While acknowledging the "final agency action" requirement, the plaintiff asserts that the requirement here is satisfied because it is challenging the validity of the DOL's regulations that the agency is relying upon as the basis for conducting the investigation. Plaintiff's Response to Defendants' Renewed Motion to Dismiss, Memorandum of Law in Opposition to Defendants' Renewed Motion to Dismiss ("Pl.'s Resp.") at 8-10. According to the plaintiff, there has been final agency action because "the regulations upon which the DOL is relying as legal authority for their investigation were promulgated in excess of [its] . . . statutory authority." Id. at 9. In particular, the plaintiff argues that the final agency action here that is subject to judicial review is the DOL's promulgation of 29 C.F.R. § 4.102, which is the agency's regulation that it relies upon to conduct the investigation at issue in this case. This regulation provides that "the authority and enforcement powers of the Secretary under the [SCA] are coextensive with the authority and powers under the Walsh-Healey Act." 29 C.F.R. § 4.102. The plaintiff's finality argument is totally without merit.
The DOL relies upon 41 U.S.C. § 353 (2000) as the legal basis for initiating investigations regarding violations of the SCA. Defs.' Mem. at 16-17. Section 353 states that "[s]ection 38 . . . of this title shall govern the Secretary's authority to enforce this chapter, make rules, regulations, issue orders, hold hearings, and make decisions based upon findings of fact, and take other appropriate action hereunder." 41 U.S.C. § 353 (2000). Section 38 of Title 41, which is entitled, in part, "Administration of Walsh-Healey Provisions; rules and regulations[,]" specifically authorizes the Secretary of Labor to conduct investigations in matters covered by the Walsh-Healey Act. 41 U.S.C. § 38 (2000) ("The Secretary of Labor or his authorized representatives shall have power to make investigations and findings . . . and prosecute any inquiry necessary to his functions in any part of the United States"). Thus, the DOL correctly takes the position, as stated in 29 C.F.R. § 4.102, that "the authority and enforcement powers of the Secretary under the [SCA] are coextensive with the authority and powers under the Walsh-Healey Act." The plaintiff's rebuff of the DOL's position, that the Walsh-Healey Act cannot provide the legal basis for conducting investigations under the SCA because that legislation "deals only with contracts for supplies or materials, not service contracts like the ones that [plaintiff] has with the BOP[,]" Pl.'s Resp. at 10, defies the obvious. It is apparent from the plain language of the SCA that Congress intended for the DOL to have the same enforcement authority with regard to employee service contracts covered by the SCA, as it does under the Walsh-Healey Act.
And as already indicated, that authority specifically includes the "power to make investigations[.]" Congress's clear and unambiguous decision on the subject is definitive. Therefore, the Court concludes that the plaintiff's allegation that the DOL is acting in excess of its statutory jurisdiction is unpersuasive.*fn3
For the aforementioned reasons, this Court will grant the defendants' motion to dismiss because the Court finds that it lacks subject-matter jurisdiction to entertain the plaintiff's complaint. This is because there has been no "final agency action[,]" a necessary predicate to judicial review under the APA. Accordingly, this Court will dismiss the plaintiff's complaint.*fn4
Upon consideration of the defendants' motion to dismiss the complaint, and for the reasons set forth in the Memorandum Opinion accompanying this Order, it is hereby,
ORDERED that the defendants' motion to dismiss the plaintiff's complaint is GRANTED. It is
FURTHER ORDERED that the above-captioned case is DISMISSED WITH PREJUDICE.