Com. of Va., ex rel. Com'r, Va. Dept. of Highways and Transp. v. Marshall, 78-1885

• Decision Date: 30 May 1979
• Docket Number: No. 78-1885,78-1885
• Citation: 599 F.2d 588
• Parties: 24 Wage & Hour Cas. (BN 137, 86 Lab.Cas. P 33,784 COMMONWEALTH OF VIRGINIA, ex rel. COMMISSIONER, VIRGINIA DEPARTMENT OF HIGHWAYS AND TRANSPORTATION, Plaintiff-Appellant, v. Ray MARSHALL, Secretary, United States Department of Labor, Defendant-Appellee, and Washington Building and Construction Trades Council, Defendant-Intervenor-Appellee, American Road and Transportation Builders Association, Associated Builders and Contractors, Inc., and Associated General Contractors of America, Inc., Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 588

599 F.2d 588

24 Wage & Hour Cas. (BN 137, 86 Lab.Cas. P 33,784

COMMONWEALTH OF VIRGINIA, ex rel. COMMISSIONER, VIRGINIA

DEPARTMENT OF HIGHWAYS AND TRANSPORTATION, Plaintiff-Appellant, v. Ray MARSHALL, Secretary, United States Department of Labor,

Defendant-Appellee,

and

Washington Building and Construction Trades Council,

Defendant-Intervenor-Appellee,

American Road and Transportation Builders Association,

Associated Builders and Contractors, Inc., and

Associated General Contractors of

America, Inc., Amici Curiae.

No. 78-1885.

United States Court of Appeals, Fourth Circuit.

Argued April 2, 1979.

Decided May 30, 1979.

Walter A. McFarlane, Deputy Atty. Gen., Richmond, Va. (Marshall Coleman, Atty. Gen., John J. Beall, Jr., John M. McCarthy and Debra J. Prillaman, Asst. Attys. Gen., Richmond, Va., with him on the briefs), for plaintiff-appellant.

Mauricio A. Flores, Federal Programs Branch, Dept. of Justice, Washington, D. C. (Barbara Allen Babcock, Asst. Atty. Gen., Ronald R. Glancz, App. Staff, Dept. of Justice, Carin Ann Clauss, Sol. of Labor, Ronald G. Whiting, Associate Sol. and Gail V. Coleman, Atty., Dept. of Labor, Washington, D. C., with him on the brief), for defendant-appellee.

Terry R. Yellig (Thomas X. Dunn and Sherman, Dunn, Cohen & Leifer, Washington, D. C., with him on the brief), for defendant-intervenor-appellee.

Robert J. Hickey, Peter G. Kilgore and Kirlin, Campbell & Keating, Washington, D. C., submitted on the brief for amici curiae.

Before BREITENSTEIN ^*, RUSSELL and WIDENER, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This appeal of the Commonwealth of Virginia challenges a wage rate determination by the Secretary of Labor made pursuant to the Federal-Aid Highway Act, 23 U.S.C. § 113 and the Davis-Bacon Act, 40 U.S.C. § 276a. The district court decided in favor of the Secretary and dismissed the action. We affirm.

Proceeding under the Federal-Aid Highway Act, 23 U.S.C. § 101, et seq., Virginia applied to the Secretary of Transportation for federal funds to construct a 1.69 miles segment of Interstate 66 (I-66) in Fairfax County, Virginia. The Secretary approved the request on the condition that the median of the highway be constructed so that it could readily be used in the future by the Washington Metropolitan Area Transit Authority (Metro) for an extension of its rapid transit rail system. Work on the median area would be completed to the extent that Metro would be able to lay track and build stations with minimum construction expense when the proposed extension was finally approved. The entire I-66 project is financed with 90% Federal Highway Trust Funds and 10% State funds in accordance with 23 U.S.C. § 120(c). The estimate of the entire project cost is $21 million. The median portion constitutes 17.8% Of the total work and $4 million of the total cost.

Virginia applied to the Department of Labor for a "project wage determination." See 29 C.F.R. § 1.5(a). On October 11, 1977, the Wage and Hour Division of the Department of Labor issued a wage determination which was effective for 120 days under 29 C.F.R. § 1.7(a)(1). It decided that the median work for the proposed Metro extension was distinct from the highway work and issued separate wage rates for each portion of the project. It reasoned that because the median would ultimately be used as a rail-bed that portion of the project was rail construction which had been consistently characterized as "heavy" as opposed to "highway" construction. The rates for the median work were substantially higher than the rates for the highway work.

Virginia then appealed to the Wage Appeals Board, which is authorized to act for the Secretary. 29 C.F.R. § 7.1(d). Virginia asserted that the median work is identical to the highway work in a construction sense and contends that the entire project should have been classified as "highway" construction. After an evidentiary hearing the Wage Appeals Board on March 21, 1978, upheld the Wage and Hour Division in all but one respect. It determined that certain bridge abutments, which would have to be built regardless of the Metro extension, should be classified as "highway" construction.

In order not to postpone construction, Virginia split the project into two parts. A contract for substantially all of the highway work has been let and construction is now underway. That contract bases its wage rates on an April 4, 1978, wage determination, because the previous wage determination had expired. A contract for the median work and the remaining highway work is proposed to be let in the fall of 1979. It will require a new wage determination.

Virginia brought this action to obtain relief from the Wage Appeals Board's March 21, 1978, decision, WAB Case No. 77-33, App. 226. The district court held that the action was moot because (1) the 120 day effective period of the wage determination had expired, see 29 C.F.R. § 1.7(a)(1), and (2) the split of the project into two parts requires a new wage determination for the contract yet to be let which will present different circumstances from those pertaining to the wage determination now under attack.

The court then discussed the reviewability of the action of the Wage Appeals Board and in view of the presumption of reviewability recognized in Littell v. Morton, 4 Cir., 445 F.2d 1207, 1211, proceeded to the merits of the controversy over the decision of the Board. The court then upheld the Board on the merits.

Mootness

Consideration must be given to both the 120-day validity of a wage determination and the splitting of the project. The Secretary admits that administrative and judicial review could not be completed within the 120 day validity period. A new wage determination will be required for that portion of the project not now under contract. In Southern Pacific Terminal Company v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310, the Court rejected a claim of mootness when the short-term orders of a federal agency were "capable of repetition, yet evading review." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 says that in the absence of a class action, the statement in Southern Pacific Terminal is limited to a situation in which two elements are combined: (1) action of such short duration as to preclude full litigation before expiration of the action, and (2) reasonable expectation that the same complaining party may be subjected to the same action again. The Secretary concedes that element (1) is present in the case at bar.

As to element (2), the Secretary urges that the effect of splitting the project is that when a new wage determination is made for the contract not yet let, different circumstances will be presented. The changed circumstances will not affect the practices and procedures of the Secretary. Virginia's challenge goes to those practices and procedures. For all that appears in the record, Virginia will be subjected to the same practices and procedures when it seeks a new wage determination. A substantial controversy exists over the legality of the Secretary's practices and procedures. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125-126, 94 S.Ct. 1694, 40 L.Ed.2d 1. The controversy is not moot.

Reviewability

The substantive correctness of the wage determination is not subject to judicial review. United States v. Binghamton Construction Co.,347 U.S. 171, 177, 74 S.Ct. 438, 98 L.Ed. 594. Review is limited to due process claims and claims of noncompliance with statutory directives or applicable regulations. See, Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 51 L.Ed.2d 192. Virginia's claims fit into these categories and, hence, federal question jurisdiction under 28 U.S.C. § 1331 is properly invoked.

A more difficult question is whether the Secretary's action is reviewable under the standards of the Administrative Procedure Act, APA, 5 U.S.C. § 701, et seq. The APA applies unless review is precluded by statute or action is committed by statute to agency discretion. 5 U.S.C. § 701(a)(1) and (2). The second exception is not material, since this Circuit has held that action committed to agency discretion is nevertheless reviewable under the APA for abuse of discretion. Littell v. Morton, 4 Cir., 445 F.2d 1207, 1210-1211.

The Davis-Bacon Act neither expressly provides for, nor expressly precludes, judicial review. The Secretary argues from statutory intent and legislative history that Davis-Bacon impliedly precludes review. This argument depends on his characterization of Virginia's claim as a challenge to the correctness of the wage determination. See, Secretary's Brief at 35. We disagree with the characterization. Virginia challenges the Secretary's practices and procedures. The Act and its history reveal no "clear and convincing" evidence of a Congressional intent to preclude review of these practices and procedures for compliance with constitutional, statutory and procedural requirements. See, Califano v. Sanders, supra, and Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681.

Intervenor-Appellee, Washington Building and Trades Council, urges that APA review is precluded because Davis-Bacon is so broad that there is no law to apply. See, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136. Again we disagree. The mandate of Davis-Bacon is clear. Procedures for compliance with that mandate have been developed through agency regulations and practices and through decisions of the Wage Appeals Board. The legality of the procedures employed here must be determined. There is law to apply in making that determination.

We conclude that the APA is applicable and that the Secretary's action must be measured against its standards, 5 U.S.C. § 706(2)(A)-(D). We turn to the merits.

Merits

Section 113 of the Federal-Aid Highway Act, 23 U.S.C. § 113, requires that all laborers and mechanics...