DATE ISSUED: AUG 2 1995

In the Matter of:

BRENDA W. SHELTON,
Complainant

v.

OAK RIDGE NATIONAL LABORATORY; LOCKHEED MARTIN ENERGY SYSTEMS, INC.; MARTIN MARIETTA CORPORATION; MARTIN MARIETTA TECHNOLOGIES, INC; LOCKHEED MARTIN CORPORATION; UNITED STATES DEPARTMENT OF ENERGY; DR. WILBUR D. SHULTS,
Respondents.

CASE NO.: 95-CAA-19

BEFORE: John M. Vittone
    Acting Chief Judge

   On July 24, 1995, I issued an Order in which the parties were instructed to submit to this Office, no later than close of business on July 28, 1995, documentation establishing the timely filing of any request for hearing made in the above captioned case.¹ Complainant filed its first response to the Order on July 24, 1995, contending that Respondents did not perfect their appeal, and moving for default judgement. Respondents filed their response to the Order on July 28, 1995. Complainant responded to Respondents' submission on July 30, 1995.

   It is undisputed that Respondents² neglected to file their June 16, 1995 appeal with this office.³ This appeal, captioned for this office, was filed with the Administrator, Wage and Hour Division, the District Director, Complainant's counsel, and the Department of Energy.⁴ It was not until Respondents telephoned this office on July 21, 1995 that any party realized that the appeal was not forwarded to this office. In fact, Complainant herself thought that the appeal was filed with this office. In her June 20, 1995 submission to this office, Complainant states, "You will kindly recall that Respondents..... sent you a request for hearing in this action on June 16, 1995, appealing from the Wage-Hour Administrator's June 14, 1995 findings . . . . "

   The issue before me is whether Respondent's failure to timely forward their appeal to this office warrants default judgement in light of the facts of this case.

   It is well settled that the time period for requesting a hearing is not jurisdictional and may be tolled in appropriate circumstances. See, e.g., Ward v. Bechtel Const., Inc., 85-ERA-9 (Sec'y July 11, 1986). The facts in this case demonstrate an appropriate circumstance to excuse a delay in notifying this office of an appeal. Respondents timely notified every relevant party to this proceeding that it appealed the Administrator's decision except this office. Thus, the parties had an opportunity to prepare and respond to this appeal. Complainant herself took the opportunity to respond to Respondents' appeal by cross appealing certain portions of the Administrator's determination.

   It is worth noting that I am well aware of the purpose in expediting these cases. Complainant properly points out that cases are dismissed regularly for a party's failure to timely appeal an Administrator's decision. However, those cases involve situations where no appeal has been filed with any party or decision making body. In other words, those parties have not made a showing of mistake, inadvertence, excusable neglect or any other showing to excuse an untimely appeal. Ward, supra. In the instant case, every party knew full well of Respondents' intentions and proceeded with this matter as if the appeal was, in fact, filed with this office. Respondents simply made a clerical mistake that affected nothing but the initial processing of the case in this office. Thus, the facts in this case are distinguishable from other cases where no evidence has been provided to excuse an untimely appeal.

   Moreover, Complainant has provided no evidence that she has been prejudiced by the delay caused by Respondents' error. Without such evidence, I am compelled to deny Complainant's request for Default Judgement given the facts and circumstances of this case.

   In light of the foregoing, Complainant's request for Default Judgement is hereby DENIED. The parties will be notified when this case is assigned to an administrative law judge and scheduled for hearing.

SO ORDERED,

       JOHN M. VITTONE
       Acting Chief Judge

¹The procedural history in this matter is detailed in the July 24, 1995 Order and, therefore, will not be repeated in this Order.

²Respondents who appealed include all entities and persons in the caption except the Department of Energy, which apparently has not filed a separate appeal.

³Respondents admit to not filing the appeal with this office stating that, "Apparently, the request for hearing was mistakenly not sent to the Chief ALJ's office. This was an oversight for which Respondents' outside counsel take full responsibility. But there is no dispute that [Complainant] and all others were timely served with the request for a hearing." Respondents' Brief at 7.

⁴See copies of fax transmittal sheets and reports attached to Respondents' Response to Order dated July 24, 1995.