In re: request for review of the
Administrator's determination that a
wastewater treatment construction project
in Waterloo, Iowa was funded by Congress
in Fiscal Year 1995 Appropriations
Act, Pub. L. No. 103-327, 108 Stat. 2398
under authority of that Act.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances: For the Petitioner Building and Construction Trades Dep't, AFL-CIO:
Terry R. Yellig, Esq.; James E. Rubin, Esq., Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, D.C.
For the Administrator: Ford F. Newman, Esq.; Douglas J. Davidson, Esq.; Steven J. Mandel, Esq., U.S. Department of Labor, Washington, D.C.
For the Intervening Interested Party U.S. Environmental Protection Agency:
Geoffrey Cooper, Esq., U.S. Environmental Protection Agency, Washington, D.C.
DECISION
The Building and Construction Trades Department, AFL-CIO ("BCTD"), petitions for review of a final ruling by the Wage and Hour Administrator ("the Administrator") issued November 20, 1998. In that ruling, the Administrator
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rejected BCTD's claim that the Davis-Bacon provisions of the Federal Water Pollution Control Act, 33 U.S.C.A. §1372 (West 1986) (the "Clean Water Act") applied to a $37,000,000 grant for construction and repair of wastewater infrastructures in Waterloo, Iowa. This construction project had been funded under a section of the Environmental Protection Agency's FY 1995 Appropriations Act providing funds for "needy cities grants." EPA had construed its Appropriations Act, and had concluded that the "needy cities grant" to Waterloo, Iowa, was not authorized pursuant to the Clean Water Act and therefore was not subject to the Davis-Bacon provisions of §1372. In his November 1998 final ruling, the Administrator agreed with EPA's construction of the Appropriations Act and held that §1372 did not apply to the Waterloo project.
In their initial filings before this Board, all the parties (BCTD, EPA and the Administrator) argued the merits of EPA's construction of its FY 1995 Appropriations Act, assuming without discussion that the Administrator (and this Board) had authority to rule on this question pursuant to Reorganization Plan No. 14 of 1950, which assigns a central role to the Secretary of Labor for developing government-wide policies, interpretations and procedures to implement the Davis-Bacon Act and the Davis-Bacon-type labor standards provisions of other statutes. 5 U.S.C.A. Appendix (West 1986). For the reasons discussed below, we conclude that this assumption was incorrect and that the particular question posed in this case is beyond the authority delegated to the Secretary of Labor under the Reorganization Plan. We therefore lack jurisdiction over this claim.
This appeal is before us pursuant to the review procedures of 29 C.F.R. §7.1 (2000).
BACKGROUND
We begin with certain fundamental propositions: "Authorizing" legislation creates an agency or a program. "Appropriation" legislation provides funds to implement the authorized agencies and programs. Although the practice is disfavored, Congress can both authorize and fund an agency or program within appropriation laws. United States v. Dickerson, 310 U.S. 554, 60 S. Ct. 1034 (1940); 1 United States General Accounting Office, Principles of Federal Appropriations Law, Chap. 2 §4 (2d ed. 1991).
In the FY 1995 Appropriations Act for the EPA and other agencies, Congress funded grants for 53 wastewater treatment construction projects. FY 1995 Appropriations Act for the Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies, Pub. L. No. 103-327, 108 Stat. 2298 (1994). For some of the grants, Congress expressly relied on the legislative authority of the Clean Water Act. However, for a group of grants totaling $781,000,000 and referred to as "needy cities
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grants," Congress was not as clear about whether it was invoking the legislative authority of the Clean Water Act. One of the needy cities grants was earmarked for the Waterloo project, in the amount $37,000,000.
Shortly after the Appropriations Act was passed, EPA's Director of the Office of Wastewater Management sent an advisory directive to EPA's Municipal Construction Program Managers in the field offices that would be overseeing dispersal of all 53 wastewater grants. The Director advised the Program Managers that the needy city grants were funded pursuant to the legislative authority of the Appropriations Act and not the legislative authority of the Clean Water Act. Admin. Rec. Tab J.
By letter dated March 20, 1997, BCTD asked the Administrator to rule that EPA had misconstrued its 1995 appropriation legislation, and to rule that Congress did rely on the legislative authority of the Clean Water Act when it funded the Waterloo project. Admin. Rec. Tab H.
The Administrator rejected BCTD's request. In his view, EPA had interpreted its FY 1995 Appropriations Act correctly; Congress both funded and authorized the Waterloo project in the Appropriations Act. Admin. Rec. Tab. A.
Whether the Waterloo grant was based on the legislative authority of the Clean Water Act or on the legislative authority of the Appropriations Act is a matter of some import. The Administrator, BCTD, and EPA all agreed that if the Waterloo grant was authorized pursuant to the Clean Water Act, it would be covered by the Act's labor standards provision at §1372. All parties also agreed that if the Waterloo grant was authorized pursuant to the Appropriations Act itself, it would not be subject to any Davis-Bacon labor standard requirements, because the Appropriations Act contained none.
BCTD petitioned for review of the Administrator's determination. The Administrator filed a Statement in Opposition to BCTD's petition, and EPA filed a brief in Support of the Administrator's Statement. All three parties assumed without discussion that the Department of Labor had jurisdiction to decide the merits of BCTD's claim.
On November 2, 2000, we invited the parties to file supplemental briefs on the question: "whether the oversight and coordinating powers assigned to the Secretary of Labor by Reorganization Plan No. 14 include the power to determine whether funds for the Waterloo, Iowa, wastewater treatment facility appropriated in the FY1995 Appropriations Act were authorized by the Clean Water Act or the FY1995 Appropriations Act."
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DISCUSSION
The Labor Department's authority over the prevailing wage laws derives from various congressional enactments, and "it is beyond cavil that an agency's power is no greater than that delegated by Congress.'" Railway Labor Executives' Ass'n v. National Mediation Board, 216 F.3d 122, 139 (D.C. Cir. 1994), quoting Lyng v. Payne, 476 U.S. 926, 937, 106 S.Ct. 2333, 2341 (1986). In this case, BCTD asks the Administrator and this Board to determine whether the Waterloo project was authorized under the Clean Water Act, or under the FY 1995 Appropriations Act. In considering this request, we must first determine whether the Labor Department has been delegated authority to decide this type of question.
The Labor Department's authority to decide "Davis-Bacon"-type questions comes from several statutory sources. For example, under the Davis-Bacon Act itself the sole function assigned to the Secretary of Labor directly is the authority to determine locally prevailing wages and fringe benefits. See 40 U.S.C.A. §276a et seq. (West 1986). The Portal-to-Portal Act gives the Secretary authority to issue binding opinions on Davis-Bacon wage and overtime questions. 29 U.S.C.A. §259 (West 1998). The Secretary has explicit authority to issue regulations implementing the certified payroll program under the Copeland Anti-Kickback Act. 40 U.S.C.A. §276c (West 1986). None of these statutory delegations relates to this case.
Although rarely discussed in the reported cases, probably the greatest source of the Secretary's power over Davis-Bacon-type matters derives from Reorganization Plan No. 14 of 1950. 5 U.S.C.A. Appendix (West 1986).
The Reorganization Plan was enacted to correct significant problems with the administration of the Davis-Bacon Act. As originally enacted in 1931 and amended in 1935, enforcement of the Davis-Bacon Act was left to the various federal contracting agencies. Over time, differing interpretations of the Davis-Bacon statute developed from one contracting agency to another. In order to rationalize the Davis-Bacon enforcement system, in 1950 the Truman Administration proposed placing central authority for Davis-Bacon policy-making within the Labor Department:
In order to assure coordination of administration and consistency of enforcement of the labor standards provisions of each of the following Acts by the Federal agencies responsible for administration thereof, the Secretary of Labor shall prescribe appropriate standards, regulations, and procedures, which shall be observed by these agencies, and cause to be made by the Department of Labor such investigations, with respect to compliance with and enforcement of such labor standards as he deems desirable. . . .
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MESSAGE OF THE PRESIDENT
To the Congress of the United States:
* * * * *
The methods adopted by the various agencies for the enforcement of labor standards vary widely in character and effectiveness. As a result, uniformity of enforcement is lacking and the degree of protection afforded workers varies from agency to agency.
In order to correct this situation, this plan authorizes the Secretary of Labor to coordinate the administration of legislation relating to wages and hours on [federal projects] by prescribing standards, regulations, and procedures to govern the enforcement activities of the various Federal agencies and by making such investigations as he deems desirable to assure consistent enforcement. The actual performance of enforcement activities, normally including the investigation of complaints of violations, will remain the duty of the respective agencies awarding the contracts or providing Federal assistance. . . .
Harry S. Truman
5 U.S.C.A. Appendix. The list of labor standards statutes subject to the Secretary of Labor's oversight authority appears at 29 C.F.R. §5.1(a). Consistent with the Reorganization Plan, along with the authorities delegated under the Davis-Bacon and Copeland Acts, the Secretary of Labor has issued comprehensive implementing regulations at 29 C.F.R. Part 1 ("Procedures for Predetermination of Wage Rates); Part 3 ("Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"); and Part 5 ("Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction").1
1 Federal grant-making agencies have corresponding regulations. See e.g., 40 C.F.R. §31.36(i)(5) (EPA general procurement regulation requiring Davis-Bacon wage specifications in covered EPA grants and contracts); 40 C.F.R. §35.935.5 (EPA regulation concerning compliance with Davis-Bacon Act requirements under the Clean Water Act).