Cherokee Heritage
Foundation, Inc. v. USDOL, 1989-JTP-29 (ALJ June 25, 1999)
U.S. Department of
Labor
Office of Administrative Law Judges
CASE NO: 89-JTP-29
DATE: June 25, 1990
IN THE MATTER OF
CHEROKEE HERITAGE FOUNDATION, INC.
Plaintiff
v.
U.S. DEPARTMENT OF LABOR
Respondent
DECISION AND ORDER DISMISSING COMPLAINT
The above action was assigned to the undersigned Administrative Law Judge for
decision on April 30, 1990. A prehearing order was issued by Deputy Chief Administrative Law Judge
John M. Vittone on August 8, 1989. Responses to the prehearing order have now been filed by the
Plaintiff, Cherokee Heritage Foundation, Inc., by the Florida Governor's Council on Indian Affairs, Inc.
(FGCIA), and by the Grant Officer.
As the Grant Officer's administrative file has been filed, pursuant to the
prehearing order and § 636.10(g), the burden of persuasion now rests with the Plaintiff to
overturn the Grant Officer's decision. However, upon review of the administrative file, it appears that
the Plaintiff's notice of intent to apply for funds was not timely filed in accordance with 20 C.F.R.
§ 632.11 which provides in part:
(a) When designations are required and the potential grantee is not under a Master
Plan agreement, an applicant for designation as a Native American grantee shall submit
a notice of intent to apply for funds. Such notices of intent shall be postmarked by
January 1 and be submitted to the Division of Indian and Native American Programs
(DINAP), Employment and Training Administration, 601 D Street NW., Washington,
D.C. 20213. Notices of intent may also be delivered to that office in person not later
than the close of business on January 2 or the first business day of the designation year,
etc.
[Page 2]
The administrative file reflects that the Plaintiff's notice of intent was not filed until
March of 1989. Pursuant to 20 C.F.R. § 632.13, plaintiff, whose application was denied, has
the right to request a hearing on the question of whether the denial was in accordance with the
applicable regulation. However, nothing in this part of the regulations addresses the issue of a hearing
where a timely notice of intent to apply for funds has not been filed. 20 C.F.R. § 636.10(a)(3)
provides that:
(3) Except as otherwise provided by these regulations, only alleged violations of
the Act, regulations, grants or other agreements under the Act fairly raised in grantee level
proceedings under § 636.3, alleged violations of recipient level procedures fairly raised
before the Grant Officer, or complaints identified in Sections 164(f) and 166(a) of the Act are
subject to review.
Further, subsection (h) requires that the Administrative Law Judge shall review
the file and determine whether there are any material factual issues unresolved. Accordingly, an order
was issued on May 16, 1990, which required the Plaintiff, Cherokee Heritage Foundation, Inc., to
show cause why this matter should not be dismissed on the grounds that the notice of intent was not
timely filed; and to show cause why the decision of the Grant Officer should not be affirmed on the
basis of the administrative file, as no material issues of fact exist which must be litigated.
By letter dated June 1, 1990, the Plaintiff has responded that a Mr. James Lowe,
Georgia DOL, "contacted USDOL ETA Native American Programs on behalf of CHF, Inc. He
was told that there was no use in our applying for the Grant now in question." Plaintiff has argued
that such was the reason it did not apply in a timely fashion.
However, the Plaintiff has not argued that it was prevented from applying in a
timely fashion, but that it relied upon the advice of Mr. Lowe of the Georgia DOL in reaching its
decision not to file. These facts, even if accepted, are not sufficient to preclude a finding that the notice
of intent to apply was not timely filed.
The Plaintiff also has responded that, "We believe that not enough
consideration was given to the qualifications of our proposed staff and our ability to put together an
administrative system to ensure effective Grant administration." This argument does not address
the question of timeliness, and is not relevant to resolution of the timeliness issue.
Based upon my review of the administrative file and the Plaintiff's response to the
order to show cause, I find that there is no material issue of fact to be resolved, and that the application
of the Plaintiff was not timely filed in accordance with 20 C.F.R. § 636.11(a). Further, as the
Plaintiff has not filed a timely application, I find that it cannot be considered an "applicant"
within the meaning of 20 C.F.R. § 632.13(a), for purposes of requesting a formal hearing as
provided in § 632.13(a)(4).
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It is accordingly Ordered that:
1. The complaint and request for hearing filed by the Plaintiff, Cherokee Heritage
Foundation, Inc., is dismissed as not based upon a timely notice of intent to apply for
funds.
2. The finding of the Grant Officer, James C. DeLuca, on June 29, 1989, denying
reconsideration of Plaintiff's application is affirmed.
Entered this the 25th of June, 1990 at Cincinnati, Ohio.
