The Bradley Court enumerated three factors to be considered in assessing whether manifest injustice would occur: "(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights." 416 U.S. at 717. This Circuit recently applied the Bradley test in Ralis. 770 F.2d at 1129. In Ralis, the plaintiff, an American citizen domiciled in France, sued his employer under the Age Discrimination in Employment Act ("ADEA"), claiming that his involuntary retirement was discriminatory. At the time his suit was brought, ADEA did not extend to private employment performed in foreign countries; but during the pendency of his action, ADEA was amended to reach such cases. The District of Columbia Circuit declined to apply the amendment to the plaintiff, finding that to do so would be manifestly unjust because the amendment had affected a substantive change in the parties' legal rights and obligations. Ralis, 770 F.2d at 1129. Using this analysis, the Center contends that the current version of 1625.3(c) modifies the Center's prior right to a "second chance" through notice and an opportunity to correct. The Center argues that under Ralis it is unreasonable and manifestly unjust to penalize it after the fact for failing to have in place self-appraisal procedures that were not obligatory during the period of review. In response, LSC asserts that the Ralis Court distinguished between amendments that effect changes in substantive rights or obligations and those that merely alter procedural rights. Additionally, LSC contends that Ralis is consistent with Womack v. Lynn, 164 U.S. App. D.C. 198, 504 F.2d 267, 269 (D.C. Cir. 1974), where this Circuit held that the statutory change merely altered the procedural remedies appurtenant to a pre-existing right, and held that the statute as amended applied.
After evaluating the relative merits of the parties' contentions, the Court concludes that the current version of § 1625.3(c) does no manifest injustice to the Center.
Although the Center correctly states that the parties herein are private entities,
the second and third prong of the Bradley test weigh against the Center. Regardless of which version of § 1625.3 is applied to these facts two points are evident. First, under either version, the grant recipient was required to use its resources to provide economical and effective legal assistance. The parties do not disagree on this point. Second, neither version gives the Center an absolute right to notice and an opportunity to correct. Thus, the Center has not been deprived of any matured or unconditional right. See Ralis, 770 F.2d at 1128. From the record before this court, one could rationally find that the Center "could not reasonably have been unaware" of its deficiencies or that the Center's deficiencies were unusual.
There is no contention that these findings are mutually exclusive in this case. Although the Center chooses to define the usual in terms of the Center's practices, the fact remains that the Center's inability to provide both effective and economical legal assistance appears to constitute an unusual occurrence. This does not mean that the Center was professionally incapable of performing this task, but that the record indicates the Center's lack of success in providing cost effective assistance in proportion to the amount of grant money received.
The primary substantive issue in this case is whether the Final Decision, which adopts most of the findings of the Hearing Examiner, was arbitrary and capricious in its findings regarding the underutilization of the Center. Based on the evidence at the hearing and the Hearing Examiner's Recommended Decision, the LSC President premised his decision to deny funding on three independent grounds. First, the Center failed to provide economical and effective legal assistance in that it failed to produce a sufficient amount of work. Second, the Center failed to provide economical and effective legal assistance to the extent that its executive director engaged in activities other than those for which LSC grant funds are intended. Third, the Center failed to comply with applicable statutes, regulations and contractual provisions in that it improperly employed LSC grant funds to subsidize activities for which those monies could not properly be used.
In its papers, the Center vigorously asserts that the Corporation never imposed any numerical benchmark on its productivity. Further the Center suggests that without specific quantitative standards, the appropriate question is whether NSSLC's productivity increased during the period of review. Under the Center's view, the emphasis placed on the number of social science work products generated during the period of review penalizes NSSLC for time committed to major research projects. Accordingly, NSSLC contends that the relative weight of different categories of work products based on complexity and sophistication was not given proper weight. Also, the Center challenges the experience of at least one member of the monitoring team in providing social science research to legal services lawyers. Finally, the Center dismisses the Final Decision :
1. Even if every one of the 124 projects begun in 1985 took as long to complete as did the average project in the most sophisticated category, a total of 5,518 hours would have been spent on the 124 projects. This would require 2.8 social scientists on [a] full time basis.
2. The five active social scientist were employed for a total of 9,750 hours during 1985. For each of the 124 projects, therefore, the Center employed an active social scientist for more than 78 hours. As even the most sophisticated projects averaged only 44.5 hours to complete, more than 34 hours of unproductive professional time are associated with each project.