Legal Aid Soc. of Alameda County v. Brennan
| Decision Date | 04 December 1979 |
| Docket Number | Nos. 74-2954,74-3013,s. 74-2954 |
| Citation | 608 F.2d 1319 |
| Parties | 21 Fair Empl.Prac.Cas. 605, 21 Empl. Prac. Dec. P 30,443 LEGAL AID SOCIETY OF ALAMEDA COUNTY; Stephen E. Ronfeldt; Linda Castillo; Delores Luster; John Stafford; Isadore Payne; Western Regional Job Council, Plaintiffs-Appellees, v. Peter J. BRENNAN, Secretary of the United States Department of Labor; Philip Davis, Acting Director of the Office of Federal Contract Compliance; Earl L. Butz, Secretary of the United States Department of Agriculture; William Gladden, Chief, Contract Compliance Division, Office of Equal Opportunity, United States Department of Agriculture, Defendants, Chamber of Commerce of the United States of America, on behalf of its affected members, Defendants-Intervenors-Appellants. LEGAL AID SOCIETY OF ALAMEDA COUNTY et al., Plaintiffs-Appellees, v. NCC FOOD CORPORATION, Defendant-Intervenor-Appellant. LEGAL AID SOCIETY OF ALAMEDA COUNTY et al., Plaintiffs-Appellees, v. DEL MONTE CORPORATION, Defendants-Intervenors-Appellants. LEGAL AID SOCIETY OF ALAMEDA COUNTY et al., Plaintiffs-Appellees, v. CPC INTERNATIONAL, Defendant-Intervenor-Appellant. LEGAL AID SOCIETY OF ALAMEDA COUNTY et al., Plaintiffs-Appellees, v. CARNATION COMPANY, H. J. Heinz Company, Sunshine Biscuits, Inc., Bell Brand Foods, Inc., Defendants-Intervenors-Appellants. LEGAL AID SOCIETY OF ALAMEDA COUNTY et al., Plaintiffs-Appellees, v. GRANNY GOOSE FOODS, INC., Defendant-Intervenor-Appellant. LEGAL AID SOCIETY OF ALAMEDA COUNTY et al., Plaintiffs-Appellees, v. GOLDEN GRAIN MACARONI CO., and its division, Ghirardelli Chocolate, Inc., Defendants-Intervenors-Appellants. to 74-3015, 74-3234, 74-3250, 74-3317 and 74-3391. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Noble K. Gregory, Pillsbury, Madison & Sutro, San Francisco, Cal., Gerard C. Smetana, Borovsky, Smetana, Enhrlich & Dronenberg, Washington, D. C., Maureen E. McClain, San Francisco, Cal., for Carnation Co., et al.
Mark L. Gross, Dept. of Justice, Washington, D. C., Russell W. Galloway, Jr., Oakland, Cal., for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of California.
Before BROWNING, WALLACE and KENNEDY, Circuit Judges.
As a condition of doing business with the federal government, larger federal contractors are required to develop "written affirmative action compliance programs" designed to further equal employment opportunity. The contents of these programs are specified by regulation. 41 C.F.R. §§ 60-1.40, 60-2.10 to 13.
Several Black residents of Alameda County, California and organizations representing them, brought this suit against responsible federal officials, alleging they had failed to discharge their duty to ensure the maintenance by food processing contractors of adequate affirmative action programs. The district court granted partial summary judgment and injunctive relief. Legal Aid Society v. Brennan, 381 F.Supp. 125 (N.D.Cal.1974).
Executive Order 11246 requires government contracting agencies to include in most federal and federally-assisted contracts dual covenants (1) that the contractor "will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin," and (2) that the contractor will "take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, or national origin." 1 This suit concerns the second covenant the "affirmative action" obligation which was added to the "nondiscrimination" obligation in 1961 in response to "an urgent need for expansion and strengthening of efforts to promote full equality of employment opportunity . . . ." 26 Fed.Reg. 1977 (March 8, 1961).
The duty to enforce Executive Order 11246 is vested in the Secretary of Labor, who is authorized to "adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes" of the Order. 2
Pursuant to his rule-making authority, the Secretary has delegated enforcement responsibility to the Office of Federal Contract Compliance Programs (OFCCP). 3 Until recently, this office in turn delegated day-to-day enforcement to various "compliance agencies." USDA was designated as the compliance agency for non-construction contractors in the food production and processing industry. 4
The Secretary of Labor has issued regulations detailing the manner in which contractors are to fulfill the affirmative action commitment. Each contractor with 50 or more employees and a federal contract of $50,000 or more is required to develop a written affirmative action program for each of its establishments. 41 C.F.R. § 60-1.40. The contents of the programs are specified in Revised Order No. 4, 41 C.F.R. Part 60-2. 5 Acceptable programs include two basic elements: (1) "an analysis of areas within which the contractor is deficient in the utilization of minority groups and women," and, where the analysis discloses deficiencies, (2) "goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies . . . at all levels and in all segments of his work force where deficiencies exist." 41 C.F.R. § 60-2.10. The factors to be considered in analyzing minority and female utilization and in formulating goals and timetables for correcting underutilizations are spelled out in 41 C.F.R. §§ 60-2.11 and 2.12. Certain additional ingredients required of acceptable affirmative action programs are set out in 41 C.F.R. § 60-2.13. Revised Order No. 4 also details the procedures compliance authorities are to follow in securing corrective action when a contractor's program fails to satisfy the specified criteria and in imposing sanctions if corrective action is not forthcoming. 41 C.F.R. § 60-2.2.
Appellees' complaint contained two central allegations. First appellees charged that responsible USDA officials failed to review the affirmative action programs of a majority of federal contractors within USDA's compliance jurisdiction. 6 This portion of the case is still pending below. Second, appellees alleged that where compliance reviews were undertaken, USDA officials regularly approved programs that did not comply with Revised Order No. 4. In discovery proceedings in support of the second claim, appellees obtained the affirmative action programs of 29 contractors in Alameda County, California, that had been reviewed and approved by USDA from August 1972 through January 1973. These included the programs of all Alameda County contractors within USDA's compliance jurisdiction. Based upon these programs and letters from the officials approving them, appellees moved for partial summary judgment on the complaint that USDA officials had regularly approved noncomplying programs. Appellees asked that the officials be restrained from approving noncomplying programs, and that they be required to rescind approval of deficient plans and initiate enforcement proceedings against companies submitting these plans.
The district court granted appellees' motion. It concluded that components of affirmative action programs that were mandated by Revised Order No. 4 were nonetheless absent from the programs approved by the officials. It declared ten specific programs to be violative of the regulations, and therefore illegally approved. The court enjoined USDA officials from approving programs that did not comply with Revised Order No. 4. They were ordered to rescind approval of the ten noncomplying programs, to issue show cause notices to the contractors submitting them, and to seek sanctions against any contractor that did not develop and implement a complying program. 7
The federal officials filed, then withdrew, a notice of appeal, and have appeared in this court in support of the judgment.
The appellants are contractors whose affirmative action plans formed the basis for the court's order. The plans of four appellants were among the ten specifically declared unacceptable. 8
Appellants were not parties to the proceedings below. After partial summary judgment was granted, appellants sought to intervene generally for the purpose of reopening the proceedings. The district court denied their motion, but permitted intervention for the purpose of appeal.
Appellants present five issues. First, they contend that approval of affirmative action plans by a compliance agency is not subject to judicial review or remedies, at least not at the behest of these appellees. Second, they contend that judicial review, if available, was premature because appellees had not exhausted administrative remedies. Third, they argue that they were entitled to participate in the proceedings below, and that entry of summary judgment without their presence deprived them of due process. Fourth, they contend that in finding the affirmative action programs inadequate and in formulating the decree, the district court relied upon standards that were erroneous in substance and not lawfully promulgated. Finally, they argue that the decree imposes hiring and promotion quotas in violation of the Constitution and of Title VII of the Civil Rights Act of 1964.
The federal appellees argue that appellants lack the requisite interest to maintain this appeal. Appellants counter that their interests were sufficient not only to permit intervention to appeal but also to require that the judgment be set aside because they were not parties to the proceedings in the court below. We turn first to these contentions.
The federal appellees argue that appellant contractors have no appealable interest in the decision below because the district court's order is directed only to the manner in which the federal appellees carry out their regulatory responsibility. They further contend that the interests of appellants can be fully protected in the administrative process, which affords contractors...
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