Dr. Velasco v. Illinois Department of Human Services
United States Court of Appeals, Seventh Circuit
246 F.3d 1010
Dr. Velasco asserts that the temporal proximity between the time she filed a charge of discrimination (September 2, 1997) and Dr. Dinwiddie‘s recommendation to terminate her employment (October 14, 1997) creates a question of fact as to whether the Department discharged her in retaliation for filing a discrimination claim. Dr. Velasco‘s reliance on the temporal proximity between her complaint and discharge is misplaced because Dr. Dinwiddie became concerned about Dr. Velasco‘s mishandling of the Code Blue incident well before Velasco filed a discrimination charge. In fact, on August 18, 1997, Dr. Dinwiddie told Velasco that she should consider resigning rather than proceeding through disciplinary proceedings that would likely result in her termination.
C. Race Discrimination
Dr. Velasco‘s final argument is that the district court erred in dismissing her race discrimination claim as being untimely. A plaintiff must file an action for race discrimination within 90 days of receiving a right-to-sue letter. Irwin v. Dep‘t of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990). Dr. Velasco received a right-to-sue letter on May 18, 1998, and timely filed her first complaint against the Department alleging race and gender discrimination under Title VII on August 14, 1998. On January 26, 1999, however, Velasco moved to voluntarily dismiss her first complaint pursuant to
When Velasco filed new charges with the EEOC on February 22, 1998, she alleged retaliation and disability discrimination, but did not re-assert charges of race discrimination. Consequently, the April 28, 1999 right-to-sue letter she received in response to her February charges authorizes her to file a suit for “retaliation and disability discrimination” but not “race discrimination.” Thus, the only authorization Dr. Velasco has ever received to bring the claim of race discrimination contained in her second complaint was conferred on May 18, 1998, over one year prior to her filing of the second complaint. Her race discrimination count is clearly not timely. See generally Brown v. Hartshorne Pub. Sch. Dist. #1, 926 F.2d 959, 961 (10th Cir. 1991) (“Courts have specifically held that the filing of a complaint that is dismissed without prejudice does not toll the statutory filing period of Title VII. See Price v. Digital Equip. Corp., 846 F.2d 1026, 1027 (5th Cir. 1988) (per curiam); Wilson v. Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir. 1987) (per curiam). We agree.“).
The district court‘s decision is AFFIRMED.
TRANSIT EXPRESS, INCORPORATED, Plaintiff-Appellant, v. Joel P. ETTINGER, Regional Administrator of the Federal Transit Administration for Region V, U.S. Department of Transportation, Defendant-Appellee.
No. 00-1987.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 26, 2000. Decided April 12, 2001.
Sherri L. Thornton, Office of the U.S. Attorney, Civil Division, Appellate Section,
Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.
COFFEY, Circuit Judge.
On May 21, 1999, Transit Express, Incorporated, filed a one-count complaint in the United States District Court for the Northern District of Illinois seeking declaratory relief and review of an administrative decision issued by the Federal Transit Administration. The complaint asserted that Transit Express had been improperly excluded from receiving monies from a federal program designed to provide transportation services to the elderly and persons with disabilities. The district court dismissed the complaint after ruling that the court lacked subject matter jurisdiction because there was no federal question involved in the case. We affirm.
I. BACKGROUND
A. Statutory and Regulatory Background
The Federal Transit Authority is a grant-making agency within the United States Department of Transportation authorized under Chapter 53 of Title 49 of the United States Code to award monetary grants to states in order that they may finance the planning, development, construction, and improvement of mass transportation facilities.
Under
FTA Circular 9070.1E.
Furthermore, Section 5310 funds are disbursed to the states through a formula that is based upon the number of elderly persons and persons with disabilities residing in each state as determined in the last U.S. census. Id. at Chapter II, paragraph 3. Once in receipt of federal funds, a state agency, in this case WisDOT, has the option of using the funds to either: (1) purchase equipment, such as vans and buses; or (2) subsidize services that transport elderly persons and persons with disabilities.
1. FTA Circulars 4220.1D and 9070.1E
The United States Secretary of Transportation is entrusted with the responsibility of promulgating rules and regulations establishing the standards for participation in the Section 5310 program.
WisDOT implements the Section 5310 program by extending sub-grants to eligible, non-profit organizations serving the elderly and persons with disabilities needing transportation assistance that have made direct application to WisDOT for state assistance. The eligible nonprofit organizations selected and approved by WisDOT, in turn, usually contract with private companies to provide the transportation services. However, it is undisputed that in 1997, WisDOT used all of its Section 5310 grant monies to purchase vans, rather than fund operating expenses for the nonprofit organizations.2
B. Transit Express‘s Complaints
1. Transit Express‘s State Administrative Complaint
Transit Express is a Wisconsin based, transportation service company that is not eligible to apply for or receive sub-grants from WisDOT under the Section 5310 program because it is a for-profit enterprise. On February 9, 1997, Transit Express filed an administrative complaint with WisDOT complaining that it had been unlawfully excluded from participating as a service provider for non-profit organizations that had received Section 5310 program funds from WisDOT funds during the fiscal 1997 grant cycle for a host of reasons. In its administrative complaint to WisDOT, Transit Express specifically claimed that: (1) Goodwill had contracted with Elder Care Lines, Inc. (“Elder Care Lines“) for transportation services under the Federal Section 5310 program despite the existence of several improper conflicts of interest;3 (2) Goodwill, the Center for Independence, Curative Services, and the Jewish Center all required what Transit Express felt were excessive amounts of insurance coverage, which, in turn, barred Transit Express from participating in the 5310 Program; (3) the Section 5310 fund-recipients neglected to provide Transit Express with the selection criteria used to evaluate bids; and (4) the Center for Independence improperly selected Elder Care Lines to provide transportation services. On July 23, 1997, WisDOT denied the administrative complaint filed by Transit Express.
2. The Federal Administrative Complaint
On September 10, 1997, Transit Express filed a petition for administrative review with the FTA challenging WisDOT‘s disposition of its state complaint. On November 13, 1998, Joel Ettinger, the Regional Administrator of Region V of the FTA,4
Before FTA gets to the merits of the allegations raised by Transit, a decision must be made as to whether FTA has jurisdiction over this dispute and, if so, on what legal authority should FTA make a decision. Transit has argued that FTA should review this issue because it is a matter of federal concern. Further, Transit believes that FTA Circular 4220.1D is applicable and that WisDOT has “... failed to either establish its own protest procedures or to follow them.”
* * *
WisDOT does not fund any contractual or purchase of service agreements as part of its Program even though these agreements would be eligible for federal assistance. The only funds that the recipients receive under the program are for the purchase of capital assets. FTA‘s procurement requirements would only apply to the contracts solicited to purchase vehicles. Transit is not complaining about the purchase of vehicles by the five not for profit entities but is instead complaining about the notification process associated with the private transportation provider coordination requirements under the Program. Therefore 4220.1D is not applicable to this matter.
Having made this original determination about the applicability of the 4220.1D to WisDOT‘s Program, FTA must turn to what are the implications of that decision. A review of the basis of the complaint tends to indicate that there are a number of substantive issues being raised by Transit such as the conflict of interest violations as well as the overly restrictive insurance requirements. WisDOT has pointed out in their brief that they should be the ones to interpret their own regulations. FTA agrees with WisDOT‘s position. FTA Circular 9070.1E clearly states that the principal authority and responsibility for administering the program resides with the designated state agency. To the extent that the arguments of Transit are directed at WisDOT‘s interpretation of their own regulations, FTA will not intervene.... FTA believes that the reasonableness or unreasonableness of WisDOT‘s decision is not for FTA to decide. FTA is responsible for determining if WisDOT is following FTA‘s requirements....
Therefore, based on the above, FTA refers this matter back to WisDOT to take whatever additional action it deems necessary in accordance with their administrative process. To the extent that the administrative process has been exhausted, Transit should pursue the matter further in the appropriate manner as specified under state law.
No further action was taken by WisDOT.
3. Transit Express Files Suit in Federal Court
On May 21, 1999, Transit Express filed a complaint in federal court seeking to compel the FTA to review the administrative complaint previously filed with WisDOT. Transit Express specifically asked the trial judge to find that the FTA had a duty to assume jurisdiction over its petition for review of WisDOT‘s service contract practices under
Transit Express asserted that the trial court could properly exercise federal question jurisdiction over the complaint pursuant to
II. DISCUSSION
A. Standard of Review
We review the district court‘s decision to dismiss an action under Rule 12(b)(1) of the Federal Rules of Civil Procedure de novo. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). In considering a motion to dismiss for lack of subject matter jurisdiction, the district court must accept the complaint‘s well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiff‘s favor. Rueth v. EPA, 13 F.3d 227, 229 (7th Cir. 1993).
B. Subject Matter Jurisdiction
Fundamental to our law is the understanding that “[f]ederal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S. Ct. 1326, 89 L. Ed. 2d 501 (1986); see also Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). Furthermore,
With these standards in mind, federal jurisdiction is appropriate in the present case if Transit Express can establish either: (1) that a federal statute has granted the court the power to create substantive law governing this dispute; or (2) that federal common law jurisdiction has been implicated due to a “uniquely federal interest” as to which “the application of state law would frustrate specific objectives of federal legislation.” Northrop Corp. v. AIL Systems, Inc., 959 F.2d 1424, 1426-27 (7th Cir. 1992).
1. Lack of federal statute authorizing jurisdiction
Initially, Transit Express argues that it has properly invoked federal question jurisdiction because the Federal Transit Authority has a duty under federal law to assure that grantees, such as WisDOT, are in compliance with the mandates of the Section 5310 program. Transit Express
a. Full and Open Competition. All procurement transactions will be conducted in a manner providing full and open competition. Some of the situations considered to be restrictive of competition include, but are not limited to:
(1) Unreasonable requirements placed on firms in order for them to qualify to do business;
(2) Unnecessary experience and excessive bonding requirements;
* * *
(5) Organizational conflicts of interest. An organizational conflict of interest means that because of other activities, relationships, or contracts, a contractor is unable, or potentially unable, to render impartial assistance or advice to the grantee; a contractor‘s objectivity in performing the contract work is or might be otherwise impaired; or a contractor has an unfair competitive advantage.
Initially, Transit Express is correct in stating that Circular 4220.1D mandates WisDOT to comply with federal regulations whenever WisDOT distributes federal funds to subgrantees. However, contrary to Transit Express‘s arguments, the competition requirements embodied in FTA Circular 4220.1D do not apply when state agencies such as WisDOT choose to purchase capital assets with the funds. The Third Party Procurement Circular plainly states:
This circular applies to all FTA grantees and subgrantees that contract with outside sources under FTA assistance programs. If a grantee accepts operating assistance, the requirements of this circular apply to all transit-related third party purchase orders and contracts. These requirements do not apply to procurements undertaken in support of capital projects completely accomplished without FTA funds or to those operating and planning contracts awarded by grantees that do not receive FTA operating and planning assistance.
Under the plain language of the Third Party Procurement Circular, the competition requirements contained in Paragraph 8 of the Circular do not apply to operating service contracts that are not assisted with federal funds. As WisDOT used all of its federal funds for capital expenditures, the competition requirements do not apply to the service contracts “awarded by grantees that [did] not receive FTA operating and planning assistance.”
Furthermore, we have previously held that the mere existence of a federal regulatory framework does not convey federal jurisdiction over contractual disputes between private parties that are ancillary to the governmental interest. Northrop, 959 F.2d at 1424. In Northrop, the Air Force contracted with AIL Systems, Inc. (“AIL“) to develop a bomber. Id. at 1425. AIL had previously contracted with another defense contractor, Northrop, and had agreed to subcontract part of the work it received under the Air Force contract to Northrop. AIL subsequently decided to retain all of the defense contract work for itself. Northrop, in turn, brought suit in federal court against AIL
Transit Express‘s arguments mirror those rejected in Northrop. Initially, Transit Express argues that the Federal Transit Authority has a strong interest in monitoring the Section 5310 program requirements. However, just as in Northrop, the FTA‘s general interest in efficient transportation does not extend a concurrent interest in the contracts entered into between private companies that provide transportation services and those non-profit organizations that make use of such services. At base, Transit Express complains about the failure of a state agency to review complaints that sub-grantees failed to follow state issued regulations. Consequently, whatever legal remedy Transit Express might be entitled to would be in state court not federal court.
2. Use of federal funds is not a “unique federal interest”
Transit Express alternatively argues that subject matter jurisdiction exists because the federal government retains a continuing interest in the use of those vehicles that WisDOT purchased with federal funds. In support of this argument, Transit Express relies primarily on In re Joliet-Will County Community Action Agency, 847 F.2d 430 (7th Cir. 1988), a case where state and federal agencies disputed the ownership of a bankrupt entity‘s assets purchased with state and federal grant money. Transit Express cites Joliet-Will for the proposition that subgrant funded assets (such as the vehicles purchased by WisDOT) are “assets of the federal government and of the state agencies to which the federal government made some of the grant initially, for redistribution (along with the state‘s own money) to operating organizations.” Id. at 432. Transit Express reasons that if the vehicles acquired with Section 5310 subgrant assistance are “assets of the federal government” then the federal government has a continuing interest over the use of such vehicles and this interest provides for federal jurisdiction over disputes concerning such property.
The argument that federal jurisdiction exists over this case because federal funds were expended in the purchase of the vehicles fails because the subject matter of Transit Express‘s complaint is unrelated to the vehicles, but rather centers on the distribution of service operating contracts. For example, the complaint filed by Transit Express alleges that Transit Express was unlawfully excluded from receiving service provider contracts with non-profit organizations who received the benefit of Section 5310 assistance, such as Goodwill. In its complaint, Transit Express frames the core of its grievance in this manner:
Plaintiff [Transit Express] has been unlawfully excluded from operating contracts funded by Section 5310 Program subgrants made by Wis DOT to [subgrantees] by and because of the unlawful conduct described in this Complaint.
The fact that federal funds were used to purchase the vehicles in compliance with
If the government retained some legal interest in the vehicles, not only would federal courts have jurisdiction over every accident involving the vehicles, the government could also be held liable for any injuries caused by the negligent operation of the vehicle. This would result in an avalanche of unforeseen liability for the United States and Wisconsin; plainly an untenable result. We hold that the government does not retain any continued legal interest in the vehicles. Accordingly, Transit‘s complaint does not present a federal question, and we have no jurisdiction over the suit.
The district court‘s decision is AFFIRMED.5