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Building and Construction Trades Dep't, AFL-CIO v. Solis

March 4, 2009

BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, PLAINTIFF,
v.
HILDA L. SOLIS, SECRETARY OF LABOR, AND STEVEN CHU, SECRETARY OF ENERGY, DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The Building and Construction Trades Department, AFL-CIO (the "BCT"), the plaintiff in this civil lawsuit, "seeks judicial intervention to compel . . . the Secretary of Labor . . . to issue an administrative determination concerning application of the Davis-Bacon Act, [40 U.S.C. §§ 3141-44, 3146-47 (2006),] . . . to [the] construction of three buildings intended for the sole and exclusive use of the . . . Department of Energy . . . that has been unreasonably withheld." First Amended Complaint Seeking Mandatory Injunctive Relief for Agency Action Unlawfully Withheld, Declaratory Relief and Review of Agency Action (the "Compl.") ¶ 1. Additionally, the plaintiff "seek[s] judicial review of a [purported] final agency determination by [the Department of Energy] that the Davis-Bacon Act does not apply to construction of two other buildings intended for the sole and exclusive use of [the Department of Energy]," id., under the Administrative Procedures Act, 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2006) (the "APA"), and 28 U.S.C. § 1361 (2006), id. ¶ 2.*fn1 Both defendants seek to dismiss the plaintiff's claims against them pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). After carefully considering the plaintiff's amended complaint, the defendants' joint motion to dismiss, and all submissions made in conjunction with the defendants' joint motion,*fn2 the Court concludes for the reasons that follow that it must grant the defendants' motion in its entirety, but that the scope of that motion does not encompass all of the claims raised by the plaintiff.

I. Background

The following facts are alleged in the plaintiff's amended complaint or are matters of public record. The Davis-Bacon Act, enacted by Congress in 1931 and amended most recently in 2002, provides in pertinent part that "[t]he advertised specifications for every contract in excess of $2,000[] to which the Federal Government . . . is a party[] for [the] construction, alteration, or repair . . . of public buildings . . . which requires or involves the employment of mechanics or laborers shall contain a provision stating the minimum wages to be paid" to those mechanics and laborers. 40 U.S.C. § 3142(a). "The minimum wages shall be based on the wages [that] the Secretary of Labor determines to be prevailing for the corresponding classes of laborers and mechanics" employed on similar projects in the "civil subdivision of the State in which the work is to be performed," id. § 3142(b), and "[e]very contract" covered by the statute "must contain stipulations that," inter alia, the "contractor or subcontractor shall pay all mechanics and laborers . . . the full amounts accrued at [the] time of payment, computed at wage rates not less than those stated in the advertised specifications," id. § 3142(c)(1). Under Department of Labor regulations, "[a]ll questions relating to the application and interpretation of wage determinations . . . shall be referred to the Administrator [of the Wage and Hour Division of the Department of Labor]," whose "rulings and interpretations shall be authoritative." 29 C.F.R. § 5.13 (2007).

The plaintiff is "an unincorporated labor organization . . . chartered by the American Federation of Labor-Congress of Industrial Organization . . . and composed of eleven (11) national and international building and construction trade unions." Compl. ¶ 8. The plaintiff "has chartered more than 300 state and local building and construction trades councils," which "consist[] of local building and construction trades unions that collectively represent more than three (3) million workers." Id. "[M]any" of these workers "have been employed or may seek employment by private contractors and subcontractors retained to construct buildings" in Oak Ridge, Tennessee. Id.

"On October 1, 1999," the Department of Energy "entered into a contract with UT-Battelle, LLC ('UT-Battelle') . . . for the maintenance and operation of the Oak Ridge National Laboratory ([the] 'ORNL')" located in Oak Ridge, Tennessee. Id. ¶ 11. In August of 2000, UT-Battelle submitted an infrastructure revitalization project for the ORNL, which would require the "construction of eleven new facilities and renovation of existing [facilities] for the ORNL." Id. ¶ 12. The plan called for the new facilities to be constructed by a private developer, who would then lease the facilities to UT-Battelle for use by the Department of Energy. Id. ¶ 13. The Department of Energy approved this plan on March 21, 2001. Id. ¶ 15.

Shortly thereafter, on April 19, 2001, UT-Battelle formed a new not-for-profit corporation called the UT-Battelle Development Corporation ("UT-Battelle Development") to "implement[] the privately financed elements of the UT-Battelle plan." Id. ¶ 16. UT-Battelle Development solicited proposals "for the design, construction, and lease of . . . three privately funded facilities" in accordance with UT-Battelle's revitalization plan. Id. ¶ 17. Under that plan, the developer selected by UT-Battelle Development would "enter[] into a 25-year [g]round

[l]ease of the real property on which the three buildings would be located, with a possible extension of not more than five additional years," id. ¶ 18, and would lease the facilities constructed on that real property to UT-Battelle Development, which would then sub-lease the facilities to UT-Battelle for ten-year terms, id. ¶ 19.

Pursuant to UT-Battelle's revitalization plan, the Department of Energy "conveyed title to the parcel of land" on its site in Oak Ridge "where the three buildings would be located by quitclaim deed to [UT-Battelle Development]" on June 18, 2001. Id. ¶ 21. The quitclaim deed "reserved to [the Department of Energy] the right to repurchase all or any part of the land conveyed and any improvements for a nominal consideration" so long as no sub-leases had been terminated prior to the expiration of UT-Battelle Development's lease on the facilities. Id. This conveyance led BCT president Edward C. Sullivan to submit a request to the Acting Administrator of the Department of Labor Wage and Hour Division "pursuant to 29 C.F.R. § 5.13 for a determination whether the Davis-Bacon Act applie[d] to construction of the three privately-financed buildings on land conveyed by [the Department of Energy] to [UT-Battelle Development]." Id. ¶ 22. Sullivan's letter notwithstanding, UT-Battelle Development proceeded unabated with UT-Battelle's revitalization plan, selecting a developer in August of 2001 and executing a ground lease with the developer that same month. Id. ¶¶ 23-24.

"Subsequently, [the Department of Energy] and [UT-Battelle Development] . . . submitted position statements on September 20, 2001, and September 28, 2001, respectively," in which they "argued strenuously that the Davis-Bacon Act [did] not apply to construction of the three privately-financed buildings" on the Department of Energy's former property. Id. ¶ 25. Over six months later, "in a letter dated May 13, 2002," the Department of Labor's Wage and Hour Division responded to Sullivan's inquiry by requesting that the Department of Energy "submit a report within 30 days on the facts relating to the issue raised by [Sullivan's inquiry] and a statement of [the Department of Energy's] position regarding the applicability of the Davis-Bacon Act" to the three facilities under construction pursuant to UTBattelle's revitalization plan. Id. ¶ 26. "To the best knowledge" of the plaintiff, "[the Department of Energy] never responded" to this request. Id. ¶ 27.

"[H]aving heard nothing further from [the Department of Energy] or [the Wage and Hour Division] for more than one year," the plaintiff "sought a meeting in January [of] 2003 with representatives of [the Wage and Hour Division] to discuss the status of [Sullivan's 2001 inquiry]" regarding the application of the Davis-Bacon Act to the construction of new facilities at the Department of Energy's Oak Ridge site. Id. ¶ 28. "Sullivan followed up this meeting"*fn3 by submitting "a lengthy letter to Wage and Hour Administrator Tammy D. McCutchen dated January 30, 2003." Id. ¶ 29. In his letter, Sullivan contested the arguments raised by the Department of Energy and UT-Battelle Development in their 2001 letters "and presented additional arguments" in support of his position that the Davis-Bacon Act applied to the three buildings under construction at the Oak Ridge site. Id. ¶ 29.

Alfred B. Robinson, Jr., the Senior Policy Advisor to the Wage and Hour Administrator, responded to this letter in a correspondence of his own dated March 26, 2003. Id. ¶ 30. In that correspondence, Robinson stated that the Department of Labor had asked the Department of Energy to provide additional documents to ensure a thorough review of the matter by the Wage and Hour Division. Id. However, as Sullivan pointed out in his reply letter dated April 14, 2003, by that time "construction of the three buildings had begun and was nearing completion without application of the Davis-Bacon Act." Id. ¶ 32. Ultimately, the Wage and Hour Division "refused . . . to take any action with regard to [Sullivan's 2001 inquiry] for the next two years, during which time construction of the three buildings was completed." Id. ¶ 34.

While awaiting final action from the Wage and Hour Division, the plaintiff learned "in mid-2004 that [the Department of Energy] was contemplating an arrangement similar to the one executed for construction of the three buildings" on its site in Oak Ridge "for construction of a production-support complex and another building to house a visitors center, historical exhibits[,] and a 400-seat auditorium within [the Department of Energy's] Y-12 National Security Complex, which is also located on the Oak Ridge [s]ite." Id. ¶ 35. After Robinson, "now Deputy Wage and Hour Administrator," asked the Department of Energy to provide information regarding the possibility of a construction project involving the Y-12 National Security Complex at Sullivan's request, id. ¶ 37, R. Paul Detwiler, the Acting Deputy General Counsel for the National Nuclear Security Administration (the "NNSA"), informed Robinson in a letter dated October 3, 2005, "that NNSA was contemplating the sale of two parcels of real property it own[ed] at the [Department of Energy's Oak Ridge site] to a private[,] non-profit corporation," id. ¶ 38, which would use funds raised by the City of Oak Ridge Industrial Development Board "to purchase the property from [the Department of Energy] at fair market value and construct two buildings that would be leased by [the entity managing the Y-12 National Security Complex] and paid for" by the NNSA, id. ¶ 39. This response led Sullivan to renew his inquiry as to whether the Davis-Bacon Act applied to the buildings constructed pursuant to UT-Battelle's revitalization plan on October 17, 2005. Id. ¶ 41.

Having received no response from Robinson, the plaintiff filed its initial complaint in this Court on April 14, 2006. Five days later, Robinson, "now Acting Wage and Hour Administrator, advised . . . Sullivan that[] because construction of the three buildings" at the Department of Energy's Oak Ridge site was completed, there was no need to determine whether the Davis-Bacon Act applied to the construction contracts for those ...


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