Pawlick v. O'Leary, 4th Cir. (1998)
Pawlick v. O'Leary, 4th Cir. (1998)
acknowledges, as he must, that "the statute gives the Secretary discretion to determine specific benefits provided to the employees." Appellant's Brief at 8. He contends, nonetheless, that the DOE lacks the
discretion to distinguish between subcontractor and contractor
employees. No language in the Act, however, requires the DOE to
treat subcontractor employees on par with other DOE contractor
employees. The statute does define the term DOE employees for purposes of the Act to include subcontractor employees, see 42 U.S.C.
7274j(2), but the statute does not preclude the workforce restructuring plan from accounting for differences in employee status and does
not indicate that subcontractor-versus-contractor employee status is
an impermissible basis for making such distinctions. Presumably,
then, while subcontractor employees count as employees whose interests the DOE is directed to consider in developing its plan, the DOE
is no more precluded from providing a different level of benefits
based on subcontractor-versus-contractor employee status than based
on length of employment. Accordingly, because the DOE was acting
within the realm of its discretionary authority, neither plaintiff's mandamus nor his APA claim is cognizable.
Appellant also asks this court to imply a private cause of action to
enforce the Defense Authorization Act. When asked to imply a private right of action, the "task [of the courts] is limited solely to determining whether Congress intended to create the private right of action
asserted." Touche Ross & Co. v. Redington, 442 U.S. 560, 568
(1979). The Supreme Court has made clear that, absent affirmative
evidence that Congress intended to create a private right enforceable
in federal court, the courts should not imply a private cause of action.
For example, in Touche Ross, the Court declined to create an implied
cause of action under 17(a) of the Securities Exchange Act of 1934,
which imposed a duty on brokers to maintain records. The Court reasoned that
the statute by its terms grants no private rights to any identifiable class and proscribes no conduct as unlawful. And . . .
legislative history of the 1934 Act simply does not speak to
the issue of private remedies under 17(a). At least in such
a case as this, the inquiry ends there: The question whether
Congress, either expressly or by implication, intended to
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