Decker v. United States Dept. of Labor

• Decision Date: 31 July 1979
• Docket Number: Civ. A. No. 78-C-634.
• Citation: 473 F. Supp. 770
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Alice DECKER, Patricia Hayes, and Marilyn Z. Hempstead, Plaintiffs, v. UNITED STATES DEPARTMENT OF LABOR et al., Defendants.

473 F. Supp. 770

Alice DECKER, Patricia Hayes, and Marilyn Z. Hempstead, Plaintiffs, v. UNITED STATES DEPARTMENT OF LABOR et al., Defendants.

Civ. A. No. 78-C-634.

United States District Court, E. D. Wisconsin.

July 31, 1979.

Mary Jo Schiavoni and Michael A. Campbell, Milwaukee, Wis., for plaintiffs.

William E. Callahan, Jr., Asst. U. S. Atty., Milwaukee, Wis., Keith M. Werhan and Paul Blankenstein, Attys., Dept. of Justice, Washington, D. C., for Federal defendants; Harry L. Sheinfeld, Atty., Dept. of Labor, Washington, D. C., of counsel.

Bronson C. LaFollette, Atty. Gen., David C. Rice, Asst. Atty. Gen., Madison, Wis., for defendant, Governor Lee S. Dreyfus.

David P. Lowe, Milwaukee, Wis., for defendant, William F. O'Donnell, Milwaukee Co. Executive.

Toby E. Marcovich, Superior, Wis., for defendant, James Bonney, Executive Director, Northwest CEP Prime Sponsor.

Gerald L. Engeldinger, Corp. Counsel, Oshkosh, Wis., for defendant, Alan Wentz, Executive Secretary, WINNE-FOND Consortium.

Henry A. Gempeler, City Atty., and Eunice Gibson, Asst. City Atty., Madison, Wis., for defendant, Pam Anderson, Director, Madison-Dane Consortium.

Victor Moyer, Corp. Counsel, Janesville, Wis., for Kenyon Kies, Director, Rock County Prime Sponsor.

Willis J. Zick, Corp. Counsel, Waukesha County, Waukesha, Wis., for defendant, Leonard Cors, Director, W-O-W Consortium.

James T. Runyon, Wausau, Wis., for defendant, John Cook, Director, Marathon County Prime Sponsor.

Richard L. Hamilton, Corp. Counsel, Outagamie County, Appleton, Wis., for defendant, Jim Lauer, Director, Outagamie County Prime Sponsor.

T. Michael Bolger, Patrick W. Schmidt, and Patricia A. Graczyk, Milwaukee, Wis., for intervening defendants and Quarles & Brady, Milwaukee, Wis., of counsel for intervening defendants.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action for injunctive relief brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331(a), 1337, 1343(3), and 1361. The plaintiffs, who are federal income taxpayers residing in Wisconsin, challenge the award of grants and contracts under Title II of the Comprehensive Employment Training Act of 1973, as amended, 29 U.S.C. § 841 et seq. ("CETA"), to religious institutions for the employment of teachers and other staff for parochial schools. The defendants the United States Department of Labor and Ray Marshall are charged with administering grants under the CETA program at the federal level. 29 U.S.C. § 982. The remaining ten defendants are the ten prime sponsors, including the Governor, in the State of Wisconsin who are charged with administering grants under the CETA program at the state and local levels. 29 U.S.C. §§ 811 and 844. The plaintiffs seek an injunction requiring the defendants to withhold funds under grants and contracts with religious institutions for the employment of staff for parochial schools for fiscal 1979 and future years, to terminate all such existing positions, and to exercise their discretion under the CETA Act to recover funds paid under such contracts and grants for fiscal 1978.

Presently pending before the court are plaintiff's motion for a preliminary injunction, a motion for leave to intervene as defendants brought by the Catholic Archdiocese of Milwaukee, Pius XI High School, Lawrence W. McCall, John Broczek, and Candace Warlin; a motion for leave to intervene as defendants brought by the Catholic Dioceses of Madison, Green Bay, LaCrosse, and Superior; stipulations for settlement of the action against five of the defendants, i. e., James Bonney, Alan Wentz, Kenyon Kies, John Cook, and Jim Lauer; and defendant-intervenors' motion for an order vacating the settlement between the plaintiffs and the defendant Governor Lee S. Dreyfus, which settlement was approved by the Court on January 31, 1979. For the following reasons, the motion to intervene by the Archdiocese of Milwaukee, et al., will be granted in part and denied in part, the motion to intervene by the other dioceses will be granted, the motion to vacate the Court's approval of the settlement between plaintiffs and defendant Dreyfus will be denied, the five proposed settlements will be approved, and the plaintiffs' motion for a preliminary injunction will be granted as to the defendants the United States Department of Labor, Ray Marshall, William F. O'Donnell, Pam Anderson, and George A. Moore.¹

Motions to Intervene

The Archdiocese of Milwaukee is a private, nonprofit corporation which receives CETA funds from the defendant William F. O'Donnell, the prime sponsor for Milwaukee County. For the 1977-78 school year, it was allocated $328,618 in CETA funds and employed 39 persons under the CETA program, and it has applied for funding for 62 CETA positions for 1979. (Leslie A. Darnieder's affidavit filed December 6, 1978, paragraphs 4, 5, and 8.) Pius XI High School, which employs several CETA workers, is a division of the Archdiocese. It received funding from Milwaukee County through the Archdiocese in the amount of $53,293.09 for seven CETA employees through October 31, 1978, and has applied for eight CETA positions for 1979. (Lawrence W. McCall's affidavit filed December 6, 1978, paragraphs 9-10.) Lawrence W. McCall is the principal of Pius XI. John Broczek and Candace Warlin are CETA employees at Pius XI. (Affidavits of Broczek and Warlin filed December 6, 1978.) The Dioceses of Madison, Green Bay, LaCrosse, and Superior are also present recipients of CETA funds. (Leslie A. Darnieder's affidavit filed January 22, 1979, paragraph 3.)

Those parties seek leave to intervene as defendants in this action pursuant to Rule 24(a) or (b) of the Federal Rules of Civil Procedure. They assert that they have a direct interest in continued receipt of CETA funds, which interest is threatened by this litigation and is not adequately protected by the named parties, all of whom have entered into or allegedly are considering entering into consent decrees with the plaintiffs to terminate the litigation as to themselves on condition of ceasing to make CETA grants or contracts with parochial institutions. (Patrick W. Schmidt's affidavit filed December 6, 1978, paragraphs 4-6.) Broczek and Warlin are currently employed under the CETA program at Pius XI High School as a motivational research assistant and a printing and mailing clerk, respectively, and if the relief which plaintiffs seek is granted, they will lose their current positions with no guarantee of alternate placement, although the consent decrees previously entered into provide that defendants will make an effort to find jobs for displaced employees. (See proposed consent decrees received January 24, 1979; January 25, 1979; February 7, 1979; February 12, 1979; and February 21, 1979.)

Rule 24(a) of the Federal Rules of Civil Procedure provides in part:

"Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."

While the purpose of the CETA program is to aid economically disadvantaged persons in improving their employment capacity, 29 U.S.C. § 841, and not to subsidize the employers of those persons, Hood River County v. United States, Department of Labor, 532 F.2d 1236, 1238 (9th Cir. 1976), in Hood River County the Court permitted intervention by the employer-grantee, the legality of whose grant was at issue. Similarly, it appears to be a common practice in cases arising under the First Amendment wherein the funding of educational aid programs is challenged on separation of church and state grounds to allow intervention by the parochial recipient of the federal funds, even where the congressional purpose of the program is to aid the school children and not the sectarian institution. See, e. g., Wolman v. Walter, 433 U.S. 229, 233, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977); Meek v. Pittenger, 421 U.S. 349, 356 n. 6, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Levitt v. Committee for Public Education & Religious Liberty, 413 U.S. 472, 478, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973).

In this case, in addition to their interest in the additional services which they are able to provide to their students through continued receipt of CETA funds, which interests are similar to those on the basis of which intervention was allowed in Wolman, supra, Meek, supra, and Levitt, supra, the Archdiocese of Milwaukee and the other diocese-intervenors may be required to reimburse the federal government for CETA funds previously received and spent if plaintiffs prevail, and thus they have a direct pecuniary interest in the outcome of the suit. (Complaint, paragraphs 1 and 14.) As for the defendant-intervenors Broczek and Warlin, they also have a direct interest in the subject of this action, since it may well result in termination of their present employment with no guarantee of future placement and continued employment. See Lendall v. Cook, 432 F.Supp. 971 (E.D.Ark.1977). The defendant-intervenors Pius XI High School and Lawrence W. McCall will not, however, be permitted to intervene at this time, absent a clearer showing by them of a protectible interest in the outcome of the suit. It appears that Pius XI receives CETA funding only from the Archdiocese and is not itself a grantee of the prime sponsor Milwaukee County. Therefore, whatever interest Pius XI, and McCall as its principal, have in this suit is subsumed in the interest of the Archdiocese.

The intervenors by their attorneys have participated in the briefing and the oral argument held on plaintiffs' motion for a preliminary injunction. Therefore, since they have had an adequate opportunity to participate in this action and have made good use of that opportunity, the Court will...