Id. at *7.
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The plaintiffs argue that the decision in Fry Brothers is irrelevant, as it did not address due process issues relating to fair notice. Neither, according to the plaintiffs, is another decision relied on by the government, American Building Automation, 2001 WL 328123 (DOL ARB 2001), because the nature of that case was a conformance proceeding, not a hearing on due process issues. American Building found that "the Administrator is not required to detail the myriad duties performed by different trades found within a wage determination. Contractors who seek to perform work on a federal construction project subject to the Davis-Beacon Act have an obligation ‘to familiarize themselves with the applicable wage standards contained in the wage determination incorporated into the contract solicitation documents.'" Id. at *4 (citations omitted). While for purposes of the instant matter American Building is irrelevant, as that case was decided well after the plaintiffs' claims arose, the court does agree with the government that, despite the different nature of these cases, this obligation "to familiarize themselves" applies to all contractors who obtain projects under the DBA. This principle is consistent with the general principle that parties to government contracts are expected to know all applicable legal principles. See supra at 8.
The plaintiffs claim that the use of unpublished regulations or "secret law" by government agencies to take adverse actions against those who violate them is a due process violation. However, the principle enunciated in Fry Brothers is not "secret law," as it has been cited by several courts and WAB/ARB decisions since 1977 and it was relied on by the DOL in its rulemaking in 1989. See Abhe & Svogoda, 2006 U.S.
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Dist. LEXIS 60383, at *6-7 (citing decisions). As Abhe & Svogoda aptly puts it, "[p]laintiff[s] may indeed have been unaware of the rule announced in Fry Brothers, but it is not unreasonable to hold plaintiff[s] responsible for knowing the rule. ‘There is no grave injustice in holding parties to a reasonable knowledge of the law.'" Id. at *7 (citing ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1112 (D.C. Cir. 1988)).
The plaintiffs supplement their "secret law" argument with the argument that the DOL inappropriately proceeded by adjudication rather than rulemaking when it set forth their "clarifying principles" through administrative adjudication. See Def.'s Memorandum of Points and Authorities in Support of Summary Judgment ("Mem. in Supp.") at 18 [Doc. No. 22]. Indeed, while an agency "may choose to establish new principles through [adjudication-based] rulemaking, . . . due process requires that, when it does so, it provide notice ‘which is reasonably calculated to inform all those whose legally protected interest may be affected by the new principle.'" Abhe & Svogoda, 2006 U.S. Dist. LEXIS, at *5 (citations omitted). However, as the Secretary notes, Fry Brothers was not a novel decision; indeed, the WAB indicated that it was dealing with "established principles" of the DBA. Fry Brothers, 1977 WL 24823, at *6. Moreover, federal agencies are generally given broad discretion to announce new principles through adjudication. See NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294 (1974) ("[T]he choice between rulemaking and adjudication lies in the first instance within the [agency's] discretion.").
Even if it is true, as Campbell argues, that the wage determination accompanying its Gold Star contracts did not give notice that wages are determined by looking at locally prevailing practices, the regulations implementing the Davis-Beacon
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Act specifically provide that "[a]ll questions relating to the application and interpretation of wage determinations (including the classifications therein) issued pursuant to part 1 of this subtitle, of the rules contained in this part and in parts 1 and 3, and of the labor standards provisions of any of the statutes listed in § 5.1 shall be referred to the Administrator for appropriate ruling or interpretation." 29 C.F.R. § 5.13. However, Campbell has not explained why it did not make use of this procedure to resolve any potential ambiguities as to proper pay rates. The same is true regarding the claim that no fair warning was given that Daskal's go-fers were required to be paid at laborers' wages. Indeed, because the regulations require a prime contractor to ensure compliance by their subcontractors, see id. at § 5.5(a)(6), any uncertainties Campbell may have had regarding the pay rate of Daskal's go-fers should have been directed to the Administrator.
Finally, allowing plaintiffs to argue that it should have been the Secretary's job to inform them of their obligations under the Davis-Beacon Act, and that they therefore were permitted to perform their own analysis of prevailing wage rates, would undermine the remedial goals of the Davis-Beacon Act. Indeed, the purpose of the minimum wage provisions of the DBA was "not . . . to benefit contractors, but rather to protect their employees from substandard earnings by fixing a floor under wages on Government projects." United States v. Binghamton Const. Co., 347 U.S. 171, 177 (1954).
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V. CONCLUSION
For the foregoing reasons, the court GRANTS the Secretary's Motion for Summary Judgment [Doc. No. 21] and DENIES the plaintiffs' Cross-Motion for Summary Judgment [Doc. No. 29].
SO ORDERED.
Dated at Bridgeport, Connecticut this 28th day of November, 2006.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
[ENDNOTES]
1 Payment of DBA wages on this project was mandated by the Federal-Aid Highways Act, 23 U.S.C. § 113.
2 Campbell disagrees that this is the locally prevailing rate and challenges the DOL investigator's limited area practice survey and his conclusion that painters' rates were required for all employees involved in bridge-related work. However, as this court noted in its prior ruling, the regulations permit the Secretary to determine a prevailing wage even where a single wage is not paid to a majority of workers in a particular classification and does not constrain the Secretary's manner of classifying workers in areas where work classifications are diverse. See 29 C.F.R. § 1.2(a)(1).
3 Based on its own research, this court agrees with the court in Abhe & Svogoda, and this ruling will therefore incorporate much of the analysis of that case.
4 The wage determination indicated that the wage rates for the classifications we4 re based on collectively bargained union rates, as the classifications were followed by notations such as "PAIN0011C," which is the abbreviation for District Council 11 of the International Brotherhood of Painters and Allied Trades. See Def.'s Loc.R.Civ.P. 56(a)1 Statement ("Def.'s Stat.") at ¶ 5.