Article by Charles Richard Calleros
Federal Rule of Civil Procedure 52(a) provides that a federal trial court's findings of fact in a nonjury trial ‘shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.’ The ‘clearly erroneous' standard permits an appellate court to reject a district court's findings of fact in limited circumstances. Nevertheless, appellate courts often emphasize the restrictive effect of the clearly-erroneous standard, and they seldom reverse findings of fact subject to Rule 52(a). Appellate review of a trial court's conclusions of law, on the other hand, is not restricted by Rule 52(a). The likelihood of affirmance is partly a function of the degree of deference that the appeals court gives to the trial court's findings; in some cases, the decision to apply the clearly -erroneous standard to critical findings determines the outcome on appeal.
A controversy has emerged among the federal courts concerning the application of Rule 52(a) to a trial judge's findings of discrimination vel non in disparate treatment litigation in employment discrimination suits brought under Title VII of the Civil Rights Act of 1964. Some courts have characterized discrimination vel non as a question of fact subject to the clearly-erroneous standard of review; others have treated it as a question of ‘ultimate fact’ not subject to the restrictions of Rule 52(a). The Supreme Court recently addressed that question in Pullman-Standard v. Swint.
In Swint, the parties disputed whether differences in the terms, conditions, or privileges of employment resulting from a collectively bargained seniority system reflected intentional race discrimination, thus establishing liability under section 703(h) of Title VII. The trial court concluded that the seniority system was not developed or maintained for a discriminatory purpose. The Court of Appeals for the Fifth Circuit reversed, making an independent determination that discriminatory intent had been established at trial. On certiorari, the Supreme Court reversed on the ground that the court of appeals had not appropriately restricted the scope of its review of the trial court's finding of no discriminatory intent. The Supreme Court characterized the question of discriminatory intent as ‘a pure question of fact, subject to Rule 52's clearly erroneous standard.’ The Court expressly reserved the question whether Rule 52(a) restricts review of a trial court's resolution of a ‘mixed question of law and fact,’ which requires the application of a legal rule to facts.
Swint does not eliminate the controversy among the circuit courts concerning the proper role of Rule 52(a) in Title VII appellate litigation. Still unresolved are questions concerning the appropriate standard of review of findings based on mixed questions of law and fact, and the circumstances in which a finding of discrimination vel non in a Title VII disparate treatment case should be characterized as a conclusion of law or a mixed finding of law and fact, rather than a pure finding of fact. Two federal appellate courts have declined to extend Swint to their review of a trial court's determination whether the parties met their respective burdens of production and proof in disparate treatment litigation not involving section 703(h). Other federal courts have more broadly applied Swint to their review of findings of discrimination vel non in various contexts.
This article will examine the history of Rule 52(a)'s clearly-erroneous standard and will discuss two approaches to classifying matters as fact or law: the analytical approach and the policy approach. The article reaches the following conclusions about the application of Rule 52(a) in general. First, a trial court finding based on the application of a legal rule to facts should be reviewed without reference to the clearly-erroneous standard if application of the rule to the facts further develops or refines the legal standard. That condition is often satisfied if the legal rule is technical, uncertain, or controversial, particularly if broad appellate review is necessary to achieve uniformity in the formulation of the legal rule. On the other hand, a finding based on the application of a legal rule or definition to facts should be reviewed under the clearly-erroneous standard if application of the standard or definition to the facts chiefly serves to refine the trial court's understanding of the facts or to communicate that understanding of the facts to the appellate court.
This article will then apply these conclusions to Title VII litigation, focusing on findings of discrimination vel non. The article concludes that the clearly-erroneous standard of Rule 52(a) should restrict review of some, but not all, ultimate findings of discrimination vel non. The proper standard of review will depend upon the circumstances of each case, including the nature of the alleged discrimination, the plaintiff's method of proof, and the stage of the trial proceedings at which judgment is rendered.
About the Author
Charles Richard Calleros. Associate Professor of Law, Arizona State University College of Law; B.A., 1975, University of California at Santa Cruz; J.D., 1978, University of California at Davis School of Law.
Citation
58 Tul. L. Rev. 403 (1983)