Appeal from a judgment by the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, dismissing appellants' complaint on the basis of a failure to state a claim and a lack of subject matter jurisdiction. Appellants, participants in the Public Service Employment component of the Department of Labor's CETA program, 29 U.S.C. § 801 et seq . (1979), alleged failure by prime sponsors, subrecipients, and federal officials to provide job training and services required by the Act. Affirmed.
Before Friendly, Oakes and Newman, Circuit Judges.
This appeal presents the question whether the Comprehensive Employment and Training Act as amended substantially in 1978 (CETA or "the Act")*fn1 either expressly or impliedly authorizes a private cause of action, against "prime sponsors" and other recipients of federal funds, by individual program participants claiming the following: inadequate training or services under the Act, failure to prepare individual "employability development plans," lack of efforts to bring about placement in unsubsidized employment, and lack of services by a state employment service. Also involved here is the question whether the Secretary of Labor and his Regional Director can be sued for alleged failures to monitor a prime sponsor's CETA program and to ensure enforcement of applicable law. The United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, dismissed the complaint on the bases that plaintiffs had failed to state a claim upon which relief could be granted, Fed.R.Civ.P. 12(b)(6), and that the court was without subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). We affirm.
This is a proposed, though as yet uncertified, class action brought on behalf of some 16,000 persons employed on or after April 1, 1979, by the City of New York or one of its contractors or subrecipients under the Public Service Employment (PSE) component of CETA, Titles II D and VI, 29 U.S.C. §§ 853-859, 961-970. Suit was brought against the City of New York, a municipal corporation and CETA "prime sponsor" eligible for, and the recipient of, federal funds for CETA programs, and against various city, state, and federal officials charged with parts of the program's administration. They include the following: the Mayor of New York City, the Commissioner of the Human Resources Administration (HRA), the Commissioner of the Department of Employment of HRA and his assistant, the Director of the Department of Personnel of the Civil Service Commission, and several other city officials; the Deputy State Administrator for New York City Courts; and the State Director of the New York State Employment Service (NYSES) of the New York Department of Labor, which under administrative regulations and contract with the City must provide employment referral and counseling, assistance in finding unsubsidized employment, and other employability development services to CETA employees of the City and its agencies, departments, subrecipients, and contractors. Suit was also brought against the American Jewish Congress (AJC), a nonprofit corporation that is a CETA subrecipient of the City, and against a defendant class of more than 100 other CETA contractors and subrecipients, as well as against the United States Secretary of Labor and the Regional Administrator for Region II of the Labor Department's Employment and Training Administration.
The principal claim in the complaint is that the individual plaintiffs have not received "adequate training, employability counseling or services" while PSE participants. This claim is based on the proposition that the City defendants have allocated substantially less than ten percent of fiscal-year 1979 Title II D and Title VI funds for these purposes, as required by the Act, §§ 232(b)(2), 603(a), 605(c), 29 U.S.C. §§ 854(b)(2), 963(a), 965(c). The failure to provide training is also alleged to violate §§ 201, 205(c)(4) and 602(a), (c) of the old Comprehensive Employment and Training Act of 1973, as amended prior to 1978, 29 U.S.C. §§ 841, 845(c)(4), 962(a), (c) (1976).
Other claims include the City's alleged failure to assist each individual class participant in establishing his or her "employability development plan," also known as a "personalized employability plan," in violation of a statutory required, CETA § 205(a), 29 U.S.C. § 845(a), and its failure to provide required periodic reviews of employment potential during tenure as PSE participants, assessments generally mandated by the statute, CETA § 605(c), 29 U.S.C. § 965(c), and spelled out by the regulations, 20 C.F.R. § 678.3(h). The complaint also cites a lack of efforts to bring about placement in unsubsidized employment, pursuant to §§ 201, 231, and 605(c) of the Act, 29 U.S.C. §§ 841, 853, 965(c). See 20 C.F.R. § 675.6(d).
As previously mentioned, the complaint also claims that the NYSES failed to provide required assistance, in violation of the Department of Labor Field Memorandum No. 307-78, as well as agreements between the State Employment Service and the City. Plaintiffs claim further that the federal defendants have failed to monitor adequately NYSES's compliance with the memorandum and the City defendants have failed to obtain such compliance. Finally, the claim is made that the City has failed by a significant margin to place half of its terminated PSE participants in unsubsidized employment, contrary to the 1977 CETA regulations, 20 C.F.R. §§ 96.33(c) and 99.36.
For purposes of this case we are, of course, required to assume that all of these alleged violations of the statute and regulations have occurred. The primary legal question presented, then, is whether a private right of action may be brought under the Act.
A. Express Right of Action
Appellants first argue that § 106(l) of CETA, 29 U.S.C. § 816(l), explicitly authorizes actions in federal district court to pursue remedies for CETA violations.
The existence of remedies under this section shall not preclude any person, who alleges that an action of a prime sponsor or of any other recipient violates any of the provisions of the Act or the regulations promulgated under the Act, from instituting a civil action or ...