APPLICATION OF THE
Appearances: Tanya Ward, President for the Cheyenne River Community College
Daphna Crotty, Esq. for the Office of the General Counsel, United States
Department of Education
Before: Allan C. Lewis, Chief Administrative Law Judge
Cheyenne River Community College (College) seeks a review of a decision by the Secretary not
to include College among the 25 applicants selected in a competitive grant process for the award
of a grant under the Indian Vocational Education Program. 34 C.F.R. § 401.23 (1996). College's
application was one of 80 applications reviewed, evaluated, and rated. In the letter conveying
College's request for a hearing to the Office of Administrative Law Judges, the Office of the
Assistant Secretary for Vocational and Adult Education (ED) raised the issue that College had
not submitted its request for a hearing within the 30-day period required under 34 C.F.R.
§ 401.23(a). As a result, the parties were requested to present their views on this matter and did
Regulations Section 401.23(a) (1996) provides for a 30-day period within which an Indian tribal
organization may request a hearing to contest its failure to receive an award of a competitive
In the instant case, College received the notice of non-funding of its application on December 27,
1996. As a result, the 30-day period ended January 26, 1997, which is a Sunday. College's letter
requesting a hearing was written on January 30, 1997 -- a couple of days after the period ended --
and was subsequently hand delivered to the Office of the Assistant Secretary on Monday,
February 3, 1997. Thus, College's request for a hearing was not made within the period
prescribed by the regulations.
College maintains that it should be excused from the limitation period due, in part, to the extreme
bad winter weather in South Dakota during this period and, more importantly, due to the
excessive delay by the Department in providing College with the ratings and written comments
by the evaluators of its application -- information which it urges was necessary to determine
whether to pursue a request for a hearing.See footnote 11/ As explained by the College--
information by a specific timeline. We had no information from which to consider
whether or not a request for a hearing was warranted until we were able to receive
and review the ratings and comments of application reviewers.
In the instance case, there was no misrepresentation regarding the appropriate period in which to
submit the request for review. The regulations and the non-funding notice advised College that it
had 30 days from the date of its receipt of the notice to submit a request for a hearing. In
addition, 34 C.F.R. § 401.23 requires only a written request for a hearing. There is no
requirement that a request for a hearing include an identification and explanation of each error
and omission which supports the organization's belief that its ranking was incorrect. As a result,
there is nothing which precludes the submission of a request for a hearing at any time during the
30-day period. If College could not make an informed decision on the merits of its evaluation
and rating before the period expired, then the appropriate action was to submit a protective
request for a hearing within this period. College failed to do so.See footnote 22/
While not a factor in this decision, it should be mentioned that College is somewhat familiar with
the procedure employed by the tribunal under which disputes are resolved in this area. College
submitted, in November 1994, a request for a hearing regarding the Secretary's decision not to
award it a competitive grant in that year. Upon receipt of the request for a hearing, the tribunal
issued, as is its current practice, an Order Governing Proceedings which required, inter alia,
College to submit, at a later date, a memorandum setting forth the errors and omissions by the
panel members who rated its grant application. In re Cheyenne River Community College, U.S.
Dep't of Education, Dkt. No. 94-201-O. Therefore, in addition to the constructive notice in the
regulations, College has had actual notice that a request for a hearing need not include an
explanation of the purported errors in the rating of its grant application.
Based upon the foregoing, it is concluded that the request for a hearing by the Cheyenne River
Community College was not submitted within the period prescribed by the regulations and,
therefore, it is HEREBY ORDERED that its request for a hearing is dismissed with prejudice.
Issued: February 26, 1997
On February 26, 1997, a copy of the attached decision was sent by certified mail, return receipt
requested to the following:
Ms. Tanya Ward, President
Cheyenne River Community College
220 North Elm Street
Eagle Butte, South Dakota 57625
Ms. Daphna Crotty, Esq.
Office of the General Counsel
United States Department of Education
600 Independence Avenue, S.W.
FOB-10B, Room 5442
Washington, D.C. 20202-2110