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PUBLISHED UNITED STATES COURT of APPEALS for the FOURTH CIRCUIT VOLVO GM HEAVY TRUCK CORPORATION, Plaintiff-Appellant, V

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PUBLISHED UNITED STATES COURT of APPEALS for the FOURTH CIRCUIT VOLVO GM HEAVY TRUCK CORPORATION, Plaintiff-Appellant, V PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT VOLVO GM HEAVY TRUCK CORPORATION, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF No. 96-2225 LABOR; ROBERT B. REICH, SECRETARY OF LABOR; SHIRLEY WILCHER, Deputy Assistant Secretary for Federal Contract Compliance Programs, Defendants-Appellees. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (CA-96-40001-R) Argued: May 5, 1997 Decided: July 1, 1997 Before MURNAGHAN and HAMILTON, Circuit Judges, and LEGG, United States District Judge for the District of Maryland, sitting by designation. _________________________________________________________________ Affirmed by published opinion. Judge Murnaghan wrote the opinion, in which Judge Hamilton and Judge Legg joined. _________________________________________________________________ COUNSEL ARGUED: James Marion Powell, HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, P.A., Greensboro, North Carolina, for Appellant. Samuel Robert Bagenstos, UNITED STATES DEPART- MENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Gregory P. McGuire, HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, P.A., Greensboro, North Carolina, for Appellant. Deval L. Patrick, Assistant Attorney General, Dennis J. Dimsey, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; J. Davitt McAteer, Acting Solicitor, James D. Henry, Associate Solicitor, Debra A. Millenson, Senior Trial Attorney, Belinda Reed Shannon, Trial Attorney, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Appellees. _________________________________________________________________ OPINION MURNAGHAN, Circuit Judge: On December 18, 1995, the Department of Labor's Office of Fed- eral Contract Compliance Programs (OFCCP) filed an administrative complaint under Executive Order 11246 alleging that in 1988 Volvo GM Heavy Truck Corporation had discriminated against female applicants for assembler positions in its Dublin, Virginia plant. In response, Volvo GM filed a complaint in district court seeking a declaratory judgment on the basis that OFCCP's seven-year delay in bringing the enforcement action barred the action. The OFCCP filed a motion to dismiss on ripeness and exhaustion grounds. On August 9, 1996, the district court granted OFCCP's motion on exhaustion grounds. For the following reasons, we affirm. I. FACTS AND PROCEDURAL HISTORY Appellant, Volvo GM Heavy Truck Corporation (Volvo GM), a contractor with the federal government, operates a heavy duty truck assembly plant in Dublin, Virginia. The plant employs approximately 1500 people. As a federal contractor, Volvo GM is subject to Execu- tive Order 11246. Executive Order 11246 prohibits discrimination on the basis of race, color, religion, sex, or national origin by federal contractors. Exec. Order 11246 § 202, 3 C.F.R. 167, 168 (1965 2 Supp.), as amended, Exec. Order No. 11,375, 3 C.F.R. 320, 321 (1967 Comp.). Executive Order 11246 is administered by the Office of Fed- eral Contract Compliance Programs (OFCCP) in the Department of Labor. 41 C.F.R. 60-1.2 (1996). As part of its administration of Exec- utive Order 11246, the OFCCP periodically conducts compliance checks to assess whether federal contractors are in compliance with the Executive Order. 41 C.F.R. 60-1.20 (1996). If a compliance review discloses a violation and the parties are unable to reach a con- ciliated position, the OFCCP may initiate administrative enforcement proceedings. 41 C.F.R. 60-1.26(a)(2) (1996). 1 On December 23, 1988, the OFCCP informed Volvo GM that its Dublin plant had been selected for a compliance review. The OFCCP conducted the review in early 1989. In a letter sent August 7, 1989, the OFCCP informed Volvo GM of its prima facie finding that Volvo GM had discriminated against women in hiring for entry-level posi- tions during 1988. In the letter, the OFCCP noted that Volvo GM's selection process appeared to be "highly subjective." Volvo GM was required to provide a written response to the prima facie finding within 20 days. On November 1, 1989, the OFCCP issued a notice of violation reit- erating its prior finding of gender discrimination.2 On January 26, 1990, the OFCCP's regional director issued a notice to show cause, which stated that the Department would initiate enforcement proceed- ings if Volvo GM did not take corrective action within 30 days. As a result, representatives of Volvo GM and the OFCCP met in an attempt to conciliate the dispute. Those conciliations efforts proved unsuccessful and ceased as of June 1, 1990. _________________________________________________________________ 1 Administrative enforcement proceedings are heard by an administra- tive law judge (ALJ), who issues a recommended decision. 41 C.F.R. 60- 30.27 (1996). Following a period for both parties to file exceptions, the Department of Labor's Administrative Review Board issues a final administrative order. 41 C.F.R. 60-30.29 & 60-30.30 (1996). 2 Specifically, the letter stated: Volvo GM Heavy Truck Corporation exhibited disparate impact in the hiring of females for the assembler position during the period of January 1, 1988 through December 31, 1988. This is a violation of [41 C.F.R. 60-3.3 and 60-1.4(a)(1) (1996)]. 3 Four years passed. On August 30, 1994, the Solicitor of Labor informed Volvo GM that the OFCCP had "referred the case to the Solicitor's Office for filing of administrative enforcement proceed- ings." The Solicitor's letter offered to "make a final attempt to resolve this matter without contested litigation." Volvo GM rejected the offer. On December 18, 1995, the OFCCP filed an administrative complaint against Volvo GM under Executive Order 11246 seeking backpay for an affected class of females from March 7, 1987 to the present, injunctive relief, and an order cancelling Volvo GM's current con- tracts with the federal government and barring Volvo GM from par- ticipating in contracts with the federal government until Volvo GM complied with Executive Order 11246. On January 5, 1996, Volvo GM filed the instant action for judicial review of the OFCCP's actions in the United States District Court for the Western District of Virginia. The complaint asserted four causes of action. In the first count, Volvo GM sought a declaratory judgment, pursuant to 28 U.S.C. § 2201, that the OFCCP's administrative enforcement actions were subject to the statute of limitations in Va. Code. § 8.01-2483 because Executive Order 11246 provides no statute of limitations period. The second count alleged that the OFCCP's delay in bringing the enforcement action violated the Administrative Procedure Act, 5 U.S.C. § 555(b).4 The third count alleged that the _________________________________________________________________ 3 § 8.01-248, amended in 1995, now provides: Every personal action accruing on or after July 1, 1995, for which no limitation is otherwise prescribed, shall be brought within two years after the right to bring such action has accrued. Va. Code § 8.01-248 (Michie 1992 and Supp. 1996) (emphasis added). Prior to the 1995 amendment of § 8.01-248, the same section pro- vided: Every personal action for which no limitation is otherwise pre- scribed, shall be brought within one year after the right to bring such action has accrued. Va. Code § 8.01-248 (Michie 1992). Since the OFCCP brought this action in 1995 based on Volvo GM's alleged sex dicrimination in the hiring of women in 1988, arguably, the one-year statute of limitations, if applicable, would apply to this action. 4 Section 555(b) requires federal agencies to conclude matters "with due regard to convenience and necessity of the parties or their represen- tatives and within a reasonable time." 4 OFCCP's delay in bringing the enforcement proceedings violated the Due Process Clause of the Fifth Amendment. The fourth count alleged a violation of the Freedom of Information Act (FOIA), 5 U.S.C. § 552.5 On March 11, 1996, the OFCCP moved to dismiss the complaint on the grounds that Volvo GM had failed to exhaust administrative remedies, or alternatively, the case was not ripe for judicial review. On April 4, 1996, Volvo GM filed its response to the motion, and the OFCCP filed its reply on April 26, 1996. On May 16, 1996 Volvo GM filed a motion for summary judgment on Count One (statute of limitations). After denying the OFCCP's motion to stay consideration of Volvo GM's motion for summary judgment, the OFCCP filed its opposition to the motion on June 19, 1996, and Volvo GM filed its reply on June 28, 1996. On July 15, 1996, the district court held a hearing on both motions. Thereafter, on August 9, 1996, the district court entered an order granting OFCCP's motion to dismiss on exhaustion grounds, and dis- missed without prejudice as moot Volvo GM's motion for summary judgment on Count One. The instant appeal followed. II. DISCUSSION Volvo GM challenges the district court's decision on the grounds that Executive Order 11246 does not require exhaustion of adminis- trative remedies as a prerequisite to seeking judicial review. In requir- ing Volvo GM to exhaust its administrative remedies, Volvo contends, the district court abused its discretion. In the alternative, Volvo GM contends that exhaustion should not be required because exhaustion would be "futile", exhaustion would not serve the purpose of promoting judicial economy, and their complaint raises constitu- tional issues which are exempt from an exhaustion requirement. In a shift from its litigating position before the district court to a _________________________________________________________________ 5 The fourth count is not at issue in the instant appeal. 5 related position, the OFCCP primarily maintains that the district court should be affirmed because the case is not "ripe" because the filing of an administrative complaint is not "final agency action." Alterna- tively, the OFCCP argues that the district court should be affirmed because Volvo GM must exhaust its administrative remedies before seeking judicial review. The district court's grant of the OFCCP's motion to dismiss is reviewed de novo.
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