Greer v. Chao

• Decision Date: 09 July 2007
• Docket Number: No. 06-2246.,06-2246.
• Citation: 492 F.3d 962
• Parties: Donald GREER, Appellant, v. Elaine CHAO, Secretary of the United States Department of Labor, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

492 F.3d 962

Donald GREER, Appellant, v. Elaine CHAO, Secretary of the United States Department of Labor, Appellee.

No. 06-2246.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2007.

Filed: July 9, 2007.

Counsel who presented argument on behalf of the appellant was Edward A. Zimmerman of Burnsville, MN.

Counsel who presented argument on behalf of the appellee was Mary Jo Madigan, AUSA, of Minneapolis, MN.

Before LOKEN, Chief Judge, O'CONNOR^*, Associate Justice (Ret.) and GRUENDER, Circuit Judge.

O'CONNOR, Associate Justice (Ret.).

This case considers the response of the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) to Donald Greer's complaint filed under the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), as amended. Because the OFCCP promptly discharged its duty to conduct an investigation into Greer's administrative complaint, we conclude that the Secretary of Labor's response in this case represents a decision committed to agency discretion and is, therefore, immune from judicial review.

I.

The Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA), as amended, provides that the federal government shall require its contractors to "take affirmative action to employ and advance in employment qualified covered veterans." 38 U.S.C. § 4212(a). In addition, the statute provides that a covered veteran who believes that a government contractor has not complied with VEVRAA "may file a complaint with the Secretary of Labor, who shall promptly investigate such complaint and take appropriate action in accordance with the terms of the contract and applicable laws and regulations." 38 U.S.C. § 4212(b). The Secretary of Labor has charged the Office of Federal Contract Compliance Programs (OFCCP) with investigating complaints made against contractors. 41 C.F.R. 60-250.60, 60-250.61(a). After the OFCCP receives such a complaint, it is directed to "prompt[ly] investigat[e]," 41 C.F.R. 60-250.61(d), and determine whether to pursue enforcement proceedings against the contractor. 41 C.F.R. 60-250.65, 60-250.66. If the OFCCP determines either that the contractor has not committed an infraction or that initiating enforcement proceedings is unwarranted, the OFCCP informs the complainant and the contractor, usually in a Notice of Results of Investigation. 41 C.F.R. 60-250.61(e)(1).

On November 15, 2001, Donald Greer, a covered veteran of the Vietnam era, filed a complaint with the OFCCP asserting that his employer, Eaton Corporation, had failed to comply with VEVRAA. Among other assertions, Greer contended that Eaton had not adequately trained its employees in VEVRAA and had not adhered to the affirmative obligations that the statute imposes. On November 27, 2001, less than two weeks after Greer filed his complaint, OFCCP began an investigation. Over the ensuing eighteen-month period, OFCCP agents visited Eaton Corporation, reviewed Greer's employment file, interviewed Greer's coworkers, and discussed employment decisions with Eaton managers. On August 29, 2003, OFCCP notified Greer in a Notice of Results of Investigation that the investigation had turned up insufficient evidence to conclude either that Eaton had discriminated against him or that Eaton had violated any of its affirmative obligations. Accordingly, the OFCCP informed Greer that it would not seek enforcement action against Eaton. Although Greer asked the OFCCP to reconsider its decision, OFCCP's Regional Director issued a letter affirming the agency's initial findings.

Greer filed a lawsuit in district court seeking review of this decision under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., asserting that the agency had not complied with the obligations imposed by VEVRAA. The Secretary of Labor moved to dismiss the case, contending that the district court lacked jurisdiction because the agency's decision to decline enforcement proceedings against Eaton was, under Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and related cases, immune from judicial review. Greer responded by suggesting that Chaney was irrelevant: "[Greer] is not contesting the Secretary's decision not to take enforcement action against Eaton Corporation. He is asking this Court to require the Department of Labor (DOL) to conduct an investigation of [Greer]'s claims before making any decision." Plaintiff's Reply Memorandum to Defendant's Response to Plaintiff's Motion for Summary Judgment, at 1-2. The district court avoided resolving the case in light of Chaney, and instead granted summary judgment to the Secretary of Labor because Greer's affidavit in support of his motion for summary judgment had not been successfully filed. By the district court's lights, this failure to file meant that Greer had proffered no evidence in support of his allegations against Eaton Corporation.

This appeal followed.

II.

VEVRAA provides that when a Vietnam Era veteran files a complaint with the Secretary of Labor, she "shall promptly investigate such complaint and take appropriate action in accordance with the terms of the contract and applicable laws and regulations." 38 U.S.C. § 4212(b). The question we consider today is whether this language permits us to review the agency's conduct in response to Greer's administrative complaint. We hold that it does not.

There is a strong presumption that agency action is reviewable by courts. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). That strong presumption, however, is not an absolute. Indeed, the Administrative Procedure Act (APA) provides an exception to judicial reviewability where agency action is "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). And as the Supreme Court of the United States observed in Chaney, "review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." 470 U.S. at 830, 105 S.Ct. 1649. See also Ngure v. Ashcroft, 367 F.3d 975, 981-82 (8th Cir.2004).

In Chaney, the Court held that when an agency declines to initiate enforcement proceedings, that decision is not presumptively reviewable. See id. at 831, 105 S.Ct. 1649. This is true because when an agency decides to seek enforcement actions (or declines to seek enforcement actions), it is entitled to the same type of discretion that a prosecutor is afforded in bringing (or not bringing) criminal charges. See Chaney, 470 U.S. at 831, 105 S.Ct. 1649 ("[A]n agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion."); Drake v. FAA, 291 F.3d 59, 71 (D.C.Cir.2002) (noting that "when [the Federal Aviation Agency's] prosecutorial discretion is at issue, the matter is presumptively committed to agency discretion by law").

Chaney deemed enforcement decisions "general[ly] unsuitab[le]" for judicial review because "an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise." 470 U.S. at 831, 105 S.Ct. 1649. In addition to "assess[ing] whether a violation has occurred," the agency must also assess "whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all." Id. And Chaney expressly noted that agencies need not pursue every statutory violation that they may encounter. See id. at 831-32, 105 S.Ct. 1649 ("An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.").

Greer styles his lawsuit as contesting the Secretary's investigation in response to his administrative complaint because there can be no question that a direct challenge to the Secretary's enforcement decision would be impermissible. If VEVRAA provided a "meaningful standard against which" to evaluate the agency's "exercise of discretion" in this context, then we would be able to review the decision declining to pursue enforcement proceedings. Chaney, 470 U.S. at 830, 832, 105 S.Ct. 1649. But, as then-Judge Kennedy found when he entertained a challenge to an enforcement decision under VEVRAA, the statute contains no such meaningful standard. See Clementson v. Brock, 806 F.2d 1402, 1404 (9th Cir.1986). Interpreting the same language that we consider today, Clementson observed that the statutory language "provides no indication of what `appropriate action' is; it lists no factors for OFCCP to consider in making that determination; and it specifies no standards for a court to use in cabining the agency's discretion." Id. "In short," then-Judge Kennedy wrote, "it leaves us with no `law to apply.'" Id. See Overton Park, 401 U.S. at 410, 91 S.Ct. 814 (declining the presumption of reviewability "where statutes are drawn in such broad terms that in a given case that there is no law to apply") (internal quotation marks omitted).

Accordingly, Greer asserts that he is challenging not the agency's enforcement powers, but its supposed failure to investigate certain claims within his complaint. At least one district court has previously analyzed objections to agency investigations in light of Chaney. In Giacobbi v. Biermann, 780 F.Supp. 33 (D.D.C.1992), Frank Giacobbi filed a complaint with the Department of Labor under Section 503 of the Rehabilitation Act of 1973, which directs that the Department "shall promptly investigate such complaint and shall take such action thereon as the facts and circumstances warrant." 29 U.S.C. § 793. Subsequently, the OFCCP...