Bartsch v. The Regents of the University of California, 2002-LCA-20 (ALJ Mar. 20, 2003)
U.S. Department of Labor
Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105
(415) 744-6577 (415) 744-6569 (FAX)
Issue Date: 20 March 2003 Case No: 2002-LCA-20
In The Matter Of
STEPHAN BARTSCH,
Prosecuting Party
v.
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA,
Respondent
ORDER OF DISMISSAL
On July 29, 2002, I issued an Order to Show Cause as to why this case should not be dismissed. The parties filed appropriate responses to the Order which I have carefully considered and the case is ready for decision.
Findings and Conclusions
Complainant wrote to the Department of Labor's Wage and Hour Division complaining of possible violations of the H1-B provisions of the Immigration and Nationality Act by the University of California, Berkeley. On November 14, 2001, the Wage and Hour Division, Employment Standards Administration, wrote to Complainant acknowledging receipt of his complaint.
On July 11, 2002, Complainant filed the case at bench alleging that the Administrator did not conduct an investigation within the specified time period and has not issued a determination in the matter. Thus, Complainant asserts he is entitled to a hearing before the Office of Administrative Law Judges.
The Office of Administrative Law Judges has jurisdiction to conduct hearings only where specifically authorized by statute or regulations. Hitek Learning Systems, Inc. v. South Carolina Employment Security Commission and USDOL, 2001-JPT-2 (ALJ Jan. 25, 2002); Kroger v. Directorate of Civil Rights, 1999-JTP-20 (ALJ Oct. 27, 1999).
Labor condition applications are governed by the provisions of 20 C.F.R. Part 700, et seq. Jurisdiction is vested in the Office of Administrative Law Judges to review determinations by an Administrator. (Emphasis added). 20 C.F.R. § 655.820. Examination of the regulations indicates that there is no default provision conferring jurisdiction on the Office of Administrative Law Judges where the Administrator fails to issue a determination or does not timely investigate. In addition, there is nothing in the statute or regulations which confers jurisdiction on the Office of Administrative Law Judges to order the Administrator to investigate or issue a determination. Such jurisdiction would appear to be in the United States District Court. Marathon Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir. 1991). Furthermore, the regulations give the Administrator discretion as to whether or not an investigation of a complaint is warranted. 20 C.F.R. § 655.806.
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In light of the foregoing, I find and conclude that the Office of Administrative Law Judges has no jurisdiction to proceed in this case, absent a determination of the Administrator and that the case should be dismissed.
ORDER
IT IS HEREBY ORDERED that Case No. 2002-LCA-20 is dismissed.
