CCASE:
LOVELL WADDLE, JR.
DDATE:
19880906
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: September 6, 1988
CASE NO. 82-SCA-37
IN THE MATTER OF
LOVELL WADDLE, JR.
RESPONDENT,
BEFORE: THE DEPUTY SECRETARY
FINAL DECISION OF THE DEPUTY SECRETARY
This case is before me /FN1/ pursuant to a Petition for Review
in which Respondent seeks review of Administrative Law Judge (ALJ)
Daniel L. Leland's order of February 25, 1986, dismissing
Respondent's motion for an award of attorney's fees under the Equal
Access to Justice Act (EAJA), 5 U.S.C. [sec] 504 (1982).
By Decision and Order issued October 9, 1985, ALJ Leland
dismissed the complaint against Respondent filed by the
Philadelphia Regional Solicitor's Office of the Department of Labor
alleging violations under the Service Contract Act of 1965, as
amended (SCA), 41 U.S.C. [secs] 351-358 (1982). The ALJ found that
mileage allowances paid to employees were more than reimbursement
for expenses and should be added to wages received to determine
their regular hourly rate of pay. When these additional sums were
added, the rate received for actual hours [1]
/FN1/ The Deputy Secretary has been designated by the Secretary to
perform the functions of the Board of Service Contract Appeals
pending the appointment of a duly constituted Board. 29 C.F.R.
[sec] 8.0 (1987); Department of Labor Executive Level Conforming
Amendments of 1986, Pub. L. No. 99-619 (November 6, 1986). [1]
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[2] no monetary violation had occurred. The ALJ's ruling was not
appealed. See Order of the Under Secretary of Labor issued January
22, 1986.
Respondent then filed a motion for award of attorney's fees
under the EAJA in the amount of $8,475.75. The Philadelphia
Regional Solicitor filed an objection to Respondent's motion,
claiming that the awarding of attorney's fees is prohibited under
the applicable regulations. Respondent submitted a memorandum in
support of its motion and the Regional Solicitor submitted a reply
memorandum. In his [recommended] Order Dismissing Motion for
Attorney's Fees, see 29 C.F.R. [secs] 16.305, 16.306 (1987), the
ALJ stated the basis for his dismissal as follows:
The EAJA provides that an "agency that conducts an
adversary adjudication shall award, to a prevailing party
other that the United States, fees, and other expenses"
unless the adjudicative officer of the "agency finds that
the position of the agency is substantially justified
...." The EAJA defines an adversary adjudication as one
subject to 5 U.S.C. [sec] 554. Fidelity Construction Co.
v. U.S., 700 F.2d 1379, 1385 (Fed. Cir. 1983). Section
554 applies to cases in which a hearing on the record is
required by statute.
There is no requirement in the Service Contract Act that
a hearing must be held. Hearings are provided for only
in the implementing regulations at 29 C.F.R. Part 6. For
the EAJA to apply, there must be an explicit and
unequivocal waiver of sovereign immunity. Fidelity,
supra. As the EAJA does not explicitly provide for the
payment of attorney fees in cases subject to the Service
Contract Act, attorney fees cannot be awarded in this
case. See also Smedburg Machine & Tool. Inc. v. Donovan,
730 F.2d 1089 (7th Cir. 1984). Therefore the motion for
attorney fees must be dismissed. [2]
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[3] In its petition for review, Respondent argues that this
matter was an adversarial proceeding and that sovereign immunity is
not a consideration where the action was pending when the EAJA was
enacted. The Department of Labor's Office of the Solicitor
submitted a response in opposition to the Petition for Review.
The argument that an SCA proceeding meets the requirement of
being an adversarial adjudication was addressed and rejected in a
recent similar case. See In the Matter of Verticare, etc.,
82-SCA-44, Final Decision of the Deputy Secretary issued June 7,
1988, Errata issued June 28, 1988. That case held as follows:
The SCA authorizes, but does not require, a hearing on
the record. The SCA incorporates the authority of the
Secretary of Labor granted by the Walsh-Healey Act, 41
U.S.C. [secs] 38 and 39, to make rules and regulations
and to hold hearings, 41 U.S.C. [sec] 353(a), and the
implementing regulations under the SCA authorize the
Secretary "to hold hearings and make such decisions based
upon findings of fact as are deemed necessary to enforce"
the SCA. 29 C.F.R. [sec] 4.189. Nowhere in the statute,
however, are SCA contractors granted any [*] right [*] to
a hearing to protest any determination under the Act by
the Department. /FN5/ Accordingly, hearings under SCA
cannot be considered to be "required by statute," 5
U.S.C. [sec] 554(a), and EAJA is inapplicable to such
proceedings. /FN6/ [3]
/FN5/ The only statutory provision requiring a hearing is section
4(c) of the SCA, 41 U.S.C. [sec] 353(c), which requires that a
contractor comply with its predecessor's collective bargaining
agreement, if any, unless the Secretary finds after a hearing that
the wages and benefits in the agreement are substantially at
variance with those prevailing in the locality.
/FN6/ Cf. Smedberg Machine & Tool, Inc. v. Donovan, 730 F.2d 1089
(1984), where the court considered the applicability of EAJA in the
context of a labor certification statute: [FN6 CONTINUED ON PAGE
4]
The statutory provision regarding labor certification
does not provide for any administrative review, and
certainly not a hearing review of the Secretary of
Labor's decisions denying or granting the certifications.
See 8 U.S.C. [sec] 1182(a)(14) .... Therefore, the EAJA
does not provide for attorneys fee awards to plaintiffs
who prevailed in those proceedings. The fact that the
Department of Labor had chosen to promulgate regulations
which permit hearings in review of certification
decisions ... does not warrant a different result in this
case.
Id. at 1092. [END FN4] [4]
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[4] In the Matter of Verticare, etc., slip op. at 7-8 [*](emphasis
in original)[*].
Respondent's argument that sovereign immunity is not a
consideration where the action was pending when the EAJA was
enacted is also without merit. As ALJ Leland stated, "for the EAJA
to apply, there must be an explicit and unequivocal waiver of
sovereign immunity." Order Dismissing Motion for Attorney's Fees.
The SCA contains no such waiver. See Verticare, slip op.
at 5-6.
Accordingly, the Order of the ALJ denying attorney fees under
the Equal Ac[c]ess to Justice Act is AFFIRMED.
SO ORDERED.
[Dennis E. Whitfield]
Deputy Secretary of Labor
Washington, D. C. [4]
