AUNE v. Adm'r
| Decision Date | 29 March 2011 |
| Docket Number | CIV. 09-5009-JLV |
| Parties | JAMES AUNE, CHARLES EICKOFF, NICKOLAS JENNIGES, GREGORY LARSON, THOMAS MOELLER, JOSE L. PENA, TIMOTHY SANDERS, and JONATHON WELLS, Petitioners, v. ADMINISTRATOR, WAGE & HOUR DIVISION, U.S. DEPARTMENT OF LABOR and ADMINISTRATIVE REVIEW BOARD, U.S. DEPARTMENT OF LABOR, and the UNITED STATES AIR FORCE, Respondents. |
| Court | U.S. District Court — District of South Dakota |
OPINION TEXT STARTS HERE
ORDER DENYING PETITIONERS' OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION
This case is an appeal from an administrative decision by the Wage and Hour Division ("WHD") of the United States Department of Labor. (Docket 1). Pursuant to 28 U.S.C. § 636(b)(1)(B), the court referred the matter to Magistrate Judge Veronica L. Duffy for a report and recommendation. The magistrate judge recommended denying petitioners' appeal and affirming the decision of WHD. (Docket 30). Petitioners timely filed objections to the report and recommendation. (Docket 33). The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). For the reasons stated below, the court overrules the petitioners' objections and adopts the report and recommendation of the magistrate judge.
Petitioners, working as metrology technicians, were employees of Bionetics Corporation ("Bionetics") under a Services Contract Act ("SCA")1contract with the United States Air Force ("Air Force") for the operation of the Ellsworth Air Force Base Precision Measurement Equipment Laboratory ("PMEL") from October 1, 1997, through September 30, 2002. (Docket 1, ¶ 1). Petitioners assert the contract improperly classified them as Electronic Technicians, Maintenance II ("EMT II").2 Id. at ¶ 2. Petitioners sought a conformance action on November 16, 2000, asking the WHD to reclassify them to Engineering Technician IV ("ET IV") status. Id. at ¶ 3. WHD initially agreed they should be paid under the ET IV classification. Id. On June 21, 2002, following an objection by the Air Force, WHD withdrew the classification conformance and determined petitioners were properly classified and paid as ETM II's. Id. at ¶¶ 4 and 5.
Petitioners timely appealed to the Administrative Review Board ("ARB") for the United States Department of Labor. Id. at ¶ 6. The ARB remanded the matter to WHD, with several particularized areas of concern. In the matter of: Bionetics Corporation Dispute Concerning Job Classification and Wage Rates for Bionetics Employees Working on Contract F44650-97-D0005 at the Precision Measurement Equipment Laboratory, Ellsworth Air Force Base, South Dakota, ARB Case No. 02-094, 2004 WL 230772 (January 30, 2004) ("Bionetics I"). Following remand, the Deputy Administrator ("DA") of WHD issued a decision on October 31, 2005. (Docket 1, ¶ 8). That decision determined petitioners were properly classified as ETM II's. Id. Petitioners again appealed to the ARB. Id. at ¶ 9. On December 16, 2008, the ARB affirmed the decision of the DA. In the matter of: Bionetics Corporation Dispute Concerning Job Classification and Wage Rate for Bionetics Employees Working on Contract F44650-97-D0005 at the Precision Measurement Equipment Laboratory, Ellsworth Air Force Base, South Dakota, ARB Case No. 06-135, 2008 WL 5454135 (December 16, 2008) ("Bionetics II").
That decision constituted the final agency decision and action under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. Petitioners timely perfected their appeal to this court. The report and recommendation of the magistrate judge (Docket 30) prompted petitioners' objections (Docket 33), which can be summarized by the subsections of their objections:
I. The magistrate judge erroneously concluded the law of the case doctrine was not applicable.
II. The magistrate judge erroneously concluded there was substantial evidence to support the DA's 2005 decision.
III. The magistrate judge erroneously concluded the Air Force's application for reconsideration of the September 2001 decision was timely made.
Id. Each of those objections will be addressed with the same captions.
Magistrate Judge Duffy prepared a detailed summary of the facts constituting the administrative record. (Docket 30). That factual summary comprises forty-four pages of the report and recommendation. Id. at pp. 3-47. The petitioners' objections do not identify any specific factual findings which are in error; but rather, they focus their objections on the magistrate judge's interpretation of those facts in analyzing the agency's final decision. (Docket 33). The court completed a de novo review of both the original administrative record (Docket 7) and the supplemental administrative record (Docket 21) and concludes the magistrate judge's statement of facts is accurate. The magistrate judge's findings of fact are adopted by the court in accordance with 28 U.S.C. § 636(b)(1)(C).
The court adopts the magistrate judge's statement of the standard of review applicable to the examination of the agency's decision. (Docket 30, pp. 47-50). As Magistrate Judge Duffy noted, (Docket 30, p. 47). "Under the APA, the ARB must uphold the WHD's findings unless they are 'contrary to the law or unsupported by substantial evidence' in the record as a whole." Id. (). "A district court's review of the ARB's decisions is governed by the same standard of review." Id. (citing Robinson v. Missouri Mining Co., 955 F.2d 1181, 1183 (8th Cir. 1992)). Also as noted by the magistrate judge, the "arbitrary and capricious" standard applies to the court's review of the agency's decision. Id. at p. 48 (citing Minnesota v. Centers for Medicare and Medicaid Services, 495 F.3d 991, 996 (8th Cir. 2007)) (other citation omitted).
"Whether an agency's action is arbitrary and capricious depends on whether 'the agency has . . . offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.' " Mausolf v. Babbitt, 125 F.3d 661, 669 (8th Cir. 1997) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). "The court is not to substitute its judgment for that of the agency." (Docket 30, p. 49) (citing Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43). Moreover, "the agency must articulate a 'rational connection between the facts found and the choice made.' " Id. (citing Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The court must accept all factual findings of the agency if those findings are supported by a preponderance of the evidence. Id. at p. 49-50 (citing Fort Hood Barbers Ass'n v. Herman, 137 F.3d 302, 307 (5th Cir. 1998); Williams v. United States Dept. of Labor, 697 F.2d 842, 844 (8th Cir. 1983)).
The burden is on petitioners to "affirmatively demonstrate that the DA's [decision] was unreasonable." Id. at p. 50 (citations omitted). "Merely showing that there were other classifications available, or even classifications which were preferable to the classification made by the DA, is insufficient to justify reversing the DA's decision." Id. (citation omitted) (emphasis in original).
Petitioners object to the magistrate judge's conclusion that the DA was not bound by the decision of the ARB in Bionetics I. (Docket 33, p. 1). They assert the law of the case doctrine is applicable to the DA's ultimate decision. Id.
" 'The law of the case doctrine prevents the relitigation of a settled issue in a case and requires courts to adhere to decisions made in earlier proceedings . . . .' " Brachtel v. Apfel, 132 F.3d 417, 419 (8th Cir. 1997) (citation omitted). "The law of the case doctrine also applies to administrative agencies on remand." Id. at 419-20 (internal citations and quotation marks omitted). "The law of the case doctrine . . . ensure[s] uniformity of decisions, protect[s] the expectations of the parties, and promote[s] judicial economy." United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995). " 'Law of the case terminology is often employed to express the principle that inferior tribunals are bound to honor the mandate of superior courts within a single judicial system.' " Id. (citing 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4478 (1981 & Supp. 1995)). " 'Under the law of the case doctrine, a [lower tribunal] must follow our mandate, and [an appellate tribunal] retain[s] the authority to decide whether the [lower tribunal] scrupulously and fully carried out our mandate's terms.' " Id. (citation omitted). "Under the law of the case doctrine . . . [an appellate tribunal] retain[s] the authority to decide whether the [lower tribunal] scrupulously and fully carried out [the appellate tribunal's] mandate terms." Jaramillo v. Burkhart, 59 F.3d 78, 80 (8th Cir. 1995). This control includes the right to determine whether the mandate "has been misconstrued or has not been given full effect. . . ." In re Ivan F. Boesky Securities Litigation, 957 F.2d 65, 69 (2d Cir. 1992). On remand, the lower tribunal's "action . . . should not be inconsistent with either the express terms or the spirit of the mandate." Id.
The magistrate judge properly identified the law of the case doctrine and its purpose. (Docket 30, pp. 56-58). In similar fashion, the...
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