None of the parties has presented evidence that would seriously dispute that Caledonia had discriminately terminated Mr. Gamble's employment. Indeed, the prime sponsor, TRICO- CETAC agreed that Caledonia had done so, and urged affirmance of the decision of DOL. Further, the law is clear that a prime sponsor is responsible for CETA violations committed by their subgrantees. (Milwaukee County v. Peters, 682 F. 2d 288 (1982); not clear here, however, is the ramifications of TRICO-CETAC actions. In its brief before Judge Lindeman, TRICO-CETAC agreed with the DOL; it thereby took necessary action to have its subrecipient comply with the DOL's determination. In letters of August 15,1980 and September 15, 1980, George Moore, Executive Director of TRICO-CETAC to the directors of Investigation and Compliance and Equal Opportunity and Special Review Staff, respectively, stated that TRICO-CETAC believed they had their obligation to attempt to achieve a settlement of the matter, but that Caledonia, by its Director, Jerry Ellis contended that there was no discriminatory firing. was not TRICO-CETAC's fault that it took over five years from time of Gamble's termination by Caledonia to hearing before an ALJ; nor that it was nearly three years between the DOL's issuance of Final Determination and an ALJ hearing. It has not been alleged nor is there evidence to support a speculative position that despite their opposition at the hearing, TRICO- CETAC was actually in collusion with Caledonia. To the contrary, TRICO-CETAC took the position that by having the appeal dismissed by Judge Lindeman, it may have been relieved of responsibility since Caledonia was bankrupt and it (TRICO) had done its best, unsuccessfully, to have Caledonia comply with the DOL's Final Determination.

   Nor can the matter be adequately heard at this time. Records of TRICO-CETAC were retained for a number of years after the operation was folded, but were destroyed in the 1985-87 period, (R#3,6). Most of the key players in the dispute are either dead or cannot be located. While testimony was received from Mr. Gamble concerning the incidents surrounding his termination at the hearing before me, the issue of discriminatory firing was not raised before me, inter alia, because of the inability to have all relevant individuals testify and records presented.

   In the last paragraph of his decision, Judge Lindeman stated: "I conclude that the appealing party having decided "not to pursue its appeal," I have no jurisdiction other than to dismiss the appeal and affirm the Final Determination. While the legal issue of the prime sponsor's liability to effectuate the prescribed corrective action in the circumstance of the subgrantee's bankruptcy is in my judgment settled, I believe the final determination letter is not sufficiently specific as to which of those sanctions available to the Secretary were intended to be imposed . . . Since that issue is now of immediate relevance I also conclude that the matter must be remanded to the Grant officer for a determination as to what specific sanction, if any, is to be asserted against the prime sponsor in the circumstances presented in this case." (emphasis added) I interpret Judge Lindeman's language, particularly in the context of the rest of his decision, to be a reaffirmance of the doctrine that a prime sponsor is responsible for the subrecipient's actions, and a finding that Caledonia, by withdrawal of its appeal, had by default admitted the allegations against it. Judge Lindeman did not, however, express an opinion as to whether the culpability and more importantly, the remedial requirements in the Final Determination, for example that Caledonia must reinstate Gamble with back pay should be attributed to the prime sponsor. To the contrary, Judge Lindeman in remanding the matter to the grant officer by use of the words "if any" specifically left open the option that the prime sponsor could be found exonerated and have exhausted the available options open to it in attempting to have its subrecipient comply with the Final Determination, whatever the preferred remedy of Judge Lindeman, if

any, none was specifically spelled out. Moreover, since the subrecipient was the party against whom the Final Determination was made, the remedies ordered may not be appropriate to the prime sponsor. example, presumably TRICO-CETAC did not have available a position equivalent to Mr. Gamble's position with Caledonia, and could not, therefore, "rehire" him. Important in this discussion is that Judge Lindeman while affirming the Final Determination the determination of a remedy (if any) with the Grant Officer. Moreover, in fashioning a remedy, no onus was attributed to the prime sponsor. Despite no representation at the hearing before me, I find no basis for a finding of any unlawful or improper action on the part of TRICO-CETAC. Thus any remedy require of was strictly a legal result of the actions of its subrecipient Caledonia.

   The above analysis leads me inexorably to the conclusion that no specific order (or "sanction") resulted from Judge Lindeman's decision. Rather, the Grant Officer was empowered to issue an order of remedy against TRICO-CETAC. This was never done! Instead, a letter was issued by the Acting Regional Director for OCR of DOL on November 2, 1984 addressed to the First Assistant Corporation Counsel for Kenosha County, Wisconsin stating that: "The final determination that was affirmed by Judge Lindeman required the respondent to compensate Mr. Gamble backpay interest. This amount has been calculated to total $28,610.48." The letter concluded: "Prior to issuing the final determination, we would like to encourage you to reach an equitable resolution through conciliation". Clearly, on its face, this letter does not approach the level of a final order by DOL as to a remedy sought as a result of Judge Lindeman's order since it states that it is prior to a final determination. Further, (leaving aside momentarily the authority of the Acting Regional Director to speak for the DOL in place of the Grant Officer as provided in Judge Lindeman's order) only one of the three counties listed is addressed, raising the presumption that no final result was meant. Conciliation was encouraged, again suggesting a final result was not intended.

   The failure of the DOL through ETA (OCR or otherwise) to follow through on Judge Lindeman's order within 30 days, as provided for under the old 20 CFR 675.91(f), meant that Judge Lindeman's order stood. He gave no remedy against the prime sponsor, although it could be implied through case law that he would find that TRICO-CETAC should be alleged by DOL to be responsible for backpay to Mr. Gamble. However, TRICO-CETAC never had an opportunity to address this issue in its own defense. The delay was caused, according to the record, entirely by the inaction of the DOL. No evidence has been credibly presented that Caledonia's disagreement with the finding of discriminatory firing was other than an honest difference nor that TRICO-CETAC did other than an honest effort to bring Caledonia into compliance, unsuccessfully.

   The failure of DOL to issue a Final Determination until 1983 deprives it of subject matter jurisdiction. CETA was repealed by the Job Training Partnership Act (JTPA) on October 13, 1982. 29 U.S.C. 1501. Section 1591(e) states: "Continuation of judicial proceedings. The provisions of this Act shall not affect administrative or judicial proceedings pending on the date of enactment of this Act, or begun between the date of enactment of this Act and September 30, 1984, under the Comprehensive Employment and Training Act." Judge Lindeman's order against Claedonia was final and would fit the category of a judicial or administrative action. However, no proceeding was initiated against the prime sponsor TRICO-CETAC as would be required under Judge Lindeman's order. As discussed elsewhere, the final liability of the Prime Sponsor cannot be here presumed. The case against TRICO-CETAC has thus "died".

   OCR in its post-hearing brief alleges that Mr. Gamble would. have continued on with Caledonia and, thereafter, obtained a better non-funded job. Such allegations are mere speculation absent a formal hearing where the parties involved could be heard, their demeanor evaluated and cross- examination permitted. In contrast to OCR's allegations, it is equally plausible, for example, that Mr. Ellis' position would have been given credence, and on reevaluation the termination of Mr. Gamble found not to be discriminatory. From my brief exposure to Mr. Gamble, who I found to be a creditable witness and a pleasant and likeable individual, an evaluation that the work he was attempting to do at Caledonia and the promotion he might have obtained would require a more aggressive, focused and disciplined individual could be made on an objective and non-(racial) discriminatory basis. Moreover, TRICO-CETAC may have taken an entirely different tack if it were the accused party in a hearing, particularly if the sums of money here involved were sought, rather than as a prime sponsor who may have felt pressure from DOL or other sources to attempt to have Mr. Gamble reinstated at Caldonia.

   While none of the above speculation is conclusionary, the discussion points out the desirability if not necessity of a full scale objective hearing in order to assess any liability against TRICO- CETAC or its successors, absent a formal order, and the undesirability of assessing "equitable blame". The doctrine of laches is designed to apply to such circumstances where there is unreasonable delay. Continental Web Press v. NLRB, 742 F.2d 1087 (1984)

   Respondents do not dispute that the doctrine of laches as well as application of statutes of limitation are usually not applicable against the United States government absent specific language. Moreover, the law seems clear that Mr. Gamble is unable to sue as a private individual under CETA regulations.(CETA Workers' Org. Committee v. City of New York, 617 F.2d 926 (1980). Cases cited by DOL where long term delay was not found excessive deal with actions brought on behalf of the United States in its sovereign role. The comparable action here and in cases referred to by DOL, where applicable, are CETA audit cases. Those cases involve, generally, misspent funds liability accuring to the government. This case, on the other hand, involves an individual's (alleged) wrongful termination and his right to back pay. (Interestingly, the DOL in its post-hearing brief labels itself as "plaintiff" a term used solely by a suing party).

   While I find lack of subject matter jurisdiction under the statutes themselves, supra, I find that this action would be additionally barred by the six year statute of limitations established for such actions in Wisconsin absent a statute of limitations. Holmberg v. Armbrecht, 327 U.S. 392 (1946)

   Moreover, I have sought in vain to understand the public policy that would support a finding favorable to DOL. Mr. Gamble has been wronged, since a finding in his favor has been rendered and never rescinded. However, all the delay in accomplishing the remedy apparently lies with the DOL. I'm fully aware that entities dealing with the federal government may use the fact-finding and judicial process to "string out" their obligations for payment in cases of restitution. I'm, also, fully aware that entities can dissolve via bankruptcy or other means, and the same or similar parties reemerge under a different form or entity. However, the former has not been creditably alleged, and the latter has not been demonstrated (as discussed, supra). A different situation might arise if the three counties here involved had been demonstrated to be the reincarnated version of the dissolved TRICO-CETAC and had shown discrimination in their new role under JPTA, or, if, the counties had demonstrated instances of other discrimination demonstrated a pattern. No such situation exists. To the contrary TRICO-CETAC an entity formed by the three counties did attempt to rectify the termination of Mr. Gamble. Enforcement of DOL's position particularly at the high amount asked for would, in my opinion, send exactly the wrong message. "Don't get involved with programs of the federal government, particularly if they involve

assistance to the disadvantaged and particularly DOL, since the slightest misstep even if not directly attributable to the sponsoring party will involve massive retaliation". The philosophy of "victimization" would be given preference equal opportunity and individual responsibility in dealing problems of discrimination.

   This case is clearly distinguishable from In the Matter of City of Passaic, New Jersey, Program Agent, and Passaic County, New Jersey, Prime Sponsor, 78-CETA-112 (1990) aff'd. sub nom. Passaic City v, Dole, 925 F.2d 419 (1991) on which DOL stated at the hearing and in its brief, it heavily relied. In Passaic a Decision and Order was issued by Administrative Law judge Garvin Lee Oliver on November 8, 1978 which found the prime sponsor had discriminatorily discharged six employees based on race, and ordered relief. The matter was appealed to the Secretary who on May 24, 1982 in a 20 page decision affirmed the decision of Judge Oliver as modified, but remanded the matter for " ... an evidentiary hearing before an ALJ to determine and fashion specific individual remedial relief for the discriminatees in this case consistent with the guidance and directives contained herein." A hearing was held on February 21 and 22, 1984 before Judge E. Earl Thomas, who issued a Decision and Order on Remand pursuant to the Secretary's remand on November 27,1985 consisting of 15 pages dealing almost exclusively with the issue of fashioning an appropriate remedy for the found discriminatory firing. A motion for reconsideration was denied in a second Decision and order by Judge Thomas on February 5, 1986. In his Decision Judge Thomas, again, specifically held the prime sponsor responsible for backpay and further authorized the Regional Administrator to terminate further funding under JTPA should appropriate action not be taken. This decision was on April 25, 1990, affirmed in nearly all aspects, but modified to permit action to be taken for failure to comply, but not limiting such action to the Regional Administrator. The Secretary of Labor issued a 19 page Decision to reach this conclusion. A Petition for Review was denied by the U.S. Court of Appeals for the Third Circuit on January 17, 1991.

   From the outline above, it can be seen that a specific findings was made by an ALJ after hearing in 1978 which held the prime sponsor liable for discriminatory firing under a CETA contract and gave remedies. Two ALJ and two (separate) Secretary of Labor decisions later, the same prime sponsor was held liable with the only intervening controversy being concerned with the proper remedy.

   This is a far cry from the situation in the case before me, wherein a Decision was never made on the merits by an ALJ and the matter was not even litigated for well over nine years. The prime sponsor as an existing entity under CETA was never formally ordered to make restitution; indeed, it waited in vain on the Department of Labor for an assessment of liability which it could either accept or deny. No wrongdoing has ever been assessed by a judicial or quasi-judicial entity (i.e. an ALJ, the Secretary or a Court). Importantly, TRICO-CETAC never had opportunity to assess, respond to or contest a finding concerning liability after an evidentiary hearing. The entity is no longer in existence. I find, therefore, that the facts are so different as to make Passaic irrelevant to this case. Indeed, Passaic demonstrates action by DOL that should have been been but was not done here. It strengthens, not diminishes, Respondents, arguments.

   In light of my determination here, it is unnecessary to discuss the issue of whether the Governor is a proper party to this proceeding.

   The appeal by the Office of Civil Rights is hereby denied, and this matter dismissed.

      JOHN C. HOLMES
      Administrative Law Judge