COMPREHENSIVE ENGINEERING                )
ASSISTANCE ASSOCIATION, INC.,            )
                                         )
      Plaintiff/Appellant,               )
                                         )    Davidson Chancery
                                         )    No. 95-621-II
VS.                                      )
                                         )    Appeal No.
                                         )    01-A-01-9602-CH-00055
STATE OF TENNESSEE,                      )
DEPARTMENT OF LABOR AND
AL BODIE, COMMISSIONER OF THE
DEPARTMENT OF LABOR, IN HIS
                                         )
                                         )
                                         )
                                                           FILED
OFFICIAL CAPACITY,                       )
                                                              July 3, 1996
                                         )
      Defendants/Appellees.              )
                                                          Cecil W. Crowson
                                                         Appellate Court Clerk
                    IN THE COURT OF APPEALS OF TENNESSEE

                             MIDDLE SECTION AT NASHVILLE


        APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY

                               AT NASHVILLE, TENNESSEE


        HONORABLE CHRISTINA NORRIS, CHANCELLOR PRO TEMPORE


Carl W. Eshbaugh
ESHBAUGH, SIMPSON AND VARNER
1776 Riverview Tower
900 S. Gay Street
Knoxville, Tennessee 37902
ATTORNEY FOR PLAINTIFF/APPELLANT


CHARLES W. BURSON
Attorney General & Reporter

MICHELLE K. HOHNKE
Assistant Attorney General
General Civil Division
404 James Robertson Parkway
Suite 1510
Nashville, Tennessee 37243-0499
FOR DEFENDANTS/APPELLEES


AFFIRMED AND REMANDED

                                         HENRY F. TODD
                                         PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
COMPREHENSIVE ENGINEERING                    )
ASSISTANCE ASSOCIATION, INC.,                )
                                             )
       Plaintiff/Appellant,                  )
                                             )       Davidson Chancery
                                             )       No. 95-621-II
VS.                                          )
                                             )       Appeal No.
                                             )       01-A-01-9602-CH-00055
STATE OF TENNESSEE,                          )
DEPARTMENT OF LABOR AND                      )
AL BODIE, COMMISSIONER OF THE                )
DEPARTMENT OF LABOR, IN HIS                  )
OFFICIAL CAPACITY,                           )
                                             )
       Defendants/Appellees.                 )


                                        OPINION


       The captioned plaintiff has appealed from an order of the Trial Court reading as

follows:

                This matter came to be heard on June 2, 1995, upon the
              motion to dismiss filed on behalf of the defendants, Tennessee
              Department of Labor and Al Bodie, Commissioner of the
              Tennessee Department of Labor. Upon consideration of the
              pleadings filed and the argument of counsel, the Court finds
              that this matter should be dismissed on the basis that the Court
              lacks jurisdiction as the petition for judicial review was not
              filed within sixty days of the final agency action as required by
              T.C.A. §4-5-322. Therefore, it is hereby ORDERED that the
              defendants’ motion to dismiss is GRANTED. Costs shall be
              taxed to the petitioner.


       On appeal, plaintiff presents a single issue as follows:

                Did the Chancery Court err in dismissing this matter for lack
              of jurisdiction on the basis that the complaint was not timely
              filed?


       The complaint filed on February 24, 1995, states:

              . . . (3) Jurisdiction of this court is involved by virtue of the
              Uniform Administrative Procedures Act for the State of
              Tennessee, Tennessee Code Annotated 4-5-101 et seq in
              general and Tennessee Code Annotated 4-5-322 in particular.

              (4) This action is brought within 60 days of the plaintiff’s
              notice of entry of the agency’s final decision of this case as
              required by Tennessee Code Annotated 4-5-322(b)(1), said
              notice being given on January 5, 1995, in a letter from

                                              -2-
               Commissioner James R. White to the attorney for the plaintiff.
               Pursuant to the Federal Government Jobs Training Act set forth
               in 29 United States Code 1503 et seq.


       The complaint alleges a contract between plaintiff and Knox County Community

action Committee (CAC) to furnish computer aided drafting training which contract was

“under the control and review” of the Department of Labor and its Commissioner. The

contract, which is exhibited to the complaint, states:

                This agreement is made and executed in Knoxville,
               Tennessee, on the fourteenth day of February, 1989, by and
               between:

                Knoxville-Knox County Community Action Committee
               (CAC). A public agency with full designated legal authority to
               administer employment and training programs on behalf of the
               chief elected officials of Knoxville, Knox County, and the
               private industry council of Job Skills Training District Number
               Three.

               AND

                Comprehensive Engineering Assistance Association, with full
               legal authority to do business in the State of Tennessee, and
               hereafter referred to as “subcontractor.”

               WITNESSETH:

                Whereas, this agreement is a subcontract under CAC-
               administered contract(s) with the State of Tennessee to provide
               employment and training services under the Job Training
               Partnership Act (JTPA), . . . .

                4. Method of Payment. Payments will be made by the CAC
               to the subcontractor according to the following provisions:
               ... .

The contract contains no reference to the Labor Department or its commissioner.



        The complaint further alleges that a dispute arose between the parties to the contract

regarding payment of an unspecified amount claimed by plaintiff; that, at the request of

plaintiff, the Department of Labor “reviewed the dispute” and, on May 29, 1992, wrote

plaintiff a letter containing the following:

                This letter constitutes our final determination for payment of
               services under contract #99-STO-9-024 between Knoxville-
               Knox County Community Action Committee (SDA 3), and

                                               -3-
               Comprehensive Engineering Assistance Association, Inc. for
               computer aided drafting training covering the period of
               February 1989 through September, 1989.

               ....

               We were able to find documentation for 40 employability
               development plans and enrollment and 10 certificates of
               participant orientation. Payment can be made as follows:

               40 Employability Development Plans @ $200.00 each
               $8,000.00

               10 Certificates of Orientation @ $200.00 each $2,000.00
                              Total Allowable Payment       $10,000.00

               ....

               If you accept this determination, attach a copy of this letter and
               the list of participants to an invoice for $10,000.00. Include the
               following statement on the invoice: “This amount constitutes
               full and complete payment for services under contract number
               99-STO-9-024 and no further claims will be submitted.” Sign
               the invoice and submit it no later than June 30, 1992 to: Mrs.
               Barbara Kelly, Deputy Director, Knoxville-Knox County
               Community Action Committee, P.O. Box 1650, 2247 Western
               Avenue, Knoxville, TN 37950-1650. If you choose not to
               accept this determination, then the determination made by SDA
               3 is upheld.


       It is further alleged that, on July 20, 1992, plaintiff requested “further review of the

dispute with a hearing” in response to which “the agents” of the Department “informed”

plaintiff that the matter was still “pending before the department;” that the Department

“requested further information” which was furnished on June 23, 1993, and that, on August

30, 1993, the department wrote plaintiff’s counsel a letter containing the following:

               I have reviewed this file and found that a final determination
               was issued on May 29, 1992 allowing payment of $10,000.00
               for the contractual activities. Your client, Mr. Emmuel Bailey,
               was to Invoice Service Delivery Area (SDA) Knoxville-Knox
               County Community Action Agency no later than June 30, 1992
               to collect these funds.

               On July 2, 1992 an extension was given to July 20, 1992 to
               invoice the SDA. After that date the matter was closed.

               The letter of July 2, 1992 constituted closure of these files.




                                               -4-
       The complaint further alleges that, on some unspecified date after August 30, 1993,

the Assistant Commissioner of Labor “contacted” plaintiff and “informed” plaintiff that “the

defendant” would attempt to resolve the dispute by negotiation and that “the matter had not

been closed by the department.”



       The complaint further alleges that, on July 21, 1994, plaintiff inquired as to “the

status of the matter;” and the Commissioner responded on October 26, 1994, in part as

follows:

              This is in response to your letter of July 21, 1994, concerning
              the above referenced contract. My staff has reviewed this file
              beginning with the performance based contract executed on
              February 14, 1989. This contract was to provide a Computer
              Assistance Drafting Training Program to JTPA participants.
              We also reviewed the audit performed by the State of
              Tennessee, Office of the Comptroller, dated September 20,
              1990, denial of payment by SDA 3 dated December 9, 1991,
              and all documents received and submitted since May, 1992.

               ....

               Your recent letter dated July 11, 1994, was the first formal
               indication I have had that there is still an issue on your part. In
               your letter, you indicated some type of commitment was made
               by Mr. Emmett Edwards, who is no longer with the Department
               of Labor. If Mr. Edwards made any statements or
               commitments to you after the final determination was made, he
               was out of order. Mr. Edwards never consulted with me
               regarding any agreement to reopen this case.

               The letter of July 2, 1992, which allowed an extension of time
               to submit an invoice to CAC (SDA 3), for $10,000.00 by July
               20, 1992 constituted closure of these files.


       The complaint prayed:

               . . . (B) That the Court review this matter and grant the plaintiff
               judgment for its contract amount plus interest thereon; or

                   (C) In the alternative that the Court order the Department of
               Labor to hold hearings on this matter within a reasonable
               period of time so that there will be a record of the hearing of
               this dispute which can later be reviewed by this Court if
               necessary.

                   (D) Other relief to which the plaintiff is entitled.




                                               -5-
          Although not alleged or evidenced in the record, the brief of the defendants states that

this controversy arose out of a federal grant of funds to the governor to be disbursed to local

citizens committees for job training and that the governor designated the Department of

Labor to administer the fund. No Tennessee statute is cited or found which authorizes or

controls this activity of the Labor Department.



          It is doubtful that the actions of the Department or of the commissioner in this case

are governed by the provisions of the Administrative Procedure Act. TCA §4-3-1403 lists

the duties of the Commissioner of Labor which do not include the activities described in this

record.



          If neither defendant had authority to entertain a “contested case” to decide the present

controversy, it would seem that the courts would have no authority to entertain a petition for

review under the Administrative Procedures Act, except to invalidate the administrative

decision as ultra vires.



          It is possible that, if the department had the authority to and did authorize the

activities of the local CAC, and had funds available to fund such activities a claim against the

state before the Claims Commission might have been appropriate. Such relief is not sought

in the present case.



          TCA Section 4-5-102 describes a “contested case” as one in which legal rights are

required by any statute or constitutional provision to be determined by an agency after an

opportunity for hearing. No such statute or constitutional provision is cited or found which

requires a determination of this controversy by the Department of Labor or its Commissioner.



          In any event, the complaint in the present case expressly sought relief under the

Administrative Procedure Act, §4-5-322(b)(1) of which requires application for judicial



                                                 -6-
review to be filed within sixty days after the administrative decision to be reviewed. It is

obvious from the excerpts from the complaint and exhibits quoted above, that such sixty days

had long since expired when the present judicial proceeding was commenced.



       The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the

appellant. The cause is remanded to the Trial Court for any necessary further procedures.



       Affirmed and Remanded.

                                              _______________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


_____________________________________
SAMUEL L. LEWIS, JUDGE


_____________________________________
BEN H. CANTRELL, JUDGE




                                               -7-
