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KENSINGTON JOINT ACTION COUNCIL v. PAUKEN

February 3, 1982

KENSINGTON JOINT ACTION COUNCIL and Mary Kathy McManus, et al.
v.
Thomas PAUKEN, Individually and in his capacity as the National Director of ACTION, et al.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

In this case the Court reviews pursuant to the Administrative Procedure Act, 5 U.S.C. § 551 et seq. the final decision of the Director of the ACTION agency which terminated the plaintiff Kensington Joint Action Council as a VISTA sponsor pursuant to 45 C.F.R. § 1208.2-6(a) for violating the provisions of 42 U.S.C. § 5044(d), a section of the Domestic Volunteer Service Act of 1973. This act provides for the Volunteers in Service to America (VISTA) program, 42 U.S.C. § 4951. *fn1" Based upon our review of the administrative record and the relevant statute, the Court has determined that the Director's decision must be set aside in that it is arbitrary, capricious, unsupported by substantial evidence and contrary to law.

 I. PARTIES

 Plaintiff Kensington Joint Action Council (KJAC) is a non-profit corporation incorporated under the laws of the Commonwealth of Pennsylvania. It is a multi-racial community based organization which works with low-income and working poor Kensington residents to improve educational opportunities, to reduce inadequate housing and unemployment and to reduce crime.

 Plaintiffs Mary Kathy McManus, Gloria Claudio, Georgette Darwin, Antonia Rivera and Shirley Sims are VISTA volunteers who were assigned to work with KJAC.

 Defendant Thomas Pauken is the National Director of the federal agency, ACTION, an agency which manages social service programs including VISTA and the Peace Corps.

 Defendant Eugene Pasymowski is the ACTION Director for the agency's Region III, which includes Pennsylvania. Prior to July 1981 defendant Pasymowski was an ACTION District IV Director for Eastern Pennsylvania.

 Defendant Thomas Dunleavy is a VISTA/ACTION district program officer for the agency's District IV, which is comprised of the eastern half of Pennsylvania. Dunleavy is ACTION's program officer for several projects in Philadelphia, including KJAC.

 II. PROCEDURAL HISTORY

 Plaintiffs Kensington Joint Action Council (KJAC) and Mary Kathy McManus filed this action on November 4, 1981 after ACTION suspended KJAC as a VISTA sponsor. Plaintiffs requested declaratory and injunctive relief as well as a temporary restraining order enjoining the defendants from refusing to enforce and implement all terms of the "Memorandum of Agreement" between KJAC and ACTION and ordering the defendants to continue to provide funds for the plaintiffs. The Court denied plaintiffs' request for a temporary restraining order on the ground that plaintiffs had failed to exhaust their administrative remedies.

 Plaintiffs then requested ACTION to hold a termination hearing as provided in 45 C.F.R. § 1206.1-5 through § 1206.1-10. The Administrative hearing was expedited and the procedural irregularities preceding the hearing were waived by the parties pursuant to 45 C.F.R. § 1206.1-10. After a hearing, the hearing officer issued an opinion on December 1, 1981 in which he determined that KJAC had breached the terms of Section 404(d) of the Domestic Volunteer Service Act of 1973, 42 U.S.C. § 5044(d), and terminated all assistance provided by ACTION to KJAC. See 45 C.F.R. § 1206.1-5. On December 3, 1981 the Director of ACTION affirmed the hearing officer's decision as the final administrative decision.

 As a result of KJAC's initial suspension, the five VISTA volunteers who had been working for KJAC were placed on "administrative hold" on October 28, 1981 by ACTION. This status was to continue for 30 days with allowances and benefits continuing pending the location of an alternate assignment for the volunteers by transfer or by reinstatement of KJAC as a VISTA sponsor. After KJAC's termination by ACTION, the five volunteers were notified that effective December 15, 1981 they would be terminated as VISTA volunteers by ACTION in light of KJAC's termination as a sponsor and ACTION's inability to locate alternate assignments for the volunteers. See 45 C.F.R. § 1213.5-5. In light of the termination of the five volunteers, the complaint was amended to include all five volunteers as plaintiffs alleging that their termination by ACTION without a hearing violated their Fifth Amendment due process rights, the Domestic Volunteer Service Act, 42 U.S.C. § 4951 et seq., and the contractual agreement with ACTION. The five volunteers requested a temporary, preliminary and permanent injunction restoring them as VISTAs.

 On December 23, 1981, oral argument was held by the Court and the motion of the individual plaintiffs for a temporary restraining order was heard and denied. At oral argument plaintiffs asserted, in addition to their Fifth Amendment due process claims, that the defendants' interpretation and application of 42 U.S.C. § 5044(d) was arbitrary and capricious, and an abuse of discretion. In addition, plaintiffs assert that the language of 42 U.S.C. § 5044(d) is vague and unclear and violates the Fifth Amendment, and that § 5044(d) as interpreted by the defendant is overbroad under the First Amendment.

 III. STATUTORY BACKGROUND

 Under the Domestic Volunteer Service Act of 1973, 42 U.S.C. § 4951 et seq., the federal ACTION agency is authorized to administer the Volunteers in Service to America program (VISTA) for the purpose of

 
... strengthen(ing) and supplement(ing) efforts to eliminate poverty and poverty related human, social, and environmental problems in the United States by encouraging and enabling persons from all walks of life and all age groups, including elderly and retired Americans, to perform meaningful and constructive volunteer service in agencies, institutions, and situations which the application of human talent and dedication may assist in the solution of poverty and poverty-related problems and secure and exploit opportunities for self-advancement by persons afflicted with such problems. 42 U.S.C. § 4951.

 Volunteers in the VISTA program are required to make a full time personal commitment to "combating poverty and poverty related human, social, and environmental problems" and, to the maximum extent practicable, "to live among and at the economic level of the people served, and to remain available for service without regard for regular working hours ..." 42 U.S.C. § 4954.

 During their period of enrollment, VISTA volunteers are assigned to work under the direct supervision of federal, state, local agencies, or non-profit organizations that have requested ...


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