                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 22 2002
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED URBAN INDIAN
    COUNCIL, INC.,

                Petitioner,
                                                         No. 01-9523
    v.                                                   (No. 01-025)
                                                     (Petition for Review)
    UNITED STATES DEPARTMENT
    OF LABOR,

                Respondent.


    CITIZEN POTAWATOMI NATION,

                Intervenor.


                              ORDER AND JUDGMENT          *




Before KELLY , BRISCOE , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Petitioner United Urban Indian Council, Inc. (UUIC) has provided

employment training to Native Americans in Oklahoma County, Oklahoma, for

many years with a grant under the Indian and Native American (INA) Programs

section of the Workforce Investment Act of 1998, 29 U.S.C. §§ 2801-2945.

Party-in-interest Citizen Potawatomi Nation (CPN) has served neighboring

Cleveland County with an INA grant. In 1999, the Department of Labor (DOL)

solicited applications for the grant period from July 1, 2000, through June 30,

2002. UUIC applied to serve both Oklahoma County and Cleveland County.

CPN applied to serve Cleveland County and a twelve-mile wide area along the

eastern boundary of Oklahoma County. The DOL awarded the grant money to

service the twelve-mile wide strip of Oklahoma County to CPN. UUIC sought

administrative review. The award was upheld by an administrative law judge

(ALJ) and the DOL’s Administrative Review Board. UUIC now petitions this

court for review. We have jurisdiction under 29 U.S.C. § 2937(a)(1).

      CPN contends, however, that the case is moot because UUIC can no longer

obtain the grant under the regulations for the grant period in dispute. We agree.

Under 20 C.F.R. § 667.800(a), UUIC was allowed to request a hearing before an

ALJ to dispute the reduction of its territory and award. If the ALJ would have


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ruled that UUIC should have been selected as the grantee and that UUIC

continued to meet the grant requirements, UUIC would be funded “within 90 days

of the ALJ's decision unless the end of the 90-day period is within six (6) months

of the end of the funding period.” 20 C.F.R. § 667.825(b). Because the grant

period ends on June 30, 2002, this case is already well within the six-month

period. Thus, UUIC could not be refunded now, even if this court were to

determine that the contested territory should have been awarded to UUIC.

       UUIC urges us to find that the legal issue underlying the reduction of its

territory and award is capable of repetition, yet evading review, and that the case

is therefore not moot. This argument is without merit. The Supreme Court has

held that an issue is capable of repetition, yet evading review only when two

factors exist: (1) the challenged action is of a duration too short to be fully

litigated before becoming moot, and (2) the complaining party shows that there is

a reasonable expectation that it will be subjected to the same action again.

Weinstein v. Bradford , 423 U.S. 147, 149 (1975) (per curiam). UUIC did not

seek expedited review that is provided by the regulations, however.           See

29 C.F.R. § 18.42. Nor, for that matter, did UUIC ask this court to expedite this

present appeal. Therefore, it cannot be heard now to complain that the DOL’s

action is of a duration too short to be fully litigated before coming moot.         See

Midwest Farmworker Employment & Training, Inc. v. United States Dep’t of


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Labor , 200 F.3d 1198, 1201 (8th Cir. 2000). Because UUIC has not shown that

the issue is evading review, we need not address the second factor of the test.

      UUIC also argues that it still has an active case or controversy in the nature

of a declaratory judgment action seeking the future designation as the INA

grantee for the remainder of the grant cycle. We are unpersuaded. Under the

regulations, the award for the grant period from July 1, 2002, through June 30,

2004, was made on March 1, 2002. 20 C.F.R. § 668.260(a). Relief under the Act

is prospective only, however. 20 C.F.R. § 667.825(a). UUIC therefore cannot

demonstrate that any decision from this court concerning the grant period ending

on June 30, 2002, can alter the decision just made for the next grant period.

Further, UUIC has not demonstrated that DOL’s failure to designate it the

incumbent grantee for the disputed territory during the current grant period will

have any affect on the grant decision to be made in 2004. There is therefore no

meaningful relief this court can provide, and this appeal is moot.

      The petition for review is DISMISSED.



                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge



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