Appendix — Vence v. Bolivar County Community Action Program, Inc.

S87 485 ~

-

UOSEPH F. Ss

ERC

eerie,

IN THE SUPREME COURT OF THE UNITED STATES

NO. A-55

OCTCBER TERM, 1987

AARON VENCE & DENISE YOUNG

PETITIONERS

VS.

BOLIVAR COUNTY COMMUNITY ACTION PROGRAM, INC.,

THE BOARD OF DIRECTORS OF BOLIVAR COUNTY

COMMUNITY ACTION PROGRAM, INC., being

CLYDE AYCOCK, JERRY HOLLINGSWORTH,

WESLEY J. LIDDELL, SAM D. LONG, E. L. McMURCHY, JR..,

THOMAS MORRIS, WILLARD SAMUELS, JIM SCOTT,

KIRKHAM POVALL, TOMMY NARON, ALLEN DENNIS,

JOE ANDERSON, WILLIE B. SMITH, also RICHARD GERNERT,

JO ANN ANDERSON, BILLY JOE McCAIN, JOHN L. JORDAN,

and OTIS R. BOWEN, SECRETARY OF THE DEPARTMENT

OF HEALTH & HUMAN SERVICES

RESPONDENTS

PETITION FOR CERTIORARI: from the COURT OF

APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI - 5th AMENDMENT,

42 USC SECTION 1983 and MANDAMUS CLAIMS

ACCOMPANYING APPENDIX TO PETITION

L. PAUL KOSSMAN

P.O. BOX 1263

CLEVELAND, MS 38732

601-846-0100

APPENDIX

PAGE

Opinions Below

Opinion of the HHS Hearing

OEE ACES. ccc cer ccs ssasescses 1

Opinion of the Fifth Circuit... §g

Judgements Appealed From

Order of the District Court

Dismissing the Case........ 73

Judgement of the Fifth

ee oo aaa ia eS oe Wb ew ee 80

Constitutional Provisions

Fifth Amendment of the United

BEBCee LOGEC s Cit TOR i -« 66 60% 82

Statutory Provisions

oR ee Pee ara a ere ara ara ae ae 83

‘5 We eg Bk Diag ee area re ae 85

ko eS Ba 85

Pa 86

Bs Tre 87

OS sa 89

May 11, 1984

RECOMMENDATION CONCERNING PROPOSED

TERMINATION OF HEAD START FEDERAL

FINANCIAL ASSISTANCE TO BOLIVAR

COUNTY COMMUNITY ACTION PROGRAM,

INC.

INTRODUCTION

On April 17, 1984, pursuant to

45 C.F.R. § 1303.37, an “informal”

show cause hearing was conducted

by the undersigned for the purpose

of rendering a recommendation as

to whether the above-referenced

Head Start grantee should be

terminated for violating 45 C.F.R.

Part 1304, Appendix B (70.2).

The violation alleged is the

grantee's termination of the

employment of a Head Start staffer 2

(Mr. Aaron Vence) without the

approval of the Policy Council.

Representing the Administration for

Children Youth and Families (here-

inafter "ACYF") at the hearing were:

Mr. William Saddler, Chief of the

Head Start Division, Mrs. Bessie

Barnett, Supervisor for Mississippi,

Ms. Beverly Taylor, Child Development

Program Specialist and Mrs. Dana

Petti, Assistant Regional Attorney.

Representing the grantee at the

hearing were: Mr. Kirk Povall,

Attorney and Chairman of the Board

of Directors, Bolivar County

Community Action Program (herein-

after "BCCAP"), Mr. Richard Gernert,

Executive Director of the Community

Action Program, Mr. Billy Joe McCain,

ate

Head Start Program Director, and

Mr. Adolph Hilliard, Finance

Officer of the Head Start program.

Also present were Mrs. Jo Ann

Anderson, Chairperson of the Policy

Council and Mr. Willie Simmons,

advisory member of the Policy

Council.

Over fifty documents were submitted

by the parties at the hearing.

These documents are composed of

grantee Board of Director meeting

minutes, Policy Council meeting

minutes, correspondence between

the grantee and the Policy Council,

correspondence between the grantee

and Mr. Vence and/or his attorney,

correspondence between the grantee

and SCYF and correspondence between

Mr. Vence's attorney and ACYF.

Also included in these documents

ote

are grantee personnel policies and

procedures, various travel expense

statements and other miscellaneous

letters and records. All of these

are forwarded along with this

recommendation, and, to the degree

possible, are arranged in chrono-

logical order.

A statement of facts, deemed to be

pertinent by the undersigned is

set forth below:

STATEMENT OF FACTS

On June 17, 1983, the Head Start

Program Director, Mr. Billy J.

McCain forwarded a letter to Mr.

Aaron Vence, Head Start Adminis-

trative Assiatant, which set forth

allegations concerning the filing

of "bogus" local travel statements

for payment. On July 8, 1983,

Mr. McCain forwarded another letter

to Mr. Vence stating that the

recently received documents

incicated that on four out-of-town

"received pay-

trips Mr. Vence had

ment from the staff association

[National Head Start Association]

and program for attending the same

meeting." An explanation ".

for the duplication of the above

travel expense payments" was

requested.

Mr. Vence responded on August 2,

1983, by submitting an accounting

of his trips to National Board

Meetings between February 1979 and

February 1983. ". . . and I have

spent approximately $4,000 of my

personal money to represent Bolivar

County Head Start and the State

Staff Association on the national

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level for the past four years. I

have gone far beyond the call of

duty as a staff memeber [sic] with-

out proper compensation and

recognition."

On September 16, 1983, Mr. McCain

continued his correspondence with

Mr. Vence. After reviewing Mr.

Vence's explanation and other

pertinent documents, it was Mr.

McCain's conclusion that "duplica-

tion of travel payments" had

occurred on four occasions between

1980 and 1982. Mr. McCain informed

Mr. Vence that in submitting travel

expense statements,

-». you have neglected to

indicate reimbursements

received from the National

Staff Association for the

same trip. Nor have you at

any time advised this program

that you received reimburse-

ment for travel from any

~

source. Therefore, the travel

expense statements submitted

by you are fraudulently

documented which resulted in

duplication of payments to

you.

Thereafter, a special meeting of the

Executive Board of the Policy

Council and Board of Directors were

held on September 27, 1983. Mr.

McCain stated he had requested the

meeting "because there were some

discrepancies in the Head Start

Program which involved finance

records."’ Mr. McCain presented the

allegations of travel expense abuse

concerning Mr. Vence, as generally

outlined above. Documents were

reviewed and questions were asked by

various Board members. It was

pointed out that Mr. Vence had

Signed out-of-town travel expense

statements containing the following

certification: "I certify that

this statement, the amounts claimed

and attachments are true, correct

and complete to the best of my

knowledge and belief, and no payment

for the amount claimed, other than

the advance indicated above has

been received." The Board concluded

the grantees Personnel Policies

and Procedures called for the

dismissal of Mr. Vence.

On September 29, 1983, Mr. McCain

informed Mr. Vence that his handling

of out-of-town travel expenses

violated the agency's fiscal policies

and his actions constituted ".

deliberate falsification of records

and misappropriation of program

funds."' Accordingly, Mr. Vence

was notified of his suspension,

without pay, pending termination

abe

procedures. Appeal procedures

were set forth in this letter.

On October 13, 1983, Mr. Vence,

through his attorney, appealed the

adverse personnel action in a

letter to the chairperson of the

Policy Council. Mr. Vence stated

that the personnel action was taken

because he represented a dissatis-

fied group of the staffers and "Mr.

McCain wants to destroy leadership

of the dissatisfied staff." Mr.

Vence also stated that the charges

of local and out-of-town travel

abuse were without foundation and

requested a hearing in order to

refute the charges.

A hearing before the Grievance/

Appeal committee of the Policy

Council was held on November 9,

1983. Apparently a hearing could

«Gu

not have been held any sooner

because a new Policy Council

(consisting of 31 new members) had

been formed in early October and

committee memberships and training

had not yet been established. (See

October 18, 1983 letter of Mrs.

Jo Ann Anderson to Mr. Aaron Vence).

Seventeen committee members were

present at the grievance hearing. 1/

Mr. McCain, Mr. Vence, and his

attorney, Mr. Kossman, were all

present and addressed the issues

concerning alleged travel expense

abuses. Mr. Vence generally denied

the charges of local travel abuse

and claimed that the allegations

1/ At this time the Policy Council

was composed of a total of 4l

persons.

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were unsubstantiated because no

sign-in sheets existed which could

verify the allegations. Mr. McCain

countered with examples of three

instances of abuse which he claimed

were verifiable. In regard to

out-of-town travel, Mr. Vence denied

that he deliberately falsified

records and misappropriated funds.

Furthermore, he stated that he had

spent $2,000 to $3,000 of his own

money to attend meetings around the

country and that Mr. McCain had

presented “incomplete information"

to the policy meeting group. After

questions from various committee

members, the committee went into

executive session.

During the executive session, various

committee members commented on the

Situation presented. One member

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emphasized that in regard to the

four instances of dual payments

received for out-of-town travel, Mr.

Vence had stated "Monies received

on several of those four meetings

were in excess of expense occurred."

Another stated that, “a man's job

is at stake . . . and he has a

family to support" and consequently

he should not be terminated.

Additionally, a comment was made

that "Mr. Vence has been caught with

his hands in the pie and there are

probably some staff involved in the

same thing." When the issue came to

a vote, nine voted to reinstate and

three voted not to reinstate. The

committee's final recommendation to

the Policy Council was for reinstate-

ment with back pay.

On December 7, 1983, an executive

hts

ee

session of the Policy Council was

convened to consider the Grievance

Committee's recommendation concern-

ing Mr. Vence. One council member

asked if the Policy Council would be

liable if it reinstated Mr. Vence

even if his actions had in fact

violated the grantee's personnel

policies. There apprently was

lengthy discussion of this issue.

Another council member stated that

if Mr. Vence was fired, the Project

Director and Chief Fiscal Officer

should also be terminated because

there was "no way in the world

these things could have been going

on and they did not know anything

about it." A third member stated

that there was "no direct documen-

tation that said you could not get

partial payment .. ."" When a vote

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was taken 18 voted to reinstate and

7 voted against reinstatement. Mr.

Richard Gernert, BCCAP's Executive

Director, responded to the Policy

Council's decision on December 8,

1983 by stating that the action

represented "gross irresponsibility

and disregard of the agency's

Personnel Policies and Procedures."

Accordingly, since the CAA Board of

Directors had legal, fiscal and

overall administrative responsibil-

ities in the operation of the Head

Start Program, he directed that

reinstatement not be carried out

until the Board considered the

matter further.

Thereafter, a special meeting of the

BCCAP Board of Directors was held on

January 3, 1984 to consider the

personnel matter involving Mr.

Vence. 2/ Mr. Vence and his

attorney appeared and made presen-

tations, as did Mr. McCain.

Documents were also presented to

the Board. Mr. McCain stated that

the Program, from time to time, had

agreed to pay for some out-of-town

trips but he had been unaware that

Mr. Vence was receiving additional

payments from the National Associa-

tion for some of the trips. Mr.

Vence and his attorney then proceeded

to present a detailed explanation

of their view of the local and out-

of-town travel expense abuse allega-

tions. Mr. Vence stated that on

2/ Apparently, the Board met on

December 14, 1983 to consider this

issue, but a quorum was not present.

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’

numerous occasions he had used

personal funds when travelling and

that he had “indicated to the

Project Director and Fiscal Officer

that partial payments were being

received from the NHSSA." Mr. Vence

is also reported as having "refuted"

charges that he had received funds

from both organizations for the same

trip. Mr. Adolph Hilliard, the

Fiscal Officer, countered by stating

that Mr. Vence had declared in staff

meetings that he was not receiving

funds from other sources and that

minutes from a March 3, 1983 meeting

reflected this statement. The Board

then met in executive session and

after considering all statements and

documents concluded that the termina-

tion was correct and justified.

On January 6, 1984, the chairman of

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—————— << i“ |

the BCCAP Board of Directors informed

Mr. Vence that the Board had vcted

to uphold his termination. The

chairman further stated that he

would invite the Policy Council to

resolve the disagreement with the

Board.

The Policy Council next met on

January 17, 1984. During an

executive session, the Council chair-

person stated that the Council and

Board should attempt to reach an

agreement concerning the Vence

matter. Seventeen of the twenty-two

present Council members voted to

hear a presentation from the

grantee's Board chairman, Mr. Povall.

Mr. Povall then proceeded to address

the Council and reviewed the four

out-of-town trips at issue. Several

Council members asked questions of

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Mr. Povall and discussions among

Council members ensued. The meeting

concluded with the Policy Council

voting to extend an invitation to

Mr. Vence to appear before it. This

was then to be followed by an attempt

to meet with the BCCAP Board in

order “to see if there can be any

clarification between the Board and

Council." The Council, however, did

not at that time rescind or disavow

its decision to reinstate Mr. Vence.

On January 19, 1984, the Board wrote

a letter to Mr. John Jordan, Regional

Program Director for ACYF and set

forth the procedural history of the

subject personnel matter and the

Board's position. Mr. Povall,

writing for the Board, stated that

"an impasse continues to exist inso-

far as the proposed action se

site

The letter also indicated that the

Board would welcome the Government's

assistance in resolving the matter.

Four days later, on January 23, 1984,

the chairperson of the Policy

Council indicated in a letter to Mr.

Povall that on January 17, 1984, the

Council had voted "to hear the case

again before the full Policy Council"

in early February, 1984. If agree-

ment with the Board's action could

not be reached at that meeting, the

Council would then request a meeting

with the entire Board of Directors

on February 7, 1984 “in an effort to

resolve the differences between the

Policy Council's decision and the

Board's decision."

On January 25, 1984, the Executive

Director of BCCAP, Mr. Gernert,

«t@«

wrote Mr. Vence. Mr. Gernert noted

that the Policy Council had voted to

rehear the case but went on to

declare, "I fear that to prolong a

final decision in a matter of such

serious nature can only jeopardize

the well being of the program."

Accordingly, Mr. Vence was informed

that he would be terminated effective

January 27, 1984, if he did not

immediately resign. Because the

suspension had been pending for an

inordinate period of time, Mr. Vence

was paid his regular salary for the

period between September 30, 1983

and January 27, 1984, minus $1,084.49,

which sum was viewed as duplicate

travel payments by the grantee.

On January 27, 1984, Mr. Vence's

attorney informed Mr. Gernert that

Mr. Vence was planning to appear at

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the February 1, 1984 Policy Council

meeting. Thereafter, on January 31,

1984, the attorney, Mr. Kossman,

wrote to Mr. John Jordan of ACYF

claiming that Mr. Vence's due

process rights had been violated by

the matter in which his appeal

procedure had been handled. Mr.

Kossman also argued that the

evidence against his client was

insufficient to support the charges.

In regard to the out-of-town

travel issue, it was stated that,

Mr. Vence insists Mr. McCain

knew for quite sometime that

Mr. Vence was obtaining partial

reimbursements from the local

program .. . Suddenly Mr.

McCain says he never knew about

NHSA reimbursals .. . Mr.

Vence is in possession of a

tape where his voice is recorded

explaining to the aministrative

staff of Head Start that he

received partial reimbursement

from the NHSA and partial

reimbursement from the local

program. Mr. Vence states

ih

that Mr. McCain is circulating

a bogus set of minutes where

it is stated Mr. Vence denied

receiving NHSA funds

The letter concluded with a demand

that Mr. Vence be reinstated with

back pay.

Next, on February 1, 1984, Mr.

Povall informed the chairperson of

the Policy Council that the requested

meeting between the Council and the

Board was no longer necessary in

light of the January 27, 1984 termi-

nation and the referral of the matter

to the ACYF. Accordingly, the

Board declined to meet with the

Council.

On February 15, 1984, Mr. John

Jordan of ACYF wrote the BCCAP

Board of Directors stating that he

had received correspondence concern-

oDhs

ing the Vence matter. He indicated,

however, the ACYF could not "measure

the merits" of the dispute and that

the Board was required to adhere to

the requirements set forth in 45

C.F.R. Part 1304, Appendix B (70.2).

Mr. Jordan called for the reinstate-

ment of Mr. Vence in light of the

fact that the Policy Council had not

approved the termination.

On February 24, 1984, the grantee

admitted in a letter to Mr. Jordan

that Mr. Vence had been terminated

without the approval of the Policy

Council. However, the grantee

requested a show cause hearing in

order to demonstrate that the

termination was justified under the

facts and circumstances.

On April 2, 1984, ACYF informed

afte

BCCAP of its intent to terminate

financial assistance and set forth

April 17, 1984 as the date for an

informal show cause hearing in

Atlanta.

STANDARD OF REVIEW

The undersigned has considered all

the statements made at the hearing

and has reviewed all of the docu-

ments submitted.

The record clearly demonstrates that

Mr. Aaron Vence, Head Start Adminis-

trative Assistant, was terminated by

BCCAP without the approval of the

Policy Council. The grantee, both

at the hearing and in correspondence,

admits that 45 C.F.R. Part 1304,

Appendix B (70.2) has not been

followed. The grantee contends,

however, that since the allegations

against Mr. Vence concern abuse of

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travel funds and submission of

false travel expense statements

and since the BCCAP Board is held

accountable by the Government and to

the taxpayers for the proper admin-

istration of grant funds, termina-

tion of federal financial assistance

is not warranted in this case.

The regulation governing termination

states that, "The responsible HHS

official may terminate financial

assistance . .. for failure to

comply with any requirement

(emphasis supplied). 45 C.F.R. §

1303.33(a). The regulation further

provides, "If the responsible HHS

official believes that alleged

noncompliance with any requirement

stated in § 1303.30 is serious enough

to warrant termination of financial

assistance .. . he will so notify

«2%

2,

the grantee . . ." (emphasis

supplied). 45 C.F.R. § 1303-33(b).

It is thus apparent that the under-

Signed is authorized to exercise

his discretion in considering

whether the facts presented warrant

termination of Head Start funds to

grantee.

The undersigned, however, does not

believe that it is within his

province to decide the merits of the

dispute between the Board and Mr.

Vence. Nor is it believed that as

between the Board and the Policy

Council, the undersigned should

recommend whose position is correct.

Thus, in presenting this recommenda-

tion, the undersigned expresses no

Opinion on the merits of the dispute

concerning Mr. Vence, the grantee's

Board of Directors and the Policy

-26-

Council.

DISCUSSION AND RECOMMENDATION

Public Law 97-35 (95 Stat. 99),

August 13, 1981, Subchapter B,

Section 638, indicates that Congress

expects Head Start programs to

"provide for direct participation

of the parents . .. in the develop-

ment, conduct, and overall program

direction at the local level."

Appendix B of 45 C.F.R. Part 1304

sets forth, in detail, the role of

Head Start parents in the overall

program. The Head Start Policy

Council 3/ has been given at least

17 distinct functions according to

3/ At least 50% of the Council

members must be parents. 45 C.F.

R. Part 1304, Appendix B, Chart A.

-27-

7

Chart C of Appendix B. Among those

is the authority to hire and fire

Head Start staff. At the same time,

the Head Start Board of Directors,

the Executive Director and the Head

Start Director are all given speci-

fic duties and responsibilities.

Significantly, the Board of Directors

is legally and fiscally responsible

for the administration of program

funds. It is noted that structur-

ally, an inherent tension is created

when more than one body is charged

with the responsibility for person-

nel and fiscal matters.

Indeed, it appears that ACYF has

previously recognized this inherent

tension. In March 1980, the Office

of Human Development Services

issued ACYS/HS/3.01, an Instruction

entitled “Board of Directors'

«26~

Relationship to Head Start Policy

Council." 4/ This Instruction

states that when the Board and

Council do not agree on an issue,

"the Board and the Policy Council

representative should meet jointly

to resolve the matters confronting

the two bodies. In most cases an

agreement will be reached. If

there is an impasse, the issue may

4/ At the time of its issuance,

apparently a draft regulation was

in circulation calling for arbi-

tration when a dispute between

these two bodies could not be

resolved. However, the proposed

regulation was never implemented

according to statements made by

Mr. William Saddler at the

hearing.

-29-

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be arbitrated through a procedure

involving a disinterested third

party." 5/ To the best of the

undersigned's knowledge, this

Instruction has not been materially

revised or rescinded.

The record in this matter indicates

that the Policy Council and Board

members never met jointly in an

attempt to resolve their differences.

On January 6, 1984, the chairman of

the BCCAP Board expressed, on behalf

of the Board, a desire to resolve

the dispute with the Policy Council.

Eleven days later, on January 17,

5/ Mr. Saddler also stated at the

hearing that the Government does

not perform as an arbitrator in

such a case.

-30-

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1984, the chairman addressed the

Policy Council. At the close of

the meeting, Council members voted

to afford Mr. Vence an opportunity

to present his case before the full

Council on February 1, 1984. It

was resolved that if the Council

did not change its position as a

result of this meeting, a meeting

with the full Board would be sought

on February 7, 1984 "to see if

there can be any clarification

between the Board and the Council."

This intention was repeated in the

Policy Council chairperson's

January 23, 1984 letter of the

chairman of the Board. However,

on January 25, 1984, the Executive

Director of BCCAP stated that if a

final decision was prolonged in the

Vence matter, the well being of the

-3i-

1

program would be jeopardized.

Accordingly, he proceeded to termin-

ate Mr. Vence. In light of the

termination, the Board on February l,

1984, declined to meet with the

Policy Council.

The undersigned concludes that all

avenues of resolution available

within the local Head Start program

should be exhausted before question

of termination is addressed by the

Government. It is therefore

recommended that the Board and

Policy Council, or representative

thereof, meet in joint session for

the purpose of attempting to resolve

their differences. 6/

6/ Perhaps several meetings will be

necessary before it can be ulti-

mately determined whether or not

a true impasse exists.

-32-

In reviewing the record, the under-

signed further notes that apparently

neither the Board nor the Policy

Council set forth cohesive written

statements discussing their respec-

tive view of the pertinent facts and

the manner in which the facts were

weighed and credibility was evalu-

ated. 7/ It is suggested that if

each body drafts such a document

7/ In particular, minutes of the

Policy Council meetings do not

clearly reflect its thought

process and rationale. It is

thus difficult to ascertain the

degree to which the merits of

the dispute were analyzed by

the newly formed Council.

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prior to the joint meeting, a frame-

work for the constructive interchange

of relevant questions and viewpoints

will be established.

Furthermore, a January 31, 1984

letter from Mr. Vence's attorney to

Mr. Jordan suggests that additional

pertinent evidence exists which

heretofore has not been presented

to the Council or Board. Addition-

ally, at the hearing in Atlanta, the

grantee presented, apparently for

the first time, local Head Start

Sign-in sheets which allegedly are

in conflict with some of Mr. Vence's

out-of-town travel expense state-

ments. It is in the best interest

of all concerned that any informa-

tion having a bearing on the

relevant issues be considered at

the grantee level.

7 oe

If the Board and Council cannot

reach an agreement or compromise in

this matter, it is recommended that

arbitration or intervention by a

disinterested third party be sought

by the Council and the Board.

Ultimately, if this matter cannot

be resolved at the local level,

ACYF will have to decide whether or

not the situation justifies termina-

tion of financial assistance. A

decision to terminate will necessar-

ily impact upon the beneficiaries

of the program, the children. A

decision not to terminate will

impact upon the relations between

various components of the Head

Start adult community. It is not

believed that the disruption or

polarization that would result

from either decision would be

-3 5-

beneficial to the Head Start

program.

Joel Lerner

Informal Show Cause Hearing Officer

Regional Attorney's Office

-36-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

AARON VENCE, ET AL.,

Plaintiffs

Vv. NO. GC85-88-NB-O

BOLIVAR COUNTY

COMMUNITY ACTION

PROGRAM, INC., ET AL.,

Defendants

)

)

)

)

)

)

)

)

)

MEMORANDUM OPINION

The plaintiff Aaron Vence brought

this wrongful termination of employ-

ment action under 42 U.S.C. § 1983,

the Fifth Amendment to the United

States Constitution and 5 U.S.C. §

702, against the Bolivar County

Community Action Program, Inc.

(BCCAP), the Board of Directors and

its individual members, Margaret

Heckler as Secretary of Health and

Human Services (HHS), and John

Jordan, the regional program director

for HHS, for injunctive and damages

-37-

relief. Two members of the Bolivar

County Head Start Policy Council

white ete as arias

have joined with Vence in a mandamus

Cie ER

action under 5 U.S.C. § 702 in an

effort to “vindicate their initial

vote" in favor of reinstating Vence

to his position as a Head Start

employee. Vence also asserts

pendent state claims of libel,

slander and tortious interference

with his employment against defen-

dant, Billy Joe McCain, the Director

of the Bolivar County Head Start

program. The defendants, John

Jordan and Margaret Heckler (as

the "federal defendants") have now

moved to dismiss the above styled

and numbered action pursuant to

Fed. R. Civ. P. 12(b)(1) and

12(b)(6) asserting as a basis the

lack of “state action" involved

=38-

in the alleged injurious action on

the part of BCCAP. For the same

reason, the remaining defendants

have separately moved for summary

judgment. For purposes of judicial

economy, the court will address

both motions within this opinion.

The facts, viewed in the light

most favorable to the plaintiffs

as the non-moving parties, are as

follows. The plaintiff Aaron Vence

was employed for approximately

eighteen years as the Assistant

Director of the Bolivar County Head

Start Program when he received a

letter on September 29, 1984 from

McCain advising Vence that he was

being terminated, effective

September 30, 1983, for submitting

false travel vouchers to BCCAP.

Vence appealed the decision to the

~39-

Policy Council Grievance Committee

which voted to reinstate Vence.

The Policy Council subsequently

accepted the committee's recommen-

dation.

On December 8, 1983, the Executive

Director of BCCAP, Mr. Richard

Gernert wrote the Policy Council

to notify them that the Board of

Directors would review the Policy

Council's decision. Upon review of

the charges against Vence on

January 3, 1984, the Board voted to

terminate his employment. Faced

with an impasse between the Policy

Council and the Board of Directors,

Gernert initiated a telephone

conversation with Jordan wherein

Gernert requested Jordan's advice

as to the "proper procedural way"

to terminate Vence and force the

nAQ~

entire issue to HHS. It is alleged

that Jordan advised Gernert to follow

the Board decision to terminate

Vence. On January 25, 1984, Gernert

wrote Vence to inform him that his

termination would be effective

January 27, 1984. On the same date,

Gernert advised Jordan by letter of

the reasons for the Board action.

Jordan subsequently wrote the

Chairman of the Board of Directors

of BCCAP, Kirk Povall, stating his

view that the Vence termination was

in violation of HHS regulations

inasmuch as the termination was

effected without Policy Council

approval. After Povall refused to

reinstate Vence, Jordan wrote BCCAP

advising that federal funding would

be terminated subject to an informal

show cause hearing set for April 17,

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Upon the conclusion of the show

cause hearing, the hearing officer

found that BCCAP violated applica-

ble HHS regulations and recommended

that the BCCAP Board and the Policy

Council hold a joint meeting in

order to resolve the dispute.

Jordan accepted the recommendation

and remanded the dispute back to

BCCAP for resolution.

On May 31, 1984, the Policy

Council met and voted to rescind

its prior decision to reinstate

Vence and then promptly voted to

terminate Vence's employment. The

impasse now having been resolved

by virtue of the Policy Council

action, Jordan wrote Povall on July

24, 1984 and stated that HHS

regulations had been satisfied.

-42-

Vence has brought the present

action claiming that his termina-

tion was accomplished in violation

of applicable BCCAP+ and HHS

t Bolivar County Head Start Standard

Operating Procedure 18.II./7 provides

that unless the decision to fire or

hire a Head Start employee is

appealed to the Community Action

Agency Board on procedural due

process grounds, the decision of

the Policy Council is the final

step at the program level.

“i tie

regulations~ which govern the role

of the Policy Council in decisions

to hire or fire Head Start personnel.

Violation of the above regulations,

it is argued, constituted a depri-

vation of due process under the

fifth and fourteenth amendments.

Vence, together with Denise Young

and Beverly Perkins, also seeks an

order of mandamus pursuant to

“The applicable HHS regulation, 14

C.F.R. § 1304 (App.B) provides that

the Policy Council must approve

firing decisions before they may

become final. If the action is not

approved, then the action may not be

taken until agreement is reached

between the disagreeing groups. HHS

interpretation of this regulation

requires disagreeing factions to

meet jointly to resolve disputes.

=46-

5 U.S.C. § 702 on the basis that

their vote as Policy Council members

to reinstate Vence was nullified by

Jordan's decision to remand the

dispute back to BCCAP upon the

conclusion of the informal show

cause hearing. Plaintiffs assert

that Jordan's failure to uphold

the original Policy Council decision

violated BCCAP and HHS regulations.

The defendants have now moved to

dismiss and for summary judgment

asserting the lack of state or

federal action in this case which is

a necessary element of plaintiff's

constitutional claims. The above

motions thus present the issue of

whether the actions of BCCAP in

terminating Vence without Policy

Council approval may be "fairly

attributed to the state or federal

-45-<

oO

government" for the purposes of

establishing a claim cognizant

under the United States Constitution.

See The Civil Rights Cases, 109

U.S. 3, 11 (1883) (fourteenth

amendment does not govern private

action); Public Utilities Commission

v. Pollack, 343 U.S. 451, 461 (1952)

(first and fifth amendments apply

only to government action).

Because this court has considered

the evidentiary matter submitted in

support of, and in contravention

to, the motion to dismiss, both

motions now pending will be examined

under the standard set forth in

Fed. R. Civ. P. 56.

We start first with the general

proposition that a state chartered

non-profit community action agency,

such as BCCAP, although receiving a

o46<

substantial portion of its funds

from the federal or state govern-

ment, is not a state or federal

instrumentality whose actions are

subject to constitutional scrutiny.

United States v. Orleans, 425 U.S.

807, 816-17 (1976). Admittedly,

however, the above proposition does

not foreclose the question of

whether state action is present in

the case sub judice. Instead, when

faced with a suit involving nominally

private action wherein it is claimed

that the action should be subject to

constitutional scrutiny, we must

determine whether the state has so

far involved itself with the actions

of a private individual that it

would be reasonable to conclude

that the state is in fact responsi-

ble for the conduct. As made clear

shte

by the Supreme Court in Blum v.

Yaretsky, 457 U.S. 991 (1982),

"mere approval of or acquiescence

in the initiatives of a private

party is not sufficient to justify

holding the State responsible" but

rather it must be shown that the

State has "exercised coercive power

or has provided such significant

encouragement, either overt or

covert, that the choice must in

law be deemed to be that of the

state. Id. at 1004-05. See also,

Flagg Brothers, Inc. v. Brooks, 436

U.S. 149, 166 (1978). Therefore,

as aptly stated in Gilmore v. Salt

Lake Community Action Program, 710

F.2d 632, 636 (10th Cir. 1983), the

task before this court consists of

"distinguishing the exercise of

governmental power from benign or

-48-

tangential governmental involvement.

We first consider the claim by

Vence that the defendants deprived

him of his fifth amendment right to

due process. It is not claimed by

Vence that the requisite federal

action can be found in Gernert's

"underlying actual decision" to

fire him. Rather, it is claimed

that Jordan encouraged Gernert to

take a procedural step that was in

violation of BCCAP and HHS regula-

tions. Gernert's continued insist-

ence that Vence's employment be

terminated, it is argued, was

directed or caused by Jordan. In

support, the plaintiff makes

reference to a single telephone call

initiated by Gernert wherein Gernert

asked Jones for advice on the

"proper procedural way" to terminate

~49=

Vence so as to enable HHS to hear

the dispute. It is claimed by the

plaintiff that Jordan advised

Gernert to fire Vence regardless

of the position taken by the Policy

Council. The plaintiff argues that

the advice and resulting action

violated his procedural rights set

forth in the applicable BCCAP and

HHS regulations inasmuch as the

regulations grant the Policy Council

final authority over personnel

matters.

The court finds that plaintiff's

federal action claim is controlled

by Blum v. Yaretsky, 457 U.S. 991

(1983), Flagg Brothers, Inc. v.

Brooks, 436 U.S. 149 (1978) and

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) and therefore

finds that plaintiff has failed to

-50-

raise a genuine issue of material

fact on the question of whether

federal action exists in this case.

Assuming that Jordan did advise

Gernert to terminate Vence over

Policy Council objection, as we

must for present purposes, plaintiff

has failed to establish that Jordan

either retained power or authority

over BCCAP personnel matters or

that Jordan in some way compelled

cr directed the ensuing course of

action engaged in by Gernert.

Further support for the court's

finding can be found in Jordan's

position, taken subsequent to the

phone conversation with Gernert,

that termination of federal funds

would result if BCCAP failed to

reinstate Vence. In short, not

only do the facts as presented by

ute

_

the plaintiff fail to establish the

type of coercive power or substan-

tial encouragement necessary for a

finding of federal action in this

case, the facts also do not support

a finding that the federal govern-

ment approved of or acquiesced in

the decision by BCCAP to terminate

Vence over Policy Council objection.

The plaintiff also asserts that

BCCAP's actions surrounding his

JFurthermore, because HHS does not

retain either the authority or power

to hear Vence's substantive claims,

the court does not find a violation

of Vence's fifth amendment due

process rights resulting from the

failure of HHS to allcw Vence to

participate during the informal

show cause hearing.

-52-

termination constituted state

action subject to the fourteenth

amendment. Although BCCAP is a

private non-profit corporation, it

is suggested that because one-third

of the Board is appointed by state

officials the action of the Board

is therefore state action. Accord-

ing to language found in Rendell

Baker v. Kohn, 457 U.S. 830, 832

(1982) and lower court decisions,

see Gilmore v. Salt Lake Community

Action Program, /710 F.2d 632, 637

(10th Cir. 1983); Thompson v.

Community Action of Greater

Wilmington, 567 F.Supp. 1159,

1165-66 (D. Del. 1983), appoint-

ment of Board members by public

officials is a factor to be

considered and may be dispositive

on the question of whether an

oSte

ostensibly private entity is a state

actor. This factor alone, however,

is not sufficient to establish

State action. As set forth in

Lugar v. Edmondson Oil Co., 45/7

U.S. 922 (1982), the finding of

state action under the fourteenth

amendment requires the satisfaction

of a two-prong test:

First, the deprivation must

be caused by the exercise

of some right or privilege

created by the state or by

a rule of conduct imposed

by the state or by a person

for whom the state is

responsible .. .. Second,

the party charged with the

deprivation must be a person

who may fairly be said to

be a state actor.

457 U.S. at 937. Thus, although

plaintiffs’ allegations may be

said to have satisfied the second

prong of Lugar, the first prong

remains unaccounted for. In this

Ske

case, the plaintiff has failed to

show that the alleged deprivations

resulted from a state rule, policy

or decision. In this regard, the

reasoning of the Tenth Circuit

Court of Appeals in Gilmore is

found to be correct and therefore

dispositive. The court thus finds

that plaintiff has failed to raise

a genuine issue of material fact

on the issue of state action under

the fourteenth amendment.

Finally, the plaintiffs, Vence,

Denise Young and Beverly Perkins,

seek an order of mandamus pursuant

to 5 U.S.C. § 702 requiring HHS to

uphold the initial Policy Council

decision to reinstate Vence.

Because section 702 does not

independently confer subject matter

jurisdiction on this court to hear

-55-

1 ee i 7 Es en a i a oe he |

plaintiff's mandamus action, the

plaintiff apparently asserts federal

question jurisdiction inasmuch as

it is claimed that HHS failed to

follow its own regulations by order-

ing that the dispute be remanded

back to BCCAP. The relevant HHS

regulation, 45 C.F.R. § 1304 (App.

B:"C"), provides that the Policy

Council must approve firing decisions

before they become final and further

provides:

If [the Policy Council]

does not approve, the proposal

cannot be adopted, or the

proposed action taken, until

agreement is reached between

the disagreeing groups or

individuals.

Health and Human Services inter-

pretation of the above regulation

makes clear HHS's policy of encourag-

ing the resolution of internal

Sto

disputes at the local level. This

policy is consistent with the

general advisory relationship HHS

has with community action agencies

and the fact that HHS has no

authority over personnel matters.

The court finds that the remand

order was in accordance with

applicable HHS regulations and that

therefore Vence was not denied

due process. In addition, Jordan

or HHS had no duty to adhere to

the BCCAP regulation which plaintiff

asserts was violated by virtue of

the remand. Accordingly, the court

finds a lack of a genuine issue of

material fact as to plaintiff's

claim for relief under 5 U.S.C.

§ 702.

Because of the absence of federal

question or diversity jurisdiction

x.

existing over the pendent state

claims, the court finds that these

claims should be dismissed pursuant

to United Mine Workers v. Gibbs,

383 U.S. 715 (1966).

Let an order issue accordingly.

THIS, the ‘%1# day of

(pact , 19 ¥&

NEAL B. RIGGERS, JR.

UNITED STATES DISTRICT JUDGE

aSin

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 86-4528

Summary Calendar

AARON VENCE, BEVERLY PERKINS,

REV. CHARLES E. WILLIAMS and

DENISE YOUNG,

Plaintiffs-Appellants,

V-

BOLIVAR COUNTY COMMUNITY ACTION

PROGRAM, INC., ET AL.,

Defendants/Appellees.

Appeal from the United States District

Court for the Northern District

of Mississippi

(GC-85-88-NB-0)

( . April 20, 1987)

Before POLITZ, WILLIAMS, and JONES,

Circuit Judges.

en

Per Curiam:*

This is an action brought by

Aaron Vence, appellant, who claims

he was terminated by the Bolivar

County Community Action Program

(BCCAP) in violation of 42 U.S.C.

§ 1983 and his fifth amendment

rights. Pendent state claims for

Local Rule 47.5 provides: "The

publication of opinions that have no

precedential value and merely

decide particular cases on the

basis of well-settled principles of

law imposes needless expense on the

public and burdens on the legal

' Pursuant to that Rule,

profession.’

the court has determined that this

opinion should not be published.

-60-

libel and slander were also

asserted and an order for a writ of

mandamus pursuant to 5 U.S.C. § 702

was sought by Vence, and another

appellant, Denise Young. Finding

no issues of material fact and no

enforceable rights in appellant's

claims, we affirm the district

court's entry of summary judgment.

Wwe review the facts in the light

most favorable to the non-movant.

The Bolivar County Community Action

Program (BCCAP) is a private, non-

profit corporation chartered under

the laws of the State of Mississippi.

After Vence had been employed by

BCCAP for approximately eighteen

years, he was notified in writing

by Billy Joe McCain, Director of

the Bolivar County Head Start

Program, that he was being terminated

if?

from his employment, effective

September 30, 1983, for submitting

false travel vouchers. The decision

to terminate Vence was appealed to

and voted upon by the BCCAP Policy

Council which voted for reinstate-

ment. Thereafter, the BCCAP Board

of Directors reviewed the Policy

Council's decision and, contrary

to the Council's decision, voted

to terminate Vence's employment.

The disagreement between the

Policy Council and Board of Directors

led the Executive Director of

BCCAP, Richard Gernert, to contact

John Jordan, a regional director

with the Department of Health and

Human Services (HHS), to obtain

procedural advice as to the best

way to bring the disagreement

between the Policy Council and

«ih Fie

Board of Directors to the attention

of HHS for purposes of resolution.

Jordan advised Gernert that termina-

tion of Vence would be the appro-

priate way to bring the matter to

HHS's attention. Soon thereefter

Vence was informed by Gernert that

his position with BCCAP had been

terminated.

Because the termination was

effected over the Policy Council's

disapproval, Jordan wrote to Kirk

Povall, Chairman of the BCCAP

Board of Directors, informing

Povall that Vence's termination

violated 45 C.F.R. § 1304 (App. B).

In spite of this letter, Povall

refused to reinstate Vence, thus

forcing Jordan to notify BCCAP

that federal funds would be

terminated until an informal show

a6 Me

cause hearing could be held. 1/

At the informal show cause hear-

ing, without addressing the merits

of Vence's termination, the hearing

officer determined that BCCAP had

Violated HHS regulations and

recommended that a joint meeting be

held between the BCCAP Board and

Policy Council in order to resolve

the dispute. 2/ Pursuant to the

1/ Despite the threat, it does not

appear that federal funds were ever

actually terminated.

2/ HHS policy dictates that the Head

Start Board and Policy Council must

agree on certain decisions, 45C.F.R.

Part 1304 (Appendix B, ChartsB&C),

including personnel matters, and if

they do not, a joint meeting of the

two bodies is specifically recommended

as a means to resolve their differences.

with

recommendation, Jordan remanded the

dispute back to BCCAP. The Policy

Council met again, rescinded its

prior decision to reinstate Vence,

and voted to terminate Vence's

employment. The dispute having

been resolved, Jordan wrote Povall

advising that HHS regulations had

been satisfied.

Upon his failure to gain rein-

statement, Vence filed suit.

Eventually, the district court

granted summary judgment in favor

of the detendants.

I. FEDERAL ACTION

Vence concentrates on the

allegations of federal action

involved in the decision to termin-

ate his employment. Vence claims

that Jordan's telephone discussion

with Gernert, wherein Jordan advised

=-65~<

Gernert of the procedures to follow

in order to bring the disagreement

over Vence's termination to the

attention of HHS, constituted

federal action bringing his claim

within the ambit of the fifth

amendment. Moreover, Vence main-

tains that Jordan's threat to

terminate federal funding to BCCAP,

Jordan's role in instigating the

show-cause hearing, and Jordan's

remand of the dispute back to BCCAP

for resolution resulted in federal

action.

In other words, it is Vence's

position that Jordan's intervention

resulted in his termination despite

the Policy Council's disapproval.

We disagree. The initial decision

to terminate Vence had been made

prior to Gernert's telephone

-66-

discussion with Jordan. Jordan

neither encouraged nor coerced

Gernert or BCCAP to terminate

Vence. At most, Jordan's conver-

sation constituted acquiescence in

the decision already made by

employees (McCain and Gernert)

of a private corporation (BCCAP)

in a purely private dispute. The

Supreme Court has held that acqui-

escence by a state entity does not

convert a private action into

that of the state in § 1983 actions.

Flage Brother, Inc. v. Brooks,

436 U.S. 149, 164, 98 S.Ct. 1729,

1737, 56 L.Ed.2d 185 (1978). State,

or by analogy, federal action will

only be implicated for private

actions when the state or federal

government by its laws or conduct

has compelled, coerced or, at the

-67-<

very least, significantly encouraged

the act. Id. There is nothing in

the record to indicate that Jordan

substantially influenced, encouraged,

or compelled BCCAP's decision to

terminate Vence. In fact, Jordan's

letter to Povall threatening to

terminate federal funding unless

Vence was reinstated, counters any

argument that Jordan encouraged the

termination of Vence. The fact

that Jordan initiated the show-

cause hearing and followed the

hearing officer's recommendation

that the dispute be remanded to the

Policy Council and BCCAP Board for

a joint meeting did not constitute

federal action for the purpose of

encouraging or influencing Vence's

termination. This conduct occurred

as a result of BCCAP's failure to

=i

comply with HHS regulations by

firing Vence without mutual

concurrence of its Board and Policy

Council. See supra note 2. The

purpose of the hearing was to

reconcile BCCAP's actions with the

regulations not to instruct BCCAP

how to conclude its personnel

decision. The hearing officer

stated that he “does not believe

it is within his province to

decide the merits of the dispute

between the Board and Mr. Vence."

He recommended a remand for

reconsideration by the Board and

Policy Council in the hope that an

agreement between them would avert

the need for federal intervention.

This hope was fulfilled. The

potential collateral effect of

BCCAP's firing of Vence on its right

-69-

to receive federal funding does not

cause this private employment

action to mutate into federal

action. 3/

II. MANDAMUS

In addition to the fifth and

fourteenth amendment claims, the

appellants sought a writ of

mandamus under 5 U.S.C. §702, the

3/ Vence also claims that HHS's

failure to follow the procedures

outlined in 45 C.F.R. 1303.35

for show-cause hearings, violated

his due process rights. His

brief acknowledges, however, that

the show-cause hearing was

"informal", and the full panoply

of procedures was not necessary.

Administrative Procedure Act, to

enforce the original Policy Council

decision to reinstate Vence.

Appellants argue entitlement to a

writ of mandamus since they believe

HHS had a duty to enforce the local

Standard Opesating Procedure No. 18,

§II.7 which finalizes Policy Council

decisions unless appealed to the

BCCAP board.4/ We agree with the

district court's disposition of this

complaint. HHS followed its own

Operating instructions by recommend-

ing a meeting between the Board and

4/ Standard Operating Procedure No.

18, § II.7 provides: "Unless

appealed to the CCA Board on

procedural due process ground,

the decision of the Policy £ouncil

is the final step on the program

level.”

-7l-

Policy Council.5/ Moreover, HHS

has not the power or the duty to

direct daily operations of

community action programs and has

no authority over the program's

personnel matters. Neither does

HHS have a duty to enforce local

rules implemented by the private

community action programs. HHS

procedures were followed; mandamus

is inappropriate as against HHS.

5/ The HHS "Board of Directors'

Relationship to Head Start

Council" Instruction requires,

when there is a failure by the

board and policy council to

concur on an issue, that board

and council representatives "meet

jointly to resolve the matters

confronting the two bodies."

III. DISCOVERY

Appellants complain that at

the time summary judgment for the

defendants was granted, they had not

been able to complete their discovery.

Hence, according to appellants,

the district court abused its

discretion by refusing them addi-

tional discovery time.

Fourteen months elapsed

between the time appellants filed

this lawsuit and the district

court's ruling on the summary

judgment motion. Furthermore,

approximately six months passed

from the filing of the summary

judgment motion in which appellants

could complete the discovery needed

to contest that motion. Appellants

therefore had ample opportunity to

conduct discovery. We find no

-73-

abuse of discretion by the district

court's refusal to extend the time

for discovery.

IV. TAXATION OF DEPOSITION COSTS

Finelly, appellants challenge

the district court's decision order-

ing them to pay the cost for

Vence's disposition. 28 U.S.C. §

1920(2) permits taxation of costs

for “fees of the court reporter for

all or any part of the stenographic

transcript necessarily obtained for

use in the case; .. . ." Appellants

maintain that the district court

abused its discretion in taxing to

them the cost of this deposition

since it was never made a part of

the record and not used in any

"substantial sense" for the

defendants' motion for summary

judgment. The district court

found that Vence's deposition was

reasonably necessary for trial

preparation. Moreover, in light of

the fact that depositions are not

typically filed under the rules of

that court, the district court

found it proper to assess the costs

of the deposition to Vence. From

this, we find no error or abuse of

discretion.

We are also unable to justify

a remand with directions that costs

of deposition copies be segregated

from the total cost of the deposi-

tion. Vence has failed to submit

any evidence that copies of the

deposition were made or the cost of

those alleged copies. Consequently,

appellants have failed again to make

a showing of any abuse of discretion.

-75-

For the foregoing reasons, we

find that the plaintiffs have failed

to show any genuine issues of

material fact entitling them to

relief under 42 U.S.C. § 1983, the

fifth amendment, or under 5 U.S.C.

§ 702.6/ Vence's state-law-based

6/ Although urged in his original

complaint, Vence has failed on

appeal to address and brief any

claims he may have with respect

to alleged civil rights viola-

tions under 42 U.S.C. § 1983.

His vague, nonspecific references

to § 1983 claims throughout his

brief do not constitute "briefing."

We therefore deem this claim to

have been abandoned or waived.

Franceski v. Plaquemines Parish

School Bd., 772 F.2d 197, 199 n.1

(5th Cir. 1985). In any event, it

-76-

is without merit. The closest

Vence came to articulating such

an issue was his allegation that

some of the BCCAP Board appoint-

ments had been made by state

officials or entities. Such

appointments however, without

more, are a far cry from one who

is typically classified as a

"“state-actor." Moreover,

Vence completely failed to show

that his civil rights had been

violated as a result of some

State rule of conduct. Lugar v.

Edmundson Oil Co , 457 U.S. 922,

S37, 20a S.Ct. 2744, 2753-55,

73 L.Ed.2d 482 (1982).

claims, we assume, may proceed in

state court. The district court's

judgment is therefore AFFIRMED.

x

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

AARON VENCE, ET AL.,

Plaintiffs

V. NO. GC85-88-NB-O

BOLIVAR COUNTY

COMMUNITY ACTION

PROGRAM, INC., ETAL.,

Defendants

)

)

)

)

)

)

)

)

)

ORDER

Purusant to a memorandum opinion

this day issued, it is hereby

ORDERED:

That the motion of defendants

John Jordan and Margaret Heckler to

dismiss or for summary judgment be

and hereby is GRANTED;

That the remaining defendants’

motion for summary judgment be and

hereby is GRANTED; and

That the above styled and

numbered cause be and hereby is

~~; =

DISMISSED.

yr

THIS, the ) — day of April,

1986.

NEAL B. BIGGERS, JR.

UNITED STATES DISTRICT JUDGE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 86-4528

Summary Calendar

D.C. Docket No. GC-85-88-NB-0

AARON VENCE, BEVERLY PERKINS,

REV. CHARLES E. WILLIAMS and

DENISE YOUNG,

Plaintiffs-Appellants,

versus

BOLIVAR COUNTY COMMUNITY

ACTION PROGRAM, INC., ET AL.,

Defendants-Appellees.

Appeal from the United States District

Court for the Northern District

of Mississippi

Before POLITZ, WILLIAMS, and JONES,

Circuit Judges.

JUDGMENT

This cause came on to be heard

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on the record on appeal and was

taken under submission on the

briefs on file.

ON CONSIDERATION WHEREOF, It

is now here ordered and adjudged by

this Court that the judgment of the

District Court in this cause is

affirmed.

IT IS FURTHER ORDERED that

plaintiffs-appellants pay to

defendants-appellees the costs on

appeal, to be taxed by the Clerk

of this Court,

April 20, 1987

ISSUED AS MANDATE: May 12, 1987

ahi

RIGHTS OF PERSONS

FIFTH AMENDMENT

No person shall be held to

answer for a capital, or otherwise

infamous crime, unless on a

presentment or indictment of a

Grand Jury, except in cases arising

in the land or naval forces, or in

the Militia, when in actual service

in time of War or public danger;

nor shall any person be subject for

the same offence to be twice put

in jeopardy of life or limb; nor

shall be compelled in any criminal

case to be a witness against himself,

nor be deprived of life, liberty,

Or property, without due process

of law; nor shall private property

be taken for public use, without

of7-

just compensation.

§ 702. Right of review

A person suffering legai wrong

because of agency action, or

adversely affected or aggrieved by

agency action within the meaning

of a relevant statute, is entitled

to judicial review thereof. An

action in a court of the United

States seeking relief other than

money damages and stating a claim

that an agency or an officer or

employee thereof acted or failed to

act in an official capacity or

under color of legal authority

shall not be dismissed nor relief

therein be denied on the ground that

it is against the United States or

that the United States is an

indispensable party. The United

States may be named as a defendant

it.

in any such action, and a judgment

or decree may be entered against the

United States: Provided, That any

mandatory or injunctive decree shall

specify the Federal officer or

officers (by name or by title),

and their successors in office,

personally responsible for compliance.

Nothing herein (1) affects other

limitations on judicial review or

the power or duty of the court to

dismiss any action or deny relief

on any other appropriate legal or

equitable ground; or (2) confers

authority to grant relief if any

other statute that grants consent

to suit expressly or impliedly

forbids the relief which is sought.

Pub.L. 89-554, Sept. 6, 1966,

80 Stat. 392; Pub.L. 94-574,

Sd, W6ts. 21,. 1976, 90 Stat. 2721.

~84-

§ 1361. Action to compel an officer

of the United States to

perform his duty

The district courts shall have

Original jurisdiction of any action

in the nature of mandamus to compel

an officer or employee of the United

States or any agency thereof to

perform a duty owed to the plaintiff.

Added Pub.L. 87-748, § l(a), Oct.

5, 1962, 76 Stat. 744.

§ 1920. Taxation of costs

A judge or clerk of any court

of the United States may tax as

costs the following:

(1) Fees of the clerk and

marshal;

(2) Fees of the court reporter

for all or any part of the steno-

graphic transcript necessarily

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obtained for use in the case;

(3) Fees and disbursements

for printing and witnesses;

(4) Fees for exemplification

and copies of papers necessarily

obtained for use in the case;

(5) Docket fees under section

1923 of this title.

A bill of costs shall be filed

in the case and upon allowance,

included in the judgment or decree.

June 25, 1948, c. 646, 62 Stat. 955.

§ 1983. Civil action for deprivation

of rights

Every person who, under color

of any statute, ordinance, regula-

tion, custom, or usage, of any

State or Territory or the District

of Columbia, subjects, or causes

to be subjected, any citizen of the

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United States or other person within

the jurisdiction thereof to the

deprivation of any rights, privileges,

Or immunities secured by the

Constitution and laws, shall be

liable to the party injured in an

action at law, suit in equity, or

other proper proceeding for redress.

For the purposes of this section,

any Act of Congress applicable

exclusively to the District of

Columbia shall be considered to be

a statute of the District of

Columbia.

R.S. § 1979; Pub.L. 96-170, § 1,

Dec. 29, 1979, 93 Stat. 1284.

§ 9833. Financial assistance for

Head Start programs

The Secretary may, upon applica-

tion by an agency which is eligible

itn

ne

for designation as a Head Start

agency pursuant to section 9836

of this title, provide financial

assistance to such agency for the

planning, conduct, administration,

and evaluation of a Head Start

program focused primarily upon

children from low-income families

who have not reached the age of

compulsory school attendance which

(1) will provide such comprehensive

health, nutritional, educational,

social, and other services as will

aid the children to attain their

full potential; and (2) will provide

for direct participation of the

parents of such children in the

development, conduct and overall

program direction at the local

level.

(Pub.L. 97-35, Title VI, § 638,

sft.

Aug. 13, 1981, 95 Stat. 499.)

§ 9837. Power and functions of

Head Start agencies

(a) Receipt, administration, and

transfer of funds; sponsor-

ship of projects; delegation

of authority, etc.

In order to be designated as a

Head Start agency under this sub-

chapter, an agency must have authority

under its charter or applicable

law to receive and administer funds

under this subchapter, funds and

contributions from private or local

public sources which may be used

in support of a Head Start program,

and funds under any Federal or State

assistance program pursuant to which

a public or private nonprofit

agency (as the case may be)

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organized in accordance with this

subchapter, could act as grantee,

contractor, or sponsor of projects

appropriate for inclusion in a

Head Start program. Such an agency

must also be empowered to transfer

funds so received, and to delegate

powers to other agencies, subject

to the powers of its governing

board and its overall program

responsibilities. The power to

transfer funds and delegate powers

must include the power to make

transfers and delegations covering

component projects in all cases

where this will contribute to

efficiency and effectiveness or

otherwise further program objectives.

(b) Participation of parents in

decision-making, implemen-

tation, etc.

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In order to be so designated, a

Head Start agency must also (1)

establish effective procedures by

which parents and area residents

concerned will be enabled to

directly participate in decisions

that influence the character of

programs affecting their interests;

(2) provide for their regular

participation in the implementation

of such programs; (3) provide

technical and other support needed

to enable parents and area residents

to secure on their own behalf

available assistance from public

and private sources; and (4)

establish procedures to seek

reimbursement, to the extent

feasible, from other agencies

for services for which any such

other agency is responsible, which

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are provided to a Head Start

participant by the Head Start

agency.

(c) Coordination with other

agencies

The head of each Head Start

agency shall coordinate with other

programs serving the children in

the Head Start agency to carry out

the provisions of this subsection?

(Pub.L. 97-35, Title VI, § 642,

Aug. 13, 1981, 95 Stat. 502.)

Is, in original. Probably should

be "subchapter".

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