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Experience Works, Inc. v. Chao

June 17, 2003

EXPERIENCE WORKS, INC., PLAINTIFF,
v.
ELAINE CHAO, DEFENDANT.



MEMORANDUM OPINION

Plaintiff, Experience Works, Inc., is a not-for-profit organization which offers training, employment, and community service opportunities for older workers. It seeks, in this action, to enjoin the Department of Labor ("DOL" or"the Department") from completing its current grant-making cycle for the Community Service Employment Program ("the Program" or"SCSEP") authorized by the Older Americans Act, 42 U.S.C. § 3056, for Program Year 2003. Plaintiff's primary argument is that the DOL is violating the Older Americans Act by providing, for the first time, for a national competition of funds. According to Plaintiff's interpretation of the statute, incumbent grantees may not be subjected to national competition unless they have failed to meet national performance measures for the last two years.

Upon consideration of the Plaintiff's request for a Temporary Restraining Order and/or a Preliminary Injunction, the Department's Opposition, the numerous declarations and exhibits submitted, the lengthy oral argument and applicable law, the Court concludes that Plaintiff's request must be denied.

I. BACKGROUND *fn1

The Program was originally authorized by Title V of the Older Americans Act of 1965, 42 U.S.C. §§ 3056-3056n, to foster and promote useful part-time employment opportunities and employment training in community service activities for older individuals. While these individuals (referred to as"participants") must be 55 years or older, many are in their 70s, 80s and even 90s. The majority of the participants live below the poverty line and are women; many of them are minorities, many live in rural areas, and many suffer from physical and/or mental disabilities. Despite these disadvantages, the participants are able, through their part time employment, to provide valuable community service to non profit institutions in their local areas.*fn2 For many of the participants, the opportunity to contribute worthwhile service to their community greatly enriches their lives.

For more than 37 years, Experience Works has been a recipient of either SCSEP grants or grants from similar predecessor programs. The Department's yearly grants were all awarded on a non-competitive basis to Experience Works or its predecessor, Green Thumb.

In 1995, the Older Americans Act expired, including its provision authorizing SCSEP. In 2000, Congress passed the Older Americans Act Amendments ("OAA Amendments" or"the Act") and amended SCSEP, Pub. L. 106-501, 114 St. 2267-93. These Amendments codified requirements which had been previously contained in the statutes, regulations, and Program administration materials. They also added a number of new provisions to hold grantees to higher levels of accountability.

Specifically, these provisions require that when a grantee fails to meet the DOL national performance measures, the grantee will be required to submit a corrective action plan. If the grantee fails to meet the DOL national performance measures for a second consecutive program year, the Secretary shall then conduct a national competition to award up to 25 percent of the grantee's funds on a competitive basis. If the grantee fails to meet the national performance measures for a third consecutive program year, the Secretary shall conduct a national competition to award the remaining amount in the grant. 42 U.S.C. § 3056l(e)(2)(D).

On November 8, 2002, the DOL announced a formal Solicitation for Grant Applications ("SGA") for national organizations seeking program grants for Program Year ("PY") 2003, running from July 1, 2003 to June 30, 2004. See 67 Fed. Reg. 68,178-68,200 (Nov. 8, 2002). In that formal solicitation announcement, the Department explained that"holding a full and open competition for SCSEP national grantee funds [would] provide better service to SCSEP participants, host agencies, employers and the counties that the national grant program serves." 67 Fed. Reg. 68,178. This was the first time that the Department allocated its SCSEP funds on a competitive basis.

The Department received 68 applications, including one from Plaintiff, by the February 2003 deadline set in the SGA. In its application solicitation, Plaintiff sought a significant expansion from its current funding level of $107.2 million in PY 2002 to a funding level of $255.6 million in PY 2003. Each application was reviewed and scored by a three member review panel. The Department established a competitive range and focused on those organizations that scored 90 or more out of a possible 100 points. The Department then proceeded state-by-state, county-by-county to allocate participant slots, with the highest ranking applicant for a participant county being awarded the slots it had requested for that county.

On May 15, 2003, the Department notified Plaintiff and twelve other organizations that they had been tentatively approved for grants. On May 22, 2003, all current grantees were told by DOL to add to their grant applications contingency plans describing how participants would be transferred to a new grantee if a former grantee lost some or all of its slots.

Plaintiff was ultimately awarded $86.1 million in SCSEP grants for PY 2003, a reduction of $21.1 million from the previous Program Year. Of the 13 grants made, Plaintiff received the highest award, received over $10 million more than the second highest grantee, and received more total grant funds than the eight lowest grantees combined. After some discussions and letters between Plaintiff and DOL, the Department's Grant Officer signed the grant on June 5, 2003. On June 9, 2003, Experience Works filed the present lawsuit.*fn3

II. ANALYSIS

A. Standards of Review

It is undisputed that the granting of preliminary injunctive relief is an extraordinary measure, and that the power to issue such exceptional relief"should be'sparingly exercised.'" Dorfman v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969). The same standards apply for both temporary restraining orders and preliminary injunctions. Washington ...


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