OPERATING ENGINEERS LOCAL U. NO. 3, ETC. v. Bohn

• Decision Date: 11 June 1982
• Docket Number: Civil No. C-81-0022.
• Citation: 541 F. Supp. 486
• Parties: OPERATING ENGINEERS LOCAL UNION NO. 3 of the INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Plaintiff, v. George BOHN, Responsible Contracting Officer and Division Administrator of the United States Department of Transportation, Federal Highway Administration; Andrew Lewis, United States Secretary of Transportation; C. V. Anderson, Responsible Contracting Officer and Assistant Administrator of the Utah Department of Transportation; W. W. Clyde Company, Defendants.
• Court: U.S. District Court — District of Utah

541 F. Supp. 486

OPERATING ENGINEERS LOCAL UNION NO. 3 of the INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Plaintiff, v. George BOHN, Responsible Contracting Officer and Division Administrator of the United States Department of Transportation, Federal Highway Administration; Andrew Lewis, United States Secretary of Transportation; C. V. Anderson, Responsible Contracting Officer and Assistant Administrator of the Utah Department of Transportation; W. W. Clyde Company, Defendants.

Civil No. C-81-0022.

United States District Court, D. Utah, C. D.

June 11, 1982.

James S. Lowrie, Jones, Waldo, Holbrook & McDonough, Salt Lake City, Utah, P. H. McCarthy, Jr., John J. Davis, Jr., Vincent S. Camacho, McCarthy, Johnson & Miller, and Lawrence B. Miller, San Francisco, Cal., for plaintiff.

Brent D. Ward, U. S. Atty., and Lawrence J. Leigh, Asst. U. S. Atty., Salt Lake City, Utah, for defendants Bohn and Lewis.

Leland D. Ford, Asst. Atty. Gen., Salt Lake City, Utah, for defendant Anderson.

Richard O. Jones, Regional Counsel, Denver, Colo., for Federal Highway Administration.

MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

This is an action for injunctive relief which seeks an order requiring defendants to incorporate the appropriate prevailing wage in a solicitation of bids for a highway construction project as required by the Davis-Bacon Act, 40 U.S.C. § 276a. As the present posture of the case is rather unusual and critical to the issues before the court, a short recitation of the background facts is appropriate.

In November of 1980, the Utah Department of Transportation (UDOT) issued a solicitation of bids for construction of a portion of Interstate Highway 15 in Juab County, Utah. The construction project was federally funded under the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq. The prevailing wage rate for "Power Equipment Operators" required under the Davis-Bacon Act to be paid on the project was the rate negotiated by Local No. 3 in its Master Agreement for Utah, and published in the Federal Register by the Department of Labor. The wage rates in the Agreement were substantially increased on June 30, 1980, but the older wage rate in effect from July 2, 1979 to June 30, 1980 was mistakenly published in the Federal Register in September of 1980. The UDOT incorporated the erroneous wage rate in its solicitation of bids.

The bids were to be opened on December 16, 1980. On December 4, 1980, Local No. 3 learned of the error in the solicitation of bids and immediately contacted the Department of Labor. On Friday, December 5, 1980, Labor notified defendants Bohn of the Federal Highway Administration (FHA) and Anderson of the UDOT that the published wage rate was erroneous and that a telefax of the correct rate would be transmitted that day. The state defendants prepared to work through the weekend to issue a modification to the solicitation.

On Monday, December 8, Bohn and Anderson received the telefax copies of the corrected prevailing wage rate and also letters dated December 5 from the Director of the Division of Government Contract Wage Determinations of the Department of Labor instructing them that the corrected rate would be published in the Federal Register on December 9, effective as of December 5. The UDOT officials consulted with the State Attorney General's Office and, following section 400-7.1 of the Labor Compliance Manual, which is apparently a FHA guideline for implementing 29 C.F.R. § 1.7, determined that they were not obligated to modify the solicitation because the corrected wage rate was not published in the Federal Register ten days before the opening of bids. They also consulted the FHA, which confirmed their conclusion.

The UDOT officials apparently did not specifically determine whether there was sufficient time to notify the prospective bidders of the modification, although they were clearly concerned that properly notifying the 53 prospective bidders from around the country would risk delaying the December 16 opening of bids. Time was especially important because the federal funds had to be committed before year-end or they would be lost.

Plaintiff argues vehemently that the UDOT's reliance on section 400-7.1 of the Compliance Manual, which apparently conflicts with the regulation itself, 29 C.F.R. § 1.7, was erroneous. Section 400-7.1 states, in effect, that prevailing wage rate modifications need not be included in solicitations unless published in the Federal Register on or before the tenth day before the bid opening. Section 1.7(b)(2) of the Labor regulations states:

All actions modifying a general wage determination shall be applicable thereto, but modifications published in the FEDERAL REGISTER later than 10 days before the opening of bids shall not be effective, except when the Federal agency (in the case of Federal-Aid Highway Acts as codified in 23 U.S.C. 113, the State highway department of each State) finds that there is a reasonable time in which to notify bidders of the modification.

29 C.F.R. § 1.7(b)(2) (1981) (emphasis added).

The court is not as convinced as is plaintiff that section 1.7(b)(2) required the UDOT to incorporate the modification in this instance, regardless of their reliance on the guideline instead of the regulation. That the FHA drafted the guideline to conform with their practice of disregarding modifications published later than ten days prior to bid openings indicates that they at least viewed the regulation as discretionary rather than mandatory—an interpretation at least arguable under the language of the regulation.

For whatever reason, then, the UDOT did not modify their solicitation of bids. Counsel for Local No. 3 was notified on December 17, 1980, and filed this action on January 12, 1982, seeking to modify the contract to include the correct wage rate and to enjoin performance of the work until the contract was modified. That same day, a TRO hearing was held before Judge Jenkins of this court because this judge was hearing another matter in Denver. At the hearing, defendants agreed not to sign the contract or to begin work until a preliminary injunction hearing could be held before this judge. A hearing was set for January 23, 1981, but prior thereto and on January 21 the defendants agreed to modify the contract to include the correct wage rate and so stated before the court on that date. The modification was formally approved by all appropriate officials on February 10, 1981, and by February 20, the contractor had corrected all payrolls and fully compensated all employees under the correct wage rate.

Hearing was set for March 5, 1981, to enter a consent decree, and a copy of a proposed consent decree was mailed by plaintiff to defendants. The hearing was continued to March 19 and then never held, and for reasons not specified in the record, defendants never signed the consent decree. The only obvious reason for dispute would appear to be that under this decree plaintiff was to recover its costs, "including travel and deposition expenses," and "reserved its right to move the Court for an award of attorneys' fees." No express request for attorneys' fees is contained in the original complaint.

No further action was taken by either side to this dispute until August of 1981 when the court on its own motion scheduled a status report on the case. At the August 17 hearing, plaintiff requested leave to file and did file an amended complaint. This complaint sought the injunctive relief requested originally and for the first time alleged a deprivation of rights under 42 U.S.C. § 1983 and sought attorneys' fees under section 1988. Defendants moved for summary judgment, and plaintiff then moved for attorneys' fees under section 204(c) of the newly effective Equal Access to Justice Act, 28 U.S.C.A. § 2412 (Supp. 1982). It is these motions that are presently pending before the court.

I. DEFENDANTS' SUMMARY JUDGMENT MOTIONS

At this stage of the proceeding, there remains no substantive relief to be awarded. Plaintiff's counsel admits that the January 21, 1981 concession "achieved all of the substantive relief sought." Declaration of James S. Lowrie at 3. As there are no present grounds for issuing an injunction, plaintiff's substantive claims are moot and the defendants' motions for summary judgment appear well taken. Moreover, plaintiff's interest in opposing summary judgment is, in reality, intended merely to preserve its status as a prevailing party for the purpose of the attorneys' fees statutes. While plaintiff belatedly indicated an interest in a formal order in its favor, it does not specify how that order should be formed except by reference to the consent decree tendered to and rejected by defendants. This court cannot perceive how it can now grant any substantive relief. All that remains is the question of attorneys' fees, and, because the fact that plaintiff fails to presently qualify for injunctive relief does not foreclose this issue, summary judgment for defendants poses no dilemma at this juncture of the case.

Nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated. Moreover, the Senate Report expressly stated that "for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." S.Rep.No.94-1011, p. 5 (1976).

Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980).

While the Tenth Circuit has stated that "a court determination on the merits against plaintiff ... will prevent the award of attorneys fees regardless of any positive effect the lawsuit has," Chicano Police Officers Association v. Stover, 624 F.2d 127, 131 n.5 (10th Cir. 1980) (emphasis added), this language is consistent with Maher v. Gagne and inapplicable here, where no...