Federal defendants assert two grounds in support of their motion to dismiss: first, that plaintiffs fail to state a claim for relief in the nature of mandamus; and second, that plaintiffs have failed to join Burnside-Ott and DynCorp, both of which are indispensable parties to this action. Because the Court finds the first issue dispositive, it does not reach the second ground for dismissal. Moreover, the parties have submitted affidavits in support of their respective positions. Under Fed. R. Civ. P. 12(c), "if on a motion for judgment on the pleadings matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Therefore, defendants' motions will be treated as motions for summary judgment pursuant to Fed. R. Civ. P. 56.
It is well established that "mandamus is an extraordinary remedy to be utilized only in the clearest and most compelling cases." Cartier v. Secretary of State, 165 U.S. App. D.C. 130, 506 F.2d 191, 199 (D.C. Cir. 1974), cert. denied, 421 U.S. 947, 44 L. Ed. 2d 101, 95 S. Ct. 1677 (1975). Under the federal mandamus statute, 28 U.S.C. § 1361, jurisdiction "is limited to compelling a Government official or agency to perform a duty owed to the plaintiff or to make a decision, but not to direct or influence the exercise of discretion of the officer or agency in the making of the decision." U.S. Code & Admin. News, 87th Cong. 2d Sess., 2784-85 (1962). A writ of mandamus will not properly issue unless "(1) a plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff." Council of and for the Blind of Delaware County Valley, Inc. v. Regan, 228 U.S. App. D.C. 295, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en banc). After careful consideration, the Court concludes that plaintiffs have failed to establish any of the three criteria required for a writ of mandamus and, therefore, such a writ will not properly issue.
First, plaintiffs do not have a clear right under the SCA to the relief sought. The purpose of the SCA was to ensure that service employees working on government contracts are not paid wages below the prevailing wages being paid in the locality by non-government contractors. Thus, § 2 of the Act requires the inclusion of specific provisions establishing minimum wage and fringe benefit levels in contracts entered into by the United States in excess of $ 2,500 "the principal purpose of which is to furnish services in the United States through the use of service employees." 41 U.S.C. § 351(a). This wage and fringe benefit determination is explicitly directed to the responsibility of the Secretary of Labor "in accordance with prevailing rates for such employees in the locality . . ." 41 U.S.C. § 351(a)(1). It is well-established, however, that the SCA does not confer a private right of action, but rather provides for exclusive administrative enforcement with the Secretary of Labor. District Lodge No. 166, Int'l Assoc. of Machinists and Aerospace Workers, AFL-CIO v. TWA Services, Inc., 731 F.2d 711, 716 (11th Cir. 1984), cert. denied, 469 U.S. 1209, 84 L. Ed. 2d 324, 105 S. Ct. 1175 (1985) (District Lodge); Miscellaneous Service Workers, Etc. v. Philco-Ford Corp., 661 F.2d 776, 779 (9th Cir. 1981); Int'l Assoc. of Machinists and Aerospace Workers v. Hodgson, 169 U.S. App. D.C. 142, 515 F.2d 373 (D.C. Cir. 1975); Berry v. Andrews, 535 F. Supp. 1317, 1318 (M.D.Ala. 1982); Foster v. Parker Transfer Co., 528 F. Supp. 906, 907 (W.D.Pa. 1981); Nichols v. Mower's News Service, Inc., 492 F. Supp. 258 (D.Vt. 1980).
Plaintiffs assert that it is precisely because they have no private right of action that mandamus is the appropriate vehicle to enforce their rights as service employees under the SCA. Plaintiffs rely on Carpet, Linoleum and Resilient Tile Layers, et al. v. Brown, 656 F.2d 564 (10th Cir. 1981) (" Brown "), in which the 10th Circuit held that the SCA imposes legal obligations upon the Secretary of Labor to conduct investigations and enforce its provisions, and that if the Secretary failed to perform these duties a writ of mandamus could properly issue. Defendants, in response, cite District Lodge, supra, in which the 11th Circuit declined to issue a writ of mandamus to compel the Secretary of Labor to issue retroactive wage determinations. Unlike the 10th Circuit, the District Lodge Court found that the plaintiff-union had no clear right to the relief sought and that the SCA did not impose a clear an undisputed duty on the part of the Secretary of Labor nor the contracting agency. Id. at 717-18. Thus, there is a split between the Circuits as to whether plaintiffs can obtain enforcement of the SCA through a writ of mandamus.
Upon review of the structure of the SCA and the circumstances of this case, the Court finds the rationale of the District Lodge Court the more compelling. As the 11th Circuit stated:
We are not persuaded that there is a clear right in the plaintiff to the relief sought. As we have previously explicated, the SCA does not confer on the plaintiff a private right of action for its enforcement. It is obvious that plaintiff seeks relief by way of mandamus from the federal defendants solely as means of obtaining back wages from [the contractor]. Lacking such a right directly under the statute, it urges the court to compel the defendants to undertake actions which would indirectly result in the same back wages from [the contractor] that it is precluded from seeking directly. We refuse to blind ourselves to the inequity of granting plaintiff relief which is not an end in itself but is merely a means to an end which plaintiff could not obtain except by this end run. We will not put our imprimatur on such an artful misuse of the extraordinary remedy of mandamus.
District Lodge, 731 F.2d at 717.
Moreover, even if this Court were to follow the approach set forth by the 10th Circuit in Brown, mandamus would not be available in this case. Plaintiffs' reliance on Brown is simply misplaced. In Brown, there was evidence that the Department of Labor and the contracting agencies were not "making reviews adequate to insure compliance with Davis-Bacon labor standards provisions." Id. at 565 n. 2. Thus, the Brown Court held that "where an agency completely ignores the purpose of the controlling statute, as the defendants did in this case, there cannot be any rational basis in law to support its decision. A reviewing court would be doing less than its duty if it failed to set aside the agency action. By holding an agency accountable to its lawful duties, the administrative process will be vindicated." Id. at 568.
The circumstances of the instant case are quite different. Contrary to the situation in Brown, here there is no doubt that the Secretary of Labor has taken action to enforce the SCA with respect to the five contracts at issue. With respect to the three TH-57 contracts, the Secretary has enforced the Administrator's wage determination on B-O Contract #2. Payment of back wages to employees under B-O Contract #2 has already begun.
The Department is currently seeking back wages on the remaining two TH-57 contracts, DynCorp Contract #1 and B-O Contract #1. As to the T-2 and T-34/44 contracts (DynCorp Contracts #2 and #3 respectively), the Department has issued a wage determination which is currently on appeal to the Deputy Secretary of Labor. However, DynCorp has already distributed $ 6 million in back wages for fiscal years 1988 and 1989. Clearly, this case does not reflect an instance in which the Secretary has failed to act.
Second, despite plaintiffs' assertions to the contrary, neither the Secretary of Labor nor the Secretary of the Navy have a clearly defined or specific duty under the SCA to enforce retroactive wage determinations or to institute enforcement proceedings in every case. Section 351 of Title 41 merely states that Federal contracts furnishing services through the use of service employees "shall contain" provisions specifying minimum monetary wages as well as provisions specifying fringe benefits as determined by the Secretary to be prevailing for such employees in the locality. 41 U.S.C. § 351(a) and (b). While plaintiffs correctly note that the language of § 351 is mandatory, this section addresses only the required provisions for federal service contracts, not the duty of the Secretary of Labor or the head of the contracting agency to enforce wage determinations retroactively.
Plaintiffs point to no statutory or regulatory language that would support their request for such relief. Section 352, which addresses violations of the SCA, states only that "the Federal agency head or the Secretary is hereby authorized to carry out the provisions of this section." 41 U.S.C. § 352(b). The statute provides no standards for when or under what circumstances the provisions should be enforced. Moreover, under § 353(b):
the Secretary may provide such reasonable limitations and may make such rules and regulations allowing reasonable variations, tolerances, and exemptions to and from any or all provisions of this chapter (other than section 358 of this title), but only in special circumstances where he determines that such limitation, variation, tolerance or exemption is necessary and proper in the public interest or to avoid the serious impairment of government business, and is in accord with the remedial purpose of this chapter to protect prevailing labor standards.
41 U.S.C. § 353(b).
While the statute authorizes a limited governmental cause of action for recovery of underpayments, it does not mandate such an action:
If the accrued payments withheld under the terms of the contract are insufficient to reimburse all service employees with respect to whom there has been a failure to pay the compensation required pursuant to this chapter, the United States may bring action against the contractor, subcontractor, or any sureties in any court of competent jurisdiction to recover the remaining amount of underpayments. Any sums thus recovered by the United States shall be held in the deposit fund and shall be paid, on order of the Secretary directly to the underpaid employee or employees. Any sum not paid to an employee because of inability to do so within three years shall be covered into the Treasury of the United States as miscellaneous receipts.