84ct089a.htm

DATE:  July 13, 1993
CASE NO. 84-CTA-89


IN THE MATTER OF

U.S. DEPARTMENT OF LABOR,

     v.

THE EMPLOYMENT AND TRAINING
CONSORTIUM.


BEFORE:  THE SECRETARY OF LABOR


                     FINAL ORDER DISMISSING EXCEPTIONS

     This case arises under the Comprehensive Employment and
Training Act (CETA), 29 U.S.C. §§ 801-999 (Supp. V
1981), [1]  and its implementing regulations, 20 C.F.R. Parts
675-680 (1990).  The Grant Officer (G.O.) filed exceptions to the
Decision and Order (D. and O.) of the Administrative Law Judge
(ALJ) insofar as it held that $41,226.76 in costs disallowed by
the G.O. would be allowed.  The ALJ upheld the disallowance of
,971.02 in misspent CETA funds.  The case was accepted for
review in accordance with 20 C.F.R. § 676.91(f).
     The grantee, The Employment and Training Consortium, has
requested that review be denied because the G.O.'s exceptions
were not timely filed. [2]   Grantee's Brief at 1-2.  Section
676.91(f) provides that the ALJ's decision shall constitute final
action by the Secretary unless, within 30 days after receipt of
the decision a party has filed exceptions with the Secretary. 
Because the regulations do not specify what constitutes filing
with the Secretary, it is appropriate to look to the Federal
Rules of Appellate Procedure for guidance.  See United
States Department of Labor v. Utah Rural Dev. Corp., Case No.
83-CTA-211, Sec. Ord., Oct. 15, 1986, slip op. at 1-2.
     Rule 25(a) permits filing by mail, but states that "filing
[a notice of appeal] [3]  shall not be timely unless . . . [it
is] 
[PAGE 2]
received . . . within the time fixed for filing, . . ." 
See Vogelsang v. Patterson Dental Co., 904 F.2d
427, 430 (8th Cir. 1990) (Rules do not equate placing notice of
appeal in mail with filing).  Rule 26(a) states that, in
computing a period of time, the last day shall be included unless
it is a Saturday, a Sunday, or a legal holiday.
     In the instant case, the G.O. received the ALJ's D. and O.
on April 24, 1987.  Thirty days after that date was Sunday, 
May 24, 1987.  The next day was Memorial Day, a federal holiday,
so exceptions would have had to been filed on May 26, 1987. 
Although the G.O.'s exceptions were dated May 26, they were not received by the Secretary until the afternoon of May 27, 1987,
and therefore were not timely.
     In the federal court system, the time limit for filing a
notice of appeal is mandatory and jurisdictional. [4]   Although
it is always within the discretion of an administrative agency to
relax or modify procedural rules when in a given case the ends of
justice require it, American Farm Lines v. Black Ball Freight
Serv., 397 U.S. 532, 539 (1970), that principle does not
apply where, as here, there is a jurisdictional problem. 
Id. at 537.  In my view, strict adherence to the
requirement that exceptions be timely filed is necessary to
preserve the integrity of the Secretarial review process and to
provide certainty regarding when the administrative action is
final.
     Accordingly, the G.O.'s exceptions are dismissed as untimely
and the ALJ's D. and O. stands as the final action by the
Secretary. [5]   In accordance with the D. and O., the grantee,
The Employment and Training Consortium, is therefore ordered to
pay ,971.02 to the Department of Labor.  This payment shall be
from non-Federal Funds.  Milwaukee County, Wisconsin v.
Donovan, 771 F.2d 983, 993 (7th Cir. 1985), cert.
denied, 476 U.S. 1140 (1986).
     SO ORDERED.



                              _____________________________
                              Secretary of Labor

Washington, D.C.


OAA:TMORRISS:kg:05/16/95
Room S-4309:FPB:219-4728



[ENDNOTES]
           
[1]   CETA was repealed effective October 12, 1982.  The
replacement statute, the Job Training Partnership Act, 29 U.S.C.
§§ 1501-1791 (1988), provides that pending proceedings
under CETA are not affected.  29 U.S.C. § 1591(e).

[2]   The G.O. has not responded to this contention.

[3]   Exceptions filed with the Secretary are the functional
equivalent of a notice of appeal in the federal court system.

[4]   Where there are unique or extraordinary circumstances, a
party may be granted leave to file an untimely notice of appeal,
see Marsh v. Richardson, 873 F.2d 129, 130 (6th
Cir. 1989), if the court finds excusable neglect.  The G.O. in
this case did not request leave to file the exceptions late.  Had
the G.O. done so, excusable neglect probably would not be
established as it does not include inadvertence or mistake of
counsel, the likely reasons for the G.O.'s failure to timely
file.  See Alaska Limestone Corp. v. Hodel, 799
F.2d 1409, 1411 (9th Cir. 1986).

[5]   In view of this disposition, it is not necessary to address
the issues raised by the grantee.