Partridge v. Reich, 97-15475

• Citation: 141 F.3d 920
• Decision Date: 06 April 1998
• Docket Number: No. 97-15475,97-15475
• Parties: 157 L.R.R.M. (BNA) 3005, 98 Cal. Daily Op. Serv. 2500, 98 Daily Journal D.A.R. 3459 William PARTRIDGE; James Zagorski; William Stojack, Plaintiffs-Appellants, v. Robert B. REICH; Helen Haase; U.S. Department of Labor, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 920

141 F.3d 920

157 L.R.R.M. (BNA) 3005, 98 Cal. Daily Op.

Serv. 2500,

98 Daily Journal D.A.R. 3459

William PARTRIDGE; James Zagorski; William Stojack Plaintiffs-Appellants, v. Robert B. REICH; Helen Haase; U.S. Department of Labor Defendants-Appellees.

No. 97-15475.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 13, 1998.

Decided April 6, 1998.

Janet C. Pancoast, Pancoast & Pancoast, Las Vegas, NV, for Plaintiffs-Appellants.

Kathryn E. Landreth, United States Attorney, Blaine T. Welsh, Assistant United States Attorney, Las Vegas, NV, for Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding. D.C. No. CV-96-00056-DWH.

Before: HUG, Chief Judge, and FERNANDEZ and THOMAS, Circuit Judges.

FERNANDEZ, Circuit Judge:

William Partridge, William Stojack, and James Zagorski (collectively Partridge), all of whom are employees of the Clark County Fire Department, brought this action under the Administrative Procedure Act, 5 U.S.C. § 702, for judicial enforcement of the Vietnam Era Veterans' Readjustment Assistance Act of 1972 ("VEVRA" or the Act), 38 U.S.C. § 4212. Partridge alleged that the Secretary of Labor's Office of Federal Contract Compliance Programs ("OFCCP") acted arbitrarily and capriciously when it declined jurisdiction over his claims against the Clark County Fire Department. The OFCCP declined jurisdiction because it determined that the Fire Department was not a federal contractor under VEVRA. The district court granted summary judgment against Partridge; he appeals. We affirm.

BACKGROUND

In February 1995, Partridge filed a complaint against the Clark County Fire Department with the OFCCP. The complaint charged that Clark County's Fire Department violated VEVRA because it failed to implement an affirmative action policy for Vietnam veterans.

In a letter dated February 28, 1995, the OFCCP informed Partridge that as a preliminary matter the agency would determine if it had jurisdiction over the Fire Department. After investigating the Fire Department's contacts with the federal government, the OFCCP informed Partridge that it lacked jurisdiction because the Fire Department was not a federal contractor within the meaning of VEVRA.

In August 1995, Partridge submitted to the OFCCP further evidence of contacts between the federal government and the Fire Department. After reviewing that information, the OFCCP determined that all of the agreements cited, except one, were grants. The one agreement that was a procurement contract did not establish jurisdiction over the Fire Department because the Fire Department was not a party to the agreement. In a letter dated September 14, 1995, the OFCCP reaffirmed its earlier position that the Fire Department was not subject to VEVRA and closed Partridge's case.

Thereafter, Partridge filed a complaint in the United States District Court for the District of Nevada. Pursuant to a stipulation, the parties filed cross-motions for summary judgment with the sole issue before the court being whether the Fire Department was a covered federal contractor at the time the alleged discriminatory acts occurred. The district court granted the Department of Labor's motion for summary judgment, and Partridge appealed.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 1331, and 5 U.S.C. § 702. We have jurisdiction pursuant to 28 U.S.C. § 1291.

A district court's grant of summary judgment is reviewed de novo. See Trustees of California State Univ. v. Riley, 74 F.3d 960, 963 (9th Cir.1996). We have held an administrative "agency decision may be set aside only if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' " Id. (quoting the Administrative Procedures Act, 5 U.S.C. § 706(2)(A)). A more complete statement would be that we will overturn a decision if it was " 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or if the action failed to meet statutory, procedural, or constitutional requirements." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); 5 U.S.C. § 706(2)(A)-(D). An agency's interpretation of a statute, however, is a question of law which is reviewed de novo. See Conlan v. United States Dep't of Labor, 76 F.3d 271, 274 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 431, 136 L.Ed.2d 330 (1996). Of course, if Congress has spoken to the precise issue, the courts enforce that direction, but if the statute is "silent or ambiguous" the courts defer to the agency's construction of the statute if it is a permissible one. Id.; see also Montana Power Co. v. Environmental Protection Agency, 608 F.2d 334, 345 (9th Cir.1979) ("[W]e do not believe the standard [of review of agency action] allows the courts any broader grant of review when an agency determination 'concern[s] the meaning of a statutory term', as long as the agency does not exceed its own statutory authorization."). An agency's interpretation of its own regulation is controlling if not "plainly erroneous or inconsistent with the regulation." Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (citation omitted); see also Norfolk Energy, Inc. v. Hodel, 898 F.2d 1435, 1439 (9th Cir.1990) ("[A]n agency's interpretation of its regulations is controlling if not 'plainly erroneous or inconsistent with the regulation[s].' ") (citation omitted). Finally, a "district court's decision to exclude extra-record evidence [is reviewed] for an abuse of discretion." Southwest Center for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447 (9th Cir.1996).

DISCUSSION

A. DOL Jurisdiction

Under VEVRA, certain federal contractors are required to implement affirmative action policies regarding Vietnam era veterans. The Act, 38 U.S.C. § 4212, provides that:

Any contract in the amount of $10,000 or more entered into by any department or agency for the procurement of personal property and non-personal services (including construction) for the United States, shall contain a provision requiring that the party contracting with the United States shall take affirmative action to employ and advance in employment qualified special disabled veterans and veterans of the Vietnam era.

Although Congress did not specifically define "contract for procurement" in § 4212, the Department of Labor in its administration of the Act has promulgated regulations defining the term. See 41 C.F.R. §§ 60-250.2-.3; 41 C.F.R. § 60-1.5(a)(4). Pursuant to 41 C.F.R. § 60-250.2, " '[g]overnment contract' means any agreement ... between any contracting agency and any person for the furnishing of supplies or services or for the use of real or personal property...."

Partridge first argues that the OFCCP acted arbitrarily and capriciously when it took the position that grant agreements are not contracts as defined in 41 C.F.R. § 60-250.2. Because Partridge is attacking the DOL's interpretation of its own regulations, that interpretation will control unless " 'plainly erroneous or inconsistent with the regulations.' " Norfolk Energy, 898 F.2d at 1439.

Initially, it must be emphasized that the express terms of VEVRA apply only to contracts for procurement. Under 38 U.S.C. § 4212, procurement contracts "in the amount of $10,000 or more" come within the terms of the Act. Nothing in 41 C.F.R. § 60-250.2 demands an expansion of the traditional definition of procurement contracts to include government grants. As already noted, its language refers to agreements Further support is lent to that reading by the Federal Grant and Cooperative Agreement Act, 31 U.S.C. §§ 6301-6305 ("Grant Act"), which distinguishes between a contract, a grant, and a cooperative agreement. We think it wise to consider the Grant Act because it was designed to "prescribe criteria for executive agencies in selecting appropriate legal instruments to achieve ... uniformity in their use by executive agencies," among other things. 31 U.S.C. § 6301(2)(A). ¹ That suggests that later interpretations of those instruments for other legal purposes should also rely upon the Grant Act's definitions. See Forsham v. Harris, 445 U.S. 169, 180, 100 S.Ct. 977, 984, 63 L.Ed.2d 293 (1980) (discussing the Grant Act in deciding the proper treatment of federal grantees under the Freedom of Information Act); University of Rochester v. Hartman, 618 F.2d 170, 175 (2nd Cir.1980) (discussing the Grant Act in determining whether a research grant constitutes a contract under the Defense Base Act).

to furnish supplies, services, or for the use of property. See 41 C.F.R. § 60-250.2. Thus, contrary to Partridge's argument, the regulation does not apply to all agreements between the federal government and third parties. Rather, like VEVRA itself, the regulation speaks in procurement contract terms.

The Grant Act instructs executive agencies to use procurement contracts whenever "the principal purpose of the instrument is to acquire (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government." 31 U.S.C. § 6303. Conversely, the Act requires executive agencies to use grants or cooperative agreements when "the principal purpose of the relationship is to transfer a thing of value ... to carry out a public purpose ... instead of acquiring ... property or services for the direct benefit or use of the United States Government." 31 U.S.C. §§ 6304-6305. Thus, even if grants and cooperative agreements are contracts in the generic sense, they are not procurement contracts, and the OFCCP's interpretation of the phrase "government contract" in 41 C.F.R. § 60-250.2 to exclude grants for purposes of VEVRA is not "plainly erroneous or inconsistent." Norfolk Energy, ...