Petition for Review of an Order of the United States Department of Labor.
Cummings, Chief Judge, Pell and Cudahy, Circuit Judges.
The City of Chicago and its Police Department, prime sponsor and subgrantee respectively under the now-repealed Comprehensive Employment and Training Act of 1973 ("CETA"), 29 U.S.C. §§ 801-992,*fn1 petition for review of the decision made by the Secretary of Labor after this Court's order, vacating the Secretary's earlier final decision and remanding the cause for further proceedings. Petitioners argue that the Secretary was without authority to order the City of Chicago to pay back wages to a CETA employee terminated for cause but in a manner that violated CETA regulations.
On July 21, 1976, the Chicago Police Department (hereinafter jointly referred to with the City of Chicago as the city) terminated Jerome Whaley from a position he had held as a CETA employee since January 13, 1975.In the year and a half he was employed by the city under the CETA program, Whaley had been absent on sick leave or leave without pay 85 days and had taken 11 vacation days. The city suspended Whaley on three separate occasions for three apparently unrelated failures to observe proper procedures when not reporting for duty.*fn2 On each of these occasions the city complied first with procedures requiring prior notice to the employee of the reasons for the proposed discipline and a pre-disciplinary opportunity for a hearing. However, when the city terminated Whaley because of his overall poor attendance, it did not comply with these procedures. Upon returning from a vacation, Whaley learned of his termination from a co-worker and was not given any written or other official notification of the reason for his termination at that time.
Whaley filed a complaint with the Chicago Mayor's Office of Manpower fourteen months later, on September 28, 1977, and a hearing was held still another fourteen months later, on November 21, 1978, after which the city's termination was upheld. Apparently, the reasons for his termination were revealed to Whaley for the first time at this hearing. Pursuant to a complaint Whaley issued with the United States Department of Labor, an Administrative Law Judge (ALJ) conducted a hearing on stipulated facts, determining that although there was just cause for Whaley's termination, the city violated 29 C.F.R. § 98.26(a) (1976)*fn3 when it failed to give Whaley both notice of its action and an opportunity to respond before the termination was effected. Consequently, the ALJ ordered the city to pay Whaley back wages, less other wages earned, from the July 21, 1976 termination to the November 21, 1978 hearing date. This back pay award amounted to $24,164.01.*fn4
Pursuant to 29 U.S.C. § 817(a) (Supp. II 1978),*fn5 the city petitioned this Court for review of the award. The city admitted that it violated CETA regulations but contended that back pay was not a proper remedy for this violation since Whaley's termination was for cause and a hearing was ultimately conducted. Alternatively, the city agreed that even if back pay could be properly awarded, the ALJ's $24,164.01 award was excessive.
In an unpublished order, issued on April 8, 1982, this Court vacated the ALJ's decision and order and remanded the cause to the Secretary of Labor for further proceedings. We directed the Secretary to consider whether or not the city's violation caused Whaley any loss for which he was entitled to be made whole, and, if it did, whether or not back pay was the proper make-whole remedy. Upon reconsideration, the Secretary determined that the city's violation of CETA's regulations had caused Whaley actual loss, since even though Whaley would have been ultimately terminated for cause, he would have remained employed in the city's CETA program beyond his July 21, 1976 termination date if the city had used procedures required by CETA regulations.The Secretary determined that awarding back pay therefore promoted the purposes of CETA. However, the Secretary found excessive the award of back pay for the entire twenty-eight month period between Whaley's termination and the hearing ultimately conducted, since the city's procedural violation was not the cause of all Whaley's lost wages during that entire period. The Secretary determined that Whaley was entitled to back pay from the date of termination until December 31, 1976, and ordered the city to pay Whaley $5,500, less legal deductions.
On December 1, 1982, the Secretary issued*fn6 the decision which the city now challenges, and certifies that it was mailed to the city on that date.The city claims, and the Secretary does not seriously challenge, that it received the decision on December 6, 1982. The city initially submitted a petition for review to this Court on February 3, 1983, when it was stamped "Received" by the Clerk's office. However, because the city had failed to include the docketing fee, the Clerk's office returned the petition to the city four days later. The city ultimately paid the docketing fee on March 10, 1983.
This Court's jurisdiction to review the Secretary's decision arises under 29 U.S.C. § 817(a) (Supp. II 1978), reproduced at note 4 supra, which provides that persons dissatisfied with the Secretary of Labor's "final action" with regard to certain CETA provisions "may, within 60 days after notice of such action, file with the United States court of appeals * * * a petition for review of such action." To determine if this Court has jurisdiction to review the Secretary's December 1, 1982 decision, we must decide if the city's submission on February 3, 1983 was a timely filing within the meaning of Section 817(a). We hold that it was and therefore that there is jurisdiction to review the Secretary's decision.
The city's February 3, 1983 submission occurred 59 days after the city received the Secretary's decision (December 6, 1982) but 64 days after the Secretary issued and mailed the decision (December 1, 1982). Thus, if, as the Secretary urges, the issuance and mailing were sufficient to give the city "notice" of the Secretary's action, the city's February 3 submission was untimely and insufficient to confer jurisdiction.
While language virtually identical to that in Section 817(a) appears in other statutes providing for judicial review of administrative actions (see, e.g., 19 U.S.C. § 2395(a); 42 U.S.C. § 6869(a)), no cases have been located explaining the meaning of "notice" in Section 817(a) or these other similar provisions.*fn7 Furthermore, the cases which the parties urge us to apply analogously are not helpful, since they all interpret statutes with notice provisions significantly different from that in Section 817(a). For instance, the cases on which the city relies explicitly required actual receipt of notice to trigger appeal time limits. Brown v. National Highway Traffic Safety Administration, 218 U.S. App. D.C. 153, 673 F.2d 544 (D.C. Cir. 1982) (construing 5 U.S.C. § 7703(b) which states "any petition for review must be filed within 30 days after the date the petitioner received notice"); Dent v. United States Postal Service, 538 F. Supp. 1079 (S.D. Ohio 1982) (construing 42 U.S.C. § 2000e-16(c) which states "Within thirty days of receipt of notice * * *"). Section 817(a) does not explicitly require such actual notice. Similarly, Wilson v. Shamrock Amusement Corporation, 221 F.2d 687 (9th Cir. 1955), is not apposite since it interprets 11 U.S.C. § 48(a),*fn8 repealed by the Bankruptcy Reform Act (November 6, 1978), which required service of written notice and filing of proof of service to trigger the appeals time limit. Section 817(a)'s notice requirements are somewhat less formal, in that they do not mandate written notice, legal service, or filing of proof of service.
The Secretary suggests that Wilson provides a basis for finding that the city here had constructive notice of the Secretary's decision on December 1, the date it was issued. We find no support in Wilson for such a conclusion. Section 48(a)'s requirement that appeals be filed within 40 days after entry of judgment imposed on an appellant constructive notice of the date judgment is entered. Section 817, on the other hand, requires that a review petition be filed within 60 days after notice of the Secretary's action and not within 60 days after that action itself. To impose on the city constructive knowledge of the Secretary's action in issuing and mailing his determination would be to impose a duty beyond that imposed by Section 817(a) itself. Second, Wilson's determination that a person who has been served by mail notice of entry of judgment must appeal within thirty-three days after service (Section 48(a)'s time limits as extended under Fed. R. Civ. P. 6(e)'s three-day rule), also provides no basis for imposing on the city constructive notice of the Secretary's decision from the date of mailing. Section 48(a) explicitly requires the appeals deadline to be triggered by service of written notice. Section 817 does not require formal service or written notice. This cannot be deemed an unintentional omission. The fact that Section 817(a) provides ...