Moellendick v. West Virginia Governor's Office of Economic & Community Development
Opinion of the Court
The petitioners seek judicial review of a decision of the Secretary of Labor dismissing their complaints arising from the termination of their employment as Regional Administrators under a CETA-sponsored West Virginia program. See section 817(a) and (b), 29 U.S.C. of the Comprehensive Employment and Training Act, as amended in 1978 (CETA).
This controversy arises out of a CETA plan
Basically, the complainants’ ground of appeal as raised in the hearing before the ALJ were 1) that the proceedings in the State CETA office did not comply with the procedural requirements of the Act, and 2) that the termination of their employment as regional administrators was politically motivated and violated the express provisions of CETA. We shall consider seriatim those two claims.
Addressing first the claim of denial of procedural due process, it is conceded that the petitioners had a right to an “informal hearing” at the State level on their grievances. This is specifically provided in the regulations issued under CETA. Such regulations provide that any “prime sponsor” must “establish a procedure for resolving any issue arising between it .. . and a participant under any Title of the Act,” such procedure to include “an opportunity for an informal hearing” or “some other process to deal with issues arising between it and any aggrieved party.”
The petitioners’ second objection to the ALJ’s decision relates to the disposition of their claim of political motivation in their termination. CETA expressly provides in the regulations that a “sponsor” such as the West Virginia agency in this case “may [not] select, reject or promote a participant [under the program] based on that individual’s political affiliation or beliefs.”
It is undisputed that the petitioners were given the same opportunity to reapply as all other former regional administrators. Other former administrators, whose Republican affiliation was admitted, were hired after applying. Moreover, 85 percent of the former employees of the agency were retained after the reorganization. In addition, the evidence that those identified by the petitioners as their replacements were Democrats was at best tenuous. In the case of the three replacements, the ALJ found that the petitioners offered “no substantive proof in the record of the political affiliation” of two of them and the evidence of the political affiliation of the third was based merely on a conversation by one of the petitioners with the son of the third replacement. The petitioners did proffer
The ALJ made the following finding of fact on this claim of the petitioners:
“Having considered all the evidence in this record, I find that it does not support the complainants’ allegations that they were unjustly terminated and that the reorganization which eliminated the Regional Administrator positions was merely a pretext for political discrimination.”
On a review of the findings of the ALJ which “findings of fact by the Secretary if supported by substantial evidence, shall be conclusive ...” on us,
Since we have found no merit in either claim for review, the petition for review is dismissed
. For a discussion of the amendments of 1978, see U.S.Code Congr. & Admr.News, 95th Congress, 2d Sess., 1978, at 4480 et seq.
. The development of such plans is authorized under the Act “to provide job training and employment opportunities for economically disadvantaged, unemployed, or underemployed persons which will result in an increase in their earned income, and to assure that training and other services lead to maximum employment opportunities and enhance self-sufficiency by establishing a flexible, coordinated, and decentralized system of Federal, State, and local programs. It is further the purpose of this Act to provide for the maximum feasible coordination of plans, programs, and activities under this Act with economic development, community development, and related activities, such as vocational education, vocational rehabilitation, public assistance, self-employment training, and social service programs.”
. 20 C.F.R. § 676.91(f), “A prime sponsor is a unit of State or local government, or a consortium of such jurisdictions annually designed by the Secretary to plan and administer the program activities of this Act within their jurisdiction.” Senate Report, Amendments of 1978, U.S.Code Congr. & Admr.News, 95th Congress, 2d Sess., p. 4492.
. Whether the administrative remedy is the exclusive remedy of the petitioners under the Act, see CETA Worker’s Org. Committee v. City of New York, 617 F.2d 926, 930-31 (2d Cir. 1980); Uniformed Firefighters Ass. v. City of New York, 512 F.Supp. 289, 291 (S.D.N.Y. 1981); but, cf., Consortium of Community Based Organizations v. Donovan, 530 F.Supp. 520, 536-40 (E.D.Cal. 1982).
. This procedure followed those validly prescribed by the Regulations issued under the Act. That there is authority under the Act for the Secretary to issue such regulations, see Orange County (N.Y.) v. Dept. of Labor, 636 F.2d 889, 890 (2d Cir. 1980). Under these regulations grievances, submitted for federal review, go first to a Grant Officer, who, after
. The decision of the Administrative Law Judge becomes the final decision of the Secretary of Labor unless the Secretary modifies or vacates that decision within 30 days after it is rendered. 20 C.F.R. §§ 676.91(f), 676.92.
. 29 C.F.R. § 98.26.
. See 29 U.S.C. § 817(b).
. 29 C.F.R. §§ 98.21(b)(1) and 98.23(b).
. 29 U.S.C. § 817(b); Beutivegna v. U.S. Dept. of Labor, 694 F.2d 619, 621 and 623 (Anderson, dissenting) (9th Cir. 1982).
. The petitioners seem to argue that they were denied a hearing as permanent employees of the State of West Virginia and entitled to various rights under West Virginia law as such permanent employees. Those rights are not involved, however, in this proceeding which is concerned only with claims under CETA itself.
Reference
- Full Case Name
- Albert J. MOELLENDICK, Robert Berry and Roland McCulty v. WEST VIRGINIA GOVERNOR'S OFFICE OF ECONOMIC AND COMMUNITY DEVELOPMENT, and Raymond J. Donovan, Secretary, United States Department of Labor
- Cited By
- 1 case
- Status
- Published