Uniformed Firefighters Association, Local 94, Iaff, Afl-cio,et al., Plaintiffs-appellants, v. the City of New York, et al., Defendants-appellees, 676 F.2d 20 (2d Cir. 1982)

The City of New York, as a result of a severe financial crisis, was forced in June 1975 to lay off approximately 1650 firefighters. Later, in December 1975, the City rehired approximately 400 of these firefighters, using funds obtained pursuant to the Comprehensive Employment and Training Act of 1973 ("CETA"), 29 U.S.C. § 801 et seq. (1976) (prior to 1978 amendment), and from the United States Department of Housing and Urban Development ("HUD"). These rehired firefighters, who were compensated in part with CETA, HUD, or temporary City funds, were notified at the time of rehiring that, because their appointments were on a provisional basis,¹  they would not receive seniority credits for promotional purposes for time served as "provisional CETA," "provisional HUD," or "temporary" firefighters.

Uniformed Firefighters Association, Local 94, IAFF, AFL-CIO, its president, and ten individual firefighters who are Union members instituted a suit against various New York City defendants ("the City"),²  alleging that the denial of seniority credits violated their rights under the Equal Protection Clause of the Fourteenth Amendment, CETA and its accompanying regulations, 42 U.S.C. § 1983, and various New York laws. The District Court for the Southern District of New York (Milton Pollack, Judge) granted the City's motion to dismiss for failure to state a claim on which relief may be granted. Judgment was entered April 20, 1981. For the reasons stated below, we affirm.

The District Court was correct in holding that there is no implied private right of action under CETA. See CETA Workers' Organizing Committee v. City of New York, 617 F.2d 926, 934 (2d Cir. 1980). Appellants attempt to distinguish CETA Workers', arguing that the nature of the action and the relief sought in that case differ from the instant case. But we did not limit the CETA Workers' decision to the precise set of facts there presented. In determining that at least two parts of the four-part test of Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975), were not met, we emphasized the comprehensiveness of CETA's administrative procedures for processing grievances and noted that the statute authorizes the Secretary of Labor to rectify violations of CETA, subject to judicial review. See 617 F.2d at 933. "Congress, relying on the Secretary's expertise and ability to balance the various elements of the program in the interest of the various recipients, present and future participants, and so on, has established an elaborate system of administrative review, which would appear intended to be exclusive." Id. at 933-34. We therefore reject appellants' claim that the District Court erred in dismissing their claim based on an implied private right of action under CETA.

Appellants are no more successful in attempting to allege a violation of CETA as a claim under 42 U.S.C. § 1983.³  Although the Supreme Court indicated in Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980), that § 1983 provides a remedy for state action in violation of any federal statute, the Court has subsequently qualified the breadth of the § 1983 remedy for statutory violations. See Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19-22, 101 S. Ct. 2615, 2625-27, 69 L. Ed. 2d 435 (1981); Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981). In Pennhurst, the Court stated that Thiboutot does not permit use of § 1983 to redress a violation of a statute if "the 'governing statute provides an exclusive remedy for violations of its terms.' " Id. at 28, 101 S. Ct. at 1545 (quoting Maine v. Thiboutot, supra, 448 U.S. at 22 n.11, 100 S. Ct. at 2513 n.11 (Powell, J., dissenting)). In Sea Clammers, the Court further observed, "When the remedial devices provided in a particular act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983." 453 U.S. at 20, 101 S. Ct. at 2626. We think that CETA's comprehensive remedial scheme⁴  provides an exclusive remedy. As we noted in CETA Workers', "The totality of (CETA's remedial) provisions, comprehensive and well-crafted to the Act's administrative, institutional, and political exigencies, affirms the primacy and suggests the exclusivity of the grievance procedures, at least in cases seeking redress against a prime sponsor or other recipient of funds." 617 F.2d at 930-31.

The existence of a "saving clause" within CETA does not alter our conclusion. Section 106(l), 29 U.S.C. § 816(l) (Supp.II 1978), provides:

The existence of remedies under this section shall not preclude any person, who alleges that an action of a prime sponsor or of any other recipient violates any of the provisions of the chapter or the regulations promulgated under the chapter, from instituting a civil action or pursuing any other remedies authorized under Federal, State, or local law.

Whatever else this section may mean, we do not construe it to authorize a statutory violation claim under § 1983, since the Supreme Court was not persuaded by a similar argument involving a comparable provision in Middlesex County Sewerage Authority v. National Sea Clammers Association, supra, 453 U.S. at 20-21 n.31, 101 S. Ct. at 2626-27 n.31.⁵ 

Appellants also cannot succeed in their § 1983 constitutional claim, which alleged that the denial of seniority credits to provisional firefighters and their allowance to regular City firefighters constitutes a violation of the Equal Protection Clause. The appellants were provisional employees under state law, Carritue v. Beame, 90 Misc.2d 504, 395 N.Y.S.2d 573 (Sup.Ct.1976), aff'd, 61 A.D.2d 957, 402 N.Y.S.2d 1012 (1st Dept. 1978), and as such were not entitled to protections, including seniority credits, that state law extends only to regular civil service employees. Koso v. Greene, 260 N.Y. 491, 184 N.E. 65 (1933). The Equal Protection Clause is not violated by a governmental decision to limit seniority credits to employees appointed pursuant to civil service regulations, a restriction that manifestly advances the governmental interest in preventing abuses of the civil service system, see Sheridan v. Kern, 255 A.D. 57, 5 N.Y.S.2d 336 (1st Dep't 1938).

Finally, the District Court was correct in dismissing appellants' pendent state law claims. "(I)f the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966).

Accordingly, the judgment of the District Court is affirmed, 512 F. Supp. 289.