California Health & Welfare Agency v. USDOL, 96-JTP-11 (ALJ Feb. 4, 1997)

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USDOL/OALJ Reporter
California Health & Welfare Agency v. USDOL, 96-JTP-11 (ALJ Feb. 4, 1997)

UNITED STATES DEPARTMENT OF LABOR>
OFFICE OF ADMINISTRATIVE LAW JUDGES
800 K STREET, N.W., SUITE 400N
WASHINGTON, D.C. 20001-8002

Date: February 4, 1997

Case No.: 96-JTP-11

In the Matter of:

CALIFORNIA HEALTH AND WELFARE AGENCY,
Complainant,

U.S. DEPARTMENT OF LABOR,
Respondent.

ORDER GRANTING AND DENYING PETITIONS FOR INTERVENTION

The above-captioned matter is before the Office of Administrative Law Judges upon Complainant's request for a hearing under the Job Training Partnership Act, 29 U.S.C. § 1501 et seq., and the regulations issued thereunder at 20 C.F.R. Part 636. Agencies from the states of New York, Maryland, Texas, and Nevada have petitioned to intervene in this matter. On November 25, 1996, I issued an Amended Order to Show Cause directing these states to explain how they meet the requirements for intervention.¹ All the states have submitted statements, and the Grant Officer has responded.²

The Grant Officer does not object to the intervention of Texas and Nevada, as they were both awarded funds under the grant at issue and should be provided the opportunity to protect their interests in such grant funds. There being no objection, good cause having been shown, and the requirements of 29 C.F.R. § 18.10(b) having been met, the petitions to intervene of the Texas Workforce Commission and of the Department of Employment, Training, and Rehabilitation of the state of Nevada are hereby GRANTED.

The Grant Officer does object, however, to the intervention of Maryland and New York. The Grant Officer asserts that these states did not file a request for a hearing after being notified of the denial of funding on July 9, 1996 as required by 20 C.F.R. § 636.10 and that they should not be allowed to participate and raise issues specific to their denial of funding where they did not timely file a request for a hearing.

The regulations expressly provide that any objections to the findings of the

[Page 2]

Grant Officer shall be filed within twenty-one days of receipt of the final determination. If this mandatory time frame is not followed, the Grant Officer's determinations are not subject to further review and become the final decision of the Agency. 20 C.F.R. § 636.10(a)(2). In Green v. Curtis Expo & Storage, 94-STA-47 (Sec'y Mar. 16, 1995), the Secretary held that where the complainant failed to make a timely objection to the preliminary findings (though he did make an untimely objection) and ignored an administrative law judge's order to show cause, the ALJ's recommendation of dismissal of the complaint was proper. I agree with the Grant Officer under these circumstances. These petitioners should not be allowed to use the back door to become involved in a proceeding concerning matters about which they failed to file a request for a hearing. As they abandoned their right to an appeal, they no longer have an interest meriting protection through the grant of intervention. Accordingly, the petitions of intervention of the Department of Labor of the state of New York and of the Department of Labor, Licensing, and Regulation of the state of Maryland are hereby DENIED.

IT IS FURTHER ORDERED, despite the Grant Officer's objection, that the states of Maryland and New York shall be granted the privilege of participating as amicus curiae, as 29 C.F.R. § 18.12 provides that consent of the parties or leave of the administrative law judge is not required where amicus curiae briefs are presented by a state.

SO ORDERED.

JOHN M. VITTONE
Chief Administrative Law Judge

JMV/cy

[ENDNOTES]

¹Twenty-nine C.F.R. § 18.10(b) provides that a party has a right to intervene in an action if the administrative law judge determines that: (1) the final decision could directly and adversely affect the party; (2) the party may contribute materially to the disposition of the proceedings; and (3) the party's best interests are not adequately represented by the existing parties.

²The cover letter of the January 17, 1997 submission is entitled "Grant Officer's Motion for Leave to File Responses to California's Oppositions to the Grant Officer's Motions for Stay of Proceedings and Summary Decision, Grant Officer's Response to Opposition to Motion for Summary Decision, and Grant Officer's Response to Opposition to Motion for Stay of Proceedings." However, the document attached is entitled "Grant Officer's Reply to the Maryland and the New York Responses to the Amended Order to Show Cause."