The opinion of the court was delivered by: SPORKIN
UNITED STATES DISTRICT JUDGE
On April 3, 1997, the above-captioned case was reassigned from the late Honorable Charles R. Richey to the undersigned member of this Court. Before the Court are the parties' cross-motions for summary judgment.
The plaintiffs ask the Court to direct the defendants
to re-implement and enforce revised regulations relating to the use of employees known as "helpers" on federal construction projects covered by the Davis-Bacon Act. The defendants suspended the revised helper regulations in November 1993 and reinstated the former helper regulations, because a congressional rider in an appropriations bill precluded the expenditure of any funds to implement the revised regulations; that rider, which was incorporated into subsequent appropriations measures, expired on April 26, 1996. The plaintiffs allege that the defendants' failure to implement the revised helper regulations since April 26, 1996 violates the Administrative Procedure Act and the Davis-Bacon Act. The plaintiffs further allege violations of the Unfunded Mandates Act and the Regulatory Flexibility Act. In addition to seeking injunctive relief, the plaintiffs ask the Court to declare that the revised helper regulations, as they existed prior to their suspension in November 1993, are now in effect and must be enforced. For the reasons discussed below, the defendants are entitled to judgment as a matter of law.
Statutory and Regulatory Background
The Davis Bacon Act, 40 U.S.C. § 276a, ensures that workers on federal construction projects are paid no less than prevailing wage rates in the locality of such projects. See Bldg. & Constr. Trades Dep't, AFL-CIO v. Martin, 295 U.S. App. D.C. 182, 961 F.2d 269, 271 (D.C. Cir. 1992). Under the Act, the advertised specifications for each federal construction project in excess of $ 2,000 must contain minimum wage provisions for each class of laborer and mechanic based upon prevailing wages in the locality of performance as determined by the Secretary of Labor. Id.
Pursuant to the Davis Bacon Act, the Department of Labor ("the Department") has promulgated regulations governing a class of employees known as "helpers" working on federal construction projects. Prior to 1982, the Secretary's long-standing practice was to recognize a helper classification only if: (1) it "was a separate and distinct class of worker that prevailed in the area," and (2) the proposed helper classification "performed duties that could be differentiated from the duties of journey level workers in the classification, as well as other classifications on the wage determination." 58 Fed. Reg. 58954.
On May 28, 1982, the Department promulgated changes to the helper regulations which "represented a reversal of a longstanding Department of Labor practice by allowing some overlap between the duties of helpers, and journeyman and laborers." On January 27, 1989, after having been enjoined by the Honorable Harold Greene of this Court and partially struck down by the D.C. Circuit, the final, revised helper regulations were published in the Federal Register. 54 Fed. Reg. 4234 (Jan. 27, 1989). In 1990, the Department published a Federal Register notice implementing the revised helper regulations effective February 4, 1991. 55 Fed. Reg. 50148 (Dec. 4, 1990).
In April 1991, only two months after the revised regulations became effective, President Bush signed into law an appropriations measure that prohibited the Department from spending any funds to implement or administer the revised helper regulations. The Department complied with this measure and did not implement or administer the revised regulations for the remainder of fiscal year 1991.
After fiscal year 1991, a new appropriations act was passed which did not include a ban on the implementation of the revised helper regulations. The Department thereafter instructed all contracting agencies to include helper contract clauses in contracts covered by the Davis-Bacon Act. On June 26, 1992, after the D.C. Circuit had invalidated as arbitrary a portion of the revised helper regulations providing a 2:3 cap on the ratio of helpers to journeyman (see Bldg. & Constr. Trades Dep't, AFL-CIO v. Martin, 295 U.S. App. D.C. 182, 961 F.2d 269, 277 (D.C. Cir. 1992)), the Department issued a notice in the Federal Register, bringing the revised helper regulations into compliance with this decision. 57 Fed. Reg. 28776. The revised helper regulations were enforced from June 26, 1992 until November 5, 1993.
On October 21, 1993, Congress enacted another appropriations measure which, once again, prohibited the Department from expending funds to implement or administer the revised helper regulations. See Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1994, Pub. L. No. 103-112, § 103 (Oct. 21, 1993). In response, on November 5, 1993, the Department published a Federal Register notice suspending the revised helper regulations and re-instituting the Department's longstanding regulations governing the use of helpers. 58 Fed. Reg. 58954. This notice stated, in relevant part:
The regulations presently codified at 29 CFR 1.7(d), 5.2(n)(4), and 5.5(a)(1)(ii) [the revised helper regulations] are suspended until the Department of Labor publishes notice in the Federal Register that prohibition on implementation of the regulations has been lifted.
Id. Invoking section 553(b)(B) of the APA, the notice further stated that there was "good cause for dispensing with notice and public comment concerning the suspension" of the revised helper regulations, due to the prohibition contained in the appropriations measure. Id. at 58955. The suspension of the revised helper regulations affected all contracts awarded on or after October 21, 1993.
The 1995 Department of Labor Appropriations Act also barred the Department from expending funds to implement the helper regulations; this prohibition extended into fiscal year 1996 through several continuing resolutions.
As the Department recognized in its Federal Register notice of August 2, 1996, the Department's fiscal year 1996 appropriations contains no prohibition on the expenditure of the funds to carry out and enforce the revised helper regulations:
There is no such prohibition in the Department of Labor's Appropriations Act for fiscal year 1996, Public Law 104-134, signed into law by President Clinton on April 26, 1996.
61 Fed. Reg. 40366, 40367.
According to the August 2 notice, during the two-and-a-half years in which the revised regulations were suspended, "additional information" had become available, warranting review of the suspended rule. This information included: (1) 78 prevailing wage surveys conducted over a 21 month period when the revised regulations were in effect in 1992 and 1993; (2) the Department's "concern that the helper regulation may create an unwarranted potential for abuse of the helper classification to justify payment of wages which are less than the prevailing wage in the area," because the D.C. Circuit had invalidated the 2:3 helper to journeyman ratio cap;
(3) the Department's "concern about the possible impact of the helper regulations on formal apprenticeship and training programs;" and (4) the Department's "preliminary view" that implementation of the revised helper regulations "on a short-term basis would create unwarranted disruption and uncertainty for both federal agencies and the contracting community" by requiring conformances in new contracts and government procurement regulations and by requiring the Department to determine that the use of helpers is the prevailing practice in a particular job classification in the area in which the work will be performed. Id. at 40367-68.
The Department's principal concern was that "the suspended [helper] regulation would be fully effective for only a brief period, if at all, before the Department expects it would complete substantive rulemaking proceedings to consider amending the regulation." Id. at 40368. Further, "repeated changes in the regulations within a short period of time would create unwarranted disruption in the contracting process of federal agencies which would be required to amend their regulations and contract forms on an interim basis only to repeat the entire process if proposed amendments to the helper regulations are finalized." Id. Finally, the Department would be forced to divert resources away from its planned substantive rulemaking on the use of helpers in order to collect prevailing practice and wage data which would be needed to implement the suspended helper regulations. Id.
On December 30, 1996, the Department issued a final rule providing that the revised helper regulations would remain suspended while the Department conducts additional rulemaking proceedings to determine whether further amendments should be made to those regulations. See 61 Fed. Reg. 68641 The Department based its decision on the reasons outlined in its August 2 notice of proposed rulemaking.
A. The Propriety of the Original Suspension of the Helper Regulations in November 1993.
Section 553 of the APA prescribes the general notice and comment procedures an agency must follow when promulgating a rule. Under the APA, an agency must publish notice of a proposed rule in the Federal Register and allow interested parties to submit comments on the proposed rule. 5 U.S.C. § 553 (1996).
The APA contains an exception to these procedures, however. An agency may suspend general notice and comment procedures if the agency "for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 U.S.C. § 553(b)(B).
In this Circuit, the "good cause" or "emergency" exception to the APA's notice and comment requirement is "narrowly construed and only reluctantly countenanced." State of New Jersey, Dep't of Envtl. Protection v. EPA, 200 U.S. App. D.C. 174, 626 F.2d 1038, 1045 (D.C. Cir. 1980). It is not an "'escape clause' that may be arbitrarily utilized at the agency's whim." Am. Fed'n of Gov't Employees, AFL-CIO v. Block, 210 U.S. App. D.C. 336, 655 F.2d 1153, 1156 (D.C. Cir. 1981) (quoting S. Rep. No. 752, 79th Cong., 1st Sess. (1945)). Thus, use of the "good cause" exception should be limited to "emergency" situations. AFGE v. Block, 655 F.2d at 1156. Moreover, the emergency regulations should be limited in temporal scope, responding to no "more than the exigencies of the moment." 655 F.2d at 1157.
The plaintiffs do not dispute the defendants' contention the Department had "good cause" to suspend the helper regulations in November 1993, when Congress prohibited the Department from expending funds to implement or administer them. Thus, the Court shall assume, arguendo, that "good cause" existed to suspend the regulations without the opportunity for a comment period in November 1993. See, e.g., AFGE v. Block, 655 F.2d at 1157 (finding that the agency had good cause to issue emergency regulations in response to a court order).
B. Even if the Defendants Were Required to Re-Implement the Revised Helper Regulations on April 26, 1996, any APA Claim Based on Their Failure to Do So Is Now Moot.
Given that the defendants had good cause to suspend the revised helper regulations in November 1993, the next question is whether the suspension of these regulations remained valid once the emergency -- the congressional prohibition -- expired on April 26, 1996. The plaintiffs argue that the defendants were "compelled" to re-implement the suspended helper regulations immediately, on April 26, 1996, because there was no longer a statutory obstacle to their enforcement; the "emergency" which previously had justified suspension of the revised helper regulations no longer existed.