Applicability of Davis-Bacon Act to Veterans Administration's Lease of Medical Facilities, 88-13
| Decision Date | 06 June 1988 |
| Docket Number | 88-13 |
| Citation | 12 Op. O.L.C. 89 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Applicability of the Davis-Bacon Act to the Veterans Administration's Lease of Medical Facilities |
The Attorney General has authority to review legal determinations made by the Secretary of Labor under the Davis-Bacon Act.
A lease of a privately owned facility is not a "contract for construction of a public building" within the meaning of the Davis-Bacon Act. The mere fact that a lessor undertakes construction in order to fulfill its obligations is insufficient to convert a lease into such a contract.
MEMORANDUM OPINION FOR THE GENERAL COUNSEL VETERANS ADMINISTRATIONThis memorandum responds to the Veterans Administration's December 16, 1987, request for an opinion on the applicability of the Davis-Bacon Act ("the Act") to the lease of a privately owned facility by the Veterans Administration.
The Veterans Administration ("VA") is authorized to lease space that the Administrator of Veterans Affairs considers necessary for use as a medical facility. 38 U.S.C § 5003. Pursuant to that authority, the VA entered into a lease to obtain space for an outpatient clinic in Crown Point, Indiana. On June 10, 1986, and again on July 25, 1986 the President of the Building and Construction Trades Department, AFL-CIO, requested a ruling from the Department of Labor's Wage and Hour Administrator that the Davis-Bacon Act-which applies to certain "contract[s] ... for construction . . . of public buildings"-be applied retroactively to the Crown Point lease.
In a decision dated August 15, 1986, the Administrator advised the VA that the Davis-Bacon Act was applicable to the Crown Point lease, because in this instance the lessor had chosen to construct a new facility to lease to the VA, and [ 90] therefore "the nature of the agreement [is] a contract for construction." Id. at 1.[1] The Administrator reaffirmed that ruling on November 13, 1986. The Department of Labor's Wage Appeals Board upheld the Administrator on June 26, 1987, stating that even though "the principal purpose of the VA contract is to lease a facility, " "[t]he lease aspect of the negotiations between the VA and the developer does not in any way change the construction nature of the contract." In re Applicability of Davis-Bacon A ct to Lease of Space For Outpatient Clinic, Crown Point, Indiana, WAB Case No. 86-33, at 6, 4 (June 26, 1987).
The VA thereafter expressed its disagreement with that interpretation of the Davis-Bacon Act, and announced its intention to seek the opinion of the Attorney General as to the applicability of the Davis-Bacon Act to a lease by the VA, pursuant to 38 U.S.C. § 5003, of privately owned and privately constructed facilities.[2] [ 91]
Before turning to the substantive issues presented by the VA's request, we address a threshold jurisdictional matter: whether the Attorney General, and hence this Office, has authority to render an opinion on the proper interpretation of the Davis-Bacon Act at the request of the VA. The Department of Labor, by letter dated April 22, 1988, has suggested that Executive Order No. 12146, 3 C.F.R. 409 (1979), governs the issue of the Attorney General's authority to give an opinion in this matter, and that that Executive Order, by its terms, prohibits the Attorney General from responding to the VA's request.[3]
As an initial matter, the Executive Order is not the sole basis for the Attorney General's jurisdiction over this matter. Congress has authorized the Veterans Administration to "require the opinion of the Attorney General on any question of law arising in the administration of the Veterans Administration." 38 U.S.C. § 211(b). The applicability vel non of the Davis-Bacon Act to leases entered into by the VA is clearly a "question of law arising in the administration of the Veterans Administration"; among other things, the interpretation given to the Davis-Bacon Act may determine the required terms of certain contracts entered into by the Administrator.[4] Accordingly, the VA has statutory authority under section 211 to request an opinion from the Attorney General, and the Attorney General has statutory authority to respond to that request.[5]
Moreover, contrary to the Department of Labor's suggestion, Executive Order No. 12146 also authorizes the Attorney General to issue an opinion in this matter. The Executive Order provides in part:
Section 1-401. Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to the Attorney General. [ 92]
The Department of Labor interprets section 1-401 to mean that the Attorney General may exercise jurisdiction only when the dispute is "voluntarily submitted by the disagreeing agencies, " i.e., only when both (or all) agencies involved agree to submit the dispute to the Attorney General. Because in this case the Secretary of Labor "does not submit this matter for resolution by the Attorney General, " the Department urges that section 1-401 may not serve as a basis for the Attorney General's jurisdiction.[6]
We believe that the Department's interpretation is incorrect. Section 1-401 specifically states that each agency is encouraged to submit any such dispute to the Attorney General: there is no requirement that every agency involved in a dispute request an opinion from the Attorney General. Thus, section 1-401 entitles any agency, by itself, to request the Attorney General to resolve a legal dispute with another agency-as the VA has done here. The interpretation offered by the Department of Labor is contradicted by the plain language of the Order itself.
Further, that interpretation would defeat the purposes of the Order by granting any agency a "veto" over the Attorney General's section 1-401 jurisdiction, thereby insuring that some disputes could never be resolved within the terms of the Executive Order. Nothing in the Executive Order supports such an anomalous result.[7]
The Attorney General's statutory authority over all litigation in which a United States agency is a party provides an additional basis for the exercise of jurisdiction here.[8] As we noted in a prior opinion, in response to a similar challenge to the Attorney General's jurisdiction:
[T]he Attorney General's authority to give his opinion ... is also confirmed by 28 U.S.C. 516 and 5 U.S.C. 3106. The former reserves generally to the Attorney General the conduct of all litigation in which the United States, an agency, or officer thereof is a party. The latter generally prohibits the head of an Executive department from employing an attorney for the conduct of litigation in which the United States, an agency, or an employee thereof is a party, requiring instead that the matter be referred to the Department of Justice. Both provisions admit of exceptions only when "otherwise authorized by law." Although Congress has established "a solicitor for the Department of Labor, " 29 U.S.C. 555, the solicitor has no general litigating authority; his authority is narrowly drawn, see 29 U.S.C. 663 (); 29 U.S.C. 1852(b) (); 30 U.S.C. 822 (), and nevertheless "subject to the direction and control of the Attorney General." Id. The Attorney General's authority to conduct litigation on behalf of the United States necessarily includes the exclusive and ultimate authority to determine the position of the United States on the proper interpretation of statutes before the courts.[9]
Thus, we conclude that the Attorney General has the authority to decide the legal question presented by the VA.[10]
The Davis-Bacon Act, at 40 U.S.C. § 276a(a), provides in part:
The advertised specifications for every contract in excess of $2000, to which the United States ... is a party, for construction, alteration, and/or repair... of public buildings or public works of the United States ... and which requires or involves the employment of mechanics and/or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village ... in which the work is to be performed ....
The language of the statute is both plain and precise. Section 276a(a) applies only to certain contracts to which the United States "is a party, " and that are "for construction, [ 94] alteration, and/or repair ... of public buildings." The question presented here is whether the lease of a privately owned facility is a "contract. . . for construction ... of [a] public building" within the meaning of the Act. We think the plain language of section 276a(a) demonstrates that it is not.
We start with the well-established principle that "[s]tatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 (1985); see American Tobacco Co. v. Patterson, 456 U.S. 63,...
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