dissenting.

I respectfully dissent.

The Secretary of Labor’s dismissal of the Tribe’s petition for a hearing failed to take into account the Department of Labor’s delays and unresponsiveness in monitoring problems with record keeping in the Tribe’s CETA programs. The Department’s delays constitute “exceptional circumstances,” entitling the Tribe to relief from the ten-day time limit for requesting a hearing under CETA § 106(i)(2) (formerly codified at 29 U.S.C. § 816 (i)(2)) and 20 C.F.R. § 676.88 (f). I would reverse and remand for a hearing to review the two final determinations concerning the Tribe’s CETA grants.

The Department’s delays are evident in the record. On September 29, 1976, the Department of Labor learned that CETA programs established by the Blackfeet Tribe had record-keeping deficiencies that made the programs unauditable. More than four years and four months later, on February 2, 1981, the Department’s local grant officer issued a final determination disallowing the full amount of the grant (Grant # 1) and demanding its repayment.

On October 4, 1978, the Department of Labor learned of questionable costs after an audit of a later CETA grant (Grant # 2) to the Tribe. Two years and seven months later, on May 8, 1981, the Department’s local grant officer issued a final determination disallowing the questioned costs and demanding their repayment.

The Department of Labor’s long-delayed final determinations in this case resulted from delays at each step of the Department’s response to the accountants’ reports on deficient records in the Blackfeet CETA programs. The Department first notified the Tribe on November 18,1976, that Grant # 1 was unauditable. Upon receiving no reply from the Tribe, the Department waited two years before sending a second notice to the Tribe on December 27, 1978. Nearly two more years passed before the *1361 Department issued the initial determination of disallowance for Grant # 1 on October 21, 1980. Similarly, after notifying the Tribe on August 4, 1978, of difficulties in auditing Grant #2, the Department did nothing for nearly two years, notifying the Tribe’s CETA Director on June 24, 1980 of its inability to audit the Tribe’s programs. The Department issued the initial determination of disallowance for Grant # 2 on October 29, 1980.

The Tribe did not respond to the Department’s first notice of problems with Grant # 1. Contrary to the ruling of the administrative law judge, however, the Tribe responded quickly to the Department’s second notice of problems in auditing Grant # 1. Within thirty days of receiving the letter of December 27, 1978, a Tribal delegation met with Alexander McNabb in Washington to discuss difficulties the Tribe had getting information from its CETA Director, James Baker, concerning the Tribe’s CETA programs. Mr. McNabb refused to give the delegation any information on the Department’s audits of the programs. In 1981, when the Tribe’s accountant offered to provide information necessary to audit Grant # 1, the Department refused to respond to the offer because it came two months after the final determination had been issued. This refusal is extraordinary when the final determination itself came more than four years after the Department first learned of problems in auditing the grant.

Both final determinations were made long after the 120 days prescribed by Section 106(b) of CETA, as amended in 1978:

Pub.L. No. 95-524, § 106 (b), 92 Stat. 1909 , 2926 (1978) (formerly codified at 29 U.S.C. § 816 (b)).

There were good reasons for requiring the Secretary of Labor to complete investigations within 120 days. Congress was concerned with abuses in the CETA program when it passed the 1978 amendments. Early drafts of Section 106(b) did not include time limits for the Secretary’s investigations of abuses. When the time limit was added by amendment on the House floor, no explanation was offered. See 124 Cong.Rec. H25230-31 (daily ed. Aug. 9, 1978) (statement of Rep. Obey). Later statements, however, suggest that the time limit was intended to make enforcement prompt enough to improve programs, not just to police them. The Senate’s October report on the CETA amendments said that the new supervisory provisions were “to insure that program abuses are deterred, exposed, and corrected.” S.Rep. No. 891, 95th Cong., 2d Sess. 43, reprinted in 1978 U.S.Code Cong. & Ad.News 4480, 4523 (emphasis added). Other language in the Senate report strongly suggested that the Secretary’s supervisory role was to be more than a policing role:

The Secretary’s failure to make the two final determinations within 120 days of receiving the audit reports on the Blackfeet programs did not divest him of jurisdiction over the grants. See Brock v. Pierce County, — U.S. —, 106 S.Ct. 1834 , 90 L.Ed.2d 248 (1986). His failure does, however, create “exceptional circumstances” *1362 that entitle the Tribe to relief from the statutory requirement that the Tribe request a hearing within ten days after notice of the final determinations. See In the matter of Oglala Sioux Tribe, 82 CET[A]-128 (August 16, 1982). Delaying the final determinations on the Tribe’s CETA grants made it difficult if not impossible for the Tribe to correct the problems that precluded a complete audit.

Although I would hold that the circumstances of this case are exceptional, the standard for granting relief from CETA’s ten-day limit for appeals need not be so strict. Several CETA cases purport to adopt this “exceptional circumstances” rule from the Court of Claims. See Oglala Sioux Tribe, at 5. The Court of Claims reviews decisions by agency boards of appeals in federal contract disputes. When a party fails to appeal within a contractual time limit, the Court of Claims requires a board of contract appeals to be flexible in enforcing the time limit. “[Sjtrict compliance with the time limit ... for the taking of appeals is not jurisdictional, and ... boards of contract appeals have the power, in proper circumstances to extend or waive compliance with such time limit.” J.R. Youngdale Construction Co. v. United States, 504 F.2d 1124, 1128 , 205 Ct.Cl. 578 (1974) (citations omitted) (emphasis added). Elsewhere the Court of Claims has required boards of appeals to look at the “facts and circumstances” when a party misses an appeals deadline. See, e.g., Monroe M. Tapper & Associates v. United States, 514 F.2d 1003 , 206 Ct.Cl. 446 (1975). In none of the Court of Claims cases cited by Oglala Sioux did the Court of Claims require “exceptional circumstances” for the discretionary waiver of appeals deadlines. In CETA cases, moreover, such a strict standard is not contemplated by the provision for a discretionary hearing when “fairness and the effective operation of CETA programs would be furthered.” 20 CFR § 676.88 (i). This provision was interpreted strictly in In the matter of Walker v. Orange County/Orlando Training and Employment Office, 81-CETA-168 (May 11, 1981). But the agency’s interpretation of this provision is entitled to little deference when it conflicts with Congress’s intent that the Secretary supervise rather than just police CETA grants.

Because of the Department’s delays in supervising the Tribe’s CETA programs, the Secretary of Labor abused his discretion in not granting the Tribe relief from the ten-day statutory limit for requesting a hearing. I would reverse and remand for a hearing on the Tribe’s defenses to the Secretary’s final determinations and disallowances of the two CETA grants.