Gilmore v. Salt Lake Community Action Program, 81-1167
| Decision Date | 18 April 1983 |
| Docket Number | No. 81-1167,81-1167 |
| Citation | 710 F.2d 632 |
| Parties | Walter K. GILMORE, Plaintiff-Appellant, v. SALT LAKE COMMUNITY ACTION PROGRAM, a Utah corporation; Hal J. Schultz, Executive Director; Robert E. Philbrick, President, Board of Trustees; Richard Fields, Personnel Administrator; Fred Geter, Chairman, Personnel Committee; Ann O'Connell, Terry Williams, John E. Delaney, Ted L. Wilson, Jennings Phillips, Glen Greener, Pete Kutulas, William Dunn, Ralph McClure, Jess Agraz, Don Mierva, Lucy Otero, Glen M. Larsen, Bernice Benns, Lambertus Jensen, Solomon Chacon, Leon Reese, Palmer Depaulis, Richard Ligh, Victor Delgado, Norbest Martinez, Mavis Lindsay, M.C. Eberhardt, Clement Jay, Eva Maez, Jerri Brown, Wayne Horrocks, Hermoine Jex, constituting the Board of Trustees of the Salt Lake Area Community Action Program, their officers, employees, successors and assigns, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Kathryn Collard of Collard, Kuhnhausen, Pixton & Downes, Salt Lake City, Utah, for plaintiff-appellant.
Stephen W. Cook of Littlefield, Cook & Peterson, Salt Lake City, Utah, for defendants-appellees.
Before SETH, Chief Judge, and McWILLIAMS and McKAY, Circuit Judges.
Walter K. Gilmore served as Fiscal Director of the Salt Lake Community Action Program ("SLCAP") from 1974 to 1977. In 1977, the Executive Director of SLCAP reorganized the Fiscal Department, assumed the position of Fiscal Director, and terminated Mr. Gilmore's employment as a "reduction in force." Mr. Gilmore appealed the termination to the SLCAP Personnel Committee, which sustained the Executive Director's decision. He then filed this suit under section 1983 1 against SLCAP, its officers, and its trustees. He alleged that the termination was state action that deprived him of a property interest without due process in violation of the fourteenth amendment. He also included a Bivens claim, 2 alleging that the termination was federal action that deprived him of a property interest without due process in violation of the fifth amendment. The district court concluded that neither state nor federal action was present and entered judgment for the defendants. Mr. Gilmore challenges this determination on appeal. He claims that governmental action is present because SLCAP is a "community action agency." 3
The concept of the community action agency originated in Title II of the Economic Opportunity Act of 1964 (the "EOA"), 42 U.S.C. Secs. 2781-2837 (1976) (repealed 1981). Through the EOA's provisions, Congress sought to encourage the creation of community operated agencies that would coordinate federal, state, and private resources to combat poverty at a local level. 4 Congress defined the basic structure and functions of these agencies and established requisites for federal funding. See EOA Secs. 210-221, 42 U.S.C. Secs. 2790-2808. However, Congress left broad discretion to the local communities in the operation of the agencies. See H.R.Rep. No. 1458, 88th Cong., 2d Sess., reprinted in 1964 U.S.Code Cong. & Ad.News 2900, 2909.
Congress established a number of requirements of particular relevance to this appeal. It provided that "[a] community action agency shall be a State or political subdivision of a State ... or a combination of such political subdivisions, or a public or private nonprofit agency or organization which has been designated by a State ...." EOA Sec. 210(a), 42 U.S.C. Sec. 2790(a). It also specified that "[n]o political subdivision of a State shall be included in the community action program of a community action agency designated under section 2790(a) of this title if the elected or duly appointed governing officials of such political subdivision do not wish to be so included." EOA Sec. 210(e), 42 U.S.C. Sec. 2790(e).
Congress set forth specific requirements for the governing board of the community action agencies, providing,
Each board to which this subsection applies shall consist of not more than fifty-one members and shall be so constituted that (1) one-third of the members of the board are elected public officials, or their representatives, except that if the number of elected officials reasonably available and willing to serve is less than one-third of the membership of the board, membership on the board of appointive public officials may be counted in meeting such one-third requirement ....
EOA Sec. 211(b), 42 U.S.C. Sec. 2791(b). 5 Regarding the authority of the board, Congress provided,
The powers of every community action agency governing board shall include the power to appoint persons to senior staff positions, to determine major personnel, fiscal, and program policies, to approve overall program plans and priorities, and to assure compliance with conditions of and approve proposals for financial assistance under this subchapter.
EOA Sec. 211(e), 42 U.S.C. Sec. 2791(e).
SLCAP is a community action agency created pursuant to the EOA. Its avowed purpose is to "prevent and alleviate poverty and its causes." Articles of Incorporation, Record, vol. 2, at 208, 209. It is eligible for and has received federal funding under the EOA. 6
SLCAP is organized as a private nonprofit corporation under the laws of Utah, 7 as permitted by section 210 of the EOA. See 42 U.S.C. Sec. 2790(a). During the period of interest in this suit, its Board of Trustees consisted of thirty members, of whom eleven were apparently public officials, 8 thus meeting the requirements of section 211(b) of the EOA. See 42 U.S.C. Sec. 2791(b).
The SLCAP Board of Trustees promulgated personnel policies for SLCAP and delegated power over personnel decisions to the Executive Director, as authorized by section 211 of the EOA. See 42 U.S.C. Sec. 2791. Mr. Gilmore claims that both the policies promulgated by the Board and the specific decision by the Executive Director to terminate his employment constitute governmental action because of the extensive government involvement in creating, regulating, funding, and operating SLCAP.
The Constitution promotes individual liberty by forbidding the government, and the government alone, from engaging in certain activities. 9 See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Although the pertinent provisions appear uncomplicated, the concept of government action, and the consequent reach of the constitutional proscriptions, has consistently eluded certain definition. See Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 1632, 18 L.Ed.2d 830 (1967). Experience has shown that governmental power can be exercised in the absence of an official presence. See Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966). Conversely, not all acts by government employees can be justly characterized as governmental action. See Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1982). 10
The Supreme Court has approached the concept of governmental action flexibly. It has pragmatically examined ostensibly private activities to determine if they constitute governmental action. In this regard, the Court has inquired whether a private party is performing a "public function," see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), or acting under "state compulsion," see Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), whether there is a "nexus," see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), or "joint action" between the private party and the government, Lugar v. Edmondson Oil Co., 457 U.S. 935, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Flagg Brothers v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).
These cases, taken together, impart at least two important principles. First, they recognize that power entrusted to the government by the people can ultimately be exercised through nominally private entities, be it through the government's delegation, compulsion, concerted action, or acquiescence. Second, they provide that when these nominally private parties exercise governmental power, they shall not exercise it insulated from constitutional constraints.
The problem remains in distinguishing the exercise of governmental power from benign or tangential governmental involvement. This problem is resolved by "sifting facts and weighing circumstances" in each case. Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).
The appellant asserts that federal action is present in this case because of the extensive federal funding and regulation of SLCAP. The Court of Appeals for the Ninth Circuit accepted this argument in Mathis v. Opportunities Industrialization Centers, Inc., 545 F.2d 97 (9th Cir.1976). See also Ginn v. Mathews, 533 F.2d 477 (9th Cir.1976). However, this result seems questionable in light of subsequent Supreme Court precedent.
Last term, the Supreme Court twice concluded that governmental funding and regulation of an ostensibly private organization, in the absence of other factors, is insufficient to establish governmental action. In Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Court held that state funding and associated regulation of a private school for troubled youths did not render the school's personnel decisions state action, absent evidence of state influence or control over those decisions. 457 U.S. at 838 n. 6, 102 S.Ct. at 2770 & n. 6. Compare Milonas v. Williams, 691 F.2d 931 (10th Cir.1982), cert. denied, 457 U.S. 991, 103 S.Ct. 1524, 75 L.Ed.2d 947 (1983). In Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982),...
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