WILLIAM E. BROCK, SECRETARY OF LABOR, PETITIONER V. PIERCE COUNTY No. 85-385 In the Supreme Court of the United States October Term, 1985 The Solicitor General, on behalf of William E. Brock, Secretary of Labor, petitions for a writ of certiorari to review judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-6a) is at 759 F.2d 1398. The opinions of the administrative law judge (App., infra, 7a-19a, 20a-30a) are unreported. JURISDICTION The judgment of the court of appeals (App., infra, 31a) was entered on May 7, 1985. On July 26, 1985, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including September 4, 1985. The jurisdiction of this Court rests upon 28 U.S.C. 1254(1). STATUTE INVOLVED Section 106(b) of the Comprehensive Employment and Training Act, 29 U.S.C. (Supp. V 1981) 816(b), provides in pertinent part: Whenever the Secretary receives a complaint from any interested person or organization * * * which alleges, or whenever the Secretary has reason to believe (because of an audit, report, on-site review, or otherwise) that a recipient of financial assistance under this chapter is failing to comply with the requirements of this chapter, the regulations under this chapter or the terms of the comprehensive employment and training plan, the Secretary shall investigate the matter. The Secretary shall conduct such investigation, and make the final determination required by the following sentence regarding the truth of the allegation or belief involved, not later than 120 days after receiving the complaint. If, after such investigation, the Secretary determines that there is substantial evidence to support such allegation or belief that such a recipient is failing to comply with such requirements, the Secretary shall, after due notice and opportunity for a hearing to such recipient, determine whether such allegation or belief is true. QUESTION PRESENTED Whether Section 106(b) of the Comprehensive Employment and Training Act (CETA), 29 U.S.C. (Supp. V 1981) 816(b), which states that the Secretary of Labor "shall" issue a final determination within 120 days of the receipt of a complaint alleging the unlawful use of CETA funds by a grant recipient, bars the Secretary from recovering misused grant funds when he fails to issue a final determination within the 120-day period. STATEMENT 1. The Comprehensive Employment and Training Act (CETA), 29 U.S.C. (Supp. V 1981) 801 et seq., authorized the Secretary of Labor to grant federal funds to qualified entities, principally states or local government units, for programs "provid(ing) job training and employment opportunities for economically disadvantaged, unemployed, or underemployed persons." 29 U.S.C. (Supp. V 1981) 801; see also S. Rep. 95-891, 95th Cong., 2d Sess. 4, 42-43 (1978); H.R. Rep. 93-659, 93d Cong., 1st Sess. 1-3 (1973). /1/ The statutory scheme was carefully constructed to ensure that programs financed with CETA funds would further the purposes of the Act. Thus, the statute prescribes detailed eligibility standards for participants in CETA programs and sets forth the terms and conditions governing the employment of such program participants. See 29 U.S.C. (Supp. V 1981) 823-827; see also 20 C.F.R. 675.5, 676.21 to 676.30a, 676.51 to 676.54. Each grant recipient is required to submit assurances that its program will comply with all applicable statutory and regulatory requirements (29 U.S.C. (Supp. V 1981) 813(a)(21)). The Act authorizes the Secretary of Labor to conduct audits of CETA grant recipients "(i)n order to assure that funds provided under (the CETA) are used in accordance with its provisions" (29 U.S.C. (Supp. V 1981) 835(a)). /2/ In addition, any interested person, such as a program participant, may file a complaint with the Secretary alleging that a grant recipient has failed to comply with CETA standards (29 U.S.C. (Supp. V 1981) 816). Section 106(b) of the Act, 29 U.S.C. (Supp. V 1981) 816(b), states that if the Secretary obtains information -- either as the result of an audit or through the receipt of a complaint -- concerning a grant recipient's failure to adhere to the Act's requirements, the Secretary must investigate the matter. The same provision then states that "not later than 120 days after receiving the complaint," the Secretary "shall" make a "final determination" regarding the allegation involved (ibid.). If after notice to the grant recipient and an opportunity for a hearing, the Secretary finds that the grant recipient violated the CETA's requirements, the Secretary may order the grant recipient to repay any misspent funds to the United States. 29 U.S.C. (Supp. V 1981) 816(b) and (d). 2. a. Respondent, a county in the State of Washington, received CETA grants from the federal government during the years 1974-1977. On September 19, 1978, the Labor Department's Office of Special Investigations filed an audit report with the Labor Department official who administered respondent's grant (App., infra, 2a, 21a). The grant officer issued a final determination on February 13, 1981, some 29 months after receipt of the audit, disallowing approximately $110,000 in costs claimed by respondent relating to the hiring of ineligible CETA participants (ibid.). Respondent sought review of the grant officer's determination before an administrative law judge (ALJ). The ALJ found that respondent had incurred more than $108,000 in costs in violation of CETA regulations and ordered respondent to repay these funds to the United States (id. at 20a-30a). Respondent argued that the length of time between the filing of the audit report and the grant officer's issuance of the final determination barred the repayment order. It "(c)onced(ed) that (the) delay (did) not affect the Grant Officer's jurisdiction," but contended that it had been prejudiced because of the delay (App., infra, 26a). The ALJ rejected this claim, finding that "(n)o specific instances of prejudice are shown and from all the evidence available it does not appear that any claimed prejudice did result." (ibid.). b. On December 11, 1978, the Department's Office of Inspector General filed a second audit report with respondent's grant officer questioning costs relating to respondent's hiring of another group of ineligible CETA participants (App., infra, 3a, 7a). The grant officer issued a final determination on April 22, 1981, some 28 months after the filing of the audit report. He subsequently issued a corrected final determination on May 22, 1981, disallowing costs of approximately $373,000. Id. at 3a, 8a. The administrative law judge disallowed almost $265,000 in costs claimed by respondent and required the repayment of these funds to the United States (id. at 7a-19a). The ALJ again rejected respondent's claim that the grant officer's delay violated Section 106(b), noting that "there were several attempts at informal resolution of the dispute" between the filing of the audit report and the issuance of the final determination and that respondent could not "show any specific instances of prejudice inuring due to this technical delay" (App., infra, 10a). The decision of the administrative law judge in each case became the final decision of the Secretary (see 20 C.F.R. 676.91(f), and respondent sought judicial review in the court of appeals pursuant to 29 U.S.C. (Supp. V 1981) 817. 3. The court of appeals reversed the Secretary's determinations (App., infra, 1a-6a). Relying upon its prior decision in City of Edmonds v. Department of Labor, 749 F.2d 1419 (9th Cir. 1984), the court held that the Secretary "had no authority" to make a final determination more than 120 days after the filing of the audit, and therefore could not recover any funds misused by respondent (App., infra, 6a). The court in City of Edmonds had held that the 120-day time limit contained in Section 106(b) of the CETA is "mandatory" and "jurisdictional" and stated that "Congress intended to preclude any action on a complaint if the Secretary failed to make a final determination within 120 days" (749 F.2d at 1422). It relied upon Congress's use of the term "shall" in the statute; this Court's construction of a limitations provision containing the term "shall" in Mohasco Corp. v. Silver, 447 U.S. 807 (1980); and the Third Circuit's similar conclusion with respect to the proper interpretation of Section 106(b) in Lehigh Valley Manpower Program v. Donovan, 718 F.2d 99 (1983). The court below characterized City of Edmonds as a case concerning an investigation based upon a formal complaint, but it concluded that the 120-day limit set forth in Section 106(b) also applies when an investigation is based upon the results of an audit (App., infra, 4a). The court found that the term "complaint" in Section 106(b) is not limited to a "formal accusatory pleading" (App., infra, 4a), observing that "the triggering event which starts the 120 day investigation period is the awareness by the Secretary of an alleged violation by means of a citizen's complaint, audit, report, on-site review 'or otherwise'" (id. at 5a). Accordingly, the court concluded that the Secretary was barred from recovering the approximately $373,000 in funds found to have been misspent by respondent. /3/ REASONS FOR GRANTING THE PETITION The court of appeals has held that an administrative agency's right to recover misspent federal grant funds is forever forfeited if the agency fails to complete its audit determination within the time prescribed by statute. This decision, which violates well-settled rules of administrative law, transforms a provision designed to foster the elimination of fraud and abuse in the receipt of federal grant funds into a source of immunity for grant recipients that misuse such funds. Moreover, the decision below conflicts with the rulings of two other courts of appeals. Review by this Court is plainly warranted. 1. The decision below, and the Third Circuit's decision in Lehigh Valley Manpower Program v. Donovan, 718 F.2d 99 (1983), which construed Section 106(b) of the CETA in a similar manner, squarely conflict with the decisions in St. Regis Mohawk Tribe v. Brock, No 85-4042 (2d Cir. July 17, 1985), and Milwaukee County v. Brock, No. 84-1067 (7th Cir. Aug. 6, 1985). The Second and Seventh Circuits held in these cases that the Secretary of Labor could recover misspent CETA funds even if he failed to act within the 120-day period set forth in Section 106(b). These courts expressly rejected the contrary reasoning of the Ninth and Third Circuits. St. Regis Mohawk Tribe, slip op. 5171-5173; Milwaukee County, slip op. 11-13. 2. Moreover, the interpretation of Section 106(b) adopted by the court below is incorrect. It ignores a settled rule of statutory construction and is contrary to explicit legislative history and the purposes of the CETA. a. It is a "great principle of public policy," repeatedly affirmed by this Court, that "the public interests should (not) be prejudiced by the negligence of the officers or agents to whose case they are confided * * *." United States v. Nashville, C. & St. L. Ry., 118 U.S. 120, 125 (1886); see also NLRB v. International Association of Ironworkers, No. 83-1202 (May 14, 1984), slip op. 5; NLRB v. J.H. Rutter-Rex Manufacturing Co., 396 U.S. 258, 265 (1969); Stanley v. Schwalby, 147 U.S. 508, 514-515 (1893); United States v. Thompson, 98 U.S. 486, 489 (1879). For this reason, an official's failure to act within the time period prescribed by statute only divests the government of substantive authority if Congress specifically intended that result. As this Court explained over 100 years ago, statutes often contain "regulations designed to secure order, system, and dispatch in proceedings, * * * (the) disregard of which (cannot injuriously affect) the rights of parties interested (in the proceedings) * * *. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated" (French v. Edwards, 80 U.S. (13 Wall.) 506, 511 (1872)). The courts of appeals consistently have applied this rule in construing statutes that provide that administrative action "shall" take place within a specified time period. They have concluded in a variety of statutory contexts that the breach of such a time limitation does not bar subsequent action by the government unless the statute itself "'both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision.'" St. Regis Mohawk Tribe, slip op. 5162 (emphasis in original)(quoting Fort Worth National Corp. v. FSLIC, 469 F.2d 47, 58 (5th Cir. 1972)). /4/ Here, although Section 106(b) expressly requires the Secretary to issue a final determination within 120 days, it does not specify any adverse consequence of the Secretary's failure to do so. Under settled precedent, therefore, the Secretary's failure to act within the specified period cannot bar recovery of misused CETA funds. Milwaukee County, slip op. 8, 10-11; St. Regis Mohawk Tribe, slip op. 5161-5164. The Ninth Circuit's contrary conclusion rests in large part on the court's inability to distinguish between the mandatory nature of Section 106(b) and the appropriate remedy for a violation of that provision. Thus, while the court stressed that Congress used the word "shall" in describing the Secretary's duty to process complaints expeditiously (see City of Edmonds, 749 F.2d at 1421), it never explained why Congress would have wanted to prohibit the Secretary from recovering misspent grant funds if he failed to make a final determination within 120 days. In addition, the court below relied on this Court's decision in Mohasco Corp. v. Silver, 447 U.S. 807 (1980), which interpreted the 300-day limitation period applicable to claims filed with the EEOC by private parties under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(e). See City of Edmonds, 749 F.2d at 1422. But Mohasco is inapposite here because it addressed a time limit governing the filing of claims by private parties, not a provision relating to government action. Therefore, "the principle that disfavors sacrificing the public interest because of the negligence of public officers * * * was not applicable." St. Regis Mohawk Tribe, slip op. 5172. /5/ b. Any remaining doubt as to congressional intent is removed by the legislative history of Section 106(b), which unequivocally declares that the Secretary's failure to issue a determination within the 120-day period does not terminate his authority to recover misspent funds. In amending the CETA statute in 1978, Congress was principally concerned with strengthening enforcement mechanisms to prevent fraud and abuse in the receipt of grants. See St. Regis Mohawk Tribe, slip op. 5164-5165. As a result, Congress added a number of anti-abuse provisions, including criminal and administrative sanctions (18 U.S.C. 665(a); 20 U.S.C. (Supp. V 1981) 816), administrative authority to promulgate regulations to prohibit nepotism, kickbacks, inadequate recordkeeping, and commingling of funds (29 U.S.C. (Supp. V 1981) 825(g)), and bonding requirements for fund recipients (29 U.S.C. (Supp. V 1981) 836). As the Senate Report noted (S. Rep. 95-891, supra, at 43): The committee believes that all of these provisions, taken together, will work to insure that program abuses are deterred, exposed, and corrected. The committee considers it a serious matter for persons to spend these funds, or to allow these funds to be spent in ways not authorized by Congress, thus impairing the Nation's effort to effectively help those intended to be assisted under this act. The committee expects the Secretary and the Attorney General to take prompt and decisive steps to remedy abuses whenever and at whatever level and place they occur. A particular problem identified in the committee hearings was the difficulty experienced by participants, subgrantees, contractors and other interested persons in having complaints about prime sponsors' failure to meet CETA grant conditions resolved within a reasonable time. See St. Regis Mohawk Tribe, slip op. 5166. The result, as the Senate Committee observed, was that "(i)n some cases grievances have been either ignored, or there has been interminable delay in their resolution." S. Rep. 95-891, supra, at 42. To remedy this problem, the Senate added a provision requiring the Secretary to investigate and act within 120 days upon "a complaint from any interested person" alleging "noncompliance by a (grant) recipient." As the Second Circuit noted, "(t)he 120-day deadline thus originated as part of a provision whose purpose was to benefit the victims of prime sponsor non-compliance with CETA. It was not designed to give prime sponsors immunity for misuse of CETA funds unless there was a final determination within 120 days." St. Regis Mohawk Tribe, slip op. 5167 (citations omitted). The House bill, like the Senate bill, required the Secretary to investigate and act upon complaints that a recipient of financial assistance was failing to comply with the requirements of the Act, but it did not contain a fixed deadline for making these determinations. The 120-day provision was added as a floor amendment by Representative Obey, who engaged in the following colloquy with Representative Hawkins, the floor manager for the bill (124 Cong. Rec. 25230-25231 (1978) (emphasis added)): Mr. OBEY. Mr. Chairman, I understand this amendment will be accepted by the committee. It is a very simple amendment. All it does is to put a specific period of time in the bill during which the prime sponsor must answer a complaint lodged against it for violations of the conditions under which the CETA program exists in the first place, and also it establishes a 120-day time limit on the time during which the Labor Department can consider a complaint before it has to proceed. * * * * * Mr. HAWKINS. Mr. Chairman, we have seen the amendment. We accept the amendment. If the gentlemen would further yield, do I understand from the gentleman from Wisconsin (Mr. OBEY) that if the determination is not made in a specified time it shall not affect the Secretary's jurisdiction in the matter? Mr. OBEY. That is correct. Mr. HAWKINS. With that understanding we do accept the amendment. These statements by key legislators are "highly persuasive" evidence that Congress did not intend to bar further action by the Secretary if a final determination was not rendered within 120 days. Milwaukee County, slip op. 6-7; see also St. Regis Mohawk Tribe, slip op. 5169-5170. This is especially true because "no contrary view of the jurisdictional effect of the amendment was expressed, no objection was voiced, and nothing in the record indicates that Congress may have had an intent different from that expressed in this exchange." Milwaukee County, slip op. 7; see also St. Regis Mohawk Tribe, slip op. 5170. It is therefore "unmistakably clear" that "the running of the deadline was not intended to let non-complying (grant recipients) escape the consequences of their non-compliance" (St. Regis Mohawk Tribe, slip op. 5169). /6/ c. Finally, the construction of Section 106(b) adopted by the court of appeals defeats the purposes of the CETA statute. As noted above, Congress enacted the 1978 amendments to the Act, including Section 106(b), in an effort to curtail fraud and abuse in the use of CETA funds and to encourage more aggressive enforcement action by the Secretary. St. Regis Mohawk Tribe, slip op. 5164-5166; Milwaukee County, slip op. 7-8; Atlantic County v. United States Dep't of Labor, 715 F.2d 834, 836 (3d Cir. 1983); S. Rep. 95-891, supra, at 21, 42-43; H.R. Rep. 95-1124, 95th Cong., 2d Sess. 3, 5-6, 13 (1978). Congress intended to endow the Secretary with "maximum authority to protect the integrity of the (CETA) program" (S. Rep. 95-891, supra, at 21) by "insur(ing) an expeditious remedy for CETA program beneficiaries who had been denied CETA benefits due to misuse of funds by prime sponsors" (St. Regis Mohawk Tribe, slip op. 5173 (emphasis in original)). Thus, a complainant denied the prompt action required by section 106(b) could compel the Secretary to act upon his complaint. See Milwaukee County, slip op. 3. Cf. 5 U.S.C. 706(1); Heckler v. Day, No. 82-1371 (May 22, 1984), slip op. 15 n.33. /7/ Despite Congress's clear intent to strengthen the government's enforcement authority and increase the likelihood that misspent grant funds would be recovered, the court of appeals' interpretation of Section 106(b) has the perverse effect of immunizing wrong-doers and absolving them of liability. As the Second Circuit observed, "'(i)t would be ironic indeed,' to hold that Congress' concern for speedy resolution of complaints was to be at the expense of the persons for whose benefit Section 106(b) was enacted," St. Regis Mohawk Tribe, slip op. 5173 (citation and footnote omitted; brackets in original); see also Milwaukee County, slip op. 10 (emphasis in original) ("(i)f jurisdictional, the limit would impose a paradoxical hardship on claimants by destroying their claims if the Secretary does not act expeditiously"); cf. Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) (state violates due process by terminating a complainant's cause of action on the basis of a state official's failure to comply with statutory time limit). Since Congress was aware of the lengthy delays in resolving allegations concerning the misuse of CETA funds, /8/ it must have realized that the Secretary would not always be able to act within the 120 days specified in Section 106(b). /9/ Congress could not have intended to permit those who misused CETA grants -- the targets of the 1978 amendments -- "to obtain good title to funds otherwise owing to the Federal Government" (Bell v. New Jersey, 461 U.S. 773, 788 n.15 (1983)), simply because the Secretary did not process a grievant's complaint in a timely manner. See Milwaukee County, slip op. 4-5 (Section 106(b) should be interpreted in accord with Congress's intent to eliminate fraud and abuse); St. Regis Mohawk Tribe, slip op. 5167; cf. Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 370-372 (1977) (it would "hardly be reasonable" for Congress, "aware of the severe time problems * * * facing the EEOC," to subject the agency's enforcement actions to strict state statutes of limitations). For these reasons, it is plain that the purpose of Section 106(b) is to require expedition in the administrative process, not to restrict the Secretary's enforcement powers. 3.a. Even though the CETA has been repealed, the question presented here will have a substantial effect upon the large number of pending cases still governed by the Act. See page 3, note 1, supra. The Department of Labor informs us that the Secretary failed to issue final determinations within 120 days with respect to many CETA audits. It estimates that the construction of Section 106(b) applied below would bar the Secretary from seeking the repayment of $72 million in pending audit claims, /10/ almost $29 million of this total consists of claims arising in the Third and Ninth Circuits. The Secretary will be unable to recoup these funds, and grant recipients that misused CETA grants will be immunized from adverse consequences, unless this Court intervenes to correct the erroneous decision below. b. Perhaps more important, the disruptive effects of the decision below can be expected to extend beyond the CETA. As we have discussed (see pages 8-10, supra), a large number of statutes set forth time limitations for action by federal administrative agencies, and courts consistently have concluded that such provisions do not invalidate untimely agency action. The court of appeals ignored this settled authority in reaching its decision, apparently concluding that this Court had announced a new general rule applicable to the interpretation of such time limitations. Thus, in City of Edmonds, the case in which the Ninth Circuit first adopted the construction of Section 106(b) at issue here, the court stated (749 F.2d at 1422-1423) that this Court's decision in Mohasco had overruled, sub silentio, Marshall v. Local Union 1374, International Association of Machinists, 558 F.2d 1354 (1977), an earlier Ninth Circuit decision interpreting a time limitation similar to Section 106(b). Local Union 1374 construed a provision of the Labor-Management Reporting and Disclosure Act of 1959 providing that the Secretary "shall" bring a civil action within 60 days from the filing of a complaint challenging a union election (see 29 U.S.C. 482(b)). The court in Local Union 1374, in accord with decisions in other circuits, held that this provision did not bar the Secretary from filing a complaint after the 60 days had elapsed, relying on the principle that "'(a) statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision.'" 558 F.2d at 1357 (quoting Fort Worth National Corp. v. FSLIC, 469 F.2d at 58). The Ninth Circuit's conclusion that its decision in Local Union 1374 is no longer good law in light of "(t)he later decision of the Supreme Court in Mohasco" (City of Edmonds, 749 F.2d at 1423) indicates that it may broadly apply this novel principle of statutory construction in a manner that would disrupt the operation of a large number of administrative agencies. Any agency that fails to comply with a statutory deadline -- whether because of a lack of resources or because of the complexity of the matter at issue -- faces the possibility that the court may hold that the agency lost jurisdiction over the matter by not acting within the statutory period. This uncertainty concerning the validity of administrative action is likely to lead to substantial confusion, and could force administrative agencies to alter their enforcement efforts to avoid such an adverse result. Review by this Court is warranted to eliminate the chill upon agency action that may well result from the novel legal principle applied by the court below. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Acting Solicitor General KENNETH S. GELLER Deputy Solicitor General ANDREW J. PINCUS Assistant to the Solicitor General FRANCIS X. LILLY Solicitor of Labor ALLEN H. FELDMAN Acting Associate Solicitor MARY-HELEN MAUTNER Counsel for Appellate Litigation STEVEN J. MANDEL Attorney Department of Labor SEPTEMBER 1985 /1/ The statute originally was enacted in 1973 (Pub. L. No. 93-203, 87 Stat. 839 et seq.) and was amended substantially in 1978 (Pub. L. No. 95-524, 92 Stat. 1909 et seq.). The CETA was repealed effective October 13, 1982, and replaced by the Job Training Partnership Act, 29 U.S.C. 1501 et seq. (see Pub. L. No. 97-300, Section 184(a)(1), 96 Stat. 1357). However, the CETA continues to govern administrative or judicial proceedings pending on October 13, 1982, or begun between October 13, 1982, and September 30, 1984 (29 U.S.C. 1591(e)). /2/ Typically, an audit is performed by the Department of Labor's Office of Inspector General and the audit report is forwarded to the Department of Labor grant officer responsible for the particular grant. The grant officer provides the grant recipient with an opportunity to comment on the report, issues an initial determination, offers to attempt informally to resolve the dispute, and then issues a final determination. 20 C.F.R. 676.86(d), 676.88. The grant recipient is entitled to a hearing before an administrative law judge (ALJ) with respect to the grant officer's final determination. The ALJ then renders a decision that, if not modified or vacated within 30 days, becomes the final decision of the Secretary. A decision adverse to the grant recipient or another interested person is subject to judicial review in a court of appeals. 29 U.S.C. (Supp. V 1981) 816(b), 817(a); 20 C.F.R. 676.88 to 676.92. /3/ Respondent also argued that the statute did not authorize the Secretary to seek repayment of disallowed CETA funds and that the Secretary's ineligibility determiniations were not supported by substantial evidence. The court of appeals did not address these contentions. /4/ See, e.g., In re Grand Jury Proceedings, 757 F.2d 108, 110-112 n.1 (7th Cir. 1984)(statute stating that appeals of orders of confinement for civil contempt "shall" be decided within 30 days does not divest a court of jurisdiction if 30-day period is exceeded); National Cable Television Association, Inc. v. Copyright Royalty Tribunal, 724 F.2d 176, 189 n.23 (D.C. Cir. 1983)(failure to comply with Copyright Act provision stating that Tribunal "shall" render its decision within one year does not render decision void); Marshall v. N.L. Industries, Inc., 618 F.2d 1220, 1224-1225 (7th Cir. 1980)(Occupational Safety and Health Act provision stating that Secretary "shall" make determination within 90 days does not bar enforcement action where Secretary failed to act within 90-day period); Ralpho v. Bell, 569 F.2d 607, 626-628 (D.C. Cir. 1977)(statute stating that Micronesian Claim Commission "shall" wind up its affairs within specified period does not bar Commission from acting after statutory deadline); Marshall v. Local Union 1374, International Association of Machinists, 558 F.2d 1354 (9th Cir. 1977) (provision of Labor-Management Reporting and Disclosure Act of 1959 stating that Secretary "shall" act upon complaint within 60 days does not bar enforcement action if Secretary fails to act within the 60-day period); Usery v. Whitin Machine Works, Inc., 554 F.2d 498, 501 (1st Cir. 1977) (Trade Act of 1974 provision stating that Secretary "shall" act upon petition for assistance within 60 days does not bar subpoena enforcement action where Secretary did not act upon petition within 60-day period); United States v. Morris, 252 F.2d 643, 648-649 (5th Cir. 1958)(provision of Migrant Labor Agreement stating that disposition of minimum wage complaints "shall be completed" within 10 days does not bar further action upon a complaint that is not disposed of within this time period). /5/ The court of appeals also erred by relying on Mohasco for the proposition that the CETA 120-day limit is a jurisdictional bar to action by the Secretary. This Court has made clear that Title VII time limits on the filing of individual charges with the 0EEOC are not jurisdictional, but rather, like statutes of limitations, are subject to waiver, estoppel and equitable tolling. Zipes v. TWA, Inc., 455 U.S. 385, 393, 398 (1982). See also Milwaukee County, slip op. 12-13. /6/ The Third Circuit did not address this compelling legislative history (see Lehigh Valley Manpower Program, 718 F.2d at 101-102). The Ninth Circuit was "not persuaded" by the legislative history and stated that it would "give plain mandatory language its ordinary meaning" (City of Edmonds, 749 F.2d at 1422). In fact, by ignoring settled rules of statutory construction, the court adopted an extraordinary interpretation of Section 106(b). See St. Regis Mohawk Tribe, slip op. 5172-5173. /7/ This conclusion is supported by the fact that, contrary to the conclusion of the court below, Section 106(b) applies only to investigations initiated by the filing of a complaint, and not to investigations initiated by audits. The sentence in Section 106(b) establishing the 120-day time limit refers only to "complaints," and Congress discussed the limitation only with respect to "complaints." See H.R. Conf. Rep. 95-1765, 95th Cong., 2d Sess. 123 (1978); S. Rep. 95-891, supra, at 15-18, 42-43; 124 Cong. Rec. 25230 (1978) (remarks of Rep. Obey). Since the provision applies only to investigations triggered by complaints, its purpose obviously was to require expeditious resolution of the grievances of persons involved in CETA programs. The Second Circuit agreed that "the language of Section 106(b), as illuminated by the legislative history" supports the view that the provision applies only to complaints, but concluded that the Secretary's regulation setting a 120-day deadline for investigations based upon audit results indicated that the Secretary had interpreted the statute to apply in both situations. St. Regis Mohawk Tribe, slip op. 5173 n.9. However, the regulation applicable to investigations initiated by complaints specifically refers to the statutory requirement while the regulation concerning audits does not. Compare 20 C.F.R. 676.86(a)(1) with Section 676.88(e). This distinction indicates that the Secretary adopted the time limit in the audit context as a matter of administrative convenience, not because that rule was compelled by Section 106(b). /8/ These delays affected the processing of both complaints and audits. See H.R. Rep. 95-1124, supra, at 5-6, 13; 124 Cong. Rec. 31021 (1978) (remarks of Rep. Maguire); id. at 31026 (remarks of Rep. Collins); Department of Labor Monitoring of Manpower Programs for the Hard to Employ: Hearings Before the Subcomm. of the House Comm. on Government Operations, 95th Cong., 2d Sess. 755, 764-765, 776 (1978); see also Milwaukee County, slip op. 9 n.4 (detailing administrative steps required in audit determination process). /9/ In addition, as the Seventh Circuit noted, disputes over CETA program expenditures can be extremely complex and therefore may be incapable of resolution within 120 days. Milwaukee County, slip op. 8-10. The effect of the construction of Section 106(b) adopted by the court below "would be to remove completely disputes of this kind from the Secretary's jurisdiction and to extinguish absolutely the claims of innocent complainants, even though they were in no way untimely or at fault in initiating the action" (id. at 10). /10/ This figure does not include claims arising in the Second and Seventh Circuits. APPENDIX