Donald Greer v. Elaine L. Chao

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2246
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Donald Greer, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Elaine Chao, Secretary of the * District of Minnesota.
United States Department of *
Labor, *
*
Appellee. *
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Submitted: February 12, 2007
Filed: July 9, 2007
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Before LOKEN, Chief Judge, O’CONNOR * , Associate Justice (Ret.), and
GRUENDER, Circuit Judge.
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O’CONNOR, Associate Justice (Ret.).
This case considers the response of the Department of Labor’s Office of Federal
Contract Compliance Programs (OFCCP) to Donald Greer’s complaint filed under the
Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as
*
The Honorable Sandra Day O’Connor, Associate Justice of the United States
Supreme Court (Ret.), sitting by designation, pursuant to 28 U.S.C. § 294(a).
amended. Because the OFCCP promptly discharged its duty to conduct an
investigation into Greer’s administrative complaint, we conclude that the Secretary of
Labor’s response in this case represents a decision committed to agency discretion and
is, therefore, immune from judicial review.
I.
The Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA),
as amended, provides that the federal government shall require its contractors to “take
affirmative action to employ and advance in employment qualified covered veterans.”
38 U.S.C. § 4212(a). In addition, the statute provides that a covered veteran who
believes that a government contractor has not complied with VEVRAA “may file a
complaint with the Secretary of Labor, who shall promptly investigate such complaint
and take appropriate action in accordance with the terms of the contract and applicable
laws and regulations.” 38 U.S.C. § 4212(b). The Secretary of Labor has charged the
Office of Federal Contract Compliance Programs (OFCCP) with investigating
complaints made against contractors. 41 C.F.R. 60-250.60, 60-250.61(a). After the
OFCCP receives such a complaint, it is directed to “prompt[ly] investigat[e],” 41
C.F.R. 60-250.61(d), and determine whether to pursue enforcement proceedings
against the contractor. 41 C.F.R. 60-250.65, 60-250.66. If the OFCCP determines
either that the contractor has not committed an infraction or that initiating enforcement
proceedings is unwarranted, the OFCCP informs the complainant and the contractor,
usually in a Notice of Results of Investigation. 41 C.F.R. 60-250.61(e)(1).
On November 15, 2001, Donald Greer, a covered veteran of the Vietnam era,
filed a complaint with the OFCCP asserting that his employer, Eaton Corporation, had
failed to comply with VEVRAA. Among other assertions, Greer contended that Eaton
had not adequately trained its employees in VEVRAA and had not adhered to the
affirmative obligations that the statute imposes. On November 27, 2001, less than two
weeks after Greer filed his complaint, OFCCP began an investigation. Over the
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ensuing eighteen-month period, OFCCP agents visited Eaton Corporation, reviewed
Greer’s employment file, interviewed Greer’s coworkers, and discussed employment
decisions with Eaton managers. On August 29, 2003, OFCCP notified Greer in a
Notice of Results of Investigation that the investigation had turned up insufficient
evidence to conclude either that Eaton had discriminated against him or that Eaton had
violated any of its affirmative obligations. Accordingly, the OFCCP informed Greer
that it would not seek enforcement action against Eaton. Although Greer asked the
OFCCP to reconsider its decision, OFCCP’s Regional Director issued a letter
affirming the agency’s initial findings.
Greer filed a lawsuit in district court seeking review of this decision under the
Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., asserting that the agency
had not complied with the obligations imposed by VEVRAA. The Secretary of Labor
moved to dismiss the case, contending that the district court lacked jurisdiction
because the agency’s decision to decline enforcement proceedings against Eaton was,
under Heckler v. Chaney, 470 U.S. 821 (1985), and related cases, immune from
judicial review. Greer responded by suggesting that Chaney was irrelevant: “[Greer]
is not contesting the Secretary’s decision not to take enforcement action against Eaton
Corporation. He is asking this Court to require the Department of Labor (DOL) to
conduct an investigation of [Greer]’s claims before making any decision.” Plaintiff’s
Reply Memorandum to Defendant’s Response to Plaintiff’s Motion for Summary
Judgment, at 1-2. The district court avoided resolving the case in light of Chaney, and
instead granted summary judgment to the Secretary of Labor because Greer’s affidavit
in support of his motion for summary judgment had not been successfully filed. By
the district court’s lights, this failure to file meant that Greer had proffered no
evidence in support of his allegations against Eaton Corporation.
This appeal followed.
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II.
VEVRAA provides that when a Vietnam Era veteran files a complaint with the
Secretary of Labor, she “shall promptly investigate such complaint and take
appropriate action in accordance with the terms of the contract and applicable laws
and regulations.” 38 U.S.C. § 4212(b). The question we consider today is whether
this language permits us to review the agency’s conduct in response to Greer’s
administrative complaint. We hold that it does not.
There is a strong presumption that agency action is reviewable by courts. See
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). That
strong presumption, however, is not an absolute. Indeed, the Administrative
Procedure Act (APA) provides an exception to judicial reviewability where agency
action is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). And as the
Supreme Court of the United States observed in Chaney, “review is not to be had if
the statute is drawn so that a court would have no meaningful standard against which
to judge the agency’s exercise of discretion.” 470 U.S. at 830. See also Ngure v.
Ashcroft, 367 F.3d 975, 981-82 (8th Cir. 2004).
In Chaney, the Court held that when an agency declines to initiate enforcement
proceedings, that decision is not presumptively reviewable. See id. at 831. This is
true because when an agency decides to seek enforcement actions (or declines to seek
enforcement actions), it is entitled to the same type of discretion that a prosecutor is
afforded in bringing (or not bringing) criminal charges. See Chaney, 470 U.S. at 831
(“[A]n agency’s decision not to prosecute or enforce, whether through civil or
criminal process, is a decision generally committed to an agency’s absolute
discretion.”); Drake v. FAA, 291 F.3d 59, 71 (D.C. Cir. 2002) (noting that “when [the
Federal Aviation Agency’s] prosecutorial discretion is at issue, the matter is
presumptively committed to agency discretion by law”).
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Chaney deemed enforcement decisions “general[ly] unsuitab[le]” for judicial
review because “an agency decision not to enforce often involves a complicated
balancing of a number of factors which are peculiarly within its expertise.” 470 U.S.
at 831. In addition to “assess[ing] whether a violation has occurred,” the agency must
also assess “whether agency resources are best spent on this violation or another,
whether the agency is likely to succeed if it acts, whether the particular enforcement
action requested best fits the agency’s overall policies, and, indeed, whether the
agency has enough resources to undertake the action at all.” Id. And Chaney
expressly noted that agencies need not pursue every statutory violation that they may
encounter. See id. at 831-32 (“An agency generally cannot act against each technical
violation of the statute it is charged with enforcing. The agency is far better equipped
than the courts to deal with the many variables involved in the proper ordering of its
priorities.”).
Greer styles his lawsuit as contesting the Secretary’s investigation in response
to his administrative complaint because there can be no question that a direct
challenge to the Secretary’s enforcement decision would be impermissible. If
VEVRAA provided a “meaningful standard against which” to evaluate the agency’s
“exercise of discretion” in this context, then we would be able to review the decision
declining to pursue enforcement proceedings. Chaney, 470 U.S. at 830, 832. But, as
then-Judge Kennedy found when he entertained a challenge to an enforcement
decision under VEVRAA, the statute contains no such meaningful standard. See
Clementson v. Brock, 806 F.2d 1402, 1404 (9th Cir. 1986). Interpreting the same
language that we consider today, Clementson observed that the statutory language
“provides no indication of what ‘appropriate action’ is; it lists no factors for OFCCP
to consider in making that determination; and it specifies no standards for a court to
use in cabining the agency’s discretion.” Id. “In short,” then-Judge Kennedy wrote,
“it leaves us with no ‘law to apply.’” Id. See Overton Park, 401 U.S. at 410 (declining
the presumption of reviewability “where statutes are drawn in such broad terms that in
a given case that there is no law to apply”) (internal quotation marks omitted).
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Accordingly, Greer asserts that he is challenging not the agency’s enforcement
powers, but its supposed failure to investigate certain claims within his complaint. At
least one district court has previously analyzed objections to agency investigations in
light of Chaney. In Giacobbi v. Biermann, 780 F. Supp. 33 (D.D.C. 1992), Frank
Giacobbi filed a complaint with the Department of Labor under Section 503 of the
Rehabilitation Act of 1973, which directs that the Department “shall promptly
investigate such complaint and shall take such action thereon as the facts and
circumstances warrant.” 29 U.S.C. § 793. Subsequently, the OFCCP investigated the
complaint, concluded that no Section 503 violation had occurred, and notified
Giacobbi of its conclusions in a Notice of Results of Investigation. In turn, Giacobbi
filed a lawsuit predicated on the APA in which he contended “it [was] not the decision
not to take enforcement action that he ask[ed the district court] to review; rather, it
[was] the . . . manner in which the investigation was carried out.” 780 F. Supp. at 37.
The court in Giacobbi, however, rejected this contention: “This argument cannot
succeed because the investigation itself, like the final decision whether or not to take
enforcement action, is within the ‘enforcement arena’ and therefore, committed to
agency discretion.” Id. (quoting Robbins v. Reagan, 780 F.2d 37, 40 (D.C. Cir.
1985)). Drawing on Chaney, Giacobbi suggested that the manner in which an agency
opts to investigate a complaint is largely a matter left to the agency’s discretion:
“Deciding which claims are facially without merit, which claims merit investigation,
and the level of investigation desirable, are all enforcement-related decisions.” Id.
The court in Giacobbi understood the plaintiff’s disagreement with the agency’s
handling of his matter to hinge on two different problems with the agency
investigation: (1) the Department’s “investigation was not reasonably thorough” in
light of “inaccuracies in DOL findings” and “factually erroneous conclusions,” id. at
38-39; (2) Giacobbi “claims that his complaint of retaliation was not investigated at
all.” Id. at 39. As to the first contention, Giacobbi reasoned: “This Court’s only
function is to ascertain whether an investigation did take place. A review of the
DOL’s findings makes clear that the complaint was investigated.” Id. As to the claim
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regarding the absence of investigation regarding the retaliation claim, Giacobbi stated:
“It is true that the word ‘retaliation’ does not appear in the DOL findings. It would
appear, however, that the gravamen of Plaintiff’s retaliation claim was investigated.”
Id. In addition, Giacobbi rejected the contention that the Department is required to
address “each of the complaint’s claims individually.” Id. at 39, n.2. Noting that
Giacobbi appeared to be requesting “a more formal and detailed set of findings than
he received,” the court found that “[s]uch findings are not required.” Id.
In this case, Greer’s efforts to attack the agency’s investigation do nothing to
remove his lawsuit from the “enforcement arena.” There is no question that the
Secretary of Labor conducted an investigation into Greer’s complaint. Indeed, Greer’s
filings in district court acknowledge that the OFCCP investigated his administrative
complaint. See Amended Complaint ¶ 8 (“After the Department of Labor undertook
an investigation of plaintiff’s complaint, . . . ”).
None of Greer’s claims regarding the instant investigation distinguish this case
from Giacobbi. While one paragraph of Greer’s Amended Complaint discusses the
Secretary’s failure to conduct “a full, fair, and thorough investigation,” Amended
Complaint at ¶ 30, we find that the “level of investigation desirable” is fundamentally
an “enforcement-related decision[].” Giacobbi, 780 F.Supp. at 39. Accord Office of
Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C. Cir. 1997)
(“The scope of investigation . . . is very much dependent on the agency’s
interpretation and administration of its authorizing substantive legislation concerning
which the agency may enjoy interpretative deference.”). Moreover, at oral argument
in district court, Greer’s attorney said: “[The Department of Labor] investigated the
ultimate claims. They did not investigate the building blocks that led to them.”
1/25/06 Oral Arg. Tr. at 11. This sounds to us like an objection to the manner in
which the investigation was carried out.
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Although Greer styles his lawsuit as an objection to the Secretary’s failure to
investigate certain aspects of his larger complaint, it is clear that at bottom Greer
objects to the Secretary’s decision not to initiate enforcement proceedings against
Eaton. Indeed, there are portions of Greer’s filings in district court that strongly
indicate that he did not object to the Secretary’s investigation so much as its decision
regarding enforcement. See Amended Complaint ¶ 24 (“The materials provided
plaintiff do indicate that defendant has not even attempted to perform its legal duty to
enforce [VEVRAA], . . . . ”) (emphasis added); id. at ¶ 25 (“A measure of defendant’s
indifference to its enforcement responsibilities is its failure to rule on plaintiff’s
complaints of retaliation.”) (emphasis added). When it comes to the agency’s
discretionary enforcement powers, courts do not usually interfere. Chaney, 470 U.S.
at 834 (“The danger that agencies may not carry out their delegated powers with
sufficient vigor does not necessarily lead to the conclusion that courts are the most
appropriate body to police this aspect of their performance.”). We can find no reason
to depart from that standard practice here.
While an agency’s investigation might, at least conceivably, be so anemic that
its decision to decline enforcement proceedings would be suspect, we have no
occasion to pass on that scenario here. As then-Judge Kennedy wrote in Clementson,
“We express no opinion about reviewability in cases where an agency had adopted a
general policy so extreme as to amount to an abdication of statutory responsibility, for
no such claim is present in this case.” 806 F.2d at 1405 (citing Chaney, 470 U.S. at
833 n.4). See Giacobbi, 780 F. Supp. at 39 (rejecting the argument that “the
investigation was so cursory or wholly unreasonable that the Court should view it as
not having been made”). We do not encounter anything resembling such an anemic
investigation on the facts before us. Among other actions, OFCCP officials visited
Eaton, discussed conditions with coworkers, and interviewed managers. These
investigatory steps are sufficient to indicate that the Secretary discharged her statutory
obligations.
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While we do not rely on the reasoning of the district court, we nonetheless find
that it reached the correct result in granting summary judgment to the Secretary of
Labor. In light of the foregoing reasons, the judgment of the district court is affirmed.
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