Campesinos Unidos v. U.S. Department
of Labor, 84-7789 (9th Cir. 1986)
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NO. 84-7789
82-CTA-22 & 83-JTP-3
CAMPESINOS UNIDOS, INC.,
Petitioner,
v.
UNITED STATES DEPARTMENT OF LABOR,
Respondents
CENTER FOR EMPLOYMENT TRAINING,
Intervenor-Respondent.
OPINION
Petition for Review of an Order by the Secretary,
United States Department of Labor
Argued and Submitted August 5, 1986,
Pasadena, California
Before: ANDERSON, PREGERSON, and REINHARDT, Circuit Judges
REINEARDT, Circuit Judge:
I.
INTRODUCTION
Campesinos Unidos, Inc., petitions for review of the Department of
Labor's actions in selecting a competing applicant, the Center for Employment Training, to
administer employment and training programs for migrant and seasonal farmworkers in several
southern California counties during two discrete grant periods. The first of the two grant
programs involved was authorized by the Comprehensive Employment and Training Act
(CETA) for fiscal year 1982; the second by the successor statute, the Job Training Partnership
Act (JTPA), for fiscal year 1984. Each of the grants was for a two-year period. We have
Jurisdiction
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to review final decisions of the Department under both Acts. 29 U.S.C. § 817(a) (repealed
1982) and 29 U.S.C. §§ 1578(a) and 1591(e) (continuing § 817(a)
jurisdiction) (1982).
Because the grant periods have expired, retroactive remedies were not
requested, nor could we fashion any under the applicable statutes and regulations. Because the
petitioner does not fall within the "capable of repetition yet evading review"
exception and we are without authority to provide any meaningful prospective relief, we dismiss
the appeal as moot.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Campesinos Unidos is a private, nonprofit California corporation that
provides a variety of services to the migrant and seasonal farmworker populations in five
Southern California counties Orange, Riverside, San Diego, San Bernardino, and
Imperial. Its competitor in the grant solicitations, the Center for Employment Training
(intervener in these proceedings), provides similar services.
A. Comprehensive Employment Training Act Grant
In May 1981 the Secretary invited interested organizations to apply for
funding to operate employment and training programs for migrant and seasonal farmworkers for
fiscal year 1982. In July 1981 both Campesinos Unidos and the Center submitted applications for
funding to operate programs in the five counties listed above.
According to Department of Labor regulations and published
guidelines, the applications were reviewed and rated by a panel of two knowledgeable but
disinterested employees from the Office of Farmworkers and Rural Employment Programs.
Campesinos Unidos received a score of 50; the Center, a score of 49.
In early September 1981, the panel recommended to the Grant Officer
with authority to award funding that Campesinos Unidos's programs be funded in Orange,
Riverside, San Diego, and Imperial counties, and that the Center'. programs be funded in San
Bernardino County, as well as in a number of other counties not at issue here. Neither
organization received funding at that time, however. Rather, both were informed late in October
1981 that their funding requests were being placed in a "deferred" category while the
Department conducted a review of their management capabilities.
In February 1982, both organizations were notified that they had
passed the management review, and that they had been selected as potential grantees. The Grant
Officer indicated to Campesinos Unidos that he intended to award it funding for Imperial and
Riverside Counties, and that the Center's programs would be funded in San Diego, San
Bernardino, and Orange Counties. However, he did not issue final decision specifying his
reasons.
Campesinos Unidos then began a long odyssey through the
Department's appeal procedures. It filed a dual-purpose appeal with the Department's Office of
Administrative Law Judges (ALJ). First, it pressed for a final decision from the Grant Officer.
Second, it sought review of the proposed award to the Center, despite the lack of a final decision;
it contended that it was entitled to the award in all of the counties covered by its application
because of its higher rating from the panel. The ALJ twice ordered the Grant Officer to follow
prescribed procedures and issue a. final decision required by 20 C.F.R. §§ 676.86-88
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(l986). Nonetheless, the Grant Officer continued to refuse to do so, choosing instead to challenge
Campesinos Unidos's appeal with a motion to dismiss.
The Grant Officer issued a final decision selecting Campesinos Unidos
for funding in Imperial and Riverside counties only in October 1982. A previously filed motion
by Campesinos Unidos for sanctions against the Grant Officer was eventually denied by the ALJ
in August 1983. Campesinos Unidos has not petitioned for review of that order and the part of
the petition before us that relates to the CETA application is limited to the issues arising out of
the selection of the Center for funding in the three other counties.
During 1983 Campesinos Unidos continued to press for a hearing on
its claim that it was wrongfully denied funding in San Diego, San Bernardino And Orange
Counties. At the suggestion of the ALJ, it made a formal motion for an expedited hearing in
September 1983. Finally, in December 1983 the ALJ granted Campesinos Unidos's motion to
consolidate its CETA appeal with the second administrative appeal at issue here, the appeal
under the Job Training and Partnership Act, which was by then in effect.
B. THE JOB TRAINING AND PARTNERSHIP ACT GRANT
Like its predecessor CETA, the JTPA provides for the funding of
education and vocational training programs for migrant and seasonal farmworkers. 29 U.S.C.
§ 1672 {1982). Pursuant to his authority under the JTPA, the Secretary published a
"solicitation for grant application" in the Federal Register in May 1983, inviting
program proposals for fiscal year 1984. Again, both Campesinos Unidos and the Center for
Employment Training submitted competing applications to operate programs in the five disputed
counties, San Bernardino, Orange, Riverside, Imperial, and San Diego.
A more elaborate application and review procedure was established by
grant solicitation guidelines promulgated under the new Act. See 48 Fed. Reg. 23932-37, May
27, 1983; 20 C.F.R. § 633.201, et seq. (1986). Candidates' applications were first screened
for general eligibility. Their records an previous grantees were then reviewed, as part of a
separate Responsibility review,. to determine if they had responsibly administered federally
funded programs in the past. Applications that met these criteria, including those of both the
Center and Campesinos Unidos, were then forwarded to a neutral panel for competitive review
according to specific, published guidelines and rating criteria. Each proposal wan evaluated in
four areas: (l) administrative capability, (2) program experience, (3) program approval and
delivery system, and (4) linkages and coordination. The panelists assigned numerical ratings
within a specified range in each of those four areas for each proposal, and kept records of their
own observations and comments. After a conference, the panel members combined and averaged
their scores. A total of 100 points constituted a perfect score. Campesinos Unidos received an
average score of 88, while the Center received an average score of 96. The Grant Officer selected
the Center's programs for funding in all five counties.
At the consolidated hearing held in January 1984, Campesinos Unidos
presented extensive evidence of improprieties in the JTPA panel review process. Campesinos
Unidos contended, for example, that one or more panel members disregarded certain guidelines,
misunderstood at least one of the rating criteria, and considered material submitted by the Center
that exceeded the 75-page application limit. It also contended that the Grant Officer selected the
Center for funding in all five counties on the basis of score alone, despite the language in the
solicitation for grant applications requiring him to consider panelists' written comments as well.
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Considering each alleged error separately, the ALJ determined that
some mistakes had been made but concluded that each of the panel's scoring errors had only
deminimis effect. In a decision issued on September 14, 1984, the ALJ
found that the Grant Officers' selection of the Center over Campesinos Unidos for three counties
under the CETA program, and all five counties under the JTPA program, were not arbitrary and
capricious, and he affirmed the decisions. The Secretary declined to act on the matter, and
Campesinos Unidos petitioned this court for review.
Because we dismiss the appeal as moot, we do not determine the
merits of any individual allegation of error, nor do we decide whether a correction of all of the
alleged errors made in connection with the JTPA application would have resulted in Campesinos
Unidos receiving the grant award for any or all of the five counties. In fairness, however, we
should note that Campesinos Unidos's complaints are far from frivolous.
III .
DISCUSSION
A. Introduction
Campesinos Unidos's basic claim is that, in awarding funding for
these programs to the Center, the Department of Labor failed to follow its own guidelines and
procedures. It asks us to hold that those decisions were erroneous, and to either designate it as the
grantee in future JTPA grant competitions or, alternatively, remand to the Secretary with
instructions to give it some form of preference to future grant awards.
1Maine v. United States
Department of Labor, 770 F.2d 236 (1st Cir. 1985).
2We note, however, that
Campesinos Unidos could have sought judicial review of the Grant Officer's continued refusal to
issue a final decision on the CETA funding for fiscal 1982, under the APA, as an agency action
"unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706 (l) (1982).
SeeTelecommunications Research and Action Center v. Federal Communications
Commission,750 F.2d 70, 76-81 (D.C.Cir. 1984) (mandamus will lie to review claims of
unreasonable agency delay, which fall into narrow class of interlocutory appeals from agency
action over which Court of Appeals appropriately should exercise its jurisdiction).
3General procurement policies
also support this conclusion. See 41 U.S.C. § 253(a)(l) (A) (Supp. III 1985)
(government should procure goods and services through "full and open competition
through the use of competitive procedures.")