United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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No provision in the regulations permits the filing of comments on, or a response to, a party's response to exceptions. OFCCP v. Missouri Pacific Railroad, 81-OFCCP-8, Deputy Under Secretary for Employment Standards, August 12, 1985, slip op. at 2.

For good cause shown, Acting Secretary grants motion by Indiana League of Savings institutions, Inc., for leave to file an amicus curiae brief on exceptions. OFCCP v. USAA Federal Savings Bank, 87-OFC-27, Acting Secretary of Labor Order, January 18, 1991, slip op. at 2; Secretary of Labor Final Decision and Order, March 16, 1995.

Because an affidavit attached to the amicus brief was not part of the record before the ALJ, it may not be made part of the record for the final decision by the Secretary. Thus, OFCCP's motion to strike the affidavit is granted. Id. at 2-3; Secretary of Labor Final Decision and Order, March 16, 1995.

Where it is apparent, the Assistant Secretary is obliged to notice lack of subject matter jurisdiction sua sponte. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, August 24, 1992, slip op. at 7; Consent Decree, February 2, 1993.

Assistant Secretary denies OFCCP's motion to strike defendant's exceptions as untimely filed because the interests of justice are served; OFCCP failed to demonstrate that it will be prejudiced thereby, defendant acted in good faith, and acceptance of the exceptions allows fuller consideration of relevant issue in the case. OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Assistant Secretary Final Decision and Order of Remand, July 27, 1993, slip op. at 6, n.2; Acting Assistant Secretary Reconsideration of Final Decision and Order, December 22, 1993; Order Approving Settlement and Dismissal, April 20, 1994.

Absent a regulation to the contrary, the Secretary has held [that] mailing a document constitutes filing it. OFCCP v. City Public Service of San Antonio, 89-OFC-5, Assistant Secretary for Employment Standards Decision and Remand Order, January 18, 1995,

at 6; Consent Order Dismissing Case, February 5, 1996.

Even where no exceptions are filed after submission of a recommended decision by an ALJ, the recommended decision does not become final. Only the Assistant Secretary has the authority to issue a final Administrative Order. Id. at 6.

Following the issuance of the ALJ's Recommended Decision and Order, City Public Service's Motion for an Order Granting Stay of Proceedings, Leave to File a Motion to Strike, and the Setting of a Brief Schedule was made moot by its filing of exceptions to the same decision and order. Id. at 6, n.4.

An ALJ decision is only a recommended decision, not a final judgment. Texas Industries, at 2, n.1. OFCCP v. Texas Industries, Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995; Consent Decree, June 21, 1996.