Thompson v. U.S. Dept. of Labor

• Decision Date: 11 March 1987
• Docket Number: No. 86-1371,86-1371
• Citation: 813 F.2d 48
• Parties: 42 Empl. Prac. Dec. P 36,950 James THOMPSON, Appellant, v. UNITED STATES DEPARTMENT OF LABOR, and William E. Brock, Secretary of Labor, and Helen Haase, Director, Employment Standards Division, Office of Federal Contract Compliance Programs, Department of Labor, and Robert Greaux, Regional Administrator, Employment Standards Division, Office of Federal Contract Compliance Programs, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 48

813 F.2d 48

42 Empl. Prac. Dec. P 36,950

James THOMPSON, Appellant, v. UNITED STATES DEPARTMENT OF LABOR, and William E. Brock Secretary of Labor, and Helen Haase, Director, Employment Standards Division, Office of Federal Contract Compliance Programs, Department of Labor, and Robert Greaux, Regional Administrator, Employment Standards Division, Office of Federal Contract Compliance Programs, Appellees.

No. 86-1371.

United States Court of Appeals Third Circuit.

Argued Jan. 21, 1987.

Decided March 11, 1987.

Frank J. Laski, Judith A. Gran (argued), Public Interest Law Center of Philadelphia, Philadelphia, Pa., for appellant.

George R. Salem, Sol. of Labor, James D. Henry, Associate Sol., A. Penny Dash, Counsel for Litigation, Beverly I. Dankowitz (argued), Atty., U.S. Dept. of Labor, Washington, D.C.

Edward S.G. Dennis, U.S. Atty., Edward T. Ellis, Asst. U.S. Atty., Philadelphia, Pa., for appellees.

Before SEITZ, BECKER and MANSMANN, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

James Thompson appeals a final judgment entered on behalf of defendants United States Department of Labor (DOL), William E. Brock, Secretary of Labor (Secretary), Helen Haase, Director of the Employment Standards Division, Office of Federal Contract Compliance Programs (OFCCP) and Robert Greaux, Regional Administrator of OFCCP. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).

I.

In May 1979 Thompson filed a complaint with OFCCP alleging that PPG Industries (PPG) had discriminated against him in hiring or promotion at its Tipton, Pennsylvania plant in violation of Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 793 (1982). OFCCP investigated the complaint and in November 1981 issued a Notification of Results of Investigation which contained findings that PPG was a government contractor within the coverage of Section 503 and that the conduct complained of violated PPG's obligations under the Act.

OFCCP initiated conciliation efforts. PPG responded by challenging OFCCP's jurisdiction over Thompson's complaint. PPG asserted that it performed no federal contract work at its Tipton facility, and that therefore Thompson would not have been employed to carry out a federal contract as required to invoke Section 503(a). PPG based this defense on a then recent recommended decision by a DOL administrative law judge (ALJ) to that effect in another Section 503 proceeding, OFCCP v. Western Electric, 80-OFCCP-29. The conciliation effort failed. Thereafter, OFCCP's Pittsburgh Area Office recommended to the Regional Office that the case should proceed to enforcement.

At the time the enforcement recommendation against PPG was prepared, the Western Electric proceeding was pending on appeal to the Deputy Under Secretary for Employment Standards. Because the coverage issue raised by PPG was identical to the issue pending in Western Electric, OFCCP's Region III did not act on the enforcement recommendation of the Pittsburgh Area Office. Instead, Region III directed the Area Office to hold further action on Thompson's complaint pending resolution of Western Electric. By letter dated April 1984, OFCCP informed Thompson of the status of his complaint.

The Deputy Under Secretary issued a Remand Decision and Order in Western Electric on April 24, 1985. The decision rejected the ALJ's proposed jurisdictional holding. However, so far as this record shows, Thompson's claim was not immediately reactivated. Thompson filed this action in the district court in July 1985. He alleged that OFCCP had improperly ceased processing his complaint, and sought an order compelling OFCCP to resume its prosecution. Thompson also alleged that DOL had unreasonably delayed resolution of his case, and requested a judgment compelling DOL to conclude proceedings on his complaint within a reasonable time. He sought declaratory and injunctive relief under the Administrative Procedure Act (APA), 5 U.S.C. Sec. 701 et seq. (1982 and Supp. III 1985) and mandamus under 28 U.S.C. Sec. 1361 (1982).

By memorandum dated September 4, 1985, which was shortly after Thompson filed this action, defendant Haase directed all Assistant Regional Administrators of OFCCP to reactivate all cases held in abeyance pending Western Electric. On October 1, 1985, defendants moved for summary judgment.

Region III reactivated Thompson's complaint and transmitted the file to OFCCP's National Office in November 1985, seeking approval to refer the matter to the Office of the Solicitor for enforcement. The National Office approved referral and returned the file to Region III on November 21, 1985 for immediate referral to the Regional Solicitor.

On May 12, 1986, the Regional Solicitor filed an administrative complaint under Section 503 alleging that PPG had unlawfully discriminated against Thompson on the basis of his handicap, epilepsy. The complaint sought full remedial relief for Thompson in the form of back pay, fringe benefits and retroactive seniority.

Based on the foregoing record, the district court, by order entered May 19, 1986, granted the defendants' motion for summary judgment. 635 F.Supp. 302. The court's accompanying memorandum opinion concluded that OFCCP's decision to defer enforcement was an unreviewable act of agency discretion, thus precluding APA review of the hold. The court also denied mandamus relief from the hold on the ground that OFCCP's decision was committed to agency discretion. Because administrative proceedings had then been initiated, the court also rejected Thompson's APA claim to compel DOL to conclude the administrative proceedings. Finally, the court denied Thompson's request for mandamus to compel expeditious processing of his administrative complaint because it concluded "plaintiff has not demonstrated that the defendants owe him a clear ministerial duty to proceed with his case in any particular way." This appeal followed.

II

The defendants assert that Thompson's mandamus and APA claims against OFCCP based on the hold are moot because OFCCP renewed prosecution of Thompson's complaint, thus voluntarily and indisputably ceasing the challenged practice. We take notice that the factual basis for the mootness argument as to this claim existed prior to the date of the district court's summary judgment determination. Thus, the issue is whether the district court should have dismissed this portion of Thompson's complaint for mootness. Our review of this issue is plenary.

The voluntary cessation of official activity or policy may, of course, moot a case. New Jersey Turnpike Authority v. Jersey Central Power and Light, 772 F.2d 25, 31 (3rd Cir.1985). The defendants, however, bear a "heavy burden" to establish mootness in such a case. Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 72, 104 S.Ct. 373, 375, 78 L.Ed.2d 58 (1983). Two conditions must be met in order for cessation of a challenged policy to moot a case. First, there must be no reasonable likelihood that the alleged wrong will recur. Iron Arrow, 464 U.S. at 72, 104 S.Ct. at 375. This criterion has been interpreted to require more than speculation that a challenged activity will be resumed. Preiser v. Newkirk, 422 U.S. 395, 403, 95 S.Ct. 2330, 2335, 45 L.Ed.2d 272 (1975). Second, the party seeking relief must have been made whole. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979).

OFCCP's reactivation of Thompson's complaint satisfies both conditions. The only relief Thompson could secure regarding the OFCCP hold was termination of the hold and resumption of prosecution of his complaint. The record indicates that OFCCP has not only resumed prosecution of Thompson's complaint, but it has concluded its responsibility for handling the complaint by referring the complaint to the Regional Solicitor's office for initiation of formal administrative proceedings against PPG.

Thompson argues, however, that the case is not moot because it is the type of case that is capable of repetition yet might evade review. The "capable of repetition, yet evading review" doctrine is limited to situations where two conditions are satisfied. The challenged action must be too short in duration to be fully litigated prior to the cessation of litigation and there must be a reasonable expectation that the same complaining party would be subject to the same action again. Jersey Central, 772 F.2d at 31. While Thompson contends that both conditions are satisfied in this case, we do not agree. The first condition cannot be satisfied because the challenged action went on for years, and Thompson took no action until at least one year after he learned of the OFCCP hold. The second condition cannot be satisfied because the administrative complaint has been filed, and OFCCP is no longer responsible for processing Thompson's complaint. Accordingly, Thompson's argument must fail. Thus, we need not determine what remedy, if any, would have been available had he succeeded on the merits...