Midwest Farmworker Empl. v. U.S. Dept. Labor, 99-2155

• Decision Date: 21 October 1999
• Docket Number: No. 99-2155,99-2155
• Parties: (8th Cir. 2000) MIDWEST FARMWORKER EMPLOYMENT AND TRAINING, INC., PETITIONER, v. UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, RESPONDENT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1198

200 F.3d 1198 (8th Cir. 2000)

MIDWEST FARMWORKER EMPLOYMENT AND TRAINING, INC., PETITIONER, v. UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, RESPONDENT.

No. 99-2155

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: October 21, 1999

Decided: January 27, 2000

On Petition for Review of a Final Decision of the United States Department of Labor.

Before Beam, Lay, and John R. Gibson, Circuit Judges.

John R. Gibson, Circuit Judge.

Midwest Farmworker Employment and Training, Inc. petitions for review of the Department of Labor's decision that its complaints are moot. Midwest filed three complaints for administrative review of the decision not to award Midwest grants under the Job Training and Partnership Act, 29 U.S.C. §§ 1501-1792b (1994),¹ for Minnesota, South Dakota and North Dakota for the 1997-1999 grant term. The Administrative Law Judge found that there were improprieties in the grant selection process, but rather than ordering that Midwest be designated the grantee for the remainder of the grant term, the ALJ ordered that a new grant competition be held. The Department filed exceptions to the ALJ's decision, and Midwest filed cross-exceptions. The Administrative Review Board held that the only relief available to a disappointed grant applicant was designation as the prospective recipient for the remainder of the grant period in question. See 20 C.F.R. § 633.205(e) (1999). This relief was only available for the first fifteen months of the grant period, which expired on October 3, 1998. The Review Board therefore dismissed the complaints as moot on March 31, 1999. Midwest appeals, arguing that its case falls within the exception to mootness doctrine for situations capable of repetition yet evading review. Midwest also argues that actions by the Department in the grant award process violated Midwest's right to due process of law. We affirm the Department of Labor's dismissal of the petition for review.

Midwest is a not-for-profit corporation that provided training programs for migrant and seasonal farmworkers in 1995-1996 and earlier years in Minnesota, North Dakota and South Dakota, using federal grants. The grants are awarded for two-year periods. Under the Job Training and Partnership Act, the Department of Labor has the authority to waive competition for a two-year period if the Labor Secretary determines that the current grantee is performing satisfactorily. See 29 U.S.C. § 1672(c)(2) (1999). On January 13, 1997, the Director of the Division of Migrant and Seasonal Farmworker Programs notified Midwest that the Department had determined Midwest was not performing satisfactorily and that the grants for the three states serviced by Midwest would be opened for competition, rather than being awarded to Midwest without competition. The Department published a solicitation for grant applications in the Federal Register. Midwest participated in the competition for the grants, but the Department selected other applicants to receive the three grants.

Under the Department's regulations, a disappointed grant applicant may request administrative review of the Department's decision, but the nature and timing of relief are limited so as to minimize interference with administration of the Migrant and Seasonal Farmworker Program:

Any applicant whose grant application is denied in whole or in part by the Department may request an administrative review as provided in part 636, with respect to whether there is a basis in the record to support the Department's decision. This appeal will not in any way interfere with the Department's designation and funding of another organization to service the area in question during the appeal period. The available remedy under such an appeal will be the right to be designated in the future rather than a retroactive or immediately effective selection status. Therefore, in the event the ALJ rules that the organization should have been selected and the organization continues to meet the requirements of this part, the Department will select and fund the organization within 90 days of the ALJ's decision unless the end of the 90-day period is within 6 months of the end of the funding period.

20 C.F.R. § 633.205(e).

Midwest filed complaints concerning its failure to receive the award in each of the three states. The complaints were consolidated and proceeded to a hearing before an ALJ. The ALJ found that the Department's decision to open the 1997-1999 grants for competition, rather than awarding them to Midwest without competition, was supported by substantial evidence. However, the ALJ found that competition was marred by irregularities. First, the Director of the Division of Migrant and Seasonal Farmworker Programs had accepted gifts of foodstuffs from Motivation Education & Training, Inc., the organization that eventually received two of the grants. Second, an employee of Motivation had embezzled federal funds from Motivation, rendering it unfit to receive further grants in the opinion of the ALJ. Third, during the evaluation process, the point value for "familiarity with service area" was accidentally reduced, apparently by a typographical error; since Midwest was the incumbent provider for the area and presumably very familiar with the service area, a reduction in points available for this factor worked to its disadvantage. Although the ALJ concluded that the award of the grants to Motivation was improper, he did not designate Midwest as the proper grant recipient, but instead ordered that the Secretary conduct new competitions for the 1997-1999 grants for Minnesota, South Dakota, and North Dakota.

On review, the Department's Administrative Review Board held that once the first fifteen months of the grant period expired, no remedy was available for wrongful award of the grant. Because the first fifteen months had already expired, the Board dismissed Midwest's complaints as moot.

We review a dismissal for mootness de novo. See Minnesota Humane Soc'y. v. Clark, 184 F.3d 795, 797 (8th Cir. 1999).

Our starting point in this case must be North Dakota Rural Development Corp. v. United States Department of Labor, 819 F.2d 199, 200 (8th Cir. 1987), in which we held that a challenge to selection of Job Training Partnership Act grant recipients became moot when relief was no longer available under ...