Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue Date: 02 February 2004 Case No.: 2003WIA00006
In the Matter of
Black Hills Special Services Cooperative,
Claimant
v.
United States Department of Labor and
Grant Officer Lorraine H. Saunders,
Respondents
DECISION AND ORDER
The hearing in this matter took place on December 4, 2003. The parties have submitted their posthearing briefs, the Complainant on January 23, 2004, and the Respondent on January 27, 2004. In her brief, the Grant Officer stated that after further consideration of information that came to light during the hearing, she had determined that the initial awardee, United Migrant Opportunity Services (UMOS) should be removed as grantee, and that the Complainant should be designated as the Workforce Investment Act section 167 grantee to provide migrant and seasonal farmworkers in the State of South Dakota with employment and training services for the remainder of the current grant cycle. However, the Grant Officer believes that she is unable to designate the Complainant as the grantee as long as this appeal is pending before me. The Grant Officer has requested that I enter an Order reversing her July 1, 2003 decision, and awarding the grant to the Complainant. The Complainant has not objected to this request, and indeed, this is the relief the Complainant seeks.
The Complainant also requests that I issue an Order to show cause as to why Rule 11 sanctions should not be imposed for misrepresentations by the Respondent and counsel to this Court and Complainant. The Complainant was one of five organizations which filed appeals on learning that they had not received a grant for the 2003 program year. Because the grants are of limited duration, it is imperative that resolution of an appeal be made quickly, or the issue will be moot with the expiration of the grant. Thus, these parties filed notices of appeal as soon as they learned of their non-selection, and asked for expedited hearings. At that time, the appeals were docketed before Chief Judge John Vittone, who scheduled a conference call with the parties for July 14, 2003. During this conversation, as reflected by Judge Vittone's July 16, 2003 Order, Mr. Jones represented that the appeals were "premature," as no determination letters had yet been sent with respect to the grants. But in fact, Ms. Saunders had already made her determination, and had signed a contract with UMOS on July 1, 2003.
In addition, the Complainant argues that the Respondent misstated the contents of affidavits that the Respondent submitted in its Motion for Remand, regarding the interpretation of a specific portion of the SGA. In its posthearing brief, the Respondent argues that the statements in its Motion for Remand were accurate, and that the affidavits simply "understated" the declarants' responsibility for drafting the SGA. In an effort to help resolve this issue, the Respondent submitted supplemental declarations by Ms. Walker and Mr. Shearer.
As I noted in my January 8, 2004 Order denying the Respondent's request for a remand, neither Ms. Walker nor Mr. Shearer testified at the hearing. Their affidavits are not part of the evidentiary record, and I would not consider them in making a determination on the merits. I have, however, reviewed all of these affidavits in connection with the issue of Rule 11 sanctions, and I find that the statements by Respondent in the motion for remand, while an overstatement and mischaracterization of the contents of the supporting affidavits, nevertheless had a basis in fact, as demonstrated by the supplemental affidavits.
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However, I do find that counsel's conduct in connection with the telephone conference with Judge Vittone warrants further consideration. The Respondent has not addressed this issue in its posthearing brief. I will order the Respondent and counsel to show cause as to why they should not be required to pay to the Complainant an amount representing attorneys' fees and other expenses expended as a result of Respondent's conduct as described above
Accordingly, IT IS HEREBY ORDERED:
A. The Respondent shall determine whether Black Hills Special Services Cooperative continues to meet the requirements of 20 C.F.R Part 668 or 669, and if so, the Respondent shall fund Black Hills Special Services for the remainder of program year 2003, and program year 2004, contingent on the availability of Congressional Funding for program year 2004.
B. The Respondent shall show cause, within fifteen days of the date of this Order, as to why Respondent and counsel should not be assessed with the reasonable attorneys' fees and expenses expended by Black Hills Special Services Cooperative in prosecuting its claim.
C. The Complainant shall have ten days after service of the Respondent's response to the order to show cause to file any reply with the Court.
