RODERICK CONSTRUCTION CO., WAB No. 88-39 (WAB Dec. 20, 1990)
CCASE:
RODERICK CONSTRUCTION
DDATE:
19901220
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
Roderick Construction Co., WAB Case No. 88-39
Contractor
Elmer Roderick,
Owner
BEFORE: Jackson M. Andrews, Chairman
Stuart Rothman, Member, Concurring
Ruth E. Peters, Member
DATED: December 20, 1990
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
the Administrator of the Wage and Hour Division from the rulings
and orders of the Administrative Law Judge ("ALJ") regarding the
award of attorney's fees and costs under the Equal Access to
Justice Act ("EAJA") (5 U.S.C. [sec] 504) to Respondent Roderick
Construction Company, contractor and Elmer Roderick, owner
("Respondent" or "Roderick"). In a May 26, 1988 ruling and order,
the ALJ concluded that the EAJA is applicable to administrative
proceedings conducted under the Davis-Bacon Act (40 U.S.C. [sec]
276a). Subsequently the ALJ, on June 29, 1988, issued a ruling and
order awarding $13,042.50 in attorney's fees and $2,270.07 in costs
to Respondent. For the reasons stated below, the Board concludes
that [1]
~2
[2] the EAJA is not applicable to Davis-Bacon Act
administrative proceedings, and grants the petition for review.
I. BACKGROUND
The underlying administrative Davis-Bacon proceeding commenced
with a July 5, 1984 Order of Reference, requesting an ALJ
determination on issues of back wages and debarment, pursuant to 29
C.F.R. 5.11 and 5.12. See 29 C.F.R. 6.30. The issues in dispute
concerned allegations of prevailing wage and recordkeeping
violations regarding Respondent's performance of a United States
Forest Service contract for the construction and reconstruction of
the Ballarat Timber Sales Roads, Eldorado National Forest,
California. At issue were back wages of $32,394.95 allegedly due
to Respondent's employees, and the proposed debarment of Roderick
and its owner.
A hearing was conducted before ALJ Robert J. Brissenden on
November 18, 1986, January 21-22, 1987, and June 2-4, 1987. Both
the Administrator and Respondent were represented by counsel, and
presented witnesses and documentary evidence. The ALJ issued a
Decision and Order on February 19, 1988. The ALJ determined that
Roderick was not liable for violations of the Davis-Bacon Act,
concluding that the Administrator had failed to prove that the
contractor underpaid its employees and had failed to prove
"specific wage and hour and record-keeping violations . . . ."
(Administrative Law Judge's Feb. 19, 1988 Decision and Order
("ALJD") at p. 10). The Administrator did not appeal from the ALJ
[2]
~3
[3] decision, and the decision became final on March 30, 1988,
pursuant to 29 C.F.R. 6.34.
On April 22, 1988 Roderick filed an application for an award
of $13,042.50 in attorney's fees and $2,270.07 in costs, pursuant
to the EAJA. The Regional Solicitor filed a response on May 10,
1988. In the response, the Regional Solicitor argued that
Roderick's application for attorney's fees and costs must be
denied, since the regulations of the Department of Labor
specifically preclude the award of attorney's fees and litigation
expenses under the EAJA in all administrative hearings conducted
pursuant to 29 C.F.R. Part 6. In his May 26, 1988 ruling and order
("EAJA I"), the ALJ stated that the Secretary's regulation (29
C.F.R. 6.6) was "unambiguous," but concluded that the regulation
was "inapplicable" (EAJA I at 2). The Secretary promulgated 29
C.F.R. 6.6 to implement the original EAJA, the ALJ stated, but
"[t]he original version of EAJA was automatically repealed after
three years in accordance with its 'sunset' provision, and in 1985
Congress enacted a second amended version of EAJA . . . ." (Id. at
2). Because the legislative history of the 1985 version "expresses
Congress' frustration with various agencies and courts' narrow
interpretation of proceedings to which EAJA applies," the ALJ
continued, "I believe the 1985 version of EAJA invalidates 29
C.F.R. [sec] 6.6 and other regulations implementing the now defunct
original version of EAJA. Because 29 C.F.R. [sec] 6.6 is
invalidated, I do not consider myself bound by it" (Id. at 2).
The Regional Solicitor also argued that a Davis-Bacon Act
administrative proceeding is not an "adversary adjudication" within
[3]
~4
[4] the meaning of the EAJA and, therefore, is not covered by
the EAJA. The ALJ determined that Davis-Bacon Act proceedings
before ALJs are "the type of 'adversary adjudication' to which EAJA
applies" (EAJA I at 2). The Department's EAJA regulations (29
C.F.R. Part 16), the ALJ noted, "contains a list of 'adversary
adjudication' proceedings to which EAJA applies, and that list does
not include proceedings under [the Davis-Bacon Act]" (EAJA I at 2).
However, the ALJ added, "like 29 C.F.R. [sec] 6.6, Part 16 was
promulgated to implement the original version of EAJA, and
therefore it, too, was invalidated by the 1985 version of EAJA"
(Id. at 3).
The ALJ then considered the Regional Solicitor's contention
that Davis-Bacon Act hearings "are governed by agency regulation
(29 C.F.R. Part 6) rather than 'required by statute' (5 U.S.C.
[sec] 554(a)) and thus are not the type of 'adversary adjudication'
to which EAJA applies" (EAJA I at 3). The ALJ analyzed case law
regarding Section 554 of the Administrative Procedure Act (5 U.S.C.
[sec] 554), and stated that a Davis-Bacon Act debarment hearing "is
clearly 'adjudicatory' as opposed to 'rulemaking' in nature" (Id.
at 3). In addition, the ALJ stated, debarment of a contractor
under the Davis-Bacon Act "requires special procedural protections
consistent with due process. Specifically, a hearing on the record
is constitutionally [*required*] before a contractor may be
debarred" (Id. at 3) (citations omitted). [*emphasis in original.*]
The purpose of the EAJA, the ALJ continued, "was to ensure
that certain individuals, partnerships, and corporations would not
be deterred from seeking review of, or defending against
unjustified governmental action because of the expense involved in
[4]
~5
[5] securing vindication of their rights" (EAJA I at 3). The
ALJ decided that "it would appear inconsistent with the intent of
Congress to afford the application of EAJA to some small businesses
and individuals (for example, per 29 C.F.R. [sec] 16.104, federal
contractors under the Walsh-Healey Act and farm labor contractors
under the Farm Labor Contractor Registration Act and Migrant and
Seasonal Agricultural Worker Protection Act) and deny it to
contractors involved in adjudicatory hearings under the Davis-Bacon
Act" (Id. at 3).
The ALJ concluded that Roderick "is entitled to request an
award of attorney fees and costs under EAJA" (EAJA I at 3). In a
second ruling and order issued on June 29, 1988 ("EAJA II"), the
ALJ rejected the Regional Solicitor's contention that fees and
costs should be denied because the litigation position of the
Administrator was "substantially justified" within the meaning of
the EAJA (EAJA II at 2). The ALJ awarded $13,042.50 in attorney's
fees and $2,270.07 in costs to Roderick (EAJA II at 3).
II. DISCUSSION
A. The regulations of the Department of Labor
Two portions of the regulations of the Department of Labor are
pertinent to the disposition of this matter. The first provision
is included within 29 C.F.R. Part 6, the regulations governing
administrative proceedings under the Davis-Bacon Act, the Service
Contract Act, and other labor standards statutes. The provision
pertinent here, 29 C.F.R. 6.6(a), provides:
Proceedings under this part are not subject to
the provisions of the Equal Access to Justice Act
(Pub. L. [5]
~6
[6] 96-481). In any hearing conducted
pursuant to the provisions of this Part 6,
Administrative Law Judges shall have no power
or authority to award attorney fees and/or
other litigation expenses pursuant to the
provisions of the Equal Access to Justice Act.
Also pertinent are the Department's EAJA regulations at 29
C.F.R. Part 16. These regulations, among other things, set forth
at 29 C.F.R. 16.104 a list of the types of proceedings "deemed to
be adversarial adjudications which will be covered by the [EAJA]
. . . ." Davis-Bacon Act and Davis-Bacon Related Acts
administrative proceedings are not included on that list.
As noted at page 3, supra, the ALJ in this case acknowledged
that the regulation (29 C.F.R. 6.6(a)) regarding the authority of
ALJs in administrative proceedings under the labor standards
statutes was "unambiguous." However, the ALJ stated that the
Secretary promulgated 29 C.F.R. 6.6 to implement the original EAJA,
but "the original version of EAJA was automatically repealed after
three years in accordance with its 'sunset' provision, and in 1985
Congress enacted a second amended version of EAJA . . . ." The ALJ
concluded that "the 1985 version of EAJA invalidates 29 C.F.R.
[sec] 6.6 and other regulations implementing the now defunct
original version of EAJA. Because 29 C.F.R. [sec] 6.6 is
invalidated, I do not consider myself bound by it." Likewise, the
ALJ acknowledged that the 29 C.F.R. Part 16 list of proceedings to
which the EAJA is applicab[]le does not include proceedings under
the Davis-Bacon Act. Nevertheless, the ALJ decided that "like 29
C.F.R. [sec] 6.6, Part 16 was promulgated to implement the original
version of EAJA, and therefore it, too, was invalidated by the 1985
version of EAJA." [6]
~7
[7]
The Board concludes that the ALJ erred in determining that he
was not bound by the Department's regulations -- 29 C.F.R. 6.6(a)
and 29 C.F.R. Part 16. The ALJ's decision is based on the mistaken
premise that the regulations were somehow invalidated by the sunset
repeal of the original EAJA. However, the original EAJA expressly
provided for its application to adversary adjudications pending as
of the date of repeal -- October 1, 1984. Section 203(c) of the
original enactment provided for repeal of the EAJA on that date,
"except that the provisions of such section [providing for award of
fees] shall continue to apply through final disposition of any
adversary adjudication . . . initiated before the date of repeal."
In keeping with this statutory directive the Department's EAJA
regulations at 29 C.F.R. Part 16 provide (29 C.F.R. 16.103) that
the EAJA applied to "any adversary adjudication pending before the
Department at any time between October 1, 1981 [the date of
enactment] and September 30, 1984," and "includes . . . proceedings
pending on September 30, 1984, regardless of when they were
initiated or when final agency action occurs . . . ."
The underlying Davis-Bacon Act proceeding in this case was
initiated by a July 5, 1984 Order of Reference, requesting an ALJ
determination on issues of back wages and debarment. The ALJ
issued his Decision and Order on February 19, 1988, and that
decision became final on March 30, 1988, pursuant to 29 C.F.R.
6.34. Given this time line, it is obvious that the EAJA and the
Department's regulations were fully effective during the period
covered by these proceedings. The ALJ was bound to adhere to those
regulations, which he acknowledged unambiguously provide that
[7]
~8
[8] proceedings under 29 C.F.R. Part 6 are not subject to the
EAJA, and that an ALJ has no power or authority in Part 6
proceedings to award attorney fees and costs pursuant to the EAJA.
It is clear that the ALJ exceeded his authority by disregarding the
applicable Department regulations, ruling on the validity of the
regulations, and awarding fees and costs under the EAJA. See
School Board of Broward County v. HEW, 525 F.2d 900, 908-909 (an
administrative agency is bound by its own regulations, and a
hearing officer is bound by the authority vested in him by
regulation or statute; hearing examiner acting pursuant to valid
regulations cannot decide matters that are not expressly or
impliedly required by those regulations); California Human
Development Corp. v. Brock, 762 F.2d 1044, 1049 (D.C. Cir. 1985)
Department of Labor's actions must conform to its own regulations).
(FOOTNOTE 1)
B. Administrative proceedings covered by the EAJA
As stated above, the ALJ exceeded his authority by ruling on
the validity of the Department's regulations and by awarding
attorney fees and costs to Roderick. This is reason enough to [8]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(FOOTNOTE 1) See also Pat's Janitorial Service, Inc., Case No. 81-SCA-1308
(July 7, 1988), at p. 4 n.2 (Deputy Secretary rules that the ALJ's
analysis in that case of the applicability of EAJA to Service
Contract Act cases under Part 6 "fails to give any consideration to
the Department's implementing regulations 29 C.F.R. Part 16, and
analysis of EAJA as set forth in the preamble. 46 Fed. Reg.
63,020. By ignoring the regulations, the ALJ, in effect, has
rejected them. This the ALJ may not do."). Cf. Clarke v. INS, 904
F.2d 172, 173 nn.2 & 3 (3d Cir. 1990) (court notes that in one
deportation proceeding the Department of Justice (DOJ) Board of
Immigration Appeals (BIA) stated that it was without authority to
contravene the Attorney General's regulations on applicability of
EAJA to DOJ proceedings; the BIA applied that ruling in another
proceeding, where it stated that because an ALJ had no authority to
consider an application for attorney fees and costs, the ALJ
properly denied an application for fees pursuant to EAJA). [8]
~9
[9] grant the petition for review and to set aside the ALJ's
rulings. In addition, the Board also concludes that a Davis-Bacon
Act administrative proceeding is not an "adversary adjudication"
within the meaning of the EAJA and, therefore, such proceedings are
not covered by EAJA.
The EAJA provides (5 U.S.C. [sec] 504(a)(1)) that "an agency
that conducts an [*adversary adjudication*] shall award to a
prevailing party other than the United States, fees, and other
expenses incurred by that party in connection with that proceeding,
unless the adjudicative officer of the agency finds that the
position of the agency was substantially justified or that special
circumstances make an award unjust." (Emphasis supplied.) The term
"adversary adjudication" in turn is defined in 5 U.S.C. [sec]
504(b)(1)(C) as "an adjudication under section 554 [of the
Administrative Procedure Act ("APA"), 5 U.S.C. [sec] 554] in which
the United States is represented by counsel or otherwise . . . ."
Section 554 of the APA applies "in every case of adjudication
[*required by statute*] to be determined on the record after
opportunity for an agency hearing . . . ." 5 U.S.C. [sec] 554(a)
(emphasis supplied). Thus, as the Seventh Circuit has observed,
"unless an agency hearing is statutorily mandated, the EAJA does
not provide for the award of attorney fees to the prevailing
party." Smedberg Machine & Tool, Inc. v. Donovan, 730 F.2d 1089,
1092 (7th Cir. 1984).
As the Board has recognized, the Davis-Bacon Act does not
contain a hearing requirement. See Arbor Hill Rehabilitation
Project, WAB Case No. 87-04 (Nov. 3, 1987), at p. 20 ("Under the
APA [9]
~10
[10] a formal adjudication is necessary only when some
statute requires determination 'on the record after opportunity for
an agency hearing'. 5 U.S.C. 554. Izaak Walton League v. Marsh,
655 F.2d 346, 361-62 (D.C. Cir. 1981), cert. denied. Neither the
Davis-Bacon Act nor any of the Related Acts set forth such
requirement."). The Department recognized the same point when it
promulgated its EAJA regulations, codified at 29 C.F.R. Part 16.
The Department explained (46 Fed. Reg. 63020, Dec. 29, 1981) that
these regulations "exclude from coverage those proceedings which
are established by regulation but are not required by the governing
statute. The Department conducts hearings under several programs
implementing statutes which do not require hearings under section
554 of the Administrative Procedure Act. The statutes include
. . . the Davis-Bacon Act." Accordingly, since the Davis-Bacon
Act does not set forth a hearing requirement, a Davis-Bacon Act
administrative proceeding is not an "adversary adjudication" within
the meaning of the EAJA and the EAJA is not applicable to such
proceedings. As the court in Smedberg explained in analyzing the
applicability of the EAJA in the context of a labor certification
statute (730 F.2d at 1092):
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 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.
In urging the Board to conclude that a Davis-Bacon Act [10]
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[11] administrative proceeding is an "adversary adjudication"
covered by the EAJA, Roderick relies (Response, at pp. 11-12) on
the Ninth Circuit's decision in Escobar Ruiz v. INS, 813 F.2d 283
(1987), aff'd, 838 F.2d 1020 (9th Cir. 1988) (en banc). In Escobar
Ruiz, the Ninth Circuit examined whether deportation proceedings
are covered by the EAJA. The Ninth Circuit agreed with the
petitioner in that case that the EAJA term "an adjudication under
section 554" encompasses "an adjudication as defined by section
554," even though the proceeding may not technically be governed by
or subject to section 554 of the APA. Escobar Ruiz (en banc), 838
F.2d at 1024; Escobar Ruiz, 813 F.2d at 291. The Ninth Circuit
concluded that "[d]eportation proceedings are covered by the EAJA
because they are required by statute to be determined on the record
after opportunity for a hearing and therefore constitute
adjudications under section 554 of the APA." Escobar Ruiz (en
banc), 838 F.2d at 1030 (emphasis supplied). (FOOTNOTE 2)
We note first that the Ninth Circuit's view that the EAJA is
applicable to proceedings that meet the section 554 definition,
whether or not the proceedings are actually governed by section
554, is not shared by other courts of appeals. Several courts have
disagreed with the definitional approach enunciated by the Ninth
Circuit in Escobar Ruiz, and have determined that the EAJA applies
only to administrative proceedings that are actually governed by
section 554 of the APA. Clarke v. INS, 904 F.2d 172 (3d Cir. [11]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(FOOTNOTE 2) The Ninth Circuit has subsequently stated that its holding in
Escobar Ruiz can not be mechanically applied. Haire v. United
States, 869 F.2d 531, 534, 535-536 (1989) (EAJA does not apply to
administrative proceedings under the Export Administration
Act). [11]
~12
[12] 1990); Owens v. Brock, 860 F.2d 1363 (6th Cir. 1988); St.
Louis Fuel and Supply Co. v. FERC, 890 F.2d 446 (D.C. Cir. 1989);
Pollgreen v. Morris, 911 F.2d 527, 534 (11th Cir. 1990); Ardestani
v. U.S. Dep't of Justice, INS, 904 F.2d 1505 (11th Cir. 1990).
More importantly, neither the "defined by section 554"
approach of the Ninth Circuit nor the "governed by section 554"
approach of the other courts provides a basis for determining that
Davis-Bacon Act administrative proceedings are covered by the EAJA.
The Davis-Bacon Act hearing scheme, established by regulation
rather than by statute, is not actually governed by section 554 of
the APA. Furthermore, the definitional approach of the Ninth
Circuit includes the "required by statute" element of section 554.
The Ninth Circuit explained its view of the EAJA term "an
adjudication under section 554" as follows: "The words 'an
adjudication under section 554', thus, constitute shorthand for the
expression 'an adjudication determined, by statute, on the record
and after an opportunity for an agency hearing.'" Escobar Ruiz,
813 F.2d at 291 (emphasis supplied). Indeed, both those taking the
"defined by section 554" approach and those taking the "governed by
section 554" approach have noted the Seventh Circuit's conclusion
in Smedberg, supra, that the EAJA does not apply to hearings that
are not statutorily mandated. Escobar Ruiz (en banc), 838 F.2d at
1024 and n.5; Ardestani, supra, 904 F.2d at 1516 (Pittman, J.,
dissenting); Clarke, supra, 904 F.2d at 175 n.5. In short, the
Davis-Bacon Act does not set forth a hearing requirement and Davis-
Bacon Act administrative proceedings -- which are neither "defined
[12]
~13
[13] by" nor "governed by" section 554 -- are not covered by
the EAJA. (FOOTNOTE 3)
Roderick also points to comments of the Administrative
Conference of the United States ("ACUS") urging a broad
interpretation of the coverage of the EAJA. However, we note that
the final version of the ACUS model EAJA regulations dropped the
provision contained in the draft rules that suggested that EAJA
awards would be available when agencies voluntarily use the
procedures set forth in section 554. ACUS acted out of "concern[]
. . . that the liberal interpretation of the draft model rules may
provide for broader applicability [of the EAJA] than Congress
intended." 46 Fed. Reg. 32901.
Roderick also claims (Response, at p. 12) that a hearing is
required before a contractor may be debarred and, thus, that the
debarment aspect of the hearing in this case is covered by the
EAJA. However, we direct Roderick's attention to the Seventh
Circuit's analysis of a similar contention in Smedberg,
supra. (FOOTNOTE 4) [13]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(FOOTNOTE 3) Roderick's reliance (Response, at p. 12) on a pre-EAJA case,
Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir. 1977) regarding
the scope of section 554 is also misplaced. The court in Marathon
Oil expressly did not determine that section 554 applied in
instances where a statute did not set forth a hearing requirement;
instead, that case addressed situations in which a statute provides
for a hearing but does not specify that determinations are to be
made "on the record." 564 F.2d at 1262.
(FOOTNOTE 4) Furthermore, to claim, as Roderick does, that a hearing is
required before a contractor may be debarred is not to demonstrate
the need for the entire range of procedures as used in proceedings
governed by section 554. As noted in one of the cases cited by
Roderick (Gonzalez v. Freeman, 334 F.2d 570 (D.C. Cir. 1964), "To
suggest the need for procedural safeguards does not mean that the
full trial-type panoply of due process is commanded in all cases."
334 F.2d at 580 n.21. Cf. St. Louis Fuel and Supply Co., supra,
890 F.2d at 448 (enumerating the procedural components for
proceedings actually governed by section 554) and at 449 [FN4
CONTINUED ON PAGE 15] (discussing the legislative history regarding
the procedural requirements for non-section 554 proceedings under
section 7193(c) of the Department of Energy Organization Act).
[13]
~14
[14] The Seventh Circuit stated (730 F.2d at 1093):
Plaintiffs argue that the labor certification review
proceedings is compelled by the due process clause of the
Fifth Amendment . . . even if the proceeding is not
mandated by statute. They contend that the "adjudication
under section 554" clause in Section 504(b) should be
interpreted to include both constitutionally and
statutorily required proceedings. In urging an expansive
reading of that clause, however, plaintiffs fail to
recognize that the EAJA is a waiver of the sovereign's
traditional immunity from claims for attorneys fees
. . . . Therefore, Section 504 must be construed
strictly in favor of the United States (see e.g.
Ruckleshaus v. Sierra Club, 103 S. Ct. 3274 (1983)), and
plaintiffs' request for an expansion of the meaning of
adjudication is rejected.
The ALJ's unauthorized venture into analysis and application
of the EAJA was predicated on the mistaken view that the
Department's regulations at 29 C.F.R. 6.6(a) and Part 16 were
somehow invalidated by the sunset repeal of the original version of
the EAJA and the subsequent reenactment of the EAJA in 1985. We
note, however, the Third Circuit's examination in Clarke, supra, of
congressional actions in the 1985 reenactment and also in 1986, in
terms of the effect of those actions on the EAJA definition of
"adversary adjudication." In two instances, the Third Circuit
noted (904 F.2d at 177-178), Congress expanded the "definition of
'adversary adjudication' to include proceedings that had previously
been considered outside the EAJA's scope." First, in 1985 Congress
overruled the Federal Circuit's holding in Fidelity Construction
Co. v. United States, 700 F.2d 1379, cert. denied, 464 U.S. 826
(1983), by amending section 504(b)(1)(C) to encompass [14]
~15
[15]
administrative proceedings under section 6 of the Contract Disputes
Act of 1978. Second, in 1986 Congress again amended section
504(b)(1)(C) to include proceedings under the Program Fraud Civil
Remedies Act of 1986. "Although these amendments are certainly not
determinative of the EAJA's applicability to other administrative
proceedings," the Third Circuit stated, "they do show Congress'
inclination to act affirmatively to extend the EAJA to include
proceedings that do not clearly meet the statutory definition of
'adversary adjudications.'" 904 F.2d at 178. Congress has not
affirmatively expanded the coverage of the EAJA to encompass Davis-
Bacon Act or Davis-Bacon Related Acts administrative proceedings.
In sum, the ALJ exceeded his authority by ruling on the
validity of the Department's regulations at 29 C.F.R. 6.6(a) and
Part 16, and by awarding attorney fees and costs to Roderick under
the EAJA. In addition, a Davis-Bacon Act administrative proceeding
is not an "adversary adjudication" within the meaning of the EAJA,
and the EAJA is not applicable to such proceedings. (FOOTNOTE 5) The
petition for review is granted. The ALJ's rulings and orders of
May 26, 1988 and June 29, 1988 are set aside.
_ _ _
Member Rothman, concurring:
I concur in the Board decision but wish to add the following.
After certain Davis-Bacon Act responsibilities were [15]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(FOOTNOTE 5) Because the Board's resolution of the issues of the ALJ's
authority and of the applicability of the EAJA to Davis-Bacon Act
administrative proceedings is dispositive of this matter, we do not
address whether the Regional Solicitor's position in the underlying
proceeding was "substantially justified." [15]
~16
[16] centralized in the Secretary of Labor by Reorganization Plan
14 of 1950, the practice developed to use the skills of
administrative law judges to assist in fact finding investigations
in complex situations. This practice is now imbedded in
regulations 29 C.F.R., Parts 5, 6 and 18. In earlier years there
were few administrative law judges and few statutes with which they
worked. Presently there are many administrative law judges in the
Department of Labor and many different statutes some of which may
indeed be subject to the EAJA, 5 U.S.C. [sec] 504. But in earlier
days the practice was, and under the current regulations the
procedures remain a part of the administrative/investigative
processes of the Department of Labor's responsibilities.
The use of administrative law judges in fact finding
situations is an adjunct to the Department of Labor's discharge of
its administrative/investigative responsibilities with respect to
the Davis-Bacon part of the vast national procurement and
construction program for public buildings and public works and
similarly for the Davis-Bacon Related Acts. These processes do not
rise to the level of an adjudicatory function.
The administrative law judge stands in for the Wage-Hour
Administrator to make the same fact finding and conclusory
determinations the Wage-Hour Administrator would otherwise make and
continues to make in cases not referred to the ALJs by an Order of
Reference.
The regulations providing for these procedures before an
administrative law judge do not derive from any statutory mandate,
have long antedated the EAJA, and though administrative law judges
[16]
~17
[17] are standing in for the Administrator, their decisions
are not always the decisions that the Administrator would make.
They are only pro forma to facilitate further proceedings within
the Department of Labor as part of the completion of the
administrative/investigative processes.
Providing for an ALJ hearing, as this case illustrates,
accords persons subject to Davis-Bacon and Davis-Bacon Related Acts
requirements a way to have the investigation proceed with the
assurance of as full and impartial examination of the facts as the
parties wish to make it.
It would take special Congressional consideration and action
to express a Congressional intent that in the prosecution of the
vast federal public buildings and public works construction
programs of the United States of which Davis-Bacon is a part the
day-to-day work at each project site including Davis-Bacon Act
requirements shall proceed only on an adjudicatory basis. The EAJA
does not do this, the Davis-Bacon and Related Acts do not do this
and the regulations which establish the ALJ procedures do not.
Safeguarding the administrative processes against
investigative work so poor as to constitute an abuse of
governmental power and responsibility must be handled by the
Wage-Hour Administrator in other ways. As the Board decision
points out, it has been unnecessary in this case to reach the
question whether there was a lack of "substantial justification"
for initiating or continuing with this case before the ALJ.
Suffice it is with respect to the instant case that the
regulation, 29 C.F.R. 6.6(a), which at all times was applicable to
[17]
~18
[18] the instant case, provides:
Proceedings under this part are not subject to
the provisions of the Equal Access to Justice
Act (Pub. L. 96-481). In any hearing
conducted pursuant to the provisions of this
Part 6, Administrative Law Judges shall have
no power or authority to award attorney fees
and/or other litigation expenses pursuant to
the provisions of the Equal Access to Justice
Act.
BY ORDER OF THE BOARD:
_____________________________
Jackson M. Andrews
Chairman [18]
