and Section 181(e), of the Job Training
Partnership Act of 1982 (JTPA), as amended, 29 U.S.C. §§ 1501, 1591(e)(1988) and the
regulations thereunder at 20 C.F.R. Part 34 (1995). The Board declines to assert jurisdiction in this case
for the reasons set forth below.
BACKGROUND
On March 12, 1996, counsel for the Charging Party (Plaintiff) moved for an
extension of time in which to file exceptions to the Administrative Law Judge's (ALJ) Decision and Order
issued on January 26, 1996. This date was 41 days after counsel's receipt of the decision. Plaintiff's
Motion for Extension of Time at 3.
On March 13, 1996, a Conditional Order was issued allowing Plaintiff additional
time to file exceptions to the ALJ's decision. The Order also requested both parties to address the issue
as to the applicability of the pertinent CETA or JTPA provisions concerning the time for filing exceptions.
The parties submitted briefs in support of their positions on the timeliness issue. Plaintiff also set out his
substantive exceptions to the ALJ's decision.
On April 19, 1996, an Order was issued granting the Respondents' motion
requesting an extension of time to respond to Plaintiff's substantive exceptions until a decision concerning
the timeliness of said exceptions was issued.
DISCUSSION
On May 9, 1984, the Department of Labor published a final rule in the Federal
Register revising the CETA regulation at 20 C.F.R. § 676.91(f) to clarify the appeals procedure in
the then expired CETA program. The regulation was revised "to establish a time limit for the
acceptance of an appeal from an . . . ALJ['s] decision." The revised regulation also clarified the
administrative appeals procedure "wherein a party dissatisfied with an ALJ decision has 30 calendar
days from receipt of the decision to file exceptions with the Secretary. . . . If timely exceptions are not filed
. . . the ALJ decision automatically becomes the final decision of the Secretary." 49 Fed. Reg.
19639-40.
On April 6, 1990, the Department published notice of the removal of the CETA
regulations from the Code of Federal Regulations, and reiterated that CETA regulations continued to apply
to litigation arising under CETA. 55 Fed. Reg. 12995. The Secretary's Order creating the Administrative
Review Board specifically states that we "shall observe the provisions [of the Code of Federal
Regulations] where pertinent, in . . .[our] decisions." 61 Fed. Reg. 19979, May 3, 1996.
Section 181(e) of the JTPA, 29 U.S.C. § 1591(e), specifically preserves
causes of action filed under CETA. Therefore, Plaintiff's cause of action against Respondents was
preserved, but so were the CETA procedural regulations that applied to that cause of action.
Plaintiff fails to address the Department's explicit direction, published eight years after
the program's repeal, that the CETA regulations were to continue to apply to litigation arising under CETA.
55 Fed. Reg. 12995. Thus, Plaintiff's contention that the repeal of CETA and its regulations militates in
favor of compliance with the JTPA procedural rules is not persuasive.
Even if the applicable regulations were not so specific in the requirement to apply
CETA regulations to CETA cases, we still would not assert jurisdiction in this case. Although the general
rule of law provides that current procedural rules are to be followed as opposed to those prevailing on the
date of the alleged violation, this rule is excepted if there would be a manifest injustice or if there is statutory
direction or legislative history to the contrary. See Bradley v. Richmond School Board, 416 U.S.
696, 711 (1976); cf. Kentucky v. Brock , 845 F.2d 117, 120 (1988)(strict adherence to the time
requirements regarding judicial review of CETA cases, when the time limits are in both the Act and the
regulations). We credit the Department's reiteration of the CETA regulations' application to litigation arising
under the program as similar to statutory direction. We further hold that the extraordinary administrative
delay of 17 years in bringing this matter to conclusion presents a manifest injustice to the Respondents'
ability to defend against claims regarding their liability in this case.
Therefore, Plaintiff's failure to timely except to the ALJ's decision is jurisdictional,
and the request to the Board to review this case IS DENIED.
SO ORDERED.
DAVID A.
O'BRIEN
KARL J.
SANDSTROM
JOYCE D.
MILLER
[ENDNOTES]
1
Secretary's Order 2-96 contains a comprehensive list of the statutes, executive
order and regulations under which the Board now issues final agency decisions. A copy of the final
procedural revisions to the regulations (61 Fed. Reg. 19982), implementing this reorganization is also attached.
2
