HEAVY CONSTRUCTORS
ASSOCIATION OF THE GREATER KANSAS CITY AREA, WAB Case No. 94-13 (WAB Dec. 30, 1994)
CCASE:
HEAVY CONSTRUCTORS
DDATE:
19941230
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
HEAVY CONSTRUCTORS WAB Case No. 94-13
ASSOCIATION OF THE
GREATER KANSAS CITY AREA
BEFORE: David A. O'Brien, Chair
Ruth E. Peters, Member
Karl J. Sandstrom, Member
DATED: December 30, 1994
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of the Heavy Constructors Association of the Greater Kansas City
Area ("Petitioner"), seeking attorney's fees and costs as the
prevailing party in the Board's substantive decision (dated October
11, 1994) in the captioned matter. For the following reasons,
Petitioner's request for fees and costs is denied.
The Board has previously ruled that administrative proceedings
under the Davis-Bacon (40 U.S.C. [sec] 276a et seq.) and Related
Acts ("DBRA") are not subject to the attorney fee and costs
provisions of the Equal Access to Justice Act ("EAJA") (5 U.S.C.
[sec] 504). We have held that DBRA administrative proceedings are
not "adversarial adjudications" within the meaning of the EAJA,
because there is no statutory requirement for an administrative
proceeding conducted pursuant to the Administrative Procedure Act.
Paul G. Marshall, Jr., WAB Case No. 88-37 (Jan. 31, 1991); Roderick
Construction Co., WAB Case No. 88-39 (Dec. 20, 1990). In those
decisions we also noted the fact that DBRA proceedings are not
listed in the enumerated types of Department of Labor
administrative proceedings subject to EAJA. 29 C.F.R. 16.104.
(The regulation at 29 C.F.R. 6.6(a) [1]
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[2] explicitly excludes from EAJA coverage DBRA administrative
proceedings conducted before an Administrative Law Judge.)
Central to Petitioner's arguments in support of its fee and
cost award is the contention that the Department's above-cited EAJA
regulations -- excepting DBRA proceedings from EAJA's coverage --
are invalid. This is an argument that the Board cannot address.
It is well established that administrative agencies are bound by
their regulations. 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).
Petitioner's request for attorney's fees and costs is denied.
BY ORDER OF THE BOARD:
David A. O'Brien, Chair
Ruth E. Peters, Member
Karl J. Sandstrom, Member
Gerald F. Krizan, Esq.
Executive Secretary[2]
