 
the proceedings and exercised the full array of procedural



16

rights available to him under state law. Indeed, respon­
dent has never challenged in any state or federal proceed­
ing below the adequacy or fairness of the procedures under 
which his due process hearing was conducted. Denial of 
full faith and credit to the state proceedings in this case 
would not only undermine the integrity of those proceed­
ings but also needlessly burden the federal court with 
duplicative litigation. Respondent is fairly bound by his 
chosen forum’s state law that one full and fair opportunity 
to litigate an issue is enough.

ARGUMENT

I. TRADITIONAL PRINCIPLES OF FULL FAITH 
AND CREDIT APPLY IN FEDERAL CIVIL 
RIGHTS ACTIONS UNDER THE RECONSTRUC­
TION STATUTES TO ISSUES FULLY AND 
FAIRLY LITIGATED BEFORE A STATE 
AGENCY ACTING IN A JUDICIAL CAPACITY.

A. This Court Has Consistently Held That Civil 
Rights Actions Under The Reconstruction 
Statutes Are Not Categorically Exempt From 
Traditional Principles Of Full Faith And 
Credit.

In Allen v. McCurry, 449 U.S. 90 (1980), this Court 
endorsed the virtually unanimous view of the courts of 
appeals that traditional principles of full faith and credit 
are applicable in civil rights actions under the Reconstruc­
tion statutes. If any case presented an especially appeal­
ing situation for creating an exception to full faith and 
credit, it was Allen. McCurry, the federal plaintiff in an 
action under 42 U.S.C. § 1983 (1982), did not select the state



17

forum; he was, rather, a defendant in a state criminal pro­
ceeding. The state’s interest in obtaining a conviction was 
acute—McCurry was not only dealing in heroin, he shot 
and seriously wounded two undercover police officers who 
had gone to McCurry’s home to attempt a purchase. More­
over, as a result of this Court’s decision in Stone v. Powell, 
428 U.S. 465 (1976), McCurry’s § 1983 action was his only 
avenue of access to a federal trial forum for litigation of 
his federal constitutional claim.

Nonetheless, in Allen, this Court squarely held that 
nothing in the language or legislative history of § 1983 
suggests any congressional intent to contravene tradi­
tional principles of issue preclusion or to repeal the 
express statutory requirements of the full faith and 
credit statute, 28 U.S.C. § 1738 (1982). In so holding, this 
Court categorically rejected the notion that every person is 
entitled to one unencumbered opportunity to litigate a 
federal right in a federal district court:

[Njothing in the language or legislative history of 
§ 1983 proves any congressional intent to deny binding 
effect to a state-court judgment or decision when the 
state court, acting within its proper jurisdiction, has 
given the parties a full and fair opportunity to litigate 
federal claims, and thereby has shown itself willing 
and able to protect federal rights. . . . There is, in 
short, no reason to believe that Congress intended to 
provide a person claiming a federal right an unre­
stricted opportunity to relitigate an issue already de­
cided in state court simply because the issue arose in 
a state proceeding in which he would rather not have 
been engaged at all.



18

The only other conceivable basis for finding a uni­
versal right to litigate a federal claim in a federal 
district court is hardly a legal basis at all, but rather 
a general distrust of the capacity of the state courts 
to render correct decisions on constitutional issues. 
It is ironic that Stone v. Powell provided the occasion 
for the expression of such an attitude in the present 
litigation, in view of this Court’s emphatic reaffirma­
tion in that case of the constitutional obligation of 
the state courts to uphold federal law, and its expres­
sion of confidence in their ability to do so.

449 U.S. at 103-05.

The commitment to traditional principles of full faith 
and credit in civil rights actions which this Court first 
expressed in Allen was reaffirmed in Migra v. Warren 
City School District, 465 U.S. 75 (1984). In Migra, this 
Court unanimously agreed that a state court judgment is 
entitled at least to as much claim preclusion effect in a 
subsequent federal civil rights action under § 1983
as it would have in the courts of the state in which it 
was rendered. Justice Blackmun, who dissented in Allen, 
delivered the opinion of the Court. He readily acknowl­
edged that the heart of the opinion in Allen—namely, that 
state courts are as obligated and able to uphold federal 
rights as federal courts—applies with just as much force 
to claim preclusion as issue preclusion:

It is difficult to see how the policy concerns un­
derlying § 1983 would justify a distinction between 
the issue preclusive and claim preclusive effects of 
state-court judgments. The argument that state- 
court judgments should have less preclusive effect in 
§ 1983 suits than in other federal suits is based on 
Congress’ expressed concern over the adequacy of



19

state courts as protectors of federal rights. . . . Allen 
recognized that the enactment of § 1983 was moti­
vated partially out of such concern, . . . but Allen 
nevertheless held that § 1983 did not open the way 
to relitigation of an issue that had been determined 
in a state criminal proceeding. Any distrust of state 
courts that would justify a limitation on the preclusive 
effect of state judgments in § 1983 suits would pre­
sumably apply equally to issues that actually were 
decided in a state court as well as to those that could 
have been. If § 1983 created an exception to the gen­
eral preclusive effect accorded to state-court judg­
ments, such an exception would seem to require sim­
ilar treatment of both issue preclusion and claim pre­
clusion. Having rejected in Allen the view that state- 
court judgments have no issue preclusive effect in 
§ 1983 suits, we must reject the view that § 1983 pre­
vents the judgment in petitioner’s state-court pro­
ceeding from creating a claim preclusion bar in this 
case.

465 U.S. at 83-84.

Thus, Allen and Migra clearly delineate the relevant 
analysis with regard to the preclusive effect of a state 
adjudication in a subsequent federal civil rights action 
under the Reconstruction statutes. The relevant analysis 
is unmistakably one of full faith and credit. As this Court 
emphasized in Allen, a departure from traditional prin­
ciples of full faith and credit can be justified only if plainly 
intended by Congress. In Allen and Migra, however, this 
Court found nothing in the language or legislative history 
of § 1983 to suggest any congressional intent to contravene 
traditional principles of preclusion or to repeal the express 
statutory requirements of the full faith and credit statute.



20

A  prior state adjudication is entitled to preclusive 
effect in a subsequent federal civil rights action, there­
fore, as long as the adjudication would preclude relitiga­
tion of the claim or issue in the courts of the state in 
which it was rendered. To this extent, the preclusive ef­
fect of a prior state adjudication is defined as a matter 
of state law. Federal law acts as a restraint only to the 
extent of ensuring that the state proceedings afford the 
party against whom preclusion is asserted a full and fair 
opportunity to litigate. See Allen, 449 U.S. 90, 95 (1980).

Although ignored by the Sixth Circuit, the full faith 
and credit analysis prescribed by this Court in Allen and 
Migra requires that respondent be precluded from reliti­
gating the issue of racial discrimination in his federal 
court action under the Reconstruction civil rights statutes. 
First, Tennessee law provides that an adjudication by a 
state agency acting in a judicial capacity is entitled to 
preclusive effect in Tennessee courts. See Polsky v. A t­
kins, 197 Tenn. 201, 270 S.W.2d 497 (1954); Fourakre 
v. Perry, 667 S.W.2d 483 (Tenn. App. 1983); Purcell En­
terprises, Inc. v. State, 631 S.W.2d 401 (Tenn. App. 1981). 
Second, there can be no doubt that respondent was afforded 
a full and fair opportunity to litigate the issue of racial 
discrimination. Respondent’s due process hearing was con­
ducted with complete trial rights including discovery, wit­
ness and document subpoenas, representation by counsel, 
examination and cross-examination of witnesses, and filing 
of pleadings, motions, objections, briefs, proposed findings 
of fact and conclusions of law, and proposed orders. The 
transcript portion of the hearing record alone is volumi­
nous—55 volumes with over 5,000 pages of testimony from 
104 witnesses, not to mention 159 exhibits. Respondent 
called ninety-three witnesses. The issue of discrimination 
hardly could have been litigated more fully in either state



21

or federal court. In fact, the district court made the follow­
ing specific finding concerning respondent’s full and fair 
opportunity to litigate in the due process hearing:

Plaintiff makes no claim of denial of procedural 
due process. Nor can he in light of the long exhaus­
tive evidentiary hearing in which plaintiff presented 
more than ninety witnesses, and cross-examined some 
of the agency’s witnesses for more than thirty hours 
each. Plaintiff clearly has received full protection 
in this due process hearing, as required in Board of 
Regents v. Roth, 408 U.S. 564 (1972), and Perry v. 
Sindermann, 408 U.S. 593 (1972).

(P.A. 31)

Indeed, this case unquestionably presents the most 
appealing circumstance of all for applying traditional prin­
ciples of full faith and credit in a civil rights action un­
der the Reconstruction statutes. As a result of this Court’s 
opinion in Patsy v. Board of Regents, 457 U.S. 496 (1982) 
(exhaustion of state administrative remedies not required 
in actions under § 1983), the decision to litigate the 
charge of racial discrimination in the state proceed­
ing rested solely with respondent. Although respon­
dent could have avoided any state action on his Reconstruc­
tion civil rights claim simply by litigating it in fed­
eral court in the first place, he deliberately and vol­
untarily invoked the state forum and vigorously liti­
gated the issue of racial discrimination there as an affirma­
tive defense to his proposed termination. In a searching 
review of the evidence revealed in lengthy findings of 
fact, the Administrative Law Judge found, however, that 
respondent’s proposed termination was for valid discipli­
nary reasons and was not racially motivated. This finding 
was affirmed on appeal to the Agency Head. Judicial



22

review of the adverse finding was available, but respon­
dent did not avail himself of the opportunity.

The findings of the state agency adjudication in this 
case are entitled to preclusive effect in Tennessee courts 
under Tennessee rules of preclusion. Respondent should 
not be permitted now to flout state law and litigate the 
issues yet again in a federal forum. To do so would 
contravene all of the policy considerations justifying tradi­
tional principles of preclusion and their adoption as na­
tional policy through principles of full faith and credit.

B. Traditional Principles Of Full Faith And Credit 
Apply To The Final Judgment Of A State 
Agency Acting In A Judicial Capacity.

1. This Court Has Never Recognized An Arti­
ficial Distinction Between State Agency 
Adjudications And State Court Adjudica­
tions For Full Faith And Credit Purposes.

This Court has never deviated from the principle that 
state agency adjudications are entitled to the same issue 
preclusion effect in other courts as they enjoy in the courts 
of the rendering jurisdiction. Thomas v. Washington Gas 
Light Co., 448 U.S. 261 (1980); Magnolia Petroleum Co. v. 
Hunt, 320 U.S. 430 (1943); Chicago R.I. & P. Ry. v. Schen- 
del, 270 U.S. 611 (1926). Justice Stevens’ statement on be­
half of the plurality in Thomas could hardly have been more 
explicit: “To be sure, . . . the factfindings of state admin­
istrative tribunals are entitled to the same res judicata 
effect in the second State as findings by a court.” 448 
U.S. at 281. In the concurring and dissenting opinions 
in Thomas, not a single member of this Court expressed 
any disagreement with this statement of well-established 
law. The Sixth Circuit’s ruling that full faith and credit



23

“does not require federal courts to defer to the unreviewed 
findings of state administrative agencies,” Elliott v. Univer­
sity of Tennessee, 766 F.2d 982, 990 (6th Cir. 1985), is 
simply a refusal to recognize what this Court has already 
recognized for at least six decades.9

Both the full faith and credit clause of the Constitu­
tion, article IV, § 1, and the federal full faith and credit 
statute, 28 U.S.C. § 1738 (1982), require that state “ [a]cts, 
records and judicial proceedings” be given the same full 
faith and credit as they enjoy in the courts of the render­
ing state. As this Court stressed in Magnolia Petroleum 
Co. v. Hunt, 320 U.S. 430 (1943),

[wjhether the proceeding before . . .  [a state agency 
acting in a judicial capacity is] regarded as a “judi­
cial proceeding” , or its award is a “record” within 
the meaning of the full faith and credit clause and 
the Act of Congress, the result is the same. For ju­
dicial proceedings and records of the state are both 
required to have “such faith and credit given to them 
in every court within the United States as they have 
by law or usage in the courts of the State from which 
they are taken.”

Id. at 443.

Under this nation’s federal scheme of government, 
a state is free to exercise its judicial power through its 
courts or, if it sees fit, through its executive and adminis­

9. The decision of the Sixth Circuit refusing to give full 
faith and credit to the state agency adjudication is inconsistent 
with the weight of ■post-Allen lower court authority. See Zanghi 
v. Incorporated Village of Old Brookville, 752 F.2d 42 (2d Cir. 
1985); Steffen v. Housewright, 665 F,2d 245 (8th Cir. 1981); Snow 
v. Nevada Dep’t of Prisons, 543 F. Supp. 752 (D. Nev. 1982); 
O’Connor v. Mazzullo, 536 F. Supp. 641 (S.D.N.Y. 1982); Gear 
v. City of Des Moines, 514 F. Supp. 1218 (S.D. Iowa 1981). But 
see Moore v. Bonner, 695 F.2d 799 (4th Cir. 1982).



24

trative agencies. The judgments of such agencies, acting 
judicially, are entitled to the same preclusive effect as 
they enjoy in the state’s courts because the proceedings 
are in fact “judicial proceedings” of the state within the 
meaning of the full faith and credit clause and statute. 
The very purpose of the full faith and credit clause and 
statute is to put national sanction behind state policies 
with respect to the effect of a judgment. See Riley v. 
New York Trust Co., 315 U.S. 343, 349 (1942). That pur­
pose can be fully realized only if the force and effect 
of a judgment, whether rendered by a court or by a state 
agency acting in a judicial capacity, is determined accord­
ing to the law of the state of rendition. The decision 
of the Sixth Circuit denies full faith and credit to the 
very decisions of Tennessee courts holding that state 
agency adjudications are entitled to preclusive effect in 
Tennessee courts.

The State of Tennessee has empowered its agencies 
to act in a judicial capacity to adjudicate contested cases 
in which a person’s legal rights are required by constitu­
tional or statutory provision to be determined prior to 
proposed agency action. See Tenn. Code Ann. § 
4-5-102(3) (1985). The Sixth Circuit concluded, however, 
that “state determination of issues relevant to constitu­
tional adjudication is not an adequate substitute for full 
access to federal court.” Elliott, 766 F,2d at 992. There 
is no support for this conclusion in decisions of this 
Court. Allen and Migra unequivocally laid to rest any 
notion that every person is entitled to one unencumbered 
opportunity to litigate a federal right in federal court 
“regardless of the legal posture in which the federal claim 
arises.” Allen, 449 U.S. at 103.

Indeed, Allen and Migra are vivid illustrations of this 
Court’s confidence in the ability of the states to vindicate



25

federal rights. When, as here, an agency adjudication 
is provided by state law for the express purpose of protect­
ing an individual's constitutional and statutory rights prior 
to agency action, there is absolutely no reason to distrust 
the adjudication. Moreover, according full faith and credit 
to the state agency adjudication in this case in no way 
undermines full access to federal court. The decision 
to litigate the issue of racial discrimination in the state 
proceeding rested solely with respondent. If respondent 
wanted full access to federal court, it was his for the 
taking.

This Court has recognized previously that principles 
of issue preclusion apply to adjudications by agencies us­
ing procedural formalities approximating those of courts. 
In United States v. Utah Construction & Mining Co., 384 
U.S. 394 (1966), this Court explicitly rejected the notion 
that principles of issue preclusion do not apply to agency 
adjudications:

When an administrative agency is acting in a judicial 
capacity and resolves disputed issues of fact properly 
before it which the parties have had an adequate 
opportunity to litigate, the courts have not hesitated 
to apply res judicata to enforce repose.

384 U.S. at 422. Applying this principle to the facts of 
Utah, this Court concluded:

[T]he Board was acting in a judicial capacity . . ., 
the factual disputes resolved were clearly relevant 
to issues properly before it, and both parties had a 
full and fair opportunity to argue their version of 
the facts and an opportunity to seek court review 
of any adverse findings. There is, therefore, neither 
need nor justification for a second evidentiary hearing 
on these matters already resolved as between these 
two parties.



26

Id. This Court’s recognition that principles of issue pre­
clusion are applicable to agency adjudications has been ex­
tensively followed in the courts of appeals10 and was noted 
recently by this Court in Kremer v. Chemical Construction 
Corp., 456 U.S. 461, 485 n.26 (1982).

In this case, petitioners seek application of issue 
preclusion11 to bar respondent’s attempt to relitigate

10. See, e.g., Pacific Seafarers, Inc. v. Pacific Far East 
Line, Inc., 404 F.2d 804 (D.C. Cir. 1968), cert, denied, 393 U.S. 
1093 (1969); Delamater v. Schweiker, 721 F.2d 50 (2d Cir. 
1983); Gulf Oil Corp. v. FPC, 563 F.2d 588 (3d Cir. 1977), cert, 
denied, 434 U.S. 1062 (1978); Pettus v. American Airlines, Inc., 
587 F.2d 627 (4th Cir. 1978), cert, denied, 444 U.S. 883 (1979); 
Painters Dist. Council No. 38 v. Edgewood Contracting Co., 416 
F.2d 1081 (5th Cir. 1969); International Wire v. Local 38, IBEW, 
357 F. Supp. 1018 (N.D. Ohio 1972), affd, 475 F.2d 1078 (6th 
Cir.), cert, denied, 414 U.S. 867 (1973); Bowen v. United States, 
570 F.2d 1311 (7th Cir. 1978); United States v. Karlen, 645 F.2d 
635 (8th Cir. 1981); United Farm Workers v. Arizona Agricul­
tural Employment Relations Board, 669 F.2d 1249 (9th Cir. 1982); 
McCulloch Interstate Gas Corp. v. FPC, 536 F.2d 910 (10th Cir. 
1976).

Of particular significance here is the holding of the Ninth 
Circuit in the United Farm Workers case that state agency adju­
dications are entitled to full faith and credit in other states:

It is settled that if an administrative agency acts in a 
judicial capacity, its judgments are entitled to recognition 
and enforcement pursuant to the full faith and credit clause. 
United States v. Utah Construction & Mining Co., 384 U.S. 
394, 421-22, 86 S.Ct. 1545, 1559-1560, 16 L.Ed.2d 642 
(1966). . . . The ultimate question in full faith and credit 
analysis is one of res judicata. Thus, decisions of the courts 
or administrative agencies of one state are entitled to the 
same res judicata effect in all other states as they enjoy in 
the state of rendition.

669 F.2d at 1255.
11. In Migra v. Warren City School District, 465 U.S. 75 

(1983), this Court defined the terms “issue preclusion” and 
“ claim preclusion” as follows:

Issue preclusion refers to the effect of a judgment in fore­
closing relitigation of a matter that has been litigated and 
decided. . . . This effect also is referred to as direct or 
collateral estoppel. Claim preclusion refers to the effect

(C on tin u ed  on  fo llo w in g  p a ge)



27

the very same issues fully and fairly litigated before 
a state agency acting in a judicial capacity and with 
the same procedural formalities as a federal or state 
court. The fact that the Administrative Law Judge in 
this case was not empowered to dispose of respondent’s 
claims under the Reconstruction statutes in no way bars 
application of full faith and credit to the issues actually 
litigated and decided in the state proceeding. See Marrese
v. American Academy of Orthopaedic Surgeons, ____ U.S.
....... , 105 S. Ct. 1327 (1985). The due process hearing con­
ducted in this case was unquestionably a judicial proceed­
ing of the State of Tennessee. The final agency judgment 
with respect to issues actually litigated in the proceeding 
is entitled, therefore, to the same full faith and credit 
which it enjoys in Tennessee courts.

2. Denial Of Full Faith And Credit To The 
Final Agency Judgment In This Case Would 
Seriously Undermine The Integrity Of State 
Agency Adjudications Conducted For The 
Purpose Of Protecting Fourteenth Amend­
ment Due Process Interests.

During the past fifty years, administrative agencies 
at both the federal and state level have become essen-

Footnote continued—
of a judgment in foreclosing litigation of a matter that never 
has been litigated, because of a determination that it should 
have been advanced in an earlier suit. Claim preclusion 
therefore encompasses the law of merger and bar.

Id. at 77 n.l.
Petitioners seek issue preclusion—not claim preclusion—in 

this case and seek such preclusion without regard to which party 
prevails in the prior adjudication. If, for example, respondent 
had prevailed on the issue of racial discrimination, petitioners 
maintain that the adjudication would bar petitioners from re­
litigating that issue in a subsequent federal court action under 
the Reconstruction statutes.



28

tially a fourth branch of government without which the 
legislative, executive, and judicial branches could not func­
tion adequately. In particular, the adjudicatory role of 
administrative agencies has increased dramatically. As 
Justice Jackson once stated: “The rise of administra­
tive bodies probably has been the most significant legal 
trend of the last century and perhaps more values today 
are affected by their decisions than by those of all the 
courts, review of administrative decisions apart.”  FTC 
v. Ruberoid Co., 343 U.S. 470, 487 (1952).

A  significant increase in state agency adjudications 
in recent years is particularly pronounced in the area 
of public employment. In Board of Regents v. Roth, 408 
U.S. 564, 569-70 (1972), this Court ruled that “ [w]hen 
protected . . . [Fourteenth Amendment] interests are im­
plicated, the right to some kind of prior hearing is para­
mount.” Thus, any proposed action by state agencies 
which threatens or even potentially threatens an employ­
ee’s constitutionally protected liberty and property inter­
ests triggers the requirement of an adjudication to protect 
those interests. In Tennessee and thirty-one other juris­
dictions which have adopted the Uniform Law Commis­
sioners’ Model Administrative Procedures Act,12 an em-

12. See Ala. Code § 41-22-12 et seq. (1982); Ark. Stat. 
Ann. § 5-709 (1976); Conn. Gen. Stat. Ann. § 4-177 (West Supp. 
1985); Del. Code Ann. tit. 29, § 10121 et seq. (1983); D.C. Code 
Ann. § 1-1509 (1981); Fla. Stat. Ann. § 120-57 (West 1982); 
Ga. Code Ann. § 50-13-13 (1981); Hawaii Rev. Stat. § 91-9 
(1976); Idaho Code § 67-5209 (1980); 111. Rev. Stat. ch. 27, 
§ 1010 (1981); Iowa Code Ann. § 17A.12 (West 1978); La. Rev. 
Stat. Ann. § 49:955 (West Supp. 1985); Me. Rev. Stat. Ann. 
tit. 5, § 9051 et seq. (1979); Md. State Gov’t Code Ann. § 10-201 
et seq. (1984); Mich. Comp. Laws Ann. § 24-24.271 et seq. (1981); 
Mo. Ann. Stat. § 536.070 (Vernon Supp. 1985); Mont. Code Ann. 
§ 2-4-601 et seq. (1979); Neb. Rev. Stat. § 84-913 et seq. (1981); 
Nev. Rev. Stat. § 233B.121 et seq. (1981); N.H. Rev. Stat. Ann. 
§ 541-A:16 (Supp. 1985); N.Y. Administrative Procedure Act

(C on tin u ed  on  fo llo w in g  p a ge)



29

ployee is entitled to an adjudication virtually identical 
to a civil trial in state or federal court. See Tenn. Code 
Ann. §§ 4-5-301 through -323 (1985). Virtually every 
judgment resulting from these formal adjudications could 
be the subject of a collateral attack in federal court. When 
an employee chooses, as respondent did in this case, to 
invoke the trial-like proceedings of a state agency adjudica­
tion to defend his liberty and property interests, the issues 
fully litigated and decided there must be afforded full 
faith and credit in federal courts in order to preserve 
the integrity of the state adjudicatory process. Denial 
of full faith and credit to the final state agency judgment 
would render the process futile and seriously undermine 
the role of state agency adjudication in resolving disputes 
between public employers and employees.

The policies justifying preclusion—judicial economy, 
reliance on adjudication, avoiding inconsistent results, re­
lieving the parties of the cost and vexation of multiple 
litigation—-as well as the policies of comity and federalism 
supporting full faith and credit, are equally applicable 
to agency adjudications and court adjudications. See gen­
erally K. Davis, Administrative Law Treatise § 21:2 
(1983); Restatement (Second) of Judgments § 83 (1982). 
In this particular case, these policy considerations are 
acutely implicated in view of respondent’s voluntary sub­
mission of the issue of racial discrimination for adjudica­
tion in the state agency, the protracted and costly nature

Footnote continued—
§ 301 et seq. (McKinney 1984) ; N.C. Gen. Stat. § 150A-23 et seq. 
(1983); Okla. Stat. Ann. tit. 75, § 310 (West 1976); Or. Rev. Stat. 
§ 183.413 et seq. (1985); R.I. Gen. Laws § 42-35-9 (1984); S.D. 
Comp. Laws Ann. § 1-26-16 et seq. (1980); Vt. Stat. Ann. tit. 3, 
§ 809 (1972); Wash. Rev. Code Ann. § 34.04.090 et seq. (1965); 
W.Va. Code § 29A-5-1 et seq. (1980); Wis. Stat. Ann. § 227.07 
(West 1982); Wyo. Stat. § 16-3-107 (1982).



30

of the adjudication, and the state’s interest in pre­
serving the integrity of its contested case adjudications. 
As this Court stated in Baldwin v. Iowa State Traveling 
Men’s Ass’n, 283 U.S. 522, 525-26 (1931):

Public policy dictates that there be an end of liti­
gation; that those who have contested an issue shall 
be bound by the result of the contest and that matters 
once tried shall be considered forever settled as be­
tween the parties. We see no reason why this doc­
trine should not apply in every case where one vol­
untarily appears, presents his case and is fully heard, 
and why he should not, in the absence of fraud, be 
thereafter concluded by the judgment of the tribunal 
to which he has submitted his cause.

The public policies embodied in traditional principles of 
full faith and credit dictate that this litigation come to 
an end and that respondent be precluded from relitigating 
issues he voluntarily submitted for full adjudication in 
the state agency.13

13. According full faith and credit to state agency adjudi­
cations in subsequent civil rights actions under the Reconstruc­
tion statutes is in no way dependent upon resolution of the 
Title VII question also presented in this case. The contrary 
opinion of the Sixth Circuit completely ignores this Court’s re­
peated admonitions that the Reconstruction statutes and Title 
VII provide separate, distinct, and independent avenues of 
relief for alleged employment discrimination. See, e.g., Johnson 
v. Railway Express Agency, Inc., 421 U.S. 454 (1975); Alexander 
v. Gardner-Denver Co., 415 U.S. 36 (1974).

The Reconstruction statutes and Title VII differ markedly 
in terms of coverage, preconditions to a federal court action, 
applicable limitations period, and relief available upon proof 
of a violation. See generally 2 J. Cook & J. Sobieski, Civil Rights 
Actions HIT 4.09, 5.04, 7.04 (1985). Moreover, the Reconstruction 
statutes are certainly not restricted to claims of alleged employ­
ment discrimination. Yet, only in the area of employment dis­
crimination can any argument be made for identical full faith 
and credit treatment under the Reconstruction statutes and Title

(C on tin u ed  on  fo llo w in g  p age)



31

II. TRADITIONAL PRINCIPLES OF FULL FAITH 
AND CREDIT APPLY IN TITLE VII ACTIONS 
TO ISSUES FULLY AND FAIRLY LITIGATED 
SOLELY AT THE INSISTENCE OF THE AG­
GRIEVED EMPLOYEE BEFORE A STATE 
AGENCY ACTING IN A JUDICIAL CAPACITY 
OUTSIDE THE TITLE VII ENFORCEMENT 
SCHEME.

A. Title VII Actions Are Not Categorically Ex­
empt From Traditional Principles Of Full 
Faith And Credit.

In Kremer v. Chemical Construction Corp., 456 U.S. 
461 (1982), this Court held that traditional principles of 
full faith and credit apply to state court judgments in 
subsequent Title VII actions. After a careful review of 
the language and legislative history of Title VII, this Court 
expressly rejected the notion that Congress intended to 
create an absolute right to relitigate in federal court issues 
resolved by a state court. On the contrary, finding that 
Congress did not intend that Title VII supersede the prin­
ciples of comity and repose embodied in the full faith 
and credit statute, this Court concluded that full faith 
and credit applies to a state court judgment affirming, 
without de novo review, the findings of a Title VII state 
deferral agency.

Footnote continued—
VII. To do so would lead to the anomalous result that different 
claims arising under the Reconstruction statutes-—conceivably 
involving the very same factual context—would be subject to 
radically different preclusion effect, notwithstanding the absence 
of any indication in the Reconstruction statutes that such a dis­
tinction should be made. Id. at H 5.04.



32

B. No Provision Of Title VII Required Respon­
dent To Litigate The Issue Of Racial Discrim­
ination In The State Agency Proceeding; Nor 
Does Any Provision Of Title VII Specify The 
Effect Of The Final Agency Judgment.

A  principal teaching of this Court’s decision in Kremer, 
as well as Allen and Migra, is that an exception to full 
faith and credit “will not be recognized unless a later 
statute contains an express or implied partial repeal.” 
Kremer, 456 U.S. at 468. Because there can be no claim 
that Title VII expressly repeals the full faith and credit 
statute, any repeal must be implied. As stressed in Allen, 
Migra, and Kremer, however, repeals by implication are 
not favored. See Kremer, 456 U.S. at 468. Indeed, in 
Kremer this Court recognized only two well-established 
categories of repeal by implication: (1) where the pro­
visions of two acts are in irreconcilable conflict; and (2) 
where a later act covers the entire subject of an earlier 
one and clearly is intended as a substitute. See id.

Considering the relationship between Title VII and 
the full faith and credit statute with respect to a state 
court judgment, this Court emphasized in Kremer that 
“ [n]o provision of Title VII requires claimants to pursue 
in state court an unfavorable state administrative action, 
nor does the Act specify the weight a federal court should 
afford a final judgment by a state court if such a remedy 
is sought.” Kremer, 456 U.S. at 469. Finding no clear 
and manifest incompatability, therefore, between Title 
VII and the full faith and credit statute, this Court con­
cluded that nothing in the language or operation of Title 
VII impliedly repeals the statutory mandate of full faith 
and credit.



33

This case presents an even more compelling circum­
stance than Kremer for finding no repeal by implication 
of the statutory command of full faith and credit. Nothing 
in Title VII obligated respondent to litigate the issue 
of racial discrimination in the state forum. Respon­
dent did not invoke the state proceedings pursuant to 
a state antidiscrimination law.14 Rather, exercising his 
right as a public employee to defend his liberty and prop­
erty interests under the Fourteenth Amendment, respon­
dent invoked a due process hearing under the Tennessee 
Uniform Administrative Procedures Act to challenge his 
proposed termination. Once invoked, the Act required 
the University to afford respondent a formal, trial-like 
hearing. Respondent fully litigated the issue of racial 
discrimination in the due process hearing as an affirmative 
defense to the disciplinary charges against him. Respon­
dent thus made a critical choice to litigate the issue of 
racial discrimination outside the Title VII enforcement 
scheme. Nothing in Title VII or any other provision of 
law required him to do so.

Moreover, nothing in Title VII purports to specify 
the effect a federal court should afford the final agency 
judgment in this case. Title VII only specifies that the 
EEOC must afford “substantial weight” to the findings 
of state agencies which are charged with the enforcement

14. Title VII requires deferral only to those state agencies 
which by state law are empowered “ to grant or seek relief from” 
the alleged unlawful employment practice. See 42 U.S.C. 
§ 2000e-5(c), (d) (1982). In Tennessee, the required deferral 
agency is the Tennessee Human Rights Commission, which is 
authorized by the provisions of Tenn. Code Ann. § 4-21-202 
(1985) to enforce the state’s law against employment discrimina­
tion.



34

of state antidiscrimination laws.15 This provision could 
be construed, therefore, as an implied repeal of the full 
faith and credit statute only as it applies to determinations 
by Title VII deferral agencies. See Kremer, 456 U.S. at 
470 n.7. No provision of Title VII prescribes the effect 
of a state agency adjudication voluntarily invoked by an 
aggrieved employee outside the Title VII enforcement 
scheme, and thus nothing in Title VII can be construed as 
an implied repeal of the full faith and credit due such an 
adjudication.

As established earlier with respect to respondent’s 
action under the Reconstruction statutes, see pp. 22 to 
30 supra, full faith and credit applies to prior state judi­
cial proceedings whether conducted by a state court or 
by a state agency acting in a judicial capacity. This 
Court’s decision in Kremer unquestionably establishes that 
federal courts must apply full faith and credit principles 
in Title VII actions unless Title VII itself impliedly repeals 
the statutory command. Because nothing in Title VII re­
quired respondent to invoke the state proceeding con­
ducted in this case or to litigate the issue of racial dis­
crimination there, and because nothing in Title VII spec­
ifies the effect of the resulting judgment, nothing in the 
language or operation of Title VII can in any way be 
viewed in this case as an express or implied repeal of 
the statutory mandate of full faith and credit. Nothing

15. The provision of Title VII requiring the EEOC to give 
“ substantial weight” to findings made in state proceedings ap­
plies only to those state proceedings which Title VII itself re­
quires to be pursued. See 42 U.S.C. § 2000e-5(b) (1982)
(“ [T]he Commission shall accord substantial weight to final 
findings and orders made by State or local authorities in pro­
ceedings commenced under State or local law pursuant to the 
requirements of subsections (c) and (d) of this section [emphasis 
added].” )



35

more needs to be decided to hold that full faith and credit 
applies to the final agency judgment in this particular 
case.16

C. Full Faith And Credit Applies To Issues 
Properly Before And Fully And Fairly Adjudi­
cated By A State Agency Acting In A Judicial 
Capacity.

The fact that respondent litigated the issue of racial 
discrimination in a state forum without jurisdiction to 
resolve respondent’s Title VII claim does not bar appli­
cation of issue preclusion in this case. There is no ques­
tion that the issue of racial discrimination was properly 
before and wholly within the competence of the state tri­
bunal. Under governing state law, the University was

16. Most of the post-Kremer lower court decisions on the 
preclusive effect of a judicially unreviewed agency adjudica­
tion arise within the Title VII enforcement scheme and thus in­
volve state deferral agencies. Compare, e.g., Buckhalter v. Pepsi­
Cola General Bottlers, Inc., 768 F.2d 842 (7th Cir. 1985), petition
for cert, filed, ....... U.S.L.W..........  (U.S. Dec. 23, 1985) (No.
85-6094) (preclusive effect); and Parker v. National Corp. for 
Housing Partnerships, 619 F. Supp. 1061 (D.D.C. 1985) (same); 
with Bottini v. Sadore Management Corp., 764 F.2d 116 (2d 
Cir. 1985) (no preclusive effect); Reedy v. Florida, 605 F. Supp. 
172 (N.D. Fla. 1985) (same); and Jones v. Progress Lighting 
Corp., 595 F. Supp. 1031 (E.D. Pa. 1984) (same).

In the few post-Kremer decisions on the preclusive effect 
of a judicially unreviewed agency adjudication outside the Title 
VII enforcement scheme, the issue of employment discrimination 
apparently was not litigated in the prior adjudication—either 
because the employee chose not to raise it there or because it 
could not be properly raised there. Compare O’Hara v. Board 
of Education, 590 F. Supp. 696 (D.N.J. 1984), affd mem., 760 
F.2d 259 (3d Cir. 1985) (preclusive effect); with Heath v. John 
Morrell & Co., 768 F.2d 245 (8th Cir. 1985) (no preclusive ef­
fect) ; and Snow v. Nevada Dep’t of Prisons, 543 F. Supp. 752 
(D. Nev. 1982) (same). In this case, respondent chose to liti­
gate the issue of racial discrimination fully in the due process 
hearing, and the issue was properly before the tribunal as re­
spondent’s affirmative defense to the disciplinary charges against 
him.



36

obligated to prove its disciplinary charges against the re­
spondent by a preponderance of the evidence. Respon­
dent, on the other hand, was entitled to defend against the 
disciplinary charges by showing that the University acted 
“ [i]n violation of constitutional or statutory provisions.” 
Tenn. Code Ann. § 4-5-322(h) (1) (1985). Respondent in 
fact chose to defend on the ground that the disciplinary 
charges were racially motivated, and pursuant to the re­
quirements of state law, the Administrative Law Judge 
admitted evidence on the issue of discrimination as an 
affirmative defense to the disciplinary charges against 
respondent. In adjudicating the issue of racial discrim­
ination, therefore, the Administrative Law Judge was un­
deniably acting within the scope of his conceded compe­
tence to determine respondent’s affirmative defense even 
though he could not determine respondent’s Title VII and 
Reconstruction civil rights claims.

As this Court strikingly reaffirmed in its recent de­
cision in Marrese v. American Academy of Orthopaedic
Surgeons, .... . U.S.......... , 105 S. Ct. 1327 (1985), absent
an exception to the full faith and credit statute, state law 
determines the issue preclusion effect of a prior state 
judgment in a subsequent action even if it involves a claim 
within the exclusive jurisdiction of the federal courts. 
Marrese concerned a federal antitrust action commenced 
after the dismissal of a prior state court action. The court 
of appeals ruled as a matter of federal law that dismissal 
of the state court action barred the subsequent federal 
antitrust action. This Court held, however, that the full 
faith and credit statute requires the preclusive effect of 
a state judgment to be decided according to the law of 
the state in which the judgment was rendered. Signifi­
cantly, this Court readily recognized that Kremer itself



37

implies that “ absent an exception to § 1738, state law 
determines at least the issue preclusive effect of a prior 
state judgment in a subsequent action involving a claim 
within the exclusive jurisdiction of the federal courts.”
Marrese, ....... U.S. at ...... 105 S. Ct. at 1332. Although
expressly declining to decide in Kremer whether subject 
matter jurisdiction of Title VII claims is exclusive to the 
federal courts, see Kremer, 456 U.S. at 480 n.20, this 
Court held that full faith and credit required dismissal 
of Kremer’s Title VII action because the issue of employ­
ment discrimination had been fully and fairly litigated in 
the state proceedings. Even if claim preclusion did not 
apply, therefore, issue preclusion required dismissal of the 
Title VII action. See id. at 481 n.22.

The issue of racial discrimination was fully and fairly 
litigated in this case before a tribunal fully competent to 
adjudicate the issue as an affirmative defense to the pro­
posed agency action. Because there is no exception to 
the full faith and credit statute for a state agency adjudi­
cation outside the Title VII enforcement scheme, state law 
is determinative of the issue preclusion effect of the adjudi­
cation in this case and precludes respondent from litigating 
the issue of racial discrimination yet again in a federal 
forum.17

17. Petitioners seek only issue preclusion to bar respondent 
from relitigating issues actually litigated before the agency. 
Petitioners do not seek claim preclusion. Therefore, if the tri­
bunal had found that respondent’s proposed termination was 
racially motivated, respondent would not be barred from seek­
ing supplemental relief in a Title VII action. Cf. New York 
Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980) (employee who 
prevailed before state deferral agency entitled to bring Title VII 
action for supplemental relief). Petitioners would be barred, 
however, from relitigating the issue of the reason for respon­
dent’s proposed termination.



38

D. The Issue Of Racial Discrimination Was Fully 
And Fairly Litigated In The State Proceeding.

Although full faith and credit applies to a state 
agency adjudication outside the Title VII enforcement 
scheme, a federal court must be satisfied that the party 
against whom issue preclusion is sought had a full and 
fair opportunity to litigate in the state forum. In Kremer, 
however, this Court held that “where we are bound by 
the statutory directive of § 1738, state proceedings need 
do no more than satisfy the minimum procedural re­
quirements of the Fourteenth Amendment’s Due Process 
Clause in order to qualify for the full faith and credit 
guaranteed by federal law.” 456 U.S. at 481. This Court 
found in Kremer that the issue of employment discrim­
ination had been litigated fully and fairly in the state 
forum and that the aggrieved employee was not entitled to 
litigate it again in a federal forum. The facts of this case, 
even more than those of Kremer, demand the finding that 
a full and fair litigation occurred in the state forum and 
that issue preclusion prohibits respondent from relitigating 
the issue of racial discrimination in federal court.

In Kremer, the aggrieved employee’s charge of em­
ployment discrimination was referred by the EEOC to the 
New York state agency charged with enforcing that state’s 
antidiscrimination laws. The agency conducted a probable 
cause investigation of the employee’s charge but never 
conducted an adversarial hearing in a procedural setting 
even approximating that of a state or federal court. The 
result of the agency’s investigation was a finding of no 
probable cause to believe the charge was true. After an 
unsuccessful administrative appeal, the employee filed a 
petition in state court to set aside the adverse agency 
finding. The state court decided, however, that the agency



39

finding was not arbitrary or capricious and, on that basis, 
affirmed the finding without de novo review. This Court 
in turn held that the state court judgment affirming the 
agency finding was entitled to the same preclusive effect 
it enjoyed in the New York state courts, even though it 
was rendered after limited judicial review. Thus, while 
the agency proceedings in Kremer fell far short of the 
formality of a state or federal court action, the agency 
finding of no probable cause precluded relitigation of the 
issue of employment discrimination because the agency’s 
investigation, coupled with limited judicial review, satis­
fied the minimum due process necessary for full faith 
and credit to apply. See Kremer, 456 U.S. at 484-485 & 
n.26.

The agency proceedings in this case were far more 
extensive and formal than those in Kremer. The proceed­
ings here were conducted in virtually the same manner 
as a trial in state or federal court. Respondent was rep­
resented by counsel throughout the proceedings and fully 
exercised the array of procedural rights available to him 
under the Tennessee Uniform Administrative Procedures 
Act—discovery, compulsory process, examination and 
cross-examination of witnesses, and filing of pleadings, 
briefs, and proposed findings of fact and conclusions of 
law. Indeed, respondent has never challenged the adequacy 
or fairness of the procedures under which the hearing was 
conducted, nor did he exercise his statutory right to seek 
judicial review of the adverse agency finding. Judicial 
review would have added nothing to the full and fair liti­
gation respondent enjoyed in the agency adjudication.

Beyond the fullness and fairness of the procedural 
protections themselves, respondent unquestionably had a 
full and fair opportunity to litigate the issue of racial



40

discrimination. Through his counsel, a prominent civil 
rights attorney in Tennessee, respondent fully litigated the 
issue as respondent’s primary, if not sole, defense to the 
disciplinary charges. Respondent’s counsel questioned 
each of the 104 witnesses, 93 of whom were called by re­
spondent, concerning all the alleged incidents of racial dis­
crimination by all the petitioners.18 In particular, re­
spondent’s counsel cross-examined the Dean of the Agri­
cultural Extension Service and respondent’s immediate 
supervisor for more than thirty hours each concerning the 
incidents from which the disciplinary charges arose and 
any racial motivation for the charges.

The allegations of racial discrimination which respon­
dent fully litigated in the agency adjudication mirrored 
the allegations of individual discrimination in his federal 
court complaint. The reason is clear. The purpose of 
respondent’s federal court complaint was to enjoin the 
University from taking any employment action against 
him on the basis of the incidents underlying the disci­
plinary charges. Unlike a private employee, however, 
respondent had the opportunity to prevent the proposed 
employment action by exercising his due process right 
as a public employee to challenge the reasons for his pro­
posed termination. Respondent’s incentive to litigate the 
issue of racial discrimination in the due process hearing 
was clearly as great, therefore, as it would have been in 
a Title VII action.

The Administrative Law Judge concluded that respon­
dent’s burden in proving his affirmative defense of racial

18. Most of the petitioners testified in the hearing. Re­
spondent subpoenaed all of the petitioners but chose not to call 
some of them.



41

discrimination was the same as a Title VII claimant’s 
burden of proving pretext under Texas Department of 
Community Affairs v. Burdine, 450 U.S. 248 (1981), and 
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 
(P.A. 171) The University’s burden, on the other hand, 
was to prove the disciplinary charges by a preponderance 
of the evidence. The Administrative Law Judge found that 
the University had satisfied that burden as to four of the 
disciplinary charges. (P.A. 166-170) The University car­
ried a greater burden, therefore, than the employer in a 
Title VII action, who under Burdine and McDonnell Doug­
las merely must articulate a legitimate non-discriminatory 
reason for the employment action and never bears the bur­
den of persuasion. Thus, while respondent’s burden in the 
contested case hearing was no greater than in a Title VII 
action, the University’s burden was far greater.

The state agency adjudication in this case offered 
respondent the same procedural formalities within which 
to litigate the issue of racial discrimination as a federal 
court and far greater formalities than an EEOC or state 
deferral agency probable cause investigation. Failure to 
apply issue preclusion in this case would allow respondent 
two chances to litigate the issue of racial discrimination 
in a formal judicial proceeding. Denial of preclusive ef­
fect to the final agency judgment in this case, therefore, 
would not only undermine the integrity of the adjudi­
catory process which the State of Tennessee has provided 
for the purpose of protecting Fourteenth Amendment in­
terests affected by agency action, but also burden the 
federal court with needlessly relitigating an issue already 
litigated fully and at great expense to the State of Ten­
nessee. All of the policy considerations underlying rules 
of preclusion and embodied in full faith and credit—ju­



42

dicial economy, reliance on adjudication, avoiding incon­
sistent results, relieving the parties of the cost and vex­
ation of multiple litigation, comity and federalism—dic­
tate that the final agency judgment in this case be given 
issue preclusion effect in respondent’s Title VII action.

Having purposefully departed from the Title VII en­
forcement scheme and having freely chosen the state 
agency adjudication as the forum in which to litigate the 
issue of racial discrimination, respondent is fairly bound 
by the law of Tennessee which holds that one full and 
fair opportunity to litigate an issue is enough. Because 
issues decided by the state agency acting in a judicial 
capacity cannot be relitigated under the law of Tennessee, 
those issues cannot be relitigated in a federal court. Tra­
ditional principles of full faith and credit require reversal 
of the Sixth Circuit’s judgment completely disregarding 
Tennessee rules of preclusion in this case.



43

CONCLUSION

For the reasons stated, the judgment and opinion of 
the Court of Appeals for the Sixth Circuit should be re­
versed and the final agency judgment in this case given 
issue preclusion effect in respondent’s federal court action 
under the Reconstruction civil rights statutes and Title VII.

Of Counsel

W. J. M ichael Cody

Attorney General 
& Reporter

State of Tennessee
450 James Robertson 

Parkway
Nashville, Tennessee 

37219
John L. Sobieski, Jr.
Professor of Law
The University of 

Tennessee
1505 W. Cumberland 

Avenue
Knoxville, Tennessee 

37996

Respectfully submitted,

B eauchamp E. B rogan* 
General Counsel 
A lan M. P arker*
Associate General Counsel 
Catherine S. M izell 
Associate General Counsel 
The University of Tennessee 
810 Andy Holt Tower 
Knoxville, Tennessee 37996 
(615) 974-3245
G. R ay  B ratton*
1620 First Tenn. Bank Bldg. 
165 Madison Avenue 
Memphis, Tennessee 38103
N. R ichard G la ssm a n * 
J ohn B arry B urgess*
26 N. Second Street 
Memphis, Tennessee 38103 

Attorneys for Petitioners 
* Counsel of Record

T o m m y  Coley 
532 Smith Lane 
Jackson, Tennessee 38301 

Pro Se Petitioner

January 1986



A1

APPENDIX

APPENDIX A

Constitutional Provision

U.S. Const, art. IV, § 1

Full Faith and Credit shall be given in each State 
to the public Acts, Records, and Judicial Proceedings 
of every other State. And the Congress may by gen­
eral Laws prescribe the Manner in which such Acts, 
Records and Proceedings shall be proved, and the 
Effect thereof.



A2

Federal Statutes

28 U.S.C. § 1738 (1982)

The Acts of the legislature of any State, Territory, 
or Possession of the United States, or copies thereof, 
shall be authenticated by affixing the seal of such 
State, Territory or Possession thereto.

The records and judicial proceedings of any court 
of any such State, Territory or Possession, or copies 
thereof, shall be proved or admitted in other courts 
within the United States and its Territories and Pos­
sessions by the attestation of the clerk and seal of the 
court annexed, if a seal exists, together with a certifi­
cate of a judge of the court that the said attestation 
is in proper form.

Such Acts, records and judicial proceedings or 
copies thereof, so authenticated, shall have the same 
full faith and credit in every court within the United 
States and its Territories and Possessions as they have 
by law or usage in the courts of such State, Territory 
or Possession from which they are taken.

42 U.S.C. § 2000e-5 (b ), (c), (d) (1982)

(b) Whenever a charge is filed by or on behalf 
of a person claiming to be aggrieved, or by a member 
of the Commission, alleging that an employer, em­
ployment agency, labor organization, or joint labor- 
management committee controlling apprenticeship or 
other training or retraining, including on-the-job train­
ing programs, has engaged in an unlawful employ­
ment practice, the Commission shall serve a notice of

APPENDIX B



A3

the charge (including the date, place and circum­
stances of the alleged unlawful employment practice) 
on such employer, employment agency, labor organi­
zation, or joint labor-management committee (here­
inafter referred to as the “respondent” ) within ten 
days, and shall make an investigation thereof. Charges 
shall be in writing under oath or affirmation and 
shall contain such information and be in such form 
as the Commission requires. Charges shall not be 
made public by the Commission. If the Commission 
determines after such investigation that there is not 
reasonable cause to believe that the charge is true, 
it shall dismiss the charge and promptly notify the 
person claiming to be aggrieved and the respondent 
of its action. In determining whether reasonable cause 
exists, the Commission shall accord substantial weight 
to final findings and orders made by State or local 
authorities in proceedings commenced under State or 
local law pursuant to the requirements of subsections
(c) and (d) of this section. If the Commission de­
termines after such investigation that there is reason­
able cause to believe that the charge is true, the Com­
mission shall endeavor to eliminate any such alleged 
unlawful employment practice by informal methods 
of conference, conciliation, and persuasion. Nothing 
said or done during and as a part of such informal 
endeavors may be made public by the Commission, 
its officers or employees, or used as evidence in a 
subsequent proceeding without the written consent 
of the persons concerned. Any person who makes 
public information in violation of this subsection shall 
be fined not more than $1,000 or imprisoned for not 
more than one year, or both. The Commission shall 
make its determination on reasonable cause as



A4

promptly as possible and, so far as practicable, not later 
than one hundred and twenty days from the filing 
of the charge or, where applicable under subsection
(c) or (d) of this section, from the date upon which 
the Commission is authorized to take action with re­
spect to the charge.

(c) In the case of an alleged unlawful employ­
ment practice occurring in a State, or political sub­
division of a State, which has a State or local law 
prohibiting the unlawful employment practice alleged 
and establishing or authorizing a State or local au­
thority to grant or seek relief from such practice or 
to institute criminal proceedings with respect thereto 
upon receiving notice thereof, no charge may be filed 
under subsection (b) of this section by the person 
aggrieved before the expiration of sixty days after 
proceedings have been commenced under the State 
or local law, unless such proceedings have been earlier 
terminated, provided that such sixty-day period shall 
be extended to one hundred and twenty days during 
the first year after the effective date of such State 
or local law. If any requirement for the commence­
ment of such proceedings is imposed by a State or 
local authority other than a requirement of the filing 
of a written and signed statement of the facts upon 
which the proceeding is based, the proceeding shall be 
deemed to have been commenced for the purposes of 
this subsection at the time such statement is sent by 
registered mail to the appropriate State or local au­
thority.

(d) In the case of any charge filed by a member 
of the Commission alleging an unlawful employment 
practice occurring in a State or political subdivision



A5

of a State which has a State or local law prohibiting 
the practice alleged and establishing or authorizing a 
State or local authority to grant or seek relief from 
such practice or to institute criminal proceedings with 
respect thereto upon receiving notice thereof, the Com­
mission shall, before taking any action with respect to 
such charge, notify the appropriate State or local of­
ficials and, upon request, afford them a reasonable 
time, but not less than sixty days (provided that such 
sixty-day period shall be extended to one hundred and 
twenty days during the first year after the effective 
day of such State or local law), unless a shorter period 
is requested, to act under such State or local law to 
remedy the practice alleged.



A6

State Statutes 

Term. Code Ann. § 4-5-102(3) (1985)

“ Contested case” means a proceeding, including 
a declaratory proceeding, in which the legal rights, 
duties or privileges of a party are required by any 
statute or constitutional provision to be determined 
by an agency after an opportunity for a hearing. Such 
proceeding may include rate making; price fixing; 
granting of certificates of convenience and necessity; 
the making, review or equalization of tax assessments; 
the grant or denial of licenses, permits or franchises 
where the licensing board is not required to grant the 
license, permit or franchise upon the payment of a 
fee or the finding of certain clearly defined criteria; 
and suspensions of, revocations of, and refusals to 
renew licenses. An agency may commence a contested 
case at any time with respect to a matter within the 
agency’s jurisdiction;

Tenn. Code Ann. §§ 4-5-301 through -323 (1985)

4-5-301. Conduct of contested cases.— (a) In the
hearing of any contested case, the proceedings or any 
part thereof:

(1) Shall be conducted in the presence of the 
requisite number of members of the agency as pre­
scribed by law and in the presence of an administrative 
judge or hearing officer; or

(2) Shall be conducted by an administrative judge 
or hearing officer sitting alone.

APPENDIX C



A7

(b) It shall be the duty of the administrative 
judge or hearing officer to preside at the hearing, 
rule on questions of the admissibility of evidence, 
swear witnesses, advise the agency members as to 
the law of the case, and insure that the proceedings 
are carried out in accordance with the provisions of 
this chapter, other applicable law and the rules of 
the respective agency. Provided, however, at no time 
shall the administrative judge or hearing officer hear­
ing a case with agency members under subsection (a) 
take part in the determination of a question of fact 
unless the administrative judge or hearing officer is 
an agency member. An administrative judge or hear­
ing officer shall, upon his own motion, or timely mo­
tion of a party, decide any procedural question of law.

(c) The agency shall determine whether a con­
tested case shall be conducted by an administrative 
judge or hearing officer sitting alone or in the presence 
of members of the agency; provided, however, that 
administrative judges or hearing officers employed 
in the office of the secretary of state shall not be 
required to conduct a contested case sitting alone in 
the absence of agreement between the agency and the 
secretary of state.

(d) Contested cases under this section may be 
conducted by administrative judges or hearing officers 
employed in the office of the secretary of state upon 
the request of the agency being presented to the sec­
retary of state and the request being granted.

(e) Any agency not authorized by law to have 
a contested case conducted by an administrative judge, 
hearing officer or similar officer from the agency shall 
direct that the proceedings or any part thereof be



A8

conducted by an administrative judge or hearing of­
ficer employed in the office of the secretary of state. 
[Acts 1982, ch. 874, § 37; 1984, ch. 728, § 11.]

4-5-302. Disqualification of judge, hearing officer, 
etc.—Substitutions.— (a) Any administrative judge, 
hearing officer, or agency member shall be subject to 
disqualification for bias, prejudice, interest, or any 
other cause provided in this chapter or for any cause 
for which a judge may be disqualified.

(b) Any party may petition for the disqualifica­
tion of an administrative judge, hearing officer or 
agency member promptly after receipt of notice indi­
cating that the individual will serve or, if later, 
promptly upon discovering facts establishing grounds 
for disqualification.

(c) A party petitioning for the disqualification of 
an agency member shall not be allowed to question 
the agency member concerning the grounds for dis­
qualification at the hearing or by deposition unless 
ordered by the administrative judge or hearing officer 
conducting the hearing and agreed to by the agency 
member.

(d) The individual whose disqualification is re­
quested shall determine whether to grant the petition, 
stating facts and reasons for the determination.

(e) If a substitute is required for an individual 
who becomes unavailable as a result of disqualifi­
cation or any other reason, the substitute shall be ap­
pointed, unless otherwise provided by law:

(1) By the governor, if the unavailable individual 
is a cabinet member or elected official except that the



A9

speaker of the senate and house of representatives 
shall appoint a substitute for individuals elected by 
the general assembly; or

(2) By the appointing authority, if the unavailable 
individual is an appointed official.

(f) Any action taken by a duly appointed sub­
stitute for an unavailable individual shall be as ef­
fective as if taken by the unavailable individual. 
[Acts 1982, ch. 874, § 38.]

4-5-303. Separation of functions.— (a) A  person 
who has served as an investigator, prosecutor or ad­
vocate in a contested case may not serve as an ad­
ministrative judge or hearing officer or assist or advise 
an administrative judge or hearing officer in the same 
proceeding.

(b) A person who is subject to the authority, 
direction, or discretion of one who has served as in­
vestigator, prosecutor, or advocate in a contested case 
may not serve as an administrative judge or hearing 
officer or assist or advise an administrative judge or 
hearing officer in the same proceeding.

(c) A person who has participated in a deter­
mination of probable cause or other equivalent preli­
minary determination in a contested case may not 
serve as an administrative judge or hearing officer 
or assist or advise an administrative judge or hearing 
officer in the same proceeding.

(d) A person may serve as an administrative 
judge or hearing officer at successive stages of the 
same contested case, unless a party demonstrates 
grounds for disqualification in accordance with 
§ 4-5-302.



A10

(e) A  person who has participated in a determi­
nation of probable cause or other equivalent prelimi­
nary determination or participated or made a decision 
which is on administrative appeal in a contested case 
may serve as an agency member in the contested 
case where authorized by law and not subject to dis­
qualification or other cause provided in this chapter. 
[Acts 1982, ch. 874, § 39.]

4-5-304. Ex parte communications.— (a) Unless 
required for the disposition of ex parte matters specifi­
cally authorized by statute an administrative judge, 
hearing officer, or agency member serving in a con­
tested case proceeding may not communicate, directly 
or indirectly, regarding any issue in the proceeding, 
while the proceeding is pending, with any person with­
out notice and opportunity for all parties to participate 
in the communication.

(b) Notwithstanding subsection (a), an adminis­
trative judge, hearing officer or agency member may 
communicate with agency members regarding a mat­
ter pending before the agency or may receive aid 
from staff assistants, members of the attorney general’s 
staff, or a licensed attorney, if such persons do not 
receive ex parte communications of a type that the 
administrative judge, hearing officer, or agency mem­
bers would be prohibited from receiving, and do not 
furnish, augment, diminish, or modify the evidence 
in the record.

(c) Unless required for the disposition of ex 
parte matters specifically authorized by statute, no 
party to a contested case, and no other person may 
communicate, directly or indirectly, in connection with 
any issue in that proceeding, while the proceeding



A ll

is pending, with any person serving as an adminis­
trative judge, hearing officer, or agency member with­
out notice and opportunity for all parties to participate 
in the communication.

(d) If, before serving as an administrative judge, 
hearing officer or agency member in a contested case, 
a person receives an ex parte communication of a 
type that may not properly be received while serving, 
the person, promptly after starting to serve, shall dis­
close the communication in the manner prescribed 
in subsection (e).

(e) An administrative judge, hearing officer, or 
agency member who receives an ex parte communica­
tion in violation of this section shall place on the 
record of the pending matter all written communica­
tions received, all written responses to the communi­
cations, and a memorandum stating the substance of 
all oral communications received, all responses made, 
and the identity of each person from whom the person 
received an ex parte communication, and shall advise 
all parties that these matters have been placed on 
the record. Any party desiring to rebut the ex parte 
communication shall be allowed to do so, upon request­
ing the opportunity for rebuttal within ten (10) days 
after notice of the communication.

(f) An administrative judge, hearing officer or 
agency member who receives an ex parte communica­
tion in violation of this section may be disqualified 
if necessary to eliminate the effect of the communica­
tion.

(g) The agency shall, and any party may, report 
any willful violation of this section to appropriate



A12

authorities for any disciplinary proceedings provided 
by law. In addition, each agency by rule may pro­
vide for appropriate sanctions, including default, for 
any violations of this section. [Acts 1982, ch. 874, § 41.]

4-5-305. Representation.— (a) Any party may 
participate in the hearing in person or, if the party 
is a corporation or other artificial person, by a duly 
authorized representative.

(b) Whether or not participating in person, any 
party may be advised and represented at the party’s 
own expense by counsel or, unless prohibited by any 
provision of law, other representative. [Acts 1982, ch. 
874, § 43.]

4-5-306. Pre-hearing conferences.— (a)(1) In any 
action set for hearing, the administrative judge or 
hearing officer assigned to hear the case, upon its 
or his own motion, or upon motion of one of the 
parties or their qualified representatives, may direct 
the parties and/or the attorneys for the parties to 
appear before it or him for a conference to consider:

(A ) The simplification of issues;

(B) The necessity or desirability of amend­
ments to the pleadings;

(C) The possibility of obtaining admissions 
of fact and of documents which will avoid un­
necessary proof;

(D) The limitation of the number of expert 
witnesses;

(E) Such other matters as may aid in the 
disposition of the action.



A13

(2) The administrative judge or hearing officer 
shall make an order which recites the action taken 
at the conference, the amendments allowed to the 
pleadings, and the agreements made by the parties 
as to any of the matters considered, and which limits 
the issues for hearing to those not disposed of by 
admissions or agreements of the parties, and such order 
when entered controls the subsequent course of the 
action, unless modified at the hearing to prevent mani­
fest injustice.

(b) Upon reasonable notice to all parties the ad­
ministrative judge or hearing officer may convene a 
hearing or convert a pre-hearing conference to a hear­
ing, to be conducted by the administrative judge or 
hearing officer sitting alone, to consider argument 
and/or evidence on any question of law. The ad­
ministrative judge or hearing officer may render an 
initial order, as otherwise provided by this chapter, 
on the question of law.

(c) In the discretion of the administrative judge 
or hearing officer, all or part of the pre-hearing con­
ference may be conducted by telephone, television, 
or other electronic means, if each participant in the 
conference has an opportunity to participate in, to 
hear, and, if technically feasible, to see the entire 
proceeding while it is taking place.

(d) If a pre-hearing conference is not held, the 
administrative judge or hearing officer for the hearing 
may issue a pre-hearing order, based on the pleadings, 
to regulate the conduct of the proceedings. [Acts 1974, 
ch. 725, § 8; 1975, ch. 370, §§ 3, 12; 1978, ch. 938. 
§§ 4, 5; T.C.A., §§ 4-514, 4-5-108 ( d ) ; Acts 1982, ch. 874, 
§§ 44, 54.]



A14

4-5-307. Notice of hearing.— (a) In a contested 
case, all parties shall be afforded an opportunity for 
hearing after reasonable notice.

(b) In all proceedings the notice shall include:

(1) A  statement of the time, place, nature of 
the hearing, and the right to be represented by coun­
sel;

(2) A  statement of the legal authority and juris­
diction under which the hearing is to be held, includ­
ing a reference to the particular sections of the stat­
utes and rules involved; and

(3) A  short and plain statement of the matters 
asserted. If the agency or other party is unable to 
state the matters in detail at the time the notice is 
served, the initial notice may be limited to a statement 
of the issues involved. Thereafter, upon timely, writ­
ten application a more definite and detailed statement 
shall be furnished ten (10) days prior to the time 
set for the hearing. [Acts 1974, ch. 725, § 8; 1975, 
ch. 370, §§ 3, 12; 1978, ch. 938, §§ 4, 5; T.C.A., §§ 4-514, 
4-5-108(a), (b ); Acts 1982, ch. 874, §§ 45, 54.]

4-5-308. Filing pleadings, briefs, motions, etc.— 
Service.— (a) The administrative judge or hearing of­
ficer, at appropriate stages of the proceedings, shall 
give all parties full opportunity to file pleadings, mo­
tions, objections and offers of settlement.

(b) The administrative judge or hearing officer, 
at appropriate stages of the proceedings, may give 
all parties full opportunity to file briefs, proposed 
findings of fact and conclusions of law, and proposed 
initial or final orders.



A15

(c) A  party shall serve copies of any filed item 
on all parties, by mail or any other means prescribed 
by agency rule. [Acts 1982, ch. 874, § 46.]

4-5-309. Default.-—(a) If a party fails to attend or 
participate in a pre-hearing conference, hearing or 
other stage of a contested case, the administrative 
judge or hearing officer, hearing the case alone, or 
agency, sitting with the administrative judge or hear­
ing officer, may hold the party in default and 
either adjourn the proceedings or conduct them with­
out the participation of that party, having due regard 
for the interest of justice and the orderly and prompt 
conduct of the proceedings.

(b) If the proceedings are conducted without the 
participation of the party in default the administrative 
judge or hearing officer, hearing the case alone, shall 
include in the initial order a written notice of default, 
otherwise, the agency, sitting with the administrative 
judge or hearing officer, shall include such written 
notice of default in the final order. If the proceedings 
are adjourned and not conducted the administrative 
judge or hearing officer, hearing the case alone, may 
render an initial default order, otherwise, the agency, 
sitting with the administrative judge or hearing officer, 
may render a final default order. All default orders 
and notices of default in default orders shall include 
a written statement of the grounds for the default.

(c) A party may petition to have a default set 
aside by filing a timely petition for reconsideration 
as provided in § 4-5-317.

(d) If a party fails to file a timely petition for 
reconsideration or the petition is not granted, the ad­
ministrative judge or hearing officer, sitting alone,



A16

or agency, sitting with the administrative judge or 
hearing officer, shall conduct any further proceedings 
necessary to complete the contested case without the 
participation of the defaulting party and shall deter­
mine all issues in the adjudication, including those 
affecting the defaulting party. [Acts 1982, ch. 874, 
§47.]

4-5-310. Intervention.— (a) The administrative 
judge or hearing officer shall grant one (1) or more 
petitions for intervention if:

(1) The petition is submitted in writing to the 
administrative judge or hearing officer, with copies 
mailed to all parties named in the notice of the hearing, 
at least seven (7) days before the hearing;

(2) The petition states facts demonstrating that 
the petitioner’s legal rights, duties, privileges, immu­
nities, or other legal interest may be determined in 
the proceeding or that the petitioner qualifies as an 
intervenor under any provision of law; and

(3) The administrative judge or hearing officer 
determines that the interests of justice and the orderly 
and prompt conduct of the proceedings shall not be 
impaired by allowing the intervention.

(b) The agency may grant one (1) or more peti­
tions for intervention at any time, upon determining 
that the intervention sought is in the interests of 
justice and shall not impair the orderly and prompt 
conduct of the proceedings.

(c) If a petitioner qualifies for intervention, the 
administrative judge or hearing officer may impose 
conditions upon the intervenor’s participation in the 
proceedings, either at the time that intervention is



A17

granted or at any subsequent time. Conditions may 
include:

(1) Limiting the intervenor’s participation to 
designated issues in which the intervenor has a particu­
lar interest demonstrated by the petition;

(2) Limiting the intervenor’s use of discovery, 
cross-examination, and other procedures so as to pro­
mote the orderly and prompt conduct of the proceed­
ings; and

(3) Requiring two (2) or more intervenors to 
combine their presentations of evidence and argument, 
cross-examination, discovery, and other participation 
in the proceedings.

(d) The administrative judge, hearing officer or 
agency, at least twenty-four (24) hours before the 
hearing, shall render an order granting or denying 
each pending petition for intervention, specifying any 
conditions, and briefly stating the reasons for the or­
der. The administrative judge, hearing officer or 
agency may modify the order at any time, stating 
the reasons for the modification. The administrative 
judge, hearing officer or agency shall promptly give 
notice of an order granting, denying, or modifying 
intervention to the petitioner for intervention and to 
all parties. [Acts 1982, ch. 874, § 48.]

4-5-311. Discovery—Subpoenas.— (a) The admin­
istrative judge or hearing officer at the request of 
any party shall issue subpoenas, effect discovery, and 
issue protective orders, in accordance with the Tennes­
see Rules of Civil Procedure, except that service in 
contested cases may be by certified mail in addition 
to means of service provided by the Tennessee Rules



A18

of Civil Procedure. The administrative judge or hear­
ing officer shall decide any objection relating to discov­
ery under this chapter or the Tennessee Rules of Civil 
Procedure. Witnesses under subpoena shall be en­
titled to the same fees as are now or may hereafter 
be provided for witnesses in civil actions in the cir­
cuit court and, unless otherwise provided by law or 
by action of the agency, the party requesting the sub­
poenas shall bear the cost of paying fees to the wit­
nesses subpoenaed.

(b) In case of disobedience to any subpoena is­
sued and served under this section or to any lawful 
agency requirement for information, or of the refusal 
of any person to testify in any matter regarding which 
he may be interrogated lawfully in a proceeding before 
an agency, the agency may apply to the circuit or 
chancery court of the county of such person’s resi­
dence, or to any judge or chancellor thereof, for an 
order to compel compliance with the subpoena or the 
furnishing of information or the giving of testimony. 
Forthwith the court shall cite the respondent to appear 
and shall hear the matter as expeditiously as possible. 
If the disobedience or refusal is found to be unlaw­
ful, the court shall enter an order requiring compli­
ance. Disobedience of such order shall be punished 
as contempt of court in the same manner and by 
the same procedure as is provided for like conduct 
committed in the course of judicial proceedings.

(c) The agency may promulgate rules to further 
prevent abuse and oppression in discovery.

(d) Any party to a contested case shall have 
the right to inspect the files of the agency with respect 
to the matter and to copy therefrom, except that rec­



A19

ords may not be inspected the confidentiality of which 
is protected by law. [Acts 1974, eh, 725, §§ 10, 11; 1975, 
ch. 370, § 4; 1978, ch. 938, §§ 9, 10, 11; T.C.A., §§ 4-516, 
4-517, 4-5-110 (b), 4-5-111 (c ) ; Acts 1982, ch. 874, 
§§ 49, 50.]

4-5-312. Procedure at hearing.— (a) The admin­
istrative judge or hearing officer shall regulate the 
course of the proceedings, in conformity with the pre- 
hearing order if any.

(b) To the extent necessary for full disclosure 
of all relevant facts and issues, the administrative 
judge or hearing officer shall afford to all parties 
the opportunity to respond, present evidence and argu­
ment, conduct cross-examination, and submit rebuttal 
evidence, except as restricted by a limited grant of 
intervention or by the pre-hearing order.

(c) In the discretion of the administrative judge 
or hearing officer and agency members and by agree­
ment of the parties, all or part of the hearing may 
be conducted by telephone, television, or other elec­
tronic means, if each participant in the hearing has 
an opportunity to participate in, to hear, and, if tech­
nically feasible, to see the entire proceedings while 
it is taking place.

(d) The hearing shall be open to public observa­
tion pursuant to the provisions of chapter 44 of title 
8 unless otherwise provided by state or federal law. 
To the extent that a hearing is conducted by telephone, 
television, or other electronic means the availability 
of public observation shall be satisfied by giving mem­
bers of the public an opportunity, at reasonable times, 
to hear the tape recording and to inspect any transcript



A20

obtained by the agency, except as otherwise provided 
by § 50-7-701. [Acts 1982, ch. 874, § 51.]

4-5-313. Rules of evidence—Affidavits—Official 
notice.— In contested cases:

(1) The agency shall admit and give probative 
effect to evidence admissible in a court, and when 
necessary to ascertain facts not reasonably susceptible 
to proof under the rules of court, evidence not admis­
sible thereunder may be admitted if it is of a type 
commonly relied upon by reasonably prudent men 
in the conduct of their affairs. The agency shall give 
effect to the rules of privilege recognized by law and 
to agency statutes protecting the confidentiality of 
certain records and shall exclude evidence which in 
its judgment is irrelevant, immaterial, or unduly repe­
titious.

(2) At any time not less than ten (10) days 
prior to a hearing or a continued hearing, any party 
shall deliver to the opposing party a copy of any 
affidavit which he proposes to introduce in evidence, 
together with a notice in the form provided in sub­
division (4). Unless the opposing party within seven 
(7) days after delivery delivers to the proponent a 
request to cross-examine an affiant, his right to 
cross-examination of such affiant is waived and the 
affidavit, if introduced in evidence, shall be given 
the same effect as if the affiant had testified orally. 
If an opportunity to cross-examine an affiant is not 
afforded after a proper request is made as herein 
provided, the affidavit shall not be admitted into evi­
dence. Delivery for purposes of this section shall mean 
actual receipt.



A21

(3) The officer assigned to conduct the hearing 
may admit affidavits not submitted in accordance with 
this section where necessary to prevent injustice.

(4) The notice referred to in subdivision (2) shall 
contain the following information and be substantially 
in the following form:

The accompanying affidavit of (here insert name 
of affiant) will be introduced as evidence at the hear­
ing in (here insert title of proceeding). (Here insert 
name of affiant) will not be called to testify orally 
and you will not be entitled to question him unless 
you notify (here insert name of the proponent or his 
attorney) at (here insert address) that you wish to 
cross-examine him. To be effective your request must 
be mailed or delivered to (here insert name of pro­
ponent or his attorney) on or before (here insert a 
date seven (7) days after the date of mailing or deliver­
ing the affidavit to the opposing party).

(5) Documentary evidence otherwise admissible 
may be received in the form of copies or excerpts, 
or by incorporation by reference to material already 
on file with the agency. Upon request, parties shall 
be given an opportunity to compare the copy with 
the original, if reasonably available.

(6) Official notice may be taken of:

(A ) Any fact that could be judicially noticed 
in the courts of this state;

(B) The record of other proceedings before 
the agency;

(C) Technical or scientific matters within the 
agency’s specialized knowledge; and



A22

(D) Codes or standards that have been 
adopted by an agency of the United States, of 
this state or of another state, or by a nationally 
recognized organization or association.

Parties must be notified before or during the hearing, 
or before the issuance of any initial or final order 
that is based in whole or in part on facts or mate­
rial noticed, of the specific facts or material noticed 
and the source thereof, including any staff memoranda 
and data, and be afforded an opportunity to contest 
and rebut the facts or material so noticed. [Acts 1974, 
ch. 725, § 9; 1978, ch. 938, §.§ 6-8; T.C.A., §§ 4-515, 4-5- 
109; Acts 1982, ch. 874, § 52.]

4-5-314. Final order—Initial order.— (a) An
agency with statutory authority to decide a contested 
case shall render a final order.

(b) If an administrative judge or hearing officer 
hears a case alone under § 4-5-301 (a) (2), the admin­
istrative judge or hearing officer shall render an initial 
order, which shall become a final order unless re­
viewed in accordance with § 4-5-315.

(c) A  final order, initial order or decision under 
§ 50-7-304 shall include conclusions of law, the pol­
icy reasons therefor, and findings of fact for all as­
pects of the order, including the remedy prescribed 
and, if applicable, the action taken on a petition for 
stay of effectiveness. Findings of fact, if set forth 
in language that is no more than mere repetition or 
paraphrase of the relevant provision of law, shall be 
accompanied by a concise and explicit statement of 
the underlying facts of record to support the findings. 
The final order, initial order or decision must also in-



A23

elude a statement of the available procedures and time 
limits for seeking reconsideration or other administra­
tive relief and the time limits for seeking judicial 
review of the final order. An initial order or decision 
shall include a statement of any circumstances under 
which the initial order or decision may, without fur­
ther notice, become a final order.

(d) Findings of fact shall be based exclusively 
upon the evidence of record in the adjudicative pro­
ceeding and on matters officially noticed in that pro­
ceeding. The agency member’s experience, technical 
competence, and specialized knowledge may be utilized 
in the evaluation of evidence.

(e) If an individual serving or designated to 
serve as an administrative judge, hearing officer or 
agency member becomes unavailable, for any reason, 
before rendition of the final order or initial order 
or decision, a substitute shall be appointed as provided 
in § 4-5-302. The substitute shall use any existing 
record and may conduct any further proceedings as 
is appropriate in the interest of justice.

(f) The administrative judge or hearing officer 
may allow the parties a designated amount of time 
after conclusion of the hearing for the submission 
of proposed findings.

(g) A final order rendered pursuant to subsec­
tion (a) or initial order rendered pursuant to subsec­
tion (b) shall be rendered in writing within ninety 
(90) days after conclusion of the hearing or after 
submission of proposed findings in accordance with 
subsection (f) unless such period is waived or extended 
with the written consent of all parties or for good 
cause shown.



A24

(h) The agency shall cause copies of the final or­
der under subsection (a) and the administrative judge 
or hearing officer shall cause copies of the initial order 
under subsection (b) to be delivered to each party. 
[Acts 1982, ch. 874, § 54.]

4-5-315. Review of initial order.— (a) The agency 
upon the agency’s motion may, and where provided 
by federal law or upon appeal by any party shall, 
review an initial order, except to the extent that:

(1) A  statute or rule of the agency precludes 
or limits agency review of the initial order; or

(2) The agency in the exercise of discretion con­
ferred by statute or rule of the agency:

(A ) Determines to review some but not all 
issues, or not to exercise any review;

(B) Delegates its authority to review the 
initial order to one or more persons; or

(C) Authorizes one or more persons to re­
view the initial order, subject to further review by 
the agency.

(b) A  petition for appeal from an initial order 
shall be filed with the agency, or with any person 
designated for such purpose by rule of the agency, 
within ten ( 10) days after entry of the initial order. 
If the agency on its own motion decides to review 
an initial order, the agency shall give written notice 
of its intention to review the initial order within ten 
(10) days after its entry. The ten-day period for 
a party to file a petition for appeal or for the agency 
to give notice of its intention to review an initial 
order on the agency’s own motion shall be tolled by



A25

the submission of a timely petition for reconsideration 
of the initial order pursuant to § 4-5-317, and a new 
ten-day period shall start to run upon disposition of 
the petition for reconsideration. If an initial order 
is subject both to a timely petition for reconsideration 
and to a petition for appeal or to review by the agency 
on its own motion, the petition for reconsideration 
shall be disposed of first, unless the agency determines 
that action on the petition for reconsideration has been 
unreasonably delayed.

(c) The petition for appeal shall state its basis. 
If the agency on its own motion gives notice of its 
intent to review an initial order, the agency shall 
identify the issues that it intends to review.

(d) The person reviewing an initial order shall 
exercise all the decision-making power that the agency 
would have had to render a final order had the agency 
presided over the hearing, except to the extent that 
the issues subject to review are limited by rule or 
statute or by the agency upon notice to all parties.

(e) The agency shall afford each party an oppor­
tunity to present briefs and may afford each party 
an opportunity to present oral argument.

(f) Before rendering a final order, the agency 
may cause a transcript to be prepared, at the agency’s 
expense, of such portions of the proceeding under 
review as the agency considers necessary.

(g) The agency may render a final order dispos­
ing of the proceeding or may remand the matter for 
further proceedings with instructions to the person 
who rendered the initial order. Upon remanding a



A26

matter, the agency may order such temporary relief 
as is authorized and appropriate.

(h) A  final order or an order remanding the 
matter for further proceedings pursuant to this section, 
shall be rendered and entered in writing within sixty 
(60) days after receipt of briefs and oral argument, 
unless that period is waived or extended with the 
written consent of all parties or for good cause shown.

(i) A  final order or an order remanding the mat­
ter for further proceedings under this section shall 
identify any difference between such order and the 
initial order, and shall include, or incorporate by 
express reference to the initial order, all the matters 
required by § 4-5-314(c).

(j)  The agency shall cause copies of the final 
order or order remanding the matter for further pro­
ceedings to be delivered to each party and to the 
administrative judge or hearing officer who conducted 
the contested case. [Acts 1982, ch. 874, § 55.]

4-5-316. Stay.—A party may submit to the agency 
a petition for stay of effectiveness of an initial or 
final order within seven (7) days after its entry unless 
otherwise provided by statute or stated in the initial 
or final order. The agency may take action on the 
petition for stay, either before or after the effective 
date of the initial or final order. [Acts 1982, ch. 874, 
§56.]

4-5-317. Reconsideration.— (a) Any party, within 
ten (10) days after entry of an initial or final order, 
may file a petition for reconsideration, stating the 
specific grounds upon which relief is requested. How­
ever, the filing of the petition shall not be a prerequi­
site for seeking administrative or judicial review.



A27

(b) The petition shall be disposed of by the same 
person or persons who rendered the initial or final 
order, if available.

(c) The person or persons who rendered the 
initial or final order, which is the subject of the peti­
tion, shall, within twenty (20) days of receiving the 
petition, enter a written order either denying the peti­
tion, granting the petition and setting the matter for 
further proceedings; or granting the petition and issu­
ing a new order, initial or final, in accordance with 
§ 4-5-314. If no action has been taken on the peti­
tion within twenty (20) days, the petition shall be 
deemed to have been denied.

(d) An order granting the petition and setting 
the matter for further proceedings shall state the ex­
tent and scope of the proceedings, which shall be 
limited to argument upon the existing record, and 
no new evidence shall be introduced unless the party 
proposing such evidence shows good cause for his fail­
ure to introduce the evidence in the original proceed­
ing.

(e) The sixty-day period for a party to file a 
petition for review of a final order shall be tolled 
by granting the petition and setting the matter for 
further proceedings, and a new sixty-day period shall 
start to run upon disposition of the petition for recon­
sideration by issuance of a final order h>y the agency. 
[Acts 1982, ch. 874, § 58.]

4-5-318. Effectiveness of new order.— (a) Unless 
a later date is stated in an initial or final order, or 
a stay is granted, an initial or final order shall be­
come effective upon entry of the initial or final order.



A28

All initial and final orders shall state when the order 
is entered and effective.

(b) If the agency has utilized an administrative 
judge from the administrative procedures division of 
the office of the secretary of state, the initial or final 
order shall not be deemed entered until the initial 
or final order has been filed with the administrative 
procedures division.

(c) The agency shall establish which agency 
members, officials or employees may sign final orders 
rendered by the agency.

(d) A party may not be required to comply with 
a final order unless the final order has been mailed 
to the last known address of the party or unless 
the party has actual knowledge of the final order.

(e) A  nonparty may not be required to comply 
with a final order unless the agency has made the 
final order available for public inspection and copy­
ing or unless the nonparty has actual knowledge of 
the final order.

(f) Unless a later date is stated in an initial 
order or a stay is granted, the time when an initial 
order becomes a final order in accordance with § 
4-5-314 shall be as follows:

(1) When the initial order is entered, if adminis­
trative review is unavailable;

(2) When the agency enters an order stating, 
after a petition for appeal has been filed, that review 
will not be exercised, if discretion is available to make 
a determination to this effect; or



A29

(3) Ten (10) days after entry of the initial order, 
if no party has filed a petition for appeal and the 
agency has not given written notice of its intention 
to exercise review.

(g) An initial order that becomes a final order 
in accordance with subsection (f) and § 4-5-314, shall 
be effective upon becoming a final order; provided, 
however:

(1) A  party may not be required to comply with 
the final order unless the party has been served with 
or has actual knowledge of the initial order or of 
an order stating that review will not be exercised; 
and

(2) A  nonparty may not be required to comply 
with the final order unless the agency has made the 
initial order available for public inspection and copy­
ing or the nonparty has actual knowledge of the initial 
order or of an order stating that review will not be 
exercised.

(h) This section shall not preclude an agency 
from taking immediate action to protect the public 
interest in accordance with § 4-5-320. [Acts 1982, 
ch. 874, § 59.]

4-5-319. Record.— (a) An agency shall maintain 
an official record of each contested case under this 
chapter. The record shall be maintained for a period 
of time not less than three (3) years, provided, how­
ever that the Department of Employment Security 
and Board of Review under § 50-7-601 shall be re­
quired to maintain the record for such period of time 
as shall be determined by the agency or otherwise 
required by law.



A30

(b) The agency record shall consist solely of:

(1) Notice of all proceedings;

(2) Any pre-hearing order;

(3) Any motions, pleadings, briefs, petitions, re­
quests, and intermediate rulings;

(4) Evidence received or considered;

(5) A  statement of matters officially noticed;

(6) Proffers of proof and objections and rulings 
thereon;

(7) Proposed findings, requested orders, and ex­
ceptions;

(8) The tape recording, stenographic notes or 
symbols, or transcript of the hearing;

(9) Any final order, initial order, or order on 
reconsideration;

(10) Staff memoranda or data submitted to the 
agency unless prepared and submitted by personal 
assistants and not inconsistent with § 4-5-304 (b ) ;

(11) Matters placed on the record after an ex 
parte communication.

(c) A  record (which may consist of a tape or 
similar electronic recording) shall be made of all oral 
proceedings. Such record or any part thereof shall 
be transcribed on request of any party at his expense 
or may be transcribed by the agency at its expense. 
If the agency elects to transcribe the proceedings, any 
party shall be provided copies of the transcript upon 
payment to the agency of a reasonable compensatory 
fee.



A31

(d) Except to the extent that this chapter or 
another statute provides otherwise, the agency record 
shall constitute the exclusive basis for agency action 
in adjudicative proceedings under this chapter, and 
for judicial review thereof. [Acts 1974, ch. 725, § 8; 
1975, ch. 370, §§ 3, 12; 1978, ch. 938, §§ 4, 5; T.C.A, 
§§ 4-514, 4-5-108(g ); Acts 1982, ch. 874, § 60.]

4-5-320. Proceedings affecting licenses.— (a)
When the grant, denial, or renewal of a license is 
required to be preceded by notice and opportunity 
for hearing, the provisions of this chapter concerning 
contested cases apply.

(b) When a licensee has made timely and suffi­
cient application for the renewal of a license or a 
new license with reference to any activity of a con­
tinuing nature, the existing license does not expire 
until the application has been finally determined by 
the agency, and, in case the application is denied or 
the terms of the new license limited, until the last 
day for seeking review of the agency order or a later 
date fixed by order of the reviewing court.

(c) No revocation, suspension, or withdrawal of 
any license is lawful unless, prior to the institution 
of agency proceedings, the agency gave notice by mail 
to the licensee of facts or conduct which warrant 
the intended action, and the licensee was given an 
opportunity to show compliance with all lawful re­
quirements for the retention of the license. If the 
agency finds that public health, safety, or welfare 
imperatively requires emergency action, and incorpo­
rates a finding to that effect in its order, summary 
suspension of a license may be ordered pending pro­
ceedings for revocation or other action. These pro­



A3 2

ceedings shall be promptly instituted and determined. 
[Acts 1974, ch. 725, § 16; T.C.A., §§ 4-522, 4-5-116; Acts 
1982, ch. 874, § 61.]

4-5-321. Administrative procedures division—Du­
ties.—There is created in the office of the secretary of 
state a division to be known as the administrative 
procedures division. This division shall have the fol­
lowing responsibilities:

(1) Investigate any conflicts or inequities which 
may develop between federal administrative proce­
dures, and state administrative procedures and propose 
any amendments to this chapter to correct those in­
consistencies and inequities as they develop;

(2) Establish and maintain in cooperation with 
the office of the attorney general a pool of adminis­
trative judges and hearing officers, who shall be 
learned in the law;

(3) Establish and maintain in cooperation with 
the office of the attorney general a pool of court 
reporters for agency administrative hearing proceed­
ings before the licensing boards which are under the 
supervision of the department of commerce and insur­
ance and the department of health and environment;

(4) Perform any and all other functions assigned 
to the secretary of state under this chapter and dele­
gated by him to the administrative procedures divi­
sion. [Acts 1974, ch. 725, § 21; 1975, ch. 370, § 17; 1978, 
ch. 938, § 16; 1979, ch. 371, § 2; T.C.A., §§ 4-527, 4-5- 
121(a); Acts 1982, ch. 874, § 62; 1984, ch. 728, § 12.]

4-5-322. Judicial review.— (a)(1) A person who is 
aggrieved by a final decision in a contested case is 
entitled to judicial review under this chapter, which 
shall be the only available method of judicial review.



A33

(2) A  preliminary, procedural or intermediate 
agency action or ruling is immediately reviewable if 
review of the final agency decision would not provide 
an adequate remedy.

(b) ( 1) Proceedings for review are instituted by 
filing a petition for review in a chancery court hav­
ing jurisdiction within sixty (60) days after the entry 
of the agency’s final order thereon.

(2) A person who is aggrieved by a final decision 
of the department of human services in a contested 
case may file a petition for review in the chancery 
court located either in the county of the official resi­
dence of the commissioner or in the county in which 
any one or more of the petitioners reside.

(3) The time for filing a petition for review in 
a court as provided in this chapter shall not be ex­
tended because of the period of time allotted for fil­
ing with the agency a petition for reconsideration.

(4) Copies of the petition shall be served upon 
the agency and all parties of record.

(c) The filing of the petition for review does 
not itself stay enforcement of the agency decision. 
The agency may grant, or the reviewing court may 
order, a stay upon appropriate terms, but if it is shown 
to the satisfaction of the reviewing court, in a hearing 
which shall be held within ten ( 10) days of a request 
for hearing by either party, that any party or the 
public at large may suffer injury by reason of the 
granting of a stay, then no stay shall be granted 
until a good and sufficient bond, in an amount fixed 
and approved by the chancellor, shall be given by 
the petitioner conditioned to indemnify the other per­



A34

sons who might be so injured and if no bond amount 
is sufficient, the stay shall be denied.

(d) Within forty-five (45) days after service of 
the petition, or within further time allowed by the 
court, the agency shall transmit to the reviewing court 
the original or a certified copy of the entire record 
of the proceeding under review. By stipulation of 
all the parties of the review proceedings, the record 
may be shortened. A party unreasonably refusing 
to stipulate to limit the record may be taxed by the 
court for the additional cost. The court may require 
or permit subsequent corrections or additions to the 
record.

(e) If, before the date set for hearing, application 
is made to the court for leave to present additional 
evidence, and it is shown to the satisfaction of the 
court that the additional evidence is material and that 
there were good reasons for failure to present it in 
the proceeding before the agency, the court may order 
that the additional evidence be taken before the agency 
upon conditions determined by the court. The agency 
may modify its findings and decision by reason of 
the additional evidence and shall file that evidence 
and any modifications, new findings or decisions with 
the reviewing court.

(f) The procedure ordinarily followed in chan­
cery courts will be followed in the review of con­
tested cases decided by the agency, except as other­
wise provided in this chapter.

(g) The review shall be conducted by the court 
without a jury and shall be confined to the record. 
In cases of alleged irregularities in procedure before



A35

the agency, not shown in the record, proof thereon 
may be taken in the court.

(h) The court may affirm the decision of the 
agency or remand the case for further proceedings. 
The court may reverse or modify the decision if the 
rights of the petitioner have been prejudiced because 
the administrative findings, inferences, conclusions or 
decisions are:

(1) In violation of constitutional or statutory 
provisions;

(2) In excess of the statutory authority of the 
agency;

(3) Made upon unlawful procedure ;

(4) Arbitrary or capricious or characterized by 
abuse of discretion or clearly unwarranted exercise 
of discretion; or

(5) Unsupported by evidence which is both sub­
stantial and material in the light of the entire record. 
In determining the substantiality of evidence, the court 
shall take into account whatever in the record fairly 
detracts from its weight, but the court shall not sub­
stitute its judgment for that of the agency as to the 
weight of the evidence on questions of fact.

(i) No agency decision pursuant to a hearing 
in a contested case shall be reversed, remanded, or 
modified by the reviewing court unless for errors 
which affect the merits of the decision complained 
of.

(j) The chancellor shall reduce his findings of 
fact and conclusions of law to writing and make them 
parts of the record. [Acts 1974, ch. 725, § 17; 1975, ch.



A3 6

370, § 6; 1978, ch. 815, § 1; 1978, ch. 938, § 13; T.C.A., 
§ 4-523; Acts 1980, ch. 478, § 1; T.C.A., § 4-5-117; Acts 
1982, ch. 874, § 63.]

4-5-323. Appeals to Court of Appeals.— (a) An
aggrieved party may obtain a review of any final 
judgment of the chancery court under this chapter 
by appeal to the Court of Appeals of Tennessee.

(b) The record certified to the chancery court 
and the record in the chancery court shall constitute 
the record in an appeal. Evidence taken in court 
pursuant to § 4-5-322 (g) shall become a part of the 
record.

(c) The procedure on appeal shall be governed 
by the Tennessee Rules of Appellate Procedure. [Acts 
1974, ch. 725, § 18; 1977, ch. 298, § 1; T.C.A., § 
4-524; Acts 1981, ch. 449, § 2; T.C.A., § 4-5-118; 
Acts 1982, ch. 874, § 64.]