U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-062
DATE: May 8, 1998
In the Matter of:
DIVERSIFIED COLLECTION
SERVICES, INC.
In re request for review and
reconsideration of Wage Determination
No. 97-0364
ORDER
On January 7, 1998, Diversified Collection Services, Inc. (DCS) filed an
appeal with this Board seeking review of a decision issued December 18, 1997, by Nila Stovall,
Chief, Branch of Service Contract Wage Determinations (the "Stovall decision"). The
Stovall decision advised DCS that its September 24, 1997 Request for Review and Reconsideration
of Wage Determination 97-0364 was untimely.
On January 21, 1998, the Administrative Review Board issued a Notice of
Appeal and Order Establishing Briefing Schedule, in which the Wage and Hour Administrator was
ordered to file the administrative record and a brief on or before February 19, 1998. Petitioner
and other parties and Interested Persons were authorized to file reply briefs on or before March
22, 1998.
The Acting Administrator did not file the brief and the administrative record,
as required by the Board's order. Instead, on February 13, 1998, the Acting Administrator filed
a Motion to Dismiss Petition, arguing that the Stovall decision "does not purport to be and
is not the final decision of the Acting Administrator in this matter." Motion at 3. The
Acting Administrator stated that he "will treat [DCS'] petition as a request for a final
decision, and will issue a final decision within 30 days of the date of this motion." Motion
at 1. DCS opposed that motion, and the Acting Administrator replied to DCS' opposition.
[Page 2]
On March 13, 1998, Corlis L. Sellers, National Office Program
Administrator, Wage and Hour Division, sent DCS' attorney a letter (the "Sellers
decision"): (a) reaffirming the Stovall decision's December 18, 1997 finding that DCS'
request for review and reconsideration of Wage Determination 97-0364 was untimely; (b)
notifying DCS that the March 13 letter constituted the Administrator's final ruling on the matter;
and (c) informing DCS of its appeal rights pursuant to 29 C.F.R. Part 8.
On April 2, 1998, DCS filed a Notice and Protective Appeal of the Sellers
decision. DCS argued that the Stovall decision in December "was unambiguously the final
decision of an authorized representative of the Acting Administrator and, therefore, was properly
appealed to the Board under the Board's regulations." Notice at p. 2. DCS requested that
the Board rule on its original Petition, filed in January:
Since the Acting Administrator has failed to controvert -- or, indeed, even
to address -- the points made by DCS in its Petition for Review, the Board
should grant DCS' petition for Review and remand this matter to the Acting
Administrator with instructions to review DCS' request on its merits and
issue a decision thereon within ten (10) days thereafter.
Notice at 2. In the alternative, DCS asked that its Notice be treated as a petition for review
of the March 13 Sellers decision.
We are troubled by the Acting Administrator's handling of this matter.
DCS' original December 9, 1997 letter specifically requested "review and
reconsideration" of Wage Determination 97-0364. That phrase is a term of art, contained
in 29 C.F.R. § 4.56(a). Paragraph (b) of that section provides for appeal to this Board from
"[a]ny decision of the Administrator under paragraph (a)."
The request for review and reconsideration was addressed directly to the
Acting Administrator. The Acting Administrator apparently delegated the matter to Ms. Stovall
for action. See Stovall decision ("This is in response to your review and
reconsideration request . . . . You have requested review and reconsideration of Wage
Determination (WD) 97-0364, issued September 24, 1997.") The Stovall decision's
rejection of DCS' request for review and reconsideration as untimely is clear and unambiguous,
without any suggestion that further review within the Wage and Hour Division is either available
or required. We find it unsurprising that DCS would view the Stovall decision as a
"decision of the Administrator" for purposes of 29 C.F.R. § 4.56(b). The only
practical difference between the Stovall decision and the Sellers decision is that Ms. Stovall acts
with the apparent authority of the Acting Administrator, while Ms. Sellers claims explicit
authority.
[Page 3]
In this case, the Acting Administrator's assertion that the Stovall decision
was "not a final decision of the Administrator" (Motion at 1) merely has served to
delay the proceeding, and unfairly has forced the petitioning party to file additional papers with
this Board. If the Acting Administrator intends to create multiple levels of review within the
Wage and Hour Division prior to issuing a "final" decision, it would be prudent to
acknowledge such levels of review clearly so that the parties and this Board will be able to
distinguish a preliminary decision from a final decision. Otherwise, the Acting Administrator runs
the risk in future appeals that the parties and this Board will accept the apparent finality of
correspondences like the Stovall decision at face value, and regard them as final and appealable
under 29 C.F.R. § 4.56(b).
In addition to delaying this proceeding by asserting that the Stovall decision
was not "final," we note with disfavor that the Acting Administrator simply failed to
comply with the timetable of the Board's January 21, 1998 Order. The Acting Administrator's
failure to comply with the Board's order prompted DCS to request (in its opposition to the Motion
to Dismiss, noted supra) that the Board proceed directly to a decision on the merits
based on DCS' pleadings. We decline to take that step in this instance. Instead, we will order the
Administrator to file the administrative record of this case and a brief -- not to exceed 30 double-spaced pages -- in response to the Petition for Review on or before May 26, 1998.
Petitioner and all other parties and Interested Persons may file a reply brief
-- not to exceed 30 double-spaced typed pages -- on or before June 25, 1998. All
other terms of our January 21, 1998 Notice and Order shall remain in effect.
