S.D.F., INC., WAB Case No. 92-12 (WAB Mar. 30, 1993)
CCASE:
S.D.F., INC.
DDATE:
19930330
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
S.D.F., INC. WAB Case No. 92-12
Subcontractor
DATED: March 30, 1993
ORDER OF DISMISSAL
The Wage Appeals Board, United States Department of Labor is
in receipt of the Wage and Hour Division's motion to dismiss
Respondent S.D.F., Inc.'s Motion for Extension of time in which to
file a petition for review of the Administrative Law Judge's
Decision and Order, dated June 16, 1992. S.D.F. has opposed the
request for dismissal.
The regulations at 29 C.F.R. 6.34 specify requirements for
filing petitions for review from Administrative Law Judge decisions
and orders under the Davis-Bacon and Related Acts:
Within 40 days after the date of the decision of the
Administrative Law [J]udge (or such additional time as is
granted by the Wage Appeals Board)[,] any party aggrieved
thereby who desires review thereof shall file a petition
for review of the decision with supporting reasons. ....
Under this regulation, a petition (or a request for extension of
time to file a petition) should have been filed with the Board on
or before July 27, 1992. However, S.D.F. mailed its petition --
along with the motion for extension of time in which to file the
petition -- on September 4, 1992. These documents were received
and filed by the Board on September 11, 1992.
S.D.F. has noted that the Acting Administrator requested and
was granted an extension of time in which to file a full petition
for review, with full supporting reasons and arguments. The Acting
Administrator filed that extension request on July 27, 1992, the
40th day after entry of the Administrative Law Judge's decision and
order. [1]
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[2] In it request for an extension, S.D.F. states that it then
"had an opportunity to review the Petition for Review filed by the
Acting Administrator and requests relief in order to file its own
Petition for Review as to a finding made by the Administrative Law
Judge below." S.D.F. Motion for Extension, p.1. There is -- as
noted by the Acting Administrator -- no provision in the applicable
regulation for tolling of the time limit in which to file a
petition for review or extension request. This includes situations
where, as here, a timely petition or extension request has first
been filed by another party. Thus, S.D.F.'s argument for accepting
its petition does not suggest any good cause for filing its
extension request and petition for review well beyond the time
limit specified in 29 C.F.R. 6.34. Similarly, the fact that the
Acting Administrator timely sought and was granted an extension of
time in which to perfect her petition is not comparable to S.D.F.'s
inordinate delay in requesting an extension and submitting its
petition.
The Board of Service Contract Appeals has addressed the question of
timeliness for appealing Administrative Law Judge decisions in the
matter of Cynthia Aiken, et al., BSCA Case No. 92-06 (July 31, 1992).
There, the Board rejected the filing of a petition due to the facts that
the petition was filed more than six weeks after the specified time
limitation and that there was no explanation for the delay. Here, the
delay was only slightly less -- five weeks. This Board has determined
that there are no persuasive reasons to depart from the regulatory
requirements for filing a petition and the principle enunciated in
Cynthia Aiken, et al. For the foregoing reasons, it is hereby Ordered,
that S.D.F.'s request for an extension of time is denied. It is
further, Ordered, that the portion of S.D.F.'s "Petition for Review"
captioned as "Argument I" is stricken and will not be considered in the
Board's disposition of the issues raised by the Acting Administrator's
petition for review.
BY ORDER OF THE BOARD:
GERALD F. KRIZAN, ESQ.
Executive Secretary
Telephone: (202) 219-9039
Facsimile: (202) 219-6838 [2]
