Clementson v. Donovan, Civ. No. 84-0732.
| Decision Date | 08 March 1985 |
| Docket Number | Civ. No. 84-0732. |
| Parties | David B. CLEMENTSON, Plaintiff, v. Raymond J. DONOVAN, Secretary of Labor, U.S. Department of Labor, Defendant. |
| Court | U.S. District Court — District of Hawaii |
Ted Gamble Clause, Honolulu, Hawaii, for plaintiff.
Jerome Davis, U.S. Dept. of Labor, Washington, D.C., Daniel Bent, U.S. Atty., Dist. of Hawaii, Eric L. Wilson, Asst. U.S. Atty., Honolulu, Hawaii, for defendant.
Plaintiff, a disabled Vietnam era veteran, alleges that the failure of his employer, Crowley Maritime Corporation, a Federal contractor, to rehire him after he voluntarily quit his position, violated Crowley's affirmative action obligation under the Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. § 2012 (the Act). The plaintiff filed an administrative complaint with the Office of Federal Contract Compliance Programs (OFCCP), United States Department of Labor. The OFCCP investigated the complaint and determined that Crowley had not violated the contract, Act or regulations promulgated pursuant thereto. The Acting Director of the Division of Enforcement Coordination of the OFCCP, acting pursuant to a delegation by the Acting Director, OFCCP, concurred with this determination, which was the final agency decision. 41 C.F.R. § 60-250.26(g).
In this action, plaintiff seeks review of the decision pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. Plaintiff requests that this court declare the agency decision unlawful and provide such other relief as his cause may require.
The defendant has filed a motion to dismiss, or in the alternative, for summary judgment. Fed.R.Civ.P. 12 and 56. The defendant contends that the decision not to initiate legal action on plaintiff's complaint is an unreviewable exercise of prosecutorial discretion; that even if reviewable, the findings and decision to refrain from enforcement proceedings are not arbitrary, capricious nor an abuse of discretion.
The affirmative action provisions of the Act require that any contract or subcontract entered into for $10,000 or more contain a provision obligating the contractor to take affirmative action to employ and promote qualified special disabled veterans and veterans of the Vietnam era. The enforcement of the Act has been delegated by the Secretary of Labor to the OFCCP. The implementing regulations (41 C.F.R. Part 60-250) prohibit contractors from discriminating in employment against qualified special disabled veterans and veterans of the Vietnam era, and set forth the affirmative action requirements of the Act. 41 C.F.R. § 60-250.4. The OFCCP's complaint investigation procedures are the same for the Act as for Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 793) See Roddy v. Shong, 33 FEP Cases 1399 (N.D.Ohio, 1983). These procedures charge the Director of the OFCCP with the primary responsibility for investigating that there has been no violation, or if the Director decides not to initiate administrative or legal proceedings against the contractor, the Director is required to so notify the complainant. 41 C.F.R. § 60-250.26(g)(1). Within thirty days of that notification, the complainant may request the Director to review the determination.
On July 11, 1983, plaintiff filed a complaint with the OFCCP, alleging discrimination based on his disabled Vietnam era veteran status. In particular, he alleged that Crowley was in violation of both the nondiscrimination and affirmative action clauses of its federal contract when it did not rehire him as an operations assistant.
OFCCP's San Francisco Regional Office initiated an investigation of these claims through its San Jose Area office in accordance with 41 C.F.R. § 60-250.26(e). After investigation, the regional office concluded that there was no evidence of personal bias against the complainant because of his disabled veteran status.
The investigation disclosed that Mr. Clementson had been employed part time by Crowley as an operations assistant, from January 1982 until April 27, 1983. Mr. Clementson had voluntarily resigned his position at the conclusion of a 12 hour shift on April 27, 1983 and two days later attempted to rescind his resignation. His immediate supervisor declined to consider him for rehire and he appealed to the Manager, Hawaiian Marine Lines, who took no action.
On May 6, 1983, and again on May 10, 1983, plaintiff appealed to the Operations Manager at Corporate Headquarters. He was told to submit an application as a new hire. Mr. Clementson submitted the proper forms on May 23, 1983, and became one of 11 applicants for the position. The job was later awarded to another Vietnam era veteran.
Plaintiff's personnel files indicated that he had received a merit increase on January 1, 1983, for satisfactory performance. The investigation also showed that during the period of his employment he did not have a good working relationship with his supervisor. The two had had numerous disagreements, some concerning inattentiveness to safety, and others which contained vulgarity. In a memorandum dated May 25, 1983, from the Operations Manager to the Personnel Director, the Manager had recognized this stormy relationship and, while acknowledging that plaintiff was a good worker, was unable to recommend him for the position at issue because of the above problems. The Manager did state, however, that "it is not my intention to bar him from being employed elsewhere in the company."
On May 17, 1983, plaintiff received a Personnel Action Notice informing him that he was terminated because of the circumstances surrounding his resignation. That same day, he phoned the Manager, Hawaiian Marine Lines, and was advised to put his complaint in writing. His May 18, 1983 letter was forwarded to the Personnel Director, who then advised the Manager to correct any possible factual inaccuracies contained in the Notice.
The regional office notified plaintiff of its investigative findings by letter dated January 12, 1984. Plaintiff then requested reconsideration of this decision in a letter dated February 14, 1984. This request was granted, and he was so notified on March 12, 1984. Plaintiff's case file was then forwarded to Mr. Bluestein, Acting Director of the Division of Enforcement Coordination, for review.
Mr. Bluestein conducted a thorough review of the case file, regional findings, and materials accompanying the request for reconsideration, after which he affirmed the regional office's decision. Plaintiff was properly advised of the reasons for this determination in a letter dated May 21, 1984. Bluestein cited the fact that the plaintiff's status was not a factor in his original hiring, and that it was highly unlikely that it would become determinative now. He recognized plaintiff's concerns regarding Crowley's internal policies and the relationships between management and employees, but stated that these concerns could only be addressed by OFCCP when the contractor's actions violated those regulations which OFCCP has the authority to enforce. Since there was no evidence of such violation, the Department could take no further action.
The threshold question presented in this case is whether the court has jurisdiction to review the decision at issue herein. I hold that it does.
The Secretary maintains that the decision to forego further legal action on plaintiff's complaint is an unreviewable exercise of discretion. According to the APA judicial review is to be provided except to the extent that (1) statutes preclude review; or (2) agency action is committed to agency discretion by law. 5 U.S.C. § 701(a). In the absence of an express prohibition in the Act, the Secretary "bears the heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review of his decision." Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). "Only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review." Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). See also, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971); Chevron Oil Co. v. Andrus, 588 F.2d 1383, 1388 (5th Cir.1979). Thus, the Supreme Court has stated in strong terms that the exemption from APA review of action "committed to agency discretion" is a very narrow exception. Citizens to Preserve Overton Park, Inc., supra. The exception applies only in those rare instances where "statutes are drawn in such broad terms that in a given case there is no law to apply." Id. That a statute by its terms permits, rather than compels, agency actions does not alone commit that action to the agency's unreviewable discretion. Save the Bay, Inc. v. Administrator of E.P.A., 556 F.2d 1282, 1293 (5th Cir.1977).
Since the exception to judicial review of an administrative action is very narrow, and since the Secretary has not demonstrated by clear and convincing evidence that the legislative intent behind the Act was to restrict access for review, I conclude that the plaintiff has a right to judicial review in the case sub judice. Moon v. Secretary, United States Department of Labor, 747 F.2d 599 (11th Cir. 1984); cf. Pace and Smart v. Donovan, 35 FEP Cases 255 (D.D.C., 1984); contra Presinzano v. Hoffman-LaRoche, 726 F.2d 105 (3rd Cir.1984).
The next question is the scope of the review which the court can conduct. Plaintiff argues that such a review should be De Novo, particularly because the Secretary's investigation was not sufficiently extensive in scope and should have included a review of Crowley's general commitment to affirmative action. However, plaintiff's allegations in his complaint to the OFCCP merely concerned...
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