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MANDO v. BEAME

June 24, 1975

DANIEL J. MANDO, et al., Plaintiffs,
v.
ABRAHAM BEAME, et al., Defendants



The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

 Brieant, J.

 Plaintiffs are employed by the City of New York and paid with federal funds granted pursuant to the Emergency Employment Act of 1971, 42 U.S.C. § 4871, et seq. (the "Act" or the "EEA"). Their amended complaint alleges that the City, in its administration of the EEA program, discriminates against its EEA employees, and in favor of its "regular", or locally funded employees, in violation of rights secured to them by the 14th Amendment of the Constitution, and the Act. Plaintiffs seek injunctive and declaratory relief pursuant to 28 U.S.C. § 2201 and § 2202 for themselves and all others similarly situated. *fn1"

 A preliminary injunction was sought to prevent termination of employment of all New York City EEA employees on June 30, 1974 when federal funding of the program was scheduled to end. Additional federal funds were obtained under the Act, and on July 29, 1974, continued funding was approved pursuant to The Comprehensive Employment and Training Act of 1973, 29 U.S.C. § 801, et seq., which superseded the Emergency Employment Act. The named plaintiffs continue to be employed by the City, and paid with federal funds. Preliminary injunctive relief therefore became unnecessary.

 A motion to intervene made by the American Federation of State, County and Municipal Employees, AFL-CIO, was denied on October 4, 1974, but the union was permitted limited participation in this litigation as amicus curiae.

 Defendants now move pursuant to Rule 12(c), F.R.Civ.P., for an order dismissing the amended complaint for want of subject matter jurisdiction.

 The stated legislative purpose of the Emergency Employment Act was [42 U.S.C. § 4871]:

 
"to provide unemployed and underemployed persons with transitional employment in jobs providing needed public services during times of high unemployment and, wherever feasible, related training and manpower services to enable such persons to move into employment or training not supported under this chapter."

 In periods of high unemployment, as determined by the administrator of the Act, the Secretary of Labor, he "shall enter into agreements with eligible applicants" [42 U.S.C. § 4875(a)] such as municipalities to provide funds for public service jobs and job training for unemployed or underemployed persons. Wages and benefits for EEA employees are to be equal to those of regular city employees doing the same work, and EEA employees are to enjoy working conditions and opportunities for advancement equal to those of regular city employees. Programs must be designed to contribute to the occupational development and "upward mobility" of the participants, to the end that the participants, if possible, can achieve permanent skilled employment with the city, or in private industry. [42 U.S.C. § 4876].

 As a condition precedent to providing financial assistance to a municipality, the Secretary must determine that [42 U.S.C. § 4881(a)]:

 
"(2) persons employed in public service jobs under this chapter shall be paid wages which shall not be lower than whichever is the highest of (A) . . .; (B) . . .; or (C) the prevailing rates of pay for persons employed in similar public occupations by the same employer; . . . .
 
(4) all persons employed in public service jobs under this chapter will be assured of workmen's compensation, health insurance, unemployment insurance, and other benefits at the same levels and to the same extent as other employees of the employer and to working conditions and promotional opportunities neither more nor less favorable than such other employees enjoy; . . . ."

 The Secretary has enacted comprehensive regulations, as authorized by § 4881(a) of Title 42. See 29 C.F.R. § 55.0, et seq. He is empowered to withhold funds if he finds any violation of any provision of the Act. Periodic reports are required of recipient employers.

 Plaintiffs contend that New York City, despite its assurances to the Secretary, has not allowed EEA employees equal pay and benefits, and actively has prevented them from preparing for and taking civil service examinations which would enable them to move into permanent, unsubsidized municipal employment. These benefits are available to regular City employees, and therefore, plaintiffs argue, by treating them differently and arbitrarily, the City is violating the Act and depriving them of equal protection under the 14th Amendment. Plaintiffs bring their constitutional claim under the Civil Rights Act, 42 U.S.C. § 1983, with jurisdiction based on 28 U.S.C. § 1343(3). They also allege ...


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