author: PER CURIAM: STEWART, Circuit Judge,

text:
    Cheryl J. HOPWOOD, et al., Plaintiffs-Appellees, v. STATE OF TEXAS, et al., Defendants-Appellees, v. THURGOOD MARSHALL LEGAL SOCIETY and Black Pre-Law Association, Movants-Appellants. Douglas CARVELL, et al., Plaintiffs-Appellees, v. STATE OF TEXAS, et al., Defendants-Appellees, v. THURGOOD MARSHALL LEGAL SOCIETY and Black Pre-Law Association, Movants-Appellants. Cheryl J. HOPWOOD, et al., Plaintiffs, Cheryl J. Hopwood, et al., Plaintiffs-Appellants, v. STATE OF TEXAS, et al., Defendants-Appellees. Douglas CARVELL, et al., Plaintiffs, Douglas Carvell, Plaintiff-Appellant, v. STATE OF TEXAS, et al., Defendants-Appellees.
    Nos. 94-50569, 94-50664.
    United States Court of Appeals, Fifth Circuit.
    April 4, 1996.
    Janell M. Byrd, NACCP Legal Defense & Educational Fund, Inc., Washington, DC, Theodore M. Shaw, Norman J. ChachMn, NACCP Legal Defense & Educational Fund, Inc., New York City, Anthony P. Griffin, Galveston, TX, David Van Os, Van Os & Owen, Austin, TX, for Appellants.
    Dennis D. Parker, New York City, for TMLS-Proposed Intervenor.
    Terral Ray Smith, Small, Craig & Werken-thin, Austin, TX, Steven W. Smith, Austin, TX, for Elliott & Rogers.
    Michael E. Rosman, Center for Individual Rights, Washington, DC, for Cheryl Hop-wood in No. 94-50569.
    Javier Aguilar, Sp. Asst. Atty. Gen., Dan Morales, Atty. Gen. for Texas, Austin, TX, Allan Van Fleet, Houston, TX, Harry M. Reasoner, Vinson & Elkins, Houston, TX, Barry D. Burgdorf, R. Scott Placek, Austin, TX, Samuel Issaeharoff, Charles Alan Wright, University of Texas School of Law, Austin, TX, Betty Owens, Houston, TX, for State of Texas in No. 94r-50569.
    Theodore B. Olson, Washington, DC, Michael E. Rosman, Center for Individual Rights, Washington DC, Joseph A Wallace, Elkins, W.VA, for Hopwood and Douglas W. Carvell in No. 94-50664.
    Harry Reasoner, Betty R. Owens, Houston, TX, Javier Aguilar, Austin, TX, Barry D. Burgdorf, Vinson & Elkins, Austin, TX, Dana C. Livingston, Manuel Lopez, Allan Van Fleet, Houston, TX, R. Scott Placek, Samuel Issaeharoff, Charles Alan Wright, Austin, TX, for State of Texas in No.- 94-50664.
    Janell M. Byrd, Anthony P. Griffin, Theodore M. Shaw, Washington, DC, Norman J. Chaehkin, New York City, Myles V. Lynk, Washington, DC, for Amicus Curiae (TMLS).
    Albert H. Kauffman, San Antonio, TX, John R. Vasquez, Austin, TX, for Amicus Curiae (Maldef).
    Before SMITH, WIENER and DeMOSS, Circuit Judges.

      . Judge Emilio M. Garza did not participate in this decision.

   PER CURIAM:

In No. 94-50569, treating the suggestion for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court having been polled at the request of one of the members of the court, and a majority of the judges in regular active service not having voted in favor (see Fed.R.App.P. 35 and 5th CiR.R. 35), the suggestion for rehearing en bane is DENIED.

In No. 94-50664, the court having been polled, at the request of one of the members of the court, on the reconsideration of this cause en banc, and a majority of the judges in regular active service not having voted in favor, rehearing en banc is DENIED.

A dissent from the denial of rehearing en banc is forthcoming and is to be published.

POLITZ, Chief Judge, and KING, WIENER, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges, dissenting from failure to grant rehearing en banc.

Soon after the founding of the Republic, the Supreme Court indicated that the power of judicial review should be exercised reluctantly, only because it is essential to the decision of the case before a federal court and because the Constitution and the laws of the United States, as the “Supreme law of the Land,” require it.

This case was brought by four individual plaintiffs (not a class of plaintiffs) who were denied admission to the University of Texas Law School (Law School) in 1992, claiming that the Law School’s admission process in 1992 violated the Fourteenth Amendment by giving race-based preferences exclusively to blacks and Mexican Americans. In resolving the case presented by these four plaintiffs, the panel opinion directed the Law School not to use race as a factor in the admissions process at all. In so doing, the opinion goes out of its way to break ground that the Supreme Court itself has been careful to avoid and purports to overrule a Supreme Court decision, namely, Regents of the University of California v. Bakke. The radical implications of this opinion, with its sweeping dicta, will literally change the face of public educational institutions throughout Texas, the other states of this circuit, and this nation. A case of such monumental import demands the attention of more than a divided panel. It should have the attention of every active judge on this court. We respectfully but emphatically dissent from the denial of rehearing en banc.

For reasons that have not been communicated to this court, and upon which we can only speculate, neither the plaintiffs nor the defendants have sought rehearing en banc. It would appear that in this case, some of our colleagues may have embraced the rationale that, when sophisticated litigants represented by capable lawyers elect not to seek rehearing en banc, it is not our place to take any action. Our customary practice, however, does not support this position. Indeed, not infrequently we propose rehearing en banc on our own motion, before the parties have requested that we do so. We reject out of hand the notion that we are merely obsequious ciphers, subject to the tactical decisions and strategic maneuvers of the litigants before us. When the occasional case of such far-reaching importance to this court, to public higher education, and to this nation comes down the pike, we have a duty to address it and to do the best possible job that our whole court is capable of, regardless of the tactical decisions of the litigants. To decline to rehear a case of this magnitude because the parties have not suggested that we do so bespeaks an abdication of duty — the ducking of a tough question by judges who we know first-hand are made of sterner stuff.

The label “judicial activism” is usually found in the lexicon of those voicing concern about judges whom they perceive to be “liberal,” fashioning remedies beyond the scope of what is deemed to be appropriate under the law. Such judicial legislating is generally excoriated as a “bad thing.” Hopwood v. State of Texas is a text book example of judicial activism. Here, two members of the three-judge panel determined to bar any consideration of race in the Law School’s admission process. This “injunction” is wholly unnecessary to the disposition of the matter appealed and thus is clearly dictum; yet dictum that is a frontal assault on contrary Supreme Court precedent and thus not the kind of dictum we can ignore. By tenuously stringing together pieces and shards of recent Supreme Court opinions that have dealt with race in such diverse settings as minority set asides for government contractors, broadcast licenses, redistricting, and the like, the panel creates a gossamer chain which it proffers as a justification for overruling Balcke. We are persuaded that this alone makes the instant case not just en banc-worthy but en banc mandatory.

The Supreme Court has left no doubt that as a constitutionally inferior court, we are compelled to follow faithfully a directly controlling Supreme Court precedent unless and until the Supreme Court itself determines to overrule it. We may not reject, dismiss, disregard, or deny Supreme Court precedent, even if, in a particular case, it seems pellucidly clear to litigants, lawyers, and lower court judges alike that, given the opportunity, the Supreme Court would overrule its precedent.

Members of this court have frequently “preached” against such judicial activism. In Williams v. Whitley Judge Higginbotham explained the limits placed on appellate courts regarding Supreme Court precedent:

[A]bsent clear indications from the Supreme Court itself, lower courts should not lightly assume that a prior decision has been overruled sub silentio merely because its reasoning and result appear inconsistent with later cases. As [the district court] pointed out ... the Court issued a reminder to this effect only a few years ago in Rodriguez de Quijos v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989): “If a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Id. at 484-85, 109 S.Ct. at 1921-22; see also id. at 486, 109 S.Ct. at 1923 (Brennan, J., dissenting) (describing anticipatory overruling as “an indefensible brand of judicial activism”) ... In these circumstances, our role as an inferior court counsels restraint, even if the result otherwise appears inescapable.

In like manner, our colleagues have routinely counseled that judicial restraint is the order of the day, especially in the constitutional context. For example, in Walton v. Alexander, Judge Garwood insisted that courts have a duty not to address constitutional issues not necessary to the disposition of an individual case.

[I]t is settled that courts have a “strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the ease under consideration.” County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). This “responsibility to avoid unnecessary constitutional adjudication” is “a fundamental rule of judicial restraint.” Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 157, 104 S.Ct. 2267, 2279, 81 L.Ed.2d 113 (1984). All this, of Course, applies not only to the Supreme Court but to lower courts as well. See Bowen v. United States, 422 U.S. 916, 920, 95 S.Ct. 2569, 2573, 45 L.Ed.2d 641 (1975).

Variations of this theme can be found in the opinions of many of the judges of this court.

Thus, it seems that this court has trouble practicing what it preaches, at least in this instance. For here, Justice Powell’s opinion in Bakke made the Supreme Court’s disposition precedential. We unequivocally reject the proposition that it does not mandate our disposition. The syllogisms tacked together and proffered by the majority opinion as proof that Justice Powell’s diversity conclusion is no longer good law do not, under any standards of which we are aware, qualify as an overruling of Bakke. To the contrary, direct reference to Justice Powell’s diversity analysis documents, supports, and reinforces its continuing validity. Consequently, even if the members of the panel majority were convinced that the Supreme Court is certain to overrule Bakke, in the absence of an express overruling, they had no option but to grin, follow Bakke, bear it, and patiently await the Supreme Court’s reconsideration. Rather than following this universally recognized canon, adhering to our established rules, and applying Supreme Court precedent, the panel charted a path into terra incognita. Judicial self-restraint was the first casualty; it proved to be too burdensome. The teachings proscribing the consideration of constitutional issues unnecessary to the decision soon followed. With these two limitations adroitly set aside, the panel majority apparently considered itself positioned to overrule Bakke.

Giving the panel majority the benefit of the doubt, as we are wont to do and should do, and assuming arguendo that Bakke’s diversity issue had to be addressed in this particular case, would it not have been the more judicious course to have brought our full en banc powers to bear on this difficult, vitally important question? It can hardly be gainsaid that reasonable jurists can and likely will differ on an issue of such magnitude, depth, and importance. Indeed, this very truism compels giving to the entire court the opportunity to devote to this crucial case its focused consideration. Conceivably, after an en banc rehearing the panel result, its reasoning, and even its dicta, might be embraced by a majority of the en banc court. But that is not the point; even if that unprecedented and, we suggest, impertinent step — a federal circuit court, sitting en banc, purporting to overrule a Supreme Court precedent — were to be taken, it would not be taken until sixteen of the seventeen active judges of this court had an opportunity to consider and participate in the deliberations on this matter fully.

There are many things which a “yea” vote on an en banc poll is not: It is not necessarily a vote against the analysis; it is not necessarily a vote against the result; it is not necessarily a vote against a panel opinion or in favor of a special concurrence or a dissent. It is rather an affirmative statement that, for one or more reasons, a ease or an issue is worthy of the time, attention, and efforts of the entire court. Hopwood is such a case. Unfortunately, a bare majority of our colleagues have joined hands to deny this storied court the opportunity to consider this case en banc.

The majority of the panel overruled Bakke, wrote far too broadly, and spoke a plethora of unfortunate dicta. That was not their prerogative, yet this court declined to reconsider Hopwood en banc. From that decision we must, perforce, dissent.

STEWART, Circuit Judge,

dissenting from failure to grant rehearing en banc.

I wholeheartedly concur in the dissent to the denial of en banc rehearing. I write separately to underscore the lack of historical perspective and sensitivity in both the panel majority’s opinion and the vote not to consider this case en bane.

That it is the University of Texas School of Law’s admissions policy at issue is a fact whose significance has not been lost on any of us. In 1946, this very school denied admission to Heman Marion Sweatt because he was black, prompting him to sue the University. Sweatt’s real difficulties began fifty years before when the United States Supreme Court scripted one of this nation’s most evil conceits in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), declaring “separate but equal” treatment of black Americans constitutional. Plessy was no more than a license for continued racial discrimination. However, in 1950 the Supreme Court held that excluding Sweatt on account of his race violated the Equal Protection Clause of the Fourteenth Amendment. Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950).

History, in its characteristic irony, takes this court to that hallowed ground of civil rights jurisprudence to assess the University’s effort to encourage minority enrollment and counter its legacy of segregation. It is an unfortunate, further irony that the panel majority opinion should so overreach in its decision. In Sweatt’s case, the Supreme Court explicitly adhered to the “principle of deciding constitutional questions only in the context of the particular case before the Court,” drawing its decision “as narrowly as possible.” Id. at 631, 70 S.Ct. at 849 (citing Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947)). If there ever were a time to end legalized segregation, that was the time. The Court was in a position to paint with a broad brush and eliminate the very regime which denied civil rights to Sweatt and other blacks. Chief Justice Vinson’s opinion for the Court, however, resisted calls to wax on “[bjroader issues ... urged for our consideration.” Id.

The panel majority in our case displayed no such discipline, instead taking the unauthorized liberty of deciding the appropriateness of diversity as an admissions criterion, not just the merits of the instant admissions policy. Constitutional interpretation is a sensitive project. Limiting ourselves to the facts before the court keeps the process measured — it is a traditional check which respects the need to calibrate rights and interests carefully. Given the sensitivity of constitutional interpretation, the panel majority’s decision disrespects the importance of the facts. Refusing to correct this travesty en banc is a grave error.

As to the request to intervene, what class of persons is more qualified to adduce the evidence of the present effects of past discrimination than current and prospective black law students? Reading Sweatt as a benchmark decision marking the end of de jure segregation is akin to shelving Trotsky’s The History of the Russian Revolution upon reading only the preface. Just as those initial pages fail to give a true rendition of the entire work, so too does Sweatt give only a superficial understanding of the racism it hardly addressed. A year after the Supreme Court ordered that Sweatt be admitted, he left the law school “without graduating after being subjected to racial slurs from students and professors, cross burnings, and tire slashings.” Hopwood v. State of Texas, 861 F.Supp. 551, 555 (1994). Furthermore, “the record reflects that during the 1950s, and into the 1960s, the University of Texas continued to implement discriminatory policies against both black and Mexican American students.” Id. It was not until 1983 that Texas even agreed, after years of threats of federal action, to an acceptable plan to desegregate its higher education system. In 1987 and again in 1994, the Department of Education instructed Texas to maintain its plan. To this day, Texas’s higher education system still has not been declared in compliance with Title VI and the Fourteenth Amendment. Id. at 556-57.

“The life of the law,” Justice Oliver Wendell Holmes observed, “is not logic, but experience.” To divorce the time in which it was legally possible for Sweatt to attend the Law School from the reality he experienced there is to ignore the very insidiousness of racial discrimination. It was the vestiges of that discrimination which, far from being destroyed, thrived and drove Sweatt out of the Law School. We act no less callously now in pretermitting the consideration of that legacy of discrimination by denying rehearing.

For all these reasons and those expressed in the collective dissent, I vehemently disagree with our court’s decision not to rehear this case en banc.

      . Baker v. Wade, 769 F.2d 289, 298 (5th Cir.1985) (Goldberg, J., dissenting) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 4 L.Ed. 97 (1816)).

      . The Law School no longer employs the system that was in place for 1992.

      . Judge Smith wrote the opinion for the panel, and Judge DeMoss joined that opinion in full. Judge Wiener, who wrote separately, did not join the panel opinion in this conclusion.

      . 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978).

      . 78 F.3d 932 (5th Cir.1996).

      . See Rodriguez de Quijos v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).

      . 994 F.2d 226, 235 (5th Cir.1993).

      . 20 F.3d 1350, 1356 (5th Cir.1994). We cannot but note that a majority of our active judges voted Walton en banc to correct the majority’s erroneous interpretation of Supreme Court precedent regarding an issue that was not necessary for the resolution of the case.

      . See also United States v. Mendiola, 42 F.3d 259, 260 n. 1 (5th Cir.1994) (Barksdale, J.) ("It goes without saying that we have a strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration.”); Manning v. Upjohn Co., 862 F.2d 545, 547 (5th Cir.1989) (Smith, J.) ("Principles of judicial restraint dictate that if resolution of an issue effectively dispose of a case, we should resolve the case on that basis without reaching any other issues that might be presented."); Apache Bend Apartments, Ltd. v. United States, 987 F.2d 1174, 1175 (5th Cir.1993) (Jolly, J.) ("The judicial power to adjudicate constitutional questions is reserved for those instances in which it is necessary for the vindication of individual rights.”) (emphasis added); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir.1994) (Jones, J., dissenting, joined by Garwood, Smith, Barksdale, and DeMoss, JJ.) (" ‘The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in [the constitutional] field.’ ”) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992)).

      . In a part V.C. of his opinion, Justice Powell writes,
      In enjoining [the University of California at Davis] from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.

        Bakke, 438 U.S. at 320, 98 S.Ct. at 2763. Justices Brennan, White, Marshall, and Blackmun joined Justice Powell in this holding. Id. at 271 n. *, 98 S.Ct. at 2738 n. *.

      . Lest there be any doubt, we are firmly convinced that, until the Supreme Court expressly overrules Bakke, student body diversity is a compelling governmental interest for the purposes of strict scrutiny.

      . See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286, 106 S.Ct. 1842, 1853, 90 L.Ed.2d 260 (1986) (O'Connor, J., concurring) (recognizing racial diversity as sufficiently compelling in the context of higher education).

      . Judge Emilio M. Garza, our seventeenth active judge, recused himself from the outset.

      . When a court ordered the State to provide a law school for blacks, Texas created a “makeshift law school that had no permanent staff, no library staff, no facilities, and was not accredited.” Hopwood v. State of Texas, 861 F.Supp. 551, 555 (1994). This “law school” consisted of 3 rooms in a basement and had two professors. Paul Butler, Affirmative Action Admissions, Dallas Morning News, April 7, 1996, at 1J.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Douglas R. BROCK, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee.
    No. 95-50629
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    April 17, 1996.

      John Robert Heard, Heard & Smith, San Antonio, TX, Christian Joe Gros, San Antonio, TX, for Douglas R. Brock, plaintiff-appellant.
    Michael K. Yudin, OGC Social Security Administration, Dallas, TX, Gary Layton Anderson, Office of the United States Attorney, San Antonio, TX, for Shirley S. Chater, Commissioner of Social Security, defendant-appellee.
    Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.
   PER CURIAM:

Plaintiff Douglas R. Brock appeals the district court’s order affirming the decision of the Commissioner of Social Security (“Commissioner”) denying Brock’s claim for supplemental security income (“SSI”) benefits. We affirm.

I

Brock applied for SSI benefits, alleging a disability which prevented gainful employment. After an administrative hearing, at which Brock represented himself, the administrative law judge (“ALJ”) found that Brock was not disabled and denied Brock’s claim for benefits. Brock exhausted his administrative remedies and then filed a claim in district court. The district court granted summary judgment for the Commissioner and affirmed the ALJ’s decision to deny Brock’s claim. Brock filed a timely notice of appeal.

II

Brock argues that the district court erred when it granted the Commissioner’s motion for summary judgment. We review a district court’s grant of summary judgment de novo, applying the same standard as the district court. Bodenheimer v. PPG Indus. Inc., 5 F.3d 955, 956 (5th Cir.1993). Summary judgment is appropriate in cases in which there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.CivP. 56(e). In applying this standard to the decision of an ALJ regarding SSI benefits, our review is limited to two inquiries: (1) whether there is substantial evidence in the record to support the decision; and (2) whether the decision comports with relevant legal standards. Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir.1991).

The ALJ owes a duty to a claimant to develop the record fully and fairly to ensure that his decision is an informed decision based on sufficient facts. Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.1984). When a claimant is not represented by counsel, the ALJ owes a heightened duty to “scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts.” Id. at 1219-20 (citations and internal quotation marks omitted). We will reverse the decision of an ALJ as not supported by substantial evidence if the claimant shows (1) that the ALJ failed to fulfill his duty to adequately develop the record, and (2) that the claimant was prejudiced thereby. Id. at 1220.

After his hearing, Brock wrote a letter to the ALJ stating that he suffered from depression and the effects of past drug abuse. Brock contends that the ALJ failed to adequately develop the record by not ordering a consultative examination to investigate these claims of non-exertional impairment. An ALJ must order a consultative evaluation when such an evaluation is necessary to enable the ALJ to make the disability determination. Turner v. Califano, 563 F.2d 669, 671 (5th Cir.1977). A consultative evaluation becomes “necessary” only when the claimant presents evidence sufficient to raise a suspicion concerning a non-exertional impairment. Jones v. Bowen, 829 F.2d 524, 526 (5th Cir.1987). We have previously held that isolated comments by a claimant are insufficient, without further support, to raise a suspicion of non-exertional impairment. See Pierre v. Sullivan, 884 F.2d 799, 802-03 (5th Cir.1989) (holding isolated comments about claimant’s low intelligence insufficient to raise suspicion that claimant was mentally retarded). Brock’s only references to depression and drug abuse were made in his post-hearing letter to the ALJ. He did not mention non-exertional impairments in his original request for benefits; he never sought medical treatment for such impairments; and he did not mention these impairments at his hearing. Therefore, we find that Brock’s allegations of non-exertional impairments were the kind of isolated comments which are insufficient to raise a suspicion of non-exertional impairment. Consequently, the ALJ was not required to order a consultative examination in order to fulfill his duty to adequately develop the record.

We must now determine whether, in other respects, the ALJ at Brock’s hearing satisfied his heightened duty to elicit all relevant facts. In James v. Bowen, 793 F.2d 702, 704-05 (5th Cir.1986), we held that the ALJ satisfied this heightened duty by questioning the claimant about his medical condition, asking about his ability to perform various tasks and daily activities, and inviting the claimant to include anything else in the record. Similarly, in Carrier v. Sullivan, we held that the ALJ satisfied this heightened duty by questioning the claimant about his medical condition, asking about the effectiveness of attempted treatments, and inquiring about how the claimant’s daily routine had been affected. 944 F.2d at 245. During the hearing at issue in this case, the ALJ extensively questioned Brock about his education, training, and past work history; about the circumstances of his injury; and about his daily routine, pain, and physical limitations. The ALJ also considered a medical report obtained from Brock’s treating physician and invited Brock to add other relevant evidence to the record. Based on the foregoing, we find that the ALJ satisfied his heightened duty to fully develop the record.

We also find that Brock has failed to show that he was prejudiced by the AL J’s alleged failure to fully develop the record. To establish prejudice, a claimant must show that he “could and would have adduced evidence that might have altered the result.” Kane, 731 F.2d at 1220. Brock points to no evidence that, had the ALJ developed the record further, would have been adduced at the hearing and that could have changed the result. We will not reverse the decision of an ALJ for lack of substantial evidence where the claimant makes no showing that he was prejudiced in any way by the deficiencies he alleges. Id.

Ill

Having carefully reviewed the record, we conclude that the decision of the ALJ, denying Brock’s claim for SSI disability benefits, is supported by substantial evidence and comports with relevant legal standards. Accordingly, the order of the district court granting the Commissioner’s motion for summary judgment is AFFIRMED.

      . Brock also alleges that he did not receive adequate notice of his right to counsel, and thus that the district court erred by finding that Brock waived his right to counsel at his hearing before the AO. An SSI claimant is entitled to adequate notice of his right to counsel at a hearing before an ALJ. Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir.1981). Generally, without adequate notice a claimant cannot be held to have validly waived his right to counsel. Id. at 404. However, as in the case of an unrepresented claimant generally, a claimant who does not validly waive his right to counsel must prove that he was prejudiced thereby in order to merit reversal of the ALJ's decision. Kane, 731 F.2d at 1220 (citing Herridge v. Richardson, 464 F.2d 198 (5th Cir.1972)). Brock points to no evidence that would have been adduced and that could have changed the result had Brock been represented by counsel. Thus, even assuming that Brock did not validly waive his right to counsel, his lack of representation does not require us to find that the decision of the ALJ was not supported by substantial evidence.


author: EMILIO M. GARZA, Circuit Judge:

text:
    David M. JORDAN, Plaintiff-Appellant, v. Grant JONES, District Attorney, Defendant, and Nueces County; Kleberg County; Carlos Valdez, District Attorney for Nueces County; Carlos Valdez, District Attorney for Kleberg County, Defendants-Appellees.
    No. 95-40488
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    May 8, 1996.

      J. Mitchell Clark, Corpus Chrisiti, TX, for David M. Jordan, plaintiff-appellant.
    Rudy O. Gonzales, Jr., Gary E. Ramirez, Harvey Ferguson, Jr., Chaves, Gonzalez & Hoblit, Corpus Christi, TX, Jana Prigmore Ratcliff, Assistant County Attorney, County of Nueces Attorney’s Office, Corpus Christi, TX, for Jones, Nueces County, Kleberg County and Valdez.
    Sandra Garcia Huhn, Carl E. Lewis, Nueces County Attorney’s Office, Corpus Christi, TX, for Nueces County and Valdez.
    Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.
   EMILIO M. GARZA, Circuit Judge:

David M. Jordan appeals the district court’s judgment in the defendants’ favor in his suit alleging a violation of the Veteran’s Reemployment Rights Act (‘VRRA” or “the Act”), 38 U.S.C. § 4301 et seq. We affirm the district court’s judgment, but we vacate the district court’s award of costs against Jordan.

I

Jordan was a reserve officer called to active duty for Operation Desert Storm. After he was honorably discharged from the Armed Forces, Jordan returned to Corpus Christi, Texas to resume his former position as an assistant district attorney of the 105th Judicial District of the State of Texas. The district attorney, Grant Jones, refused to reinstate Jordan because Jones’s staff had discovered very explicit sexual material throughout Jordan’s office while Jordan had been on active duty.

The sexually explicit materials, which the district court described as “base smut,” had been mailed directly to the Kleberg County District Attorney’s official post office box and were addressed to Jordan. Jordan had been receiving these materials at the office before he left for Desert Storm, and they continued to arrive after he left. Two secretaries employed by Kleberg County discovered the materials when they were clearing Jordan’s office to permit a substitute assistant district attorney to use Jordan’s office and handle his case load while he was on duty. Jones decided that Jordan’s conduct was cause for termination because he believed Jordan’s reading materials could subject the district attorney’s office to a Title VII hostile work environment lawsuit. Jones was also concerned about the negative impact such materials could have on his office’s public image as an effective and credible arm of law enforcement. After Jordan rejected Jones’s suggestion that Jordan retire quietly, Jones terminated him.

Jordan then filed suit against the defendants for backpay and reinstatement alleging a violation of the VRRA. After a bench trial, the district court entered judgment for the defendants and awarded them costs.. On appeal, Jordan argues that the .district court erred (1) by finding that the VRRA did not require Kleberg County to automatically reinstate him; (2) by finding that Kleberg County had legally adequate cause to terminate him; (2) by finding that Nueces County was not Jordan’s employer; and (8) by awarding costs to the defendants.

II

The VRRA provides that a person who leaves a permanent employment position with a State to perform training and service in the Armed Forces of the United States shall be restored to his former or a similar position if he is still qualified to perform the duties of the position, and he follows certain statutory requirements. 88 U.S.C. § 4301(a)(2)(B)(i). Section 4301(b)(1)(A) provides that veterans who have been restored to their former positions cannot be discharged for one year after reemployment without cause. 38 U.S.C. § 4301(b)(1)(A).

The district court held that Kleberg County did not violate 38 U.S.C. § 4301(a)(2)(B) when it refused to reinstate Jordan because Jordan did not leave the district attorney’s office in good standing. The district court concluded that since Kle-berg County could have fired Jordan for cause before he left for active service, § 4301(a)(2)(B) did not require Kleberg County to reinstate Jordan after he returned. Jordan argues that § 4301(a)(2)(B) grants returning veterans a mandatory right of reinstatement regardless of whether they left their job in good standing or not. In the alternative, Jordan contends that even if he did not have a mandatory right of reinstate- . ment, he was not on notice that his conduct was prohibited; therefore, Kleberg County did not have legally sufficient cause to terminate him.

“The Veterans’ Act was drafted with the intent to shield a serviceman from discrimination by his employer, not to arm him with a sword to punish his employer for some perceived wrong unconnected to his status.” Burkart v. Post-Browning, Inc., 859 F.2d 1245, 1250 (6th Cir.1988). Congress intended the VRRA to protect veterans and reservists from “discharge without cause” resulting from the veteran or reservist status, not to give employee veterans and reservists a preference over other employees. Monroe v. Standard Oil Co., 452 U.S. 549, 560-61, 101 S.Ct. 2510, 2516-17, 69 L.Ed.2d 226 (1981) (internal quotations marks omitted).

Jordan argues that Kleberg County had a mandatory duty under, the VRRA to reinstate him when he returned from active service. However, an employer can terminate or refuse to reinstate a veteran or reservist once he returns from active service or training, if the employer had legally sufficient cause to terminate the employee at the time that he left. See Burkart, 859 F.2d at 1248 (holding that because reservist only gave his employer fifteen minutes’ notice of his intent to leave for three weeks of training, the employer had sufficient cause to refuse to reinstate the reservist when he returned from training); Sawyer v. Swift & Co., 836 F.2d 1257, 1260-61 (10th Cir.1988) (holding that employer properly terminated reservist for cause because reservist failed to give his employer adequate notice of his intent to leave for training). Therefore, we hold that if an employer has sufficient cause to terminate an employee veteran or reservist at the time that he leaves for active service or training, the VRRA does not require the employer to reinstate the employee before the employer terminates him for cause.

An employer can terminate a veteran or reservist for cause if the discharge satisfies two criteria of reasonableness: (1) “that it is reasonable to discharge employees because of certain conduct, and [ (2) ] that the employee had fair notice, express or fairly implied, that such conduct would be ground for discharge.” Carter v. United States, 407 F.2d 1238, 1244 (D.C.Cir.1968). In assessing the adequacy of an employee’s notice, the ultimate issue is “whether the conduct was or should have been known to the employee to be prohibited by the employer.” Id. at 1246. This is a question of fact which we review under the clearly erroneous standard. Id.

Jordan argues that Kleberg County could not terminate him for cause based on his receipt of sexually explicit materials because he was not on notice that this behavior was prohibited by his employer. The trial court specifically found that Jordan knew that if anyone at the district attorney’s office discovered his collection of sexually explicit materials, he would be terminated. The court found that Jordan knew that his actions were not within those reasonably and ordinarily accepted standards of personal conduct expected of employees in a public district attorney’s office. The evidence at trial demonstrated that Jordan’s boss, Grant Jones, had a policy against having sexually explicit materials in the office. Jones testified that he developed this policy after an incident occurred involving the display of a sexually explicit magazine in one of the offices. The only evidence to the contrary was Jordan’s testimony that he believed he was allowed to have the materials at the office as long as they were not on his desk. Given the trial court’s superior ability to assess the credibility of the witnesses, we conclude that the court’s finding that Jordan knew his behavior was prohibited by his employer was not clearly erroneous. Accordingly, the district court did not err in concluding that Kleberg County had cause to terminate Jordan.

Ill

Jordan next argues that the district court erred in holding that Nueces County was not his employer and therefore not subject to liability under the VRRA. Section 4302 entitles an employee veteran to file suit against his employer if the employer fails to comply with the VRRA. The term “employer” in § 4302 should be broadly construed to include the “one to whom the veteran provides services and from whom he receives wages,” as well as those bodies to whom a veteran’s “employer in the traditional sense, has delegated certain aspects of the employment relationship.” Bunnell v. New England Teamsters and Trucking Indus. Pension Fund, 486 F.Supp. 714 (D.Mass.1980), aff'd, 655 F.2d 451 (1st Cir.1981).

The testimony at trial indicated that Jordan received his salary, vehicle, gas, and the furnishings for his office from Kleberg County. Although Jordan accepted ten guilty pleas and worked on two eases for the Nueces County office during his three year period as assistant district attorney, this amount of work is extremely insignificant in comparison to the seven to eight hundred cases that Jordan prosecuted for Kleberg County each year. Based on the foregoing evidence, we conclude that the district court did not err in concluding that Nueces County was not Jordan’s employer.

IV

Finally, Jordan argues that the district court erred in assessing costs against him. Valdez and Kleberg County concede that it was error for the court to assess costs against Jordan. Nueces County cites an irrelevant statute, and simply states that if the court finds that the award of costs was in error, the error was harmless.

Section 4302 specifically provides:

If any employer, who is a private employer of a State or political subdivision thereof, fails or refuses to comply with the provisions of [specified sections] of this title, the [appropriate] district court of the United States ... shall have the power, upon filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, specifically to require such employer to comply with such provisions and to compensate such person for any loss of wages or benefits suffered by reason of such employer’s unlawful action_ Upon application to the United States attorney or comparable official ... by any person claiming to be entitled to such benefits provided for in such provisions, such United States attorney or official, if reasonably satisfied that the person so applying is entitled to such benefits, shall appear and act as attorney for such person in the amicable adjustment of the claim or in the filing of any motion, petition, or other appropriate pleading and the prosecution thereof specifically to require such employer to comply with such provisions. No fees or court costs shall be taxed against any person who may apply for such benefits....

38 U.S.C. § 4302. One court has interpreted the “no fees shall be taxed” provision as being controlling only when the plaintiff applies to and is represented by a United States attorney or a comparable official. See Newport v. Michelin Aircraft Tire Corp., 851 F.Supp. 1406, 1408 (W.D.Mo.1994). Arguably, it is ambiguous whether the language “any person who may apply for such benefits” is meant to refer only to a person who makes “an application to the United States attorney or a comparable official,” not one who pursues his rights under the VRRA through a private attorney. However, the legislative history accompanying the enactment of a subsequent provision of the VRRA, which applies to reemployments initiated on or after the first day after the 60-day period beginning on Oct. 13,1994, convinces us that Congress intended § 4302 to prevent any person claiming benefits under the VRRA from being assessed costs. In describing the new provisions, the Senate Report states:

New section 4322(e)(2) would provide that no fees or court costs could be charged or taxed against any individual pursuing a claim of a violation of his or her [rights under the VRRA]. If that individual were the prevailing party, the court could, in its discretion, award the individual reasonable attorney fees, expert witness fees, and other litigation expenses when not represent ed by the Attorney General. The prohibition against charging fees or costs exists in present section 4302. The Committee bill would authorize the award of attorney fees, expert witness fees, and other litigation expenses as a further effort to make servicemembers whole and not have them suffer any loss in realizing their reemployment rights.

S.Rep. No. 158, 103d Cong., 1st Sess. (1993). Accordingly, we conclude that Congress intended § 4302 to prohibit district courts from awarding costs against a person who is pursuing a claim of a violation of his rights under the VRRA irregardless of who represents him. Therefore, we hold that the district court erred in awarding costs for the defendants.

V

For the foregoing reasons, we AFFIRM the judgment of the district court in the defendants’ favor and VACATE the award of costs against Jordan.

      . Jordan admitted at trial that he had a stack two-feet high of sexually explicit magazines, books, and advertisements, many of which were "more sexually explicit than Hustler and would have been considered shocking to many people.” The district court described the materials which were admitted at trial as depicting oral-genital contact, homosexual oral-genital contact, and graphic pictures of heterosexual and homosexual intercourse.

      . The Act requires that the returning veteran receive a certificate demonstrating satisfactory completion of military service and make application for reemployment within ninety days after he is discharged. 38 U.S.C. § 4301(a).