1 These cases were consolidated first
before the Administrative Law Judge. When initially appealed to this Board by the Department,
they
were docketed erroneously under a single case number, ARB Case No. 99-007. This ARB case
number is now assigned to the Department's appeal of ALJ Case No. 97-JTP-20, involving the
Minnesota grant application. The Department's appeal of the South Dakota grant application has
been assigned ARB Case No. 99-056, and the North Dakota grant appeal has been docketed as
ARB
Case No. 99-057. After the initial appeals were filed, Midwest Farmworker Employment &
Training,
Inc., filed cross-appeals which have been docketed as ARB Case No. 99-058 (Minnesota),
99-059
(South Dakota), and 99-060 (North Dakota).
2 For ease of reference, we refer
to Minnesota, North Dakota, and South Dakota as "the three states." The JTPA
provision for migrant and seasonal worker programs is codified at 29 U.S.C. §1672
(1994).
3 These cases were before us
earlier on Respondent's Request for Emergency Review of Denial of Motion for Protective Order
and
Grant of Motion to Compel Discovery. We denied the motion in an Order issued on July 23,
1998
in ARB Case No. 98-144.
4 The SGA contained a
typographical error that reduced from 25 to 15 the points available for "familiarity with the
area
to be served." This error had the effect of reducing the total rating points available to all
applicants to 90, instead of 100. Because Midwest had provided training services within the
grant
areas for many years, the company presumably would have received a relatively high rating score
under the "familiarity with the area serviced" criterion, and therefore Midwest would
have been disadvantaged (relatively) by the reduction in value from 25 to 15 rating points.
5 The grant to Motivation for the
state of North Dakota is also the subject of a second challenge currently pending before the
Board,
Job Service North Dakota v. United States Dep't of Labor, ARB Case No. 99-020, ALJ
Case No. 97-JTP-23.
6 Kane has since retired from the
Department. T. 552.
7 The Campesinos
decision involved an unsuccessful applicant's challenge of grants for training migrant and
seasonal
workers during two distinct grant periods. The first of the two grant programs involved was
authorized by the Comprehensive Employment and Training Act (CETA) and the second was
authorized by CETA's successor statute, the JTPA. At the time of the court's decision, the grant
periods had expired for both of the challenged grants. Relying upon the regulation at 20 C.F.R.
§633.205(e), the Ninth Circuit found the controversy moot as to both of the challenged
grants.
8 Because we dismiss this case
as
moot, it is unnecessary for us to reach any conclusions on the merits of the case. However, we
note
that even if the case were not moot, and even if the ALJ had awarded the proper remedy under
the
regulations, our doubts concerning several of the ALJ's key findings of irregularities in the grant
application process would compel us to reevaluate the ALJ's conclusions. For example, the
finding
that Kane was "prejudiced" against farmworkers, discussed at length by the ALJ, was
based upon comments he made at a meeting in Coeur D'Alene, Idaho, after the award of
the
grants at issue. Moreover, any purported prejudice against farmworkers on Kane's part would
apply
equally to the successful applicant, Motivation, which also was operated by farmworkers. The
ALJ's
questions at the hearing showed that he was aware that Midwest and Motivation were similar in
nature:
Q by ALJ: [T]he other competing firm, [Motivation,] did they have any
Chicanos working for them?
A: Yes, they did.
Q by ALJ: So how can you say it was how can you say they discriminated against one
Chicano when they gave a contract to
another Chicano?
T. 489. Because Kane did not review the applications or select Motivation, Kane's alleged
prejudice against farmworkers which was an important element of the ALJ's analysis seems
irrelevant.
The ALJ also appeared to err in assessing the facts concerning the
embezzlement of funds by one of Motivation's employees, Ibarra. After the ALJ raised
questions
at the hearing about the Ibarra incident, the Department reported that "the OIG is not aware
of any evidence indicating that anybody within [Motivation] besides Mr. Ibarra was involved
in"
or "aware of" the embezzlement of JTPA funds, and that "Motivation officials
were
completely cooperative during the investigation of Ibarra's activities." Shapiro affidavit,
attached to June 10, 1998 report to ALJ. Moreover, the Department explained that Ibarra had
been
ordered to pay restitution, id., and the record contains a photocopy of the judgment in
Ibarra's criminal case, noting that Ibarra had paid some $14,052.80 in restitution. MX 1,
Judgment,
at pp. 2, 4. Notwithstanding this evidence, the ALJ curiously found that Ibarra's embezzlement
of
funds was not an isolated incident and that "there is no evidence that the embezzled funds
were
returned." D&O at 11. We question those findings.
We also question the ALJ's finding that Kane's alleged bias in favor of
Motivation made the grantee selection process unfair, when the weight of the evidence suggests
that
the persons charged with conducting the review were free from bias. The selection process
began
when DOL employee Irene Pindle arranged for publishing the SGA for grants in the three states.
T.
913. After publication, Pindle discovered the typographical error in the number of points allotted
for
"familiarity with area served." T. 914. The ALJ found that Pindle did not act with
any
bias. D&O at 11. Next in the grant application process, three panel members evaluated the grant
applications. The chair of the panel, Roland Brack, testified that he had no conversations with
Kane
about the work of the panel. T. 881-882. Likewise, panel member Ronald Rubbin knew none of
the
applicants and believed the scoring process was done fairly. T. 999. After the panel made its
recommendations, Grant Officer James DeLuca reviewed the recommendations and selected the
grantees. The ALJ found that DeLuca did not act with prejudice and did not know anything
about
gifts from Acosta to Kane. D&O at 11.
Based on the record and the ALJ's findings, it appears that the people who
actually performed the selection did not act with bias against the disappointed applicant,
Midwest,
or with bias in favor of the grantees, Motivation and Proteus. The ALJ simply did not explain
how
any prejudice or bias on the part of Kane affected the selection process conducted by Pindle, the
panel
members, and DeLuca.
9 The ALJ appeared to authorize
a future award of attorney fees to Midwest by affording it the opportunity to submit a petition for
such fees. D&O at 12. The ALJ did not cite any authority for awarding fees under the JTPA or
the
implementing regulations, and we have found none.
In light of our disposition of this case, we need not rule on Midwest's
Motion
to Strike Portions of Respondent's Brief and Material Outside of the Record.