Glenn Elec. Co. Inc. v. Donovan

• Decision Date: 21 February 1985
• Docket Number: No. 84-3363,84-3363
• Citation: 755 F.2d 1028
• Parties: 27 Wage & Hour Cas. (BN 97, 102 Lab.Cas. P 34,643 GLENN ELECTRIC CO. INC., Appellant, v. Raymond DONOVAN, Secretary United States Department of Labor; and Comptroller General of the United States.
• Court: U.S. Court of Appeals — Third Circuit

Page 1028

755 F.2d 1028

27 Wage & Hour Cas. (BN 97, 102 Lab.Cas. P 34,643

GLENN ELECTRIC CO. INC., Appellant, v. Raymond DONOVAN, Secretary United States Department of

Labor; and Comptroller General of the United States.

No. 84-3363.

United States Court of Appeals,

Third Circuit.

Argued Dec. 11, 1984.

Decided Feb. 21, 1985.

Francis X. Lilly, Sol. of Labor, Joseph M. Woodward, Acting Associate Sol.; Linda Jan S. Pack, Counsel for Appellate Litigation, Lauriston H. Long (Argued), U.S. Dept. of Labor, Washington, D.C., Constance M. Bowden, Asst. U.S. Atty., Pittsburgh, Pa., for appellees.

Walter R. Little (Argued), Pittsburgh, Pa., for appellant.

Before GARTH, HIGGINBOTHAM, Circuit Judges, and McGLYNN, District Judge ^*.

OPINION OF THE COURT

PER CURIAM.

The sole question presented by this appeal is whether an action instituted by the United States pursuant to the United States Housing Act of 1937, as amended, 42 U.S.C. Secs. 1437-1437j (1982), is barred by the two-year statute of limitations of the Portal-to-Portal Act of 1947, 29 U.S.C. Secs. 255, 256 (1982). We conclude that the Portal-to-Portal Act does not apply and, for the reasons that follow, we will affirm the decision of the court below.

I.

This is an appeal from a final order of the United States District Court for the Western District of Pennsylvania granting defendant/appellee's motion for summary judgment in this action to review a decision of the Wage Appeals Board of the United States Department of Labor, pursuant to the Administrative Procedure Act, 5 U.S.C. Secs. 701, 702 (1982), in which the plaintiff/appellant sought a declaratory judgment under 28 U.S.C. Sec. 2202 (1982). There are no disputed issues of fact presented, thus our review is confined to whether the district court erred as a matter of law in finding the decision of the Wage Appeals Board supported by the record and in holding the limitations provisions of the Portal-to-Portal Act inapplicable to this action. Fed.R.Civ.P. 56; See In Re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 257 (3d Cir.1983).

Plaintiff/appellant, Glenn Electric Company, Inc. ("Glenn Electric"), is a residential, commercial and industrial electrical contractor. This proceeding arose out of several federally assisted construction contracts by which Glenn Electric agreed to perform electrical work at various public housing projects in Western Pennsylvania from 1973 to 1975. The construction activity, which consisted of the removal and replacement of old electrical lines and systems, was subject to the labor standards provisions of the United States Housing Act of 1937, as amended, 42 U.S.C. Secs. 1437-1437j ("U.S. Housing Act") and the Contract Work Hours and Safety Standards Act, 40 U.S.C. Secs. 327-333 (1982) ("CWHSSA"). ¹

The United States Department of Housing and Urban Development ("HUD"), the contracting agency, filed a complaint on November 28, 1975, with the United States Department of Labor ("Department of Labor") alleging certain contractual violations, as a result of which, an investigation was undertaken into the payroll records of Glenn Electric. The Wage and Hour Division of the Department of Labor initially calculated underpayments by Glenn Electric to 17 of its employees in the amount of $72,272.98. ²

Glenn Electric objected to the Wage and Hour Division's findings pursuant to 29 C.F.R. Sec. 5.11(b) (1976) and on November 23, 1977, more than two years after the initial complaint was filed with the Department of Labor, the parties were notified that a hearing would be conducted by an Administrative Law Judge ("ALJ") on March 7, 1978. On April 6, 1979, the ALJ issued a decision reducing the amount of underpayments due to 15, as opposed to 17, employees to $62,246.34, including $4,513.15 of unpaid overtime due to 12 of the 15 employees under CWHSSA. ³ In so doing, the ALJ rejected Glenn Electric's contention that the two-year statute of limitations provision contained in the Portal-to-Portal Act barred the proceeding. On September 12, 1979, after consideration of Glenn Electric's appeal, the Administrator of the Wage and Hour Division upheld the ALJ's decision and adopted it in its entirety.

Glenn Electric then appealed to the Wage Appeals Board ("the Board") on November 20, 1979, and on March 22, 1983, the Board sustained the decision of the Administrator of the Wage and Hour Division. During the course of the administrative proceedings, HUD, at the request of the Department of Labor, withheld approximately $28,845 from the proceeds of the contracts to cover, in part, back wages due to Glenn Electric employees.

On April 21, 1983, Glenn Electric instituted this action against the defendant/appellee, the Secretary of the Department of Labor ("the Secretary"), seeking judicial review of the decision of the Board and recovery of the withheld contract proceeds. On May 10, 1984, District Judge Donald E. Ziegler granted the Secretary's motion for summary judgment, thereby affirming the decision of the Wage Appeals Board of the Department of Labor from which Glenn Electric appeals.

Unpersuaded by Glenn Electric's assertions to the contrary, Judge Ziegler found, inter alia, that the two-year statute of limitations in the Portal-to-Portal Act does not apply to the instant administrative action. In a well-reasoned opinion, Judge Ziegler held that Congress intended the Portal-to-Portal Act limitations period to apply only to the three labor laws expressly enumerated in the Act; namely, the Fair Labor Standards Act of 1938, 29 U.S.C. Secs. 201-219 (1982) the Walsh-Healey Public Contracts Act, 29 U.S.C. Secs. 551-564 (1982) and the Davis-Bacon Act, 40 U.S.C. Secs. 276a-276a-5 (1982). As to the U.S. Housing Act and CWHSSA, neither of which provide a limitations period for the bringing of an administrative action, the district court held that the proper limitation period was the general six-year period prescribed in 28 U.S.C. Sec. 2415 (1982). The court did not consider the Secretary's second argument that the statute of limitations in the Portal-to-Portal Act applies only to actions brought in court and not before administrative agencies.

On this appeal, Glenn Electric urges only that the U.S. Housing Act violations are governed by the statute of limitations provision found in the Portal-to-Portal Act ⁴. From an administrative law standpoint, this is an important issue not previously addressed by this court.

II.

Section 6(a) of the Portal-to-Portal Act provides in pertinent part as follows:

Sec. 6. Statute of Limitations

Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act--

(a) if the cause of action accrues on or after May 14, 1947--may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years....

29 U.S.C. Sec. 255(a) (emphasis added).

Although the U.S. Housing Act is not among those statutes specifically mentioned, Glenn Electric nonetheless asserts the applicability of section 6(a), arguing that the U.S. Housing Act, by explicit reference in 42 U.S.C. Secs. 1437j, incorporates the Davis-Bacon Act in toto, and by reason of such incorporation, the Secretary's action was in fact instituted pursuant to the Davis-Bacon Act. Since Davis-Bacon Act actions are controlled by the statute of limitations provisions in the Portal-to-Portal Act, under Glenn Electric's theory, these claims were brought beyond two years from the date the violations accrued. Thus, according to Glenn Electric, the Board's decision is without force and effect, and constitutes grounds for reversible error.

The Secretary takes the position that 42 U.S.C. Secs. 1437j does not incorporate the Davis-Bacon Act but merely carries over its technique of setting the wage rates. The Secretary refers to the U.S. Housing Act as a "Davis-Bacon Related Act" and asserts that, as a matter of statutory construction, the limitations provisions do not extend beyond the Davis-Bacon Act proper. We agree.

As Judge Ziegler appropriately recognized, where Congress in plain language has expressed its intention, and the legislative history does not demonstrate a contrary purpose, we are bound to follow the statutory provisions as written. Schramm v. Department of Health and Human Services, 682 F.2d 85, 91 (3d Cir.1982). Although we endorse and adopt Judge Ziegler's determination that the plain language of the Portal-to-Portal Act limitations period indicates that Congress intended it to apply only to the three labor laws expressly stated in the Act, we feel compelled to consider briefly whether the Davis-Bacon Act is incorporated by reference into the U.S. Housing Act by virtue of 42 U.S.C. Secs. 1437j. If we were to accept Glenn Electric's premise, the present action would be deemed instituted under the Davis-Bacon Act, falling within the specific language of the Portal-to-Portal Act, and barred by the two-year limitations period.

The precursor of 42 U.S.C. Secs. 1437j, 42 U.S.C. Sec. 1416(2) (1970), in effect at the time Glenn Electric entered into the contracts in question, mandated that the governing contract contain a provision that

not less than the wages prevailing in the locality, as predetermined by the Secretary of Labor pursuant to the Davis-Bacon Act, shall be paid to all laborers and mechanics employed in the development of the project.

42 U.S.C. Sec. 1416(2) (emphasis added). The amendment and recodification of 42 U.S.C. Sec. 1416(2) at 42 U.S.C. Secs. 1437j (1974) did not work a material change insofar as the above-quoted language is concerned, and it is that language upon which Glenn Electric relies in support of its total incorporation argument. This reliance, however, is misplaced.

As we construe the plain wording...