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Thompson v. United States Department of Labor

filed: March 11, 1987.

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



On Appeal From the United States District Court For The Eastern District of Pennsylvania, D.C. No. Civ. 85-3875.

Author: Seitz

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. § 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. § 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 compliant. 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 compliant, and sought an order compelling OFCCP to resume its prosecution. Thompson also alleged that DOL had unreasonably delayed resolution of this case, and requested a judgment compelling DOL to conclude proceedings on his compliant within a reasonable time. He sought declaratory and injunctive relief under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. (1982 and Supp. III 1985) and mandamus under 28 U.S.C. § 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 compliant 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. The court's accompanying memorandum opinion concluded that OFCCP's decision to defer enforcement as 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 ...


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