Since the case is pending before the Administrator for a final decision, it is not ripe for review pursuant to 29 C.F.R. § 8.1(b).
Accordingly, we GRANT the Administrator's Motion to Dismiss without prejudice and REMAND the case to the Administrator for further consideration.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 This contract is also listed as "DAKF110-01-C-000."
2 41 U.S.C.A. § 351 et seq. (West 2007) and its implementing regulations at 29 C.F.R. Parts 4 and 8 (2007).
3 See Petitioner's Petition for Review at 2.
4 See Petitioner's Petition of Review at 1; Exhibit Tab U at 187. The Petitioners cite 29 C.F.R. § 8.7(b) ("A petition for review of a final written decision (other than a wage determination) of the Administrator or authorized representative may be filed by any aggrieved party within 60 days of the date of the decision of which review is sought."). Petitioner's Petition for Review at 1.
5 See Administrator's Motion to Dismiss at 1.
6 In 2003, in response to concerns raised by employees under the contract, a series of e-mail discussions between Nila Stovall, Chief Branch of Service Contract Wage Determinations, Alfred E. Moreau, Labor Advisor for Department of the Army and Ollen L. Burnette, Army contracting Agency Specialist show Stovall seeking a review of the basis of the wage determination. Exhibit Tab A at 1. In November of 2003, Sandra W. Hamlett, Human Resource Specialist, Branch of Service Contract Wage Determinations responded that, based on their review, the "ETM classification was appropriate for the [BMETs]." Exhibit Tab C at 36-37. In July of 2004, the Petitioners, through their Project Manager wrote a letter to Yvonne Earls, ACA Southern Regional Contracting Center, concerning their classification. Exhibit Tab D at 38. In November of 2004, Tiffany Allen-Holmes, Section Chief Branch of Service Contract Wage Determinations, responded to the Petitioners' letter directing them to contact the Atlanta District Office of the Wage and Hour Division. Exhibit Tab E at 40. The Petitioners did so in December of 2004. Exhibit Tab G at 47. In October of 2005, Stovall responded by denying the request for conformance. Exhibit Tab H at 84.
7 Exhibit Tab J at 93.
8 Exhibit Tab J at 90-93; see Petitioners' Response to Show Cause Order at 2-3.
9 Exhibit Tab J at 93.
10 Exhibit Tab J at 89.
11 See Petitioners' Response to Show Cause at 3.
12 Exhibit Tab K at 96; see Petitioners' Response to Show Cause Order at 3.
13 Exhibit Tab K at 96.
14 See Petitioners' Response to Show Cause Order at 3-4; Exhibit Tabs L-R at 134-164.
15 See Petitioners' Response to Show Cause Order at 4; Exhibit Tab O at 157, Tab Q at 162 (March 15 response from Stovall to Senator Isakson).
16 Exhibit Tab T at 176-77.
17 Exhibit Tab T at 175.
18 Exhibit Tab U at 187.
19 Exhibit Tab W at 202-03.
20 Exhibit Tab X at 204.
21 See 29 C.F.R. § 8.1(b) ("The Board has jurisdiction to hear and decide in its discretion appeals concerning questions of law and fact from final decisions of the Administrator of the Wage and Hour Division or authorized representative, and from decisions of Administrative Law Judges under subparts B, D, and E of part 6 of this title, arising under the Service Contract Act and the Contract Work Hours and Safety Standards Act where the contract is also subject to the Service Contract Act.").
22 Administrator's Motion to Dismiss at 7.
23 See Petitioners' Response to Show Cause Order at 2.
24 Administrator's Response at 2-3.
25 See Petitioner's Petition of Review at 1; Exhibit Tab X at 204.
26 See Administrator's Motion to Dismiss at 8.
27 29 C.F.R. § 4.56(a)(1)-(2).
28 See Petitioners' Response to Show Cause Order at 7.
29 Exhibit Tab W at 202-03.
30 ARB No. 98-062 (May 8, 1998).
31 Diversified Collection Servs., Inc., ARB No. 98-062, slip op. at 2 (ARB May 8, 1998).
32 Exhibit Tab X at 204.
33 Exhibit Tab W at 202-03.
34 Early instructions from William Gross on December 2, 2005, informed the Petitioners that the "final ruling of the Administrator may be appealed to the Administrative Review Board in accordance with the procedures spelled out in the final ruling." Exhibit Tab J at 93. The fact that Bates's letter did not indicate further directions for administrative review suggested that his "no violation" finding was not a final ruling by the Administrator.
35 ARB No. 98-105 (July 23, 1998).
36 Swetman., slip op. at 2.
37 ARB No. 03-009, slip op. at 4 (ARB Jan. 27, 2003).
38 See Administrator's Motion to Dismiss at 11.
39 Administrator's Response to Order at 3. We note that pursuant to 29 C.F.R. 4.56(a), "The Administrator will render a decision within 30 days of the receipt of the request or will notify the requesting party in writing within 30 days of the receipt that additional time is necessary." Thus, in accordance with this regulation, the Administrator will either issue a decision within 30 days of this decision or notify the Petitioners, in writing, that additional time is necessary.