U.S. Department of the Navy, ARB Nos. 96-185 (ARB May 15,
1997)
U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, DC 20210
ARB Case No. 96-185
DATE: May 15, 1997
In the Matter of:
U.S. Department of the Navy
In Re: Unidyne Corporation/Fleet
Industrial Supply Center Contract No.
N00140-92-D-AD14 Naval Training Center,
Great Lakes, Illinois
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case is before the Board pursuant to the Davis-Bacon and Related
Acts (DBA), 40 U.S.C. § 276a et seq. (1994); the McNamara-O'Hara
Service Contract Act of 1965, as amended (SCA), 41 U.S.C. § 351 et seq.
(1994); and the implementing regulations at 29 C.F.R. Parts 7 and 8 (1996). On October 9,
1996, the United States Navy filed a Petition for Review of a final ruling that was issued by
the Administrator of the Department of Labor's Wage and Hour Division on July 11, 1996.
In response the Administrator filed a Motion to Dismiss the petition as moot. The Navy filed
a brief in opposition to the Administrator's motion. Upon review we dismiss the case as moot
and set aside the Administrator's July 11 ruling.
BACKGROUND
In 1992 the Navy awarded a contract to Unidyne for work including
removal, assembly, modification, and installation of various types of naval training equipment
designated to be moved from one site to another. Petition for Review at 5-6. Provisions of
the SCA were incorporated into the contract. Under the contract the Navy periodically would
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issue Delivery Orders (DO) which described specific work to be performed. In 1995 the Navy
issued a particular DO, 0272, for the installation of prefabricated and modified equipment into
Building 520 of the Naval Training Center in Great Lakes, Illinois. The contract labor
standards applicable to this DO were disputed by the Building and Construction Trades
Council, which argued that the equipment installation should be covered by DBA provisions.
The Navy requested a review by the Administrator, and in a letter
dated October 18, 1995, the Deputy Assistant Administrator concurred with the Navy's
determination of contract labor standards. The Trades Council requested reconsideration. By
letter dated July 11, 1996, the Administrator, based on a review of additional information
submitted by the Council, granted reconsideration and found that the provisions of the DBA,
not the SCA, were applicable to DO 0272. However, the Administrator stated that because
the work for the project was over or near completion and because the Navy's SCA coverage
determination was reasonable in view of the Labor Department's earlier ruling, the Navy
would not be required to apply the DBA provisions to the subject project. The Navy's appeal
requesting review of the July 11 final ruling followed.
In its Motion to Dismiss, the Administrator argues that her
unchallenged non-enforcement position rendered the case moot and that the Board should
refrain from issuing merely an advisory opinion. The Navy argues that the Board is not bound
by the federal mootness doctrine and should exercise discretion to review its petition.
According to the Navy, if this case is adjudged as moot because it comes after the DO was
completed, then the Administrator's final ruling also should not have been issued after the
award. The Navy also points out that it was not afforded an opportunity to comment during
the Administrator's reconsideration. Alternatively, the Navy requests that the Board set aside
the July 11 ruling in the event it finds the case moot and, if appropriate, remand to the
Administrator.
DISCUSSION
Although the Navy is correct that administrative proceedings are not
bound by the constitutional requirement of a "case or controversy," the
Department has considered the relevant legal principles and case law developed under that
doctrine in exercising its discretion to terminate a proceeding as moot. See, e.g., In re
Applicability of Wage Rates Collectively Bargained by Harry A. Stroh Assocs., Inc.,
Case No. 84-CBV-2, Dep. Sec. Final Order, Apr. 8, 1988; see also Asst. Sec. and
Curless v. Thomas Sysco Food Serv., Case No. 91-STA-12, Sec. Dec., Sept. 3, 1991,
slip op. at 4-7, vacated on other grounds sub nom., Thomas Sysco Food
Servs. v. Martin, 983 F.2d 60 (6th Cir. 1993). In federal court, a party's case or
controversy becomes moot either when the injury is healed and only prospective relief has
been sought or when it becomes impossible for the court, through the exercise of its remedial
powers, to do anything to redress the injury. Alexander v. Yale, 631 F.2d 178,
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183 (2d Cir. 1980). A federal court may not render advisory opinions upon moot questions.
Preiser v. Newkirk, 422 U.S. 395, 401 (1975). Similarly, except under particular
circumstances not present here, administrative appeals under the SCA and DBA have been
dismissed where no practical relief is available and only advisory decisions for future
applications could be issued. See, e.g., In re PHCC Mechanical Contractors of
Fairbanks, Inc., WAB Case No. 86-20, Nov. 26, 1986; In re McGee Creek
Project, WAB Case No. 81-11, Dec. 24, 1982 (refusing to "adopt the procedure
of issuing advisory decisions as to specific projects"); In re American Overseas
Marine Corp., BSCA Case No. 92-10, 11, Aug. 10, 1992; In re Naval Supply Sys.
Command, WAB Case No. 78-24, Apr. 6, 1979 (finding petitions for review moot
because no effective relief available).
Here, as in Naval Supply Sys., the question of which labor
standards properly were applicable is moot because the Board cannot at this time issue a
decision which could affect the wage requirements of the contract or DO. See Naval
Supply Sys., slip at 3. The ordering period on the entire Unidyne contract ended on
October 24, 1995, and work on DO 0272 was completed on November 22, 1995. Whether
or not the case was moot or untimely when it was before the Administrator, it is moot before
us.1
1 It is unnecessary to address
the Administrator's argument that her non-enforcement position renders the case moot.
2 This procedure prevents
a ruling, found unreviewable because of mootness, from spawning any legal consequences including
precedential effect. United States v. Munsingwear, Inc., 340 U.S. 36, 41 (1950).