§ 34.52 - Decision and post-termination proceedings.

§ 34.52 Decision and post-termination proceedings.

(a) Initial decision. After the hearing, the Administrative Law Judge shall issue an initial decision and order, containing findings and conclusions. The initial decision and order shall be served on all parties by certified mail, return receipt requested.

(b) Exceptions; final decision -

(1) Final decision after a hearing. The initial decision and order shall become the final decision and Order of the Secretary unless exceptions are filed by a party or, in the absence of exceptions, the Secretary serves notice that the Secretary shall review the decision.

(i) A party dissatisfied with the initial decision and order may, within 45 days of receipt, file with the Secretary and serve on the other parties to the proceedings and on the Administrative Law Judge, exceptions to the initial decision and order or any part thereof.

(ii) Upon receipt of exceptions, the Administrative Law Judge shall index and forward the record and the initial decision and order to the Secretary within three days of such receipt.

(iii) A party filing exceptions must specifically identify the finding or conclusion to which exception is taken. Any exception not specifically urged shall be deemed to have been waived.

(iv) Within 45 days of the date of filing such exceptions, a reply, which shall be limited to the scope of the exceptions, may be filed and served by any other party to the proceeding.

(v) Requests for extensions for the filing of exceptions or replies thereto must be received by the Secretary no later than 3 days before the exceptions or replies are due.

(vi) If no exceptions are filed, the Secretary may, within 30 days of the expiration of the time for filing exceptions, on his or her own motion serve notice on the parties that the Secretary will review the decision.

(vii) Final Decision and Order.

(A) Where exceptions have been filed, the initial decision and order of the Administrative Law Judge shall become the Final Decision and Order of the Secretary unless the Secretary, within 30 days of the expiration of the time for filing exceptions and any replies thereto, has notified the parties that the case is accepted for review.

(B) Where exceptions have not been filed, the initial decision and order of the Administrative Law Judge shall become the Final Decision and Order of the Secretary unless the Secretary has served notice on the parties that the Secretary will review the decision, as provided in paragraph (b)(1)(vi) of this section.

(viii) Any case reviewed by the Secretary pursuant to this paragraph shall be decided within 180 days of the notification of such review. If the Secretary fails to issue a Final Decision and Order within the 180-day period, the initial decision and order of the Administrative Law Judge shall become the Final Decision and Order of the Secretary.

(2) Final Decision where a hearing is waived.

(i) If, after issuance of a Final Determination pursuant to § 34.46(a) or Notification of Breach of Conciliation Agreement pursuant to § 34.48, voluntary compliance has not been achieved within the time set by this part and the opportunity for a hearing has been waived as provided for in § 34.51(b)(3), the Final Determination or Notification of Breach of Conciliation Agreement shall be deemed the Final Decision of the Secretary.

(ii) When a Final Determination or Notification of Breach of Conciliation Agreement is deemed the Final Decision of the Secretary, the Secretary may, within 45 days, issue an order terminating or denying the grant or continuation of assistance or imposing other appropriate sanctions for the grant applicant or recipient's failure to comply with the required corrective and/or remedial actions, or referring the matter to the Attorney General for further enforcement action.

(3) Final agency action. A Final Decision and Order issued pursuant to § 34.52(b) constitutes final agency action.

(c) Post-termination proceedings.

(1) A grant applicant or recipient adversely affected by a Final Decision and Order issued pursuant to paragraph (b) of this section shall be restored, where appropriate, to full eligibility to receive Federal financial assistance under JTPA if it satisfies the terms and conditions of such Final Decision and Order and brings itself into compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part.

(2) A grant applicant or recipient adversely affected by a Final Decision and Order issued pursuant to paragraph (b) of this section may at any time petition the Director to restore its eligibility to receive Federal financial assistance under JTPA. A copy of the petition shall be served on the parties to the original proceeding which led to the Final Decision and Order issued pursuant to paragraph (b) of this section. Such petition shall be supported by information showing the actions taken by the grant applicant or recipient to comply with the requirements of paragraph (c)(1) of this section. The grant applicant or recipient shall have the burden of demonstrating that it has satisfied the requirements of paragraph (c)(1) of this section. Restoration to eligibility may be conditioned upon the grant applicant or recipient entering into a consent decree. While proceedings under this section are pending, sanctions imposed by the Final Decision and Order under paragraphs (b) (1) and (2) of this section shall remain in effect.

(3) The Director shall issue a written decision on the petition for restoration.

(i) If the Director determines that the requirements of paragraph (c)(1) of this section have not been satisfied, he or she shall issue a decision denying the petition.

(ii) Within 30 days of its receipt of the Director's decision, the recipient or grant applicant may file a petition for review of the decision by the Secretary, setting forth the grounds for its objection to the Director's decision.

(iii) The petition shall be served on the Director and on the Office of the Solicitor, Civil Rights Division.

(iv) The Director may file a response to the petition within 14 days.

(v) The Secretary shall issue the final agency decision denying or granting the recipient's or grant applicant's request for restoration to eligibility.