The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
Individual plaintiffs Carter, Killings and Kearer were employed by the City of New York under Title II of the Comprehensive Employment and Training Act of 1973, as amended, 29 U.S.C. § 801 et seq. ("CETA" or "the Act"). They were discharged under circumstances which plaintiffs allege violated constitutionally protected property interests, as well as the statute and federal regulations promulgated thereunder. The individual plaintiffs, joined by the CETA Workers' Action Committee, commenced this action against the City and certain of its officials (the City defendants) and certain officials of the United States Department of Labor (the federal defendants). The public official successors to the original individual defendants are automatically substituted as parties. Rule 25(d), F.R.Civ.P. Plaintiffs prayed for class action certification, which this Court granted in its Memorandum Opinion of July 28, 1978, familiarity with which is assumed. The certified class includes "(a) all persons who are currently enrolled, or become so prior to judgment in this action, under Titles II and VI in the CETA program administered by the City of New York, and (b) all persons who have been terminated for cause from such titles." Mem. op. at 26. The complaint seeks a declaration that the terminated plaintiffs' and class members' rights were violated, on the constitutional, statutory and regulatory theories, and prays for reinstatement, back pay, and hearings into the circumstances resulting in discharge. Plaintiffs further seek an order directing implementation by the City of hearings prior to termination of CETA employees, and an order enjoining payment of federal CETA funds to the City until such procedures are instituted.
Subsequent to class certification, the City defendants moved for summary judgment dismissing the complaint in its entirety. Plaintiffs cross-moved for partial summary judgment on their constitutional and statutory/regulatory claims. Resolution of these motions was deferred, as the three parties sought to negotiate an overall settlement. Plaintiffs and the federal defendants have now agreed upon a settlement, which the Court is asked to approve, after appropriate notice to the class members. Rule 23(e), F.R.Civ.P. However, plaintiffs and the City defendants could not compose their differences, and so the cross-motions for summary judgment have been revived. In addition, the City defendants, given their view of the merits as expressed in their summary judgment motion, and in view of the impact upon the City of the federal settlement if approved, oppose the requested judicial sanction of that settlement.
On a constitutional level, plaintiffs' claim that they were entitled to pre-termination hearings implicates the due process clauses of the Fifth and Fourteenth Amendments. In addition, plaintiffs Carter and Kearer allege that they were discharged in reprisal for their exercise of their right of free speech, in violation of the First Amendment.
I first consider plaintiffs' and the City defendants' summary judgment cross-motions, and then the motions of plaintiffs and federal defendants to confirm the settlement negotiated by those parties, opposed by the City defendants.
The original CETA legislation was the Comprehensive Employment and Training Act of 1973, Pub.L. No. 93-203, 87 stat. 839, codified at 29 U.S.C. §§ 801 et seq. CETA is a multi-billion dollar program to provide job training and employment opportunities to low income persons. The program is administered at the federal level by the Secretary of Labor. State and local units of government may become "prime sponsors" and assume responsibility for administering CETA in a designated area, 29 U.S.C. § 812. Since receiving its initial CETA grant, the City of New York has acted as a prime sponsor.
On July 29, 1974, the United States Department of Labor approved the City's application for a grant to operate a public service employment program under Title II of CETA, for the period from July 1, 1974 to June 30, 1975. CETA authorizes the Secretary of Labor to contract with eligible applicants such as the City "in order to make financial assistance available for the purpose of providing transitional employment for unemployed and underemployed persons in jobs providing needed public services"; the ultimate legislative objective is "enabling such persons to move into employment not supported under this chapter." 29 U.S.C. § 962(a). The City's original grant application discussed the placement of CETA-subsidized public service employees in unsubsidized employment. In respect of unsubsidized public employment, the City's application, approved by the Secretary by virtue of the issuance of the grant, recited that "movement of public service employees into unsubsidized public service jobs will occur as CETA Title II enrollees take civil service examinations and new hires into civil service positions are drawn from lists of those who have passed the appropriate examination." The City application further observed: "Entry into permanent civil service positions is through civil service examinations. The City is required by law to hire employees into available vacancies on the basis of the highest passing grades achieved." In these circumstances, the City expressed its inability to forecast the number of CETA trainees who would ultimately be assimilated into unsubsidized public employment. As for the private sector, the City's grant application recited: "Placement of as many enrollees as possible into unsubsidized private sector jobs is a primary objective of the City"; procedures intended to achieve that objective are set forth in the grant.
The City implemented its CETA program during the fall of 1974 and the spring of 1975. On June 30, 1975, the Department of Labor approved a modification to the City's grant. The amendments submitted by the City pertinent to this litigation dealt, inter alia, with the status of CETA participants in City employment. The grant modification recites: "The current status of all CETA participants in City employment is provisional." A provisional status impacts directly upon an individual's right to a pre-termination hearing. Thus the grant modification recites:
"Under State Civil Service Law, provisional or temporary employees whether unsubsidized or not are not entitled to a hearing prior to dismissal or to placement upon a preferred eligible list prepared in the case of lay-off for possible re-appointment. Such rights can be provided only to permanently appointed employees, generally those in competitive class who have been appointed after competitive examination."
Further addressing this subject, the grant modification recites:
"Several means of obtaining resolution of complaints are open to these employees. At the first level, a participant may request a decision in his or her favor by the EEA/CETA coordinator in the employer agency. Secondly the incumbent can contact EEA/CETA II Administration. Participants occupying titles covered by collective bargaining agreements 1500 of the current EEA participants can bring the issue to their union. The City's EEO guidelines provide that if the matter of a complaint is related to equal employment opportunity the participant will be able to bring the issue to the attention of the EEO officer in his or her agency. However, CETA Title II participants cannot be assured of formal hearing procedures on the issue of termination from a CETA II position, because Section 75 of the State Civil Service Law does not apply to employees who are provisional, probationary or temporary. To establish formal hearings for CETA II employees would depart from the principle that CETA II employees enjoy the same rights and benefits as other similarly situated employees; in effect, it would grant CETA II incumbents more rights than are accorded other provisional or temporary employees." (footnote omitted).
The quoted analysis reflects the fact that, under New York law, temporary and provisional appointees, employed without civil service examination, do not acquire tenure and its accompanying right to pre-disciplinary or pre-termination hearings on stated charges. See Russell v. Hodges, 470 F.2d 212 (2d Cir. 1972).
CETA contains no specific provisions dealing with the dismissal of CETA employees. However, the Secretary has rule-making authority under the statute, 29 U.S.C. §§ 848(d), 982(a); and, in May, 1975, he published revised regulations effective July 1, 1975. One of those regulations, 29 C.F.R. § 98.26, reads in part as follows:
"(a) Each prime sponsor or eligible applicant shall establish a procedure for resolving any issue arising between it (including any subgrantee or subcontractor of the prime sponsor) and a participant under any Title of the Act. Such procedures shall include an opportunity for an informal hearing, and a prompt determination of any issue which has not been resolved. When the prime sponsor or eligible applicant proposes to take an adverse action against a participant, such procedures shall also include a written notice setting forth the grounds for any adverse action proposed to be taken by the prime sponsor or eligible applicant and giving the participant an opportunity to respond.
In July, 1975, the City implemented its "Participant Complaint Review Procedures," and submitted them to the Department of Labor as a part of its CETA Affirmative Action Plan. The City's procedures covered two general areas: complaints received on wages, fringe benefits and the like; and complaints on adverse actions that might result in termination. The latter procedures, whose full text appears in the margin,
provide for notification and review of adverse action, but, consistent with the City's stated policy, do not provide for a pre-termination hearing, with the rights of notification of charges, confrontation of witnesses, and representation.
In the spring of 1976, the Department of Labor notified the City that its complaint procedures did not meet the requirements of the Secretary's regulation, § 98.26(a). Meetings and correspondence between City and federal official ensued. On June 30, 1976, during the pendency of this dialogue, the Department extended the City's CETA grant from July 1, 1974 to January 31, 1977. The City formulated revised complaint procedures, which still fell short of requiring a full pre-termination hearing. The regional administrator of the Department of Labor expressed approval of the revised procedures; but upon further review the Department of Labor expressed continuing dissatisfaction with them, and by letter dated July 5, 1977 commenced administrative action against the City defendants, directing the City to review all cases of CETA participants who were terminated for reasons other than funding and unavailability, and who also complained to the City ...