the daily operational activities of the business.
Letter from Hudson to Grier of September 29, 1988, at 2. The regulations also specifically state that the agency should view relationships between the employees and employers carefully.
Plaintiffs complain that DOT was obligated to conduct a de novo review of the denials of MBE certification and that its denial of a de novo review and an evidentiary hearing was arbitrary and capricious. Simple analysis shows this position to be untenable. First, the regulation at issue does not require a de novo review; by its terms the regulation calls for a "prompt investigation." See 49 C.F.R. § 23.55(b). DOT is not required to conduct a de novo review by either the Title VI procedures or the DOT's regulations. See Declaration of William T. Hudson, at 3. Second, in their pursuit of MBE certification, plaintiffs were afforded three evidentiary hearings (one initial hearing before each agency and then a remand hearing). A tremendous number of documents were submitted and a good deal of government resources were consumed. There is no reason to believe that a de novo review or another evidentiary hearing would provide any additional useful information. Since the DOT acted responsibly and within the letter of its regulations, it did not act arbitrarily or capriciously in performing its review of the remand proceedings.
Plaintiffs also allege that defendants have altered the existing regulations governing the eligibility standards for MBE certification without engaging in the rule-making procedures required by the APA. Plaintiffs allege that DOT effectively replaced the term "power" in 49 C.F.R. § 23.53(a)(3) with "sufficient technical background and expertise" and eliminated the remainder of the section. See, e.g., Memorandum in Support of Plaintiffs' Cross-Motion for Summary Judgment at 36-37. As we have already discussed, defendants followed a reasonable interpretation of their regulations, including the questioned section. They did not alter the regulations and therefore, this argument cannot succeed.
Plaintiffs' constitutional claims are also without merit. Plaintiffs allege that MBE certification constitutes a property right, and that its denial was a violation of their Fifth Amendment right to due process. They also claim that Pendleton's right to equal protection of the law was violated because she was treated differently from similarly situated women or minority owners of business enterprises. These claims do not survive scrutiny.
There was no violation of Pendleton's due process rights by DOT's denial of MBE certification. Pendleton may have a limited property right in MBE certification, an issue which we need not reach. However, even assuming arguendo that there is some property interest, plaintiffs received more than adequate process prior to the denial of certification.
The procedure required by due process is determined by a weighing of the private interest involved, the risk of an erroneous deprivation of such interest, the probable value of additional procedural safeguards, and the government's interest. See Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18 , 96 S. Ct. 893 (1976). The private interest at issue here, the right to be considered for certain government contracts, is not nearly as great as other interests where the courts have found due process rights. For example, the right to certification as a MBE does not rise to the level of the right to subsistence payments, Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287 , 90 S. Ct. 1011 (1970), the right to social security payments, Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18 , 96 S. Ct. 893 (1976), or even the right not to be fired from a government job without cause, see Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494 , 105 S. Ct. 1487 (1985).
The right asserted in this case is to be weighed against the process provided. As the record indicates, plaintiffs were provided with a hearing with counsel before the MTA and the NYCTA, and were permitted to appeal their decisions to DOT. At both levels a written opinion was delivered. In this case, plaintiff's application went through a second de novo hearing at the state level and subsequent review by DOT. Again, plaintiffs were represented by counsel and Pendleton was permitted to give testimony. Plaintiffs received more process than that which the Supreme Court required in the aforementioned subsistence cases. If this is not sufficient process, we can not imagine what would satisfy plaintiffs.
The risk of an erroneous deprivation under such a procedure is slight. DOT had the benefit of an extensive administrative record where plaintiff Pendleton was accompanied by counsel. Requiring two de novo trials is ludicrous: there is no reason that DOT should not be permitted to review the record of the agency's determination for error. A second evidentiary trial would cost the government resources to protect what is at best not a very important property right. Cf. Town Court Nursing Center, Inc. v. Beal, 586 F.2d 266, 278 (3d Cir. 1978) (en banc) ("the public interest in conserving scarce financial and administrative resources is strong"; rejecting pre-termination hearings for nursing homes participating in Medicaid). Plaintiffs received more than adequate process in this case.
The equal protection claim also fails.
Equal protection might support the claim that Pendleton, as a woman, is being treated differently from male applicants; however, it does not support an argument that Pendleton is being treated differently from other female MBE applicants. Plaintiffs' argue that DOT's denial of certification was intentional, differential treatment based on sex. See Plaintiffs' Opposition to Defendants' Motion for Summary Judgment at 40. However, this argument begs reason: only women and minorities are even eligible for MBE certification; consequently, Pendleton's denial cannot be based on her sex. Plaintiffs admit that summary judgment is appropriate where plaintiffs put forward no evidence tending to establish discriminatory intent, see Plaintiffs' Opposition to Defendants' Motion for Summary Judgment at 41. In this case, we can see no evidence that establishes discriminatory intent. Consequently, we grant summary judgment on the equal protection claim.
For the reasons given above, plaintiffs' cross-motion for summary judgment is denied and defendants' motion for summary judgment is granted. An order consistent with this opinion is filed this date.
ORDER - November 12, 1991, Filed
Upon consideration of Defendants' Motion for Summary Judgment, Plaintiffs' Cross-Motion for Summary Judgment, memoranda in support and opposition thereto, the whole record therein, and in accordance with the Opinion filed this day, it is by the Court, this 12th day of November, 1991, hereby
ORDERED that Defendants' Motion for Summary Judgment is granted; and it is
ORDERED that Plaintiffs' Cross-Motion for Summary Judgment is denied; and it is
FURTHER ORDERED that this case shall stand dismissed with prejudice.