MLB Transportation, Inc. and Owl, Inc. v. Administrator, Wage and Hour Division (agency decision, July 23, 2019)

Plain-English summary

MLB Transportation and Owl asked the Board to review Service Contract Act wage determinations associated with Veterans Affairs transportation contracts. The Board explained that it ordinarily does not review a wage determination after a contract award, option, or extension unless a regulatory exception applies. The companies filed their petition after the relevant contract actions, and the record did not show a contract awarded without a required wage determination or another applicable exception. The Board therefore concluded the case should not have been docketed. It set aside its notice of appeal and denied review without reaching whether the dispute presented a significant issue of general applicability.

Decision snapshot

• Cited authorities: 41 U.S.C. § 6701; 29 C.F.R. §§ 8.1(b), 8.6, and 8.9(b)
• Outcome: Notice accepting review set aside and petition for review denied.
• Key point: A Service Contract Act wage-determination challenge filed after the relevant contract action cannot proceed unless a specific regulatory exception applies.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  MLB TRANSPORTATION, INC.                            ARB CASE NO. 2016-0078
  AND OWL, INC.,
                                                      DATE: July 23, 2019
                  PETITIONERS,

         v.

  ADMINISTRATOR, WAGE AND
  HOUR DIVISION,

                  RESPONDENT.

  Appearances:

  For the Petitioners:
        Les A. Schneider, Esq.; J. Larry Stine, Esq.; and Jonathan D.
        Gaul, Esq.; Wimberley, Lawson, Steckel, Schneider & Stine, P.C.;
        Atlanta Georgia

  For the Administrator, Wage and Hour Division:
        M. Patricia Smith, Esq.; Jennifer S. Brand, Esq.; Jonathan T.
        Rees, Esq.; and Ann Capps Webb, Esq.; U.S. Department of
        Labor, Office of the Solicitor; Washington, District of Columbia

  Before: William T. Barto, Chief Administrative Appeals Judge; Daniel
  T. Gresh, Administrative Appeals Judge


                        FINAL DECISION AND ORDER

        This case arises under the McNamara-O’Hara Service Contract Act of
  1965, as amended (SCA). 1 On July 7, 2016, the Petitioners filed a Petition for

  1
         41 U.S.C. § 6701 et seq. (2011) and implementing regulations at 29 C.F.R.
  Parts 4, 6, 8, and 18 (2015).



  Review of the June 7, 2016, final determination of the Administrator, Wage
  and Hour Division (the Administrator) in this wage determination and
  classification matter. Administrator’s Final Determination (June 7, 2016).
  The Administrative Review Board (ARB or Board) docketed the appeal for
  review and set a briefing schedule. Notice Of Appeal And Order Establishing
  Briefing Schedule (July 14, 2016). The Administrator filed a response brief,
  and urges the Board to deny the Petition for Review and affirm the
  Administrator’s determination.

                        JURISDICTION AND STANDARD OF REVIEW

         The ARB has jurisdiction to hear and decide in its discretion questions
  of law and fact arising from the Administrator’s final determinations under
  the SCA. 2 The ARB’s review is in the nature of an appellate proceeding. 3
  The Board is authorized to modify or set aside the Administrator’s findings of
  fact only where they are not supported by a preponderance of the evidence. 4

                                       DISCUSSION

         Where the petitioners seek review of a wage determination as in this
  case, disposition by the Board is discretionary and limited. The regulation at
  29 C.F.R. § 8.6(a) provides the following:

         The Board may decline review of any case whenever in its
         judgment review would be inappropriate because of lack of
         timeliness, the nature of the relief sought, the case involves only
         settled issues of law, the appeal is frivolous on its face, or other
         reasons. A case will be reviewed upon the affirmative vote of one
         member.




  2      29 C.F.R. § 8.1(b)(1), (6). The Secretary of Labor has delegated to the Board
  authority to issue final agency decisions under the SCA. Secretary’s Order 01-2019
  (Delegation of Authority and Assignment of Responsibility to the Administrative
  Review Board), 84 Fed. Reg. 13072 (Apr. 3, 2019).

  3      29 C.F.R. § 8.1(b)(1), (6).

  4      29 C.F.R. § 8.9(b).



  See Palmetto GBA, ARB No. 10-056 (ARB Feb. 28, 2012)(declining review
  when review would be inappropriate for lack of timeliness and futility of
  relief sought). The rule imposed by regulation is that the Board will not
  review a wage determination after award unless an exception applies.
  Specifically, the regulation at 29 C.F.R. § 8.6(b) provides as follows:

         Except as provided in paragraphs (c) and (d) of this section, the
         Board will not review a wage determination after award, exercise
         of option, or extension of a contract, unless such procurement
         action was taken without the wage determination required
         pursuant to § § 4.4 and 4.5 of part 4 of this title.

  In this case, there is no evidence that the Petitioners entered into any service
  contract with the U.S. Department of Veterans Affairs without the
  corresponding wage determination. Accordingly, this condition precedent to
  ARB review after award, exercise of option, or extension of a contract is not
  met. Further, the exception provided at subsection (c) to the rule that the
  Board will not review a wage determination after award, applies only to
  “substantial variance” or lack of “arm’s length negotiations” cases.

        We turn now to 29 C.F.R. § 8.6(d), which provides the following
  exception:

         Where a petition for review of a wage determination is filed prior
         to award, exercise of option, or extension of a contract, the Board
         may review the wage determination after such award, exercise of
         option, or extension of a contract if the issue is a significant issue
         of general applicability. The Board’s decision shall not affect the
         contract after such award, exercise of option, or extension.

  The record shows that the Petitioners, MLB Transportation, Inc. (MLB) and
  Owl, Inc. (Owl), filed the Petition for Review with the Board on July 7, 2016.
  As to MLB, its contract VA247-P-0957 was awarded in 2009, with a six-
  month extension running from October 2014 to March 30, 2015, and a new
  contract VA247-15-D-0272 “began April 1, 2015.” Administrative Record Tab
  26; see also Administrator’s Final Determination at 3 n.1, at 7, at 7 n.3;
  Administrator’s Response Brief at 7, at 7 n.7, at 9, at 11 n.5. Therefore, the
  Petition for Review was not filed prior to the award of any of MLB’s
  contracts. As to Owl, Solicitation VA247-09-RP-0257/Contract VA247-P-1044




  was awarded in 2009, Administrative Record Tab 30, and Solicitation VA247-
  12-R-0316 was awarded in 2012, Administrative Record Tab 29. See
  Administrator’s Response Brief at 7 nn. 3-4, at 11 n.5. An apparent third Owl
  contract “VA247-13-Q-1826,” see Petition for Review at 5, is not found in the
  record and Petitioners assert no date of award. 5 Therefore, on this record, the
  Petition for Review was not filed prior to the award of any of Owl’s contracts.

         Based on a review of the record before us, we conclude that the
  Petitioners did not file their Petition for Review prior to any “award, exercise
  of option, or extension of a contract” on any of these service contracts as they
  must in order for the Board to review the wage determination they seek to
  challenge here. 6 29 C.F.R. § 8.6(d). 7 In sum, the record demonstrates no
  exception to the regulatory rule that the ARB will not review a wage
  determination after award. It follows that this case should not have been
  docketed for review. 8



  5      The record demonstrates that the Petitioners did not submit copies of the
  pertinent contracts to the Administrator. Rather, the Administrator obtained some
  of them either at the administrative level or during the pendency of this appeal.
  Administrator’s Final Determination at 3 n.1; Administrator’s Response Brief at 7
  nn. 3-4. In his final determination, the Administrator determined that to the extent
  additional factual information regarding “Owl’s contract might warrant further
  discussion or analysis of the relevant issues, any right to such further consideration
  has been waived due to [Owl’s] failure to submit supporting documentation.”
  Administrator’s Final Determination at 3 n.1

  6      The Administrator notes that “Petitioners have proffered no facts suggesting
  that they filed their Petition for Review ‘prior to award, exercise of option, or
  extension of a contract.’ 29 C.F.R. [§] 8.6(d).” Administrator’s Response Brief at 21
  n.9.

  7       We do not reach the issue of whether this appeal includes a “significant issue
  of general applicability” as the Board is without jurisdiction to proceed. 20 C.F.R. §
  8.6(d).

  8       Petitioners seek a ruling akin to a declaratory judgment that the
  Administrator’s action and determinations were legally incorrect. Yet 28 U.S.C. §
  2201 grants authority to issue declaratory judgments to “any court of the United
  States,” which does not include the ARB. See 28 U.S.C. § 451. The Secretary’s Order
  delegating to the Board authority to issue final agency decisions grants the Board
  jurisdiction only over enumerated statutes, none of which authorize the ARB to
  issue such a judgment. See Secretary’s Order 01-2019, 84 Fed. Reg. 13072.



         Accordingly, we set aside our Notice of Appeal and Order Establishing
  Briefing Schedule (July 14, 2016), and we DENY the Petition for Review.

         SO ORDERED.