Administrator, Wage and Hour Div., USDOL v. KBR Services, LLC (agency decision, March 27, 2023)

Plain-English summary

KBR Services sought two wage tiers for quality-control inspectors working under a United States Army service contract. A Wage and Hour Division section chief established one rate, and an investigator later emailed that the conformance would stand because KBR had not responded by a deadline. KBR petitioned the Board but acknowledged uncertainty about whether that email was a final Administrator decision. After a show-cause order, both parties agreed the matter was not yet ripe. Because 29 C.F.R. § 8.1(b) gives the Board jurisdiction over final Administrator decisions, the Board dismissed the petition without prejudice.

Decision snapshot

• Cited authorities: 41 U.S.C. §§ 6701-6707; 29 C.F.R. § 8.1(b)
• Outcome: Petition for review dismissed without prejudice as unripe.
• Key point: An investigator's email leaving a conformance in place is not a final Administrator ruling that the Board may review.

Full text (DOL official public release)

U.S. Department of Labor            Administrative Review Board
                                    200 Constitution Ave. NW
                                    Washington, DC 20210-0001

IN THE MATTER OF:

ADMINISTRATOR, WAGE ARB CASE NO. 2023-0021 AND HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, DATE: March 27, 2023

            PROSECUTING PARTY,

     v.

KBR SERVICES, LLC,

            RESPONDENT.

Appearances:

For the Administrator, Wage and Hour Division:
Seema Nanda, Esq.; Jennifer S. Brand, Esq.; Jonathan T. Rees, Esq.;
and Judith Marblestone, Esq.; U.S. Department of Labor, Office of the
Solicitor; Washington, District of Columbia

For the Respondent:
Robert F. Spencer, Jr., Esq.; M. Rebecca Cooper, Esq.; and Matthew
J. Braquet, Esq.; The Kullman Firm; New Orleans, Louisiana

Before HARTHILL, Chief Administrative Appeals Judge and BURRELL, Administrative Appeals Judge

 ORDER DISMISSING PETITION FOR REVIEW WITHOUT PREJUDICE

PER CURIAM:

  This case arises under the McNamara-O’Hara Service Contract Act of 1965

as amended (SCA) 1 and its applicable implementing regulations. 2 Respondent KBR

1 41 U.S.C. §§ 6701-6707.
2 29 C.F.R. Parts 4, 6, and 8 (2022).
 2

Services, LLC (KBR Services) provides services to the United States Army in Goose Greek, South Carolina. 3 On September 16, 2022, KBR Services requested a wage determination for Quality Control Inspectors (QCIs) from the United States Department of Labor, Wage and Hour Division (WHD). 4 KBR Services initially sought to have the wage determination conformed to correspond to three tiers of QCIs, but later requested a division into two tiers. 5 The first tier, QCI-Level 1, would inspect the work of six different classifications of workers at a proposed hourly rate of $31.90. 6 The second tier, QCI-Level 2, would inspect the same six classifications of workers plus four additional classifications at a proposed hourly rate of $32.68. 7

   On November 16, 2022, the WHD Section Chief issued a determination letter

in this matter that established a flat wage rate for all the inspectors. 8 On December 7, 2022, KBR Services requested the WHD to reconsider its determination. 9 On February 14, 2023, a WHD investigator emailed KBR Services stating that “[w]ith regards to the conformance prevailing wage amounts, the DOL gave you ample time to respond to what was provided and given deadlines. We received no timely response, the conformance stands.” 10

  On March 6, 2023, KBR Services filed a Petition for Review with the

Administrative Review Board (Board) of the February 14, 2023 reconsideration denial. 11 KBR Services noted that it was not clear whether the correspondence it was appealing from represented “a final decision of the Administrator,” but that it was submitting the petition for review “out of an abundance of caution.” 12

   On March 15, 2023, the Board issued an Order to Show Cause, ordering the

parties to show cause why the Board should not dismiss this appeal on grounds that it was not ripe for review because the WHD Administrator had not issued a final decision. 13 On March 21, 2023, the parties filed a Joint Motion to Dismiss and

3 Petition for Review at 2.
4 Id. at 3.
5 Id.
6 Id.
7 Id. at 4.
8 Petition for Review at 4 and Exhibit E.
9 Petition for Review, Exhibit F.
10 Petition for Review, Exhibit A.
11 Petition for Review at 1.
12 Id. at 1 n.1.
13 Order to Show Cause at 2.
 3

Response to Order to Show Cause requesting that the Board dismiss this appeal without prejudice because it is not ripe for review. 14

  The applicable regulations provide that:

         The Board has jurisdiction to hear and decide in its
         discretion appeals concerning questions of law and fact
         from final decisions of the Administrator of the Wage and
         Hour Division or authorized representative, and from
         decisions of Administrative Law Judges under subparts B,
         D, and E of part 6 of this title, arising under the Service
         Contract Act and the Contract Work Hours and Safety
         Standards where the contract is also subject to the Service
         Contract Act.[15]

   The parties assert that the February 14, 2023 WHD email was not a final

decision of the WHD Administrator regarding KBR Services’ request for reconsideration of WHD’s November 16, 2022 conformance determination. 16 Since the Administrator has not issued a final decision in this matter, the parties assert that the Board does not have jurisdiction to hear this appeal at this time. 17

14 Joint Motion to Dismiss and Response to Order to Show Cause at 1. 15 29 C.F.R. § 8.1(b). 16 Joint Motion to Dismiss and Response to Order to Show Cause at 2. 17 Id. 4

   Without a final ruling from the WHD Administrator as provided in 29 C.F.R.

§ 8.1(b), the Board lacks jurisdiction to render a decision in this matter.18 Thus, this matter is not ripe for review. Accordingly, we DISMISS the Petition for Review without prejudice.

   SO ORDERED.


                                      ____________________________________
                                      SUSAN HARTHILL
                                      Chief Administrative Appeals Judge


                                      ____________________________________
                                      THOMAS H. BURRELL
                                      Administrative Appeals Judge

18 See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Kesco, Inc., ARB No. 2022-0031 (ARB July 13, 2022) (dismissing a petition for review without prejudice because WHD had not issued a final decision and the matter was not ripe for review); Bramble, Inc., ARB Nos. 2014-0090, -0091 (ARB Dec. 17, 2014) (dismissing a petition for review where the petitioner failed to show cause as to why the case should not be dismissed because it failed to obtain a final decision from WHD); Wicke, ARB No. 2002-0062 (ARB May 21, 2002) (dismissing a petition for review without prejudice because WHD had not issued a final decision and the matter was not ripe for review); Bradbury, ARB No. 2001-0100 (ARB Nov. 9, 2001) (dismissing a petition for review without prejudice because a determination letter from WHD was not a final agency decision).