Opposition Brief — Building & Construction Trades Department v. Martin

No. 92-130

iia

In the Supreme Court of the United States

OCTOBER TERM, 1992

BUILDING AND CONSTRUCTION TRADES DEPARTMENT,

AFL-CIO, ET AL., PETITIONERS

Uv.

LYNN MARTIN, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS

IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

ANTHONY J. STEINMEYER

ROBERT M. LOEB

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

eee

EST AVAILABLE.

QUESTIONS PRESENTED

1. A regulation (29 C.F.R. 1.7(d)) promulgated by the

Department of Labor to implement the Davis-Bacon Act,

40 U.S.C. 276a et seqg., permits contractors on federal

construction projects to employ semi-skilled “helpers” if

the classification is “prevailing” in the applicable geo-

graphie area. The first question presented is whether

the Secretary violated the Davis-Bacon Act or the

Administrative Procedure Act, 5 U.S.C. 706, in promul-

gating the reguiations (29 C.F.R. 1.7(d)(1) and (2)) defin-

ing when a helper class is “prevailing” in a given area.

2. Whether a provision in a 1991 supplemental appro-

priations Act that prohibited the Secretary from

expending funds to implement or administer the helper

regulations permanently suspends the effect of those

regulations, even though the relevant provision contains

no words of futurity or permanence.

Statutes and rules —Continued Page

Dire Emergency Supplemental Appropriations for Con

sequences of Operation Desert) Shield/Desert Storn

Food Stamps, Unemployment Compensation Admini

tration, Veterans Compensation and Pension ind

Other Urgent Needs Act of 1991] Put | No. 162-2

103, 105 sta LD]

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section 1.2

( no

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. ot oe

yn 1.700) 0] 199

ection 1.7(d)(2) (1991

ectiol -(n)(4

e( n vie

Miscellaneou

ts: { ny Rec

np. 513,446 (da ed 15, 1992

p. 513,483 (daily ed. Sept. 15, 1992

p. 514,027 (daily ed. Sept. 1&, 1992

pp. 814,088-S14,039 (daily ed. Sept. 18, 199

Daily lab Rep BNA) No. 183 (Sept. 21, 1992

1 Fed. Reg. (1989)

p. 4,254

pp. 4,234-4,244

pp 1.32 (-4,.520

p. 4,253 14 |

DD. 31,566-3 1,36 4

}) 51370 t

In the Supreme Court of the Chuted States

OcpoBeER TERM, 1992

VI TAI Bo]

/ f( \| Po] MRTIORAT

/ BAL / EA hi ()/ ‘Me EL

/ ) oT’ Cir al ‘i (‘JA /

BRIEF FOR THE RESPONDENTS

IN OPPOSTPION

OPINIONS BELOW

he opinion of the court of appeals (Pet. App. Ta

loa) is reported at 961 F.2d 269. The opinton of the

an tyicl COuUurd (Tet \pp tyldey fi) | ré ported { 1 1f

Lab. Cases (COED) 935,395

JURISDICTION

Phe judgment of the court of chp dpe cul vas entered on

Nori 2b. 1992. "The petition fora writ ol certiorari

1O)T) ()] Lt

vas filed on July 20, 1992 he jurisdiet

{

(Courts invoked pursuant to 2e LSA. beeen

STATEMENT

1. The Davis-Bacon Act, 40 U.S.C. 276a ef seq.,

requires payment of at least locally prevailing wages

to workers o.. contracts exceeding $2,000 with the

United States or the District of Columbia for con

struction on public buildings or public works. In

particular, the Act provides that covered federal

construction contracts

shall contain a provision stating the minimum

wages to be paid various classes of laborers and

mechanics which shall be based upon the wages

that will be determined by the Secretary of Labor

to be prevailing for the corresponding classes of

laborers and mechanics employed on projects of a

character similar to the contract work in the city,

town, village, or other civil subdivision of the

State, in which the work is to be performed.

AO U.S.C. 276a(a). Section 276a(a) therefore provides

that the locally prevailing wage for each class of

laborers or mechanics is to be “determined by the

Secretary.” [bid

Pursuant to that “broad statutory mandate to set

wages and classify workers” (Pet. App. 3a), the Secre

tary has promulgated regulations that) provide for

determination of the “prevailing wage” rate; specify

the kind of data that she will use in the calculations;

set forth procedures for particular wage determina

tions; and describe enforcement procedures. ‘The

Secretary has defined the “prevailing wage” as “the

waye paid to the majority * * *

mechanics in the classification on similar projects in

the area during tne period in question.” 29 C.F AR.

1.2(a). If the same wage is not paid to a majority of the

workers in a classification, the Secretary uses “the

of the laborers or

average of the wages paid, weighted by the total

Thid.

determination, the Secretary compile

pe

employed in the classification.”

tion categorized by the ty of project, loca

lity,

To make that

wage informa

‘ }

ang

|

if

I

iw:

cl

iob classification. 29 C.FLR. 1.5. Based on the infor

mation, she issues “wage determinations” (29 ©

1.5, 1.6), and covered contracts must provide for

payment of wages and fringe benefits at rates no

than those established by the Secretary's determin

tion. 29 CPLR. 5.50a)1)

» Because “wage rate ind cla lication

essentially two sides of the ime coin’ and “mu

fixed in tandem to ensure that a giver VaAve WI)

paid for given work” (Pet. App. 49a), the implemet

(>t) aft t hye | say Macol Vol pore uiliny

andard require t hie seCTreval LQ) hel 1] VO?!

r purpose of making wage determination

orically, Une ecretary has recognized five |

classifications of worket? inder the Act

neymen or killed worker VTi ire identifi

raditional craft and use ne TH) tf the trace

thorers or unskilled worket ) apprenti

rt) l¢ qoun apprentice Mh} J)? MrVcry L} rove |

ecretary:; (4) trames nrolled in tramingy prog

pproved the Secretar and ()) en

er fd. at 36a hie ecreval Herder at

y mIication in a Wa qdetlermimnat noo} |

Neimper duties coudd be dilferer ed Troy |

he journeyman, and (Z bert

alled in the applicable are by bee

posed revisions, the Secretary concluded that broader

recognition of a helper classification would better

reflect widespread construction industry practice;

result in large cost savings to the government; create

job opportunities for unskilled and semi-skilled work

ers, including youth, minorities, and women; enhanc

productivity by allowing skilled workers to focu

more on high-skill tasks; and increase competition for

government contracts. 47 Fed. Keg. at 25,044

Accordingly, the Secretary promulgated sever:

new regulations. First, the new regulations defined

‘helper” as a “semi-skilled worker * * * who work

under the direction of and assists a journeyman.” 4

Fed. Reg. at 23.667. Under this definition, a helpet

?

may “use the tools of the trade” under a journeyman

supervision, although the “particular duties per

formed by a helper vary according to area practice.

lhid Second, the regulations provided that a helper

classification was to be included in the wage

determination if that classification was “identifiable”

in the applicable area. /d. at 25,655. ‘Third, the

regulations limited the maximum number of helper

to two for every three journeymen. /d, at 25,070.

3. a. Soon after the new regulations were promu

gated, the Building and Construction Trades Depart

ment, AFL-CIO, and affiliated unions brought th

civil action alleging, inter alia, that the new helper

regulations were inconsistent with the Davis-Baco1

\ct. The district court agreed, and enjoined impl

mentation of the regulations. See Pet. App. 76a-7&8a;

see also 7d. at Sla-S4da.

b. The court of appeals affirmed in part) and

reversed in part. The court approved the Secretary

decision to define “helpers” in terms of the level of

their supervision by journeymen, rather than b)

tasks performed and tools used. Pet. App. 44a-o4a

6

e. On remand, the district court: rescinded its

injunction as it applied to the definition of “helpers,”

but left the injunction in place with respect to other

aspects of the helper regulations. Pet. App. 101a-105a

The court also indicated that the Secretary “may

*** submit * * * reissued regulations governing the

use of helpers, and if these regulations conform to the

decision of the Court of Appeals, they will be ap

proved.” [bid.

1. Consistent with the district court’s order, the

Secretary reexamined the helper regulations, invil

ing comments on several alternative proposals for

determining when a helper classification is “pre

vailing” in a particular area. 52 Fed. Reg. 31,566

31,367 (1987). After an extended comment period, the

Secretary issued the following final regulation:

The use of helpers, apprentices and trainees is

permitted in accordance with part 5 of this subt

tle. Wage rates for semi-skilled classifications of

helpers will be issued when the classifications are

prevailing in the area. In determining whether

the use of a particular helper classification pre

vails in the area, the Administrator will follow the

criteria set forth in paragraphs (d)(1) and (d)(2) of

this section.

(1) If the prevailing wage for a particular

journeyman classification is a wage that is paid to

the majority of the journeymen * * * , then the

practice followed by those contractors whose

rates are adopted as prevailing for the Journeyman

shall also be deemed the prevailing practice in

determining whether to issue a helper classifica

tion. Any ambiguity with regard to such practice,

will be resolved by following the rule in paragraph

((1)(2) of this section with respect to those con

tractors.

(2) If the prevailing wage for a_ particular

journeyman Classification is the average of the

wages paid to the journeymen, weighted by the

total number of journeymen * * * , then the total

number of workers in the classification employed

by contractors utilizing helpers Gourneymen plus

apprentices, trainees, and helpe rs as defined in

\ )

Y d.f2(N) 1) of this chapter) (31) reported project

will be compared to the total number of workers i

the classification employed by contractors not

utilizing helpers Gourneymen plus apprenti

and trainees as defined in § 5.2(n)(4 i Un

Ct aptler), and the praccice which covers the mayer

ity of such workers shall be deemed the prevailing

practice in determining whether to issue a helper

classification,

4 Fed. Reg. 4,234 (1989), codified at 29 Col. 1%

Under the new regulation, if a prevailing wage

aid Leo JoOurNeymMen on the basis of the wages paid to a

majority of journeymen in a particular area, thet

“helper” classification may be used if the contractor

paying that prevailing wage use helpers. As the

;

Secretary explained, that approach ensures that

where union Journmeymen pre dominate, helpers will ay

used on federal projects only if it is the practice

accordance with applicable collective bargaining

agreements, to use helpers. 54 Fed. Reg. at 4,258

\lternatively, if the wage paid to journeym«

given area is not based on a “majority wage,”

helper classification can be used. o l\

number of Journeymen, appre ntices, tramee ae

helper 1?) T Cra (+? project CMIPLOYS ny rié i )¢*}

| | " ; ,b*? " . >\? . ; ,

ePXCePEEU the number of] OUrNeEeVMen, apprel (*¢ i ]

8

trainees on projects where helpers are not employed.

54 Fed. Reg. at 4,234, 4,243. Thus, the prevailing

practice is determined by “linkling] the number of

helpers to the number of journeymen with whom the

helpers are associated since, under the approved

definition, a helper must work under the direction of,

and be supervised by, the journeymen.” /d. at 4,258.

5. a. Following the promulgation of the new regu-

lations, the Secretary moved to vacate the injunction

blocking implementation of its helper regulation.

Petitioners (the Building and Construction Trades

Department, AFL-CIO, and several affiliated unions)

opposed her motion primarily on the ground that the

new rule’s method of determining when helpers are to

be allowed is inconsistent with the Davis-Bacon Act

and the Administrative Procedure Act (APA). ‘The

district court disagreed, finding that “the Secretary

has considered a number of alternatives, including

several proposed by [petitioners], and * * * has given

reasoned explanations for the rejection of some and

the selection of the one ultimately adopted.” Pet. App.

63a. The court noted, in this regard, that petitioners’

disagreement with the new regulations “demon-

strate|s] nothing more than that there are several

alternatives for determining whether the use of

helpers is prevailing.” /d. at 64a.

b. The court of appeals affirmed in part and reversed-

in part.! In addition to contesting the district court's

ruling under the Davis-Bacon Act and the APA,

petitioners relied in the court of appeals on a rider to

| The court invalidated the portion of the helper regulations

limiting the number of helpers to two for every three

journeymen on the job. Specifically, the court found that the

Secretary had not adequately explained the basis for that

limitation when the rule was promulgated in 19X82. Pet. App.

14a-l5a. That issue is not before this Court.

9

a 1991 supplemental appropriations Act prohibiting

the Secretary from spending appropriated funds to

implement the helper regulations. See Dire IKmer-

gency Supplemental Appropriations for Conse-

quences of Operation Desert Shield/Desert Storm,

Food Stamps, Unemployment Compensation Adminis-

tration, Veterans Compensation and Pensions and

Other Urgent Needs Act of 1991, Pub. LL. No. 102-27,

$303, 105 Stat. 151.2) The court, however, found that

the 1991 appropriations rider did not permanently bar

implementation of the helper reguiations. Pet. App.

7a-9a. Rather, relying on the canon that a provision

in an appropriations Act operates only during the

applicable fiscal year “unless its language clearly

indicates that it is intended to be permanent” (id. at

Sa), the court found that the absence of any sug-

gestion of “permanency or futurity” in the language

of the rider foreclosed petitioners’ reliance on the

rider after Fiscal Year 1991. /d. at 9a.

The court also rejected petitioners’ challenge

under the Davis-Bacon Act and the APA to the Secre-

tary’s methodology for determining whether a helper

classification is “prevailing” in a locality. The court

concluded that petitioners had “in no way demon-

strated that the Secretary acted arbitrarily in

designing the new tests, or that the tests defeat the

purpose of the Act by recognizing ‘non-prevailing

The rider provided (§ 803, 105 Stat. 151) in relevant part:

Notwithstanding any other provision of law, no funds shall

he expended by the Secretary of Labor to implement or

administer the regulations published at 54 Federal Regis

ter 4234-44 (January 27, 1989) to be codified at 1.7(d),

5.2(n\(4), 5.5(ay( GIA) and 5.5(ay(4)Gv) of title 29 of the

Code of Federal Regulations or to implement or administer

any other regulation that would have the same or similar

effect. ~

10

practices.’ Pet. App. 10a. Rather, the court noted,

under the new regulations “la]|ny federal project

employing the helper category will reflect either the

practice of contractors employing a majority of

journeymen in the locality or a majority of workers

engaged in relevant employment in a weighted

average locality.” Jd. at 10a-11a. Further, the court

rejected petitioner’s claim that using a supervision-

hased, rather than a task-based, definition of “help-

ers” would undermine the purposes of the Act by

allowing federal contractors to replace many higher-

paid journeymen with helpers; that claim, the court

explained, had been resolved against petitioners in

their earlier challenge to the 1982 regulations. Id. at

lla.

The court also found illusory petitioners’ con-

tention that the Secretary’s regulations would

“sweep|| ‘higher paid’ laborers into the category of

dower paid’ helpers.” Pet. App. 12a. First, the court

questioned whether semi-skilled helpers would nec-

essarily be paid less than unskilled or semi-skilled

laborers. Second, the court noted that the new

regulations would give full weight to the amount paid

to union laborers; a person classified by the union as a

laborer would count as a helper if he satisfied the

regulatory definition of “helper.” Hence, any “labor-

ers” who in substance served as helpers would have

their wage rates taken into account In the Sec-

retary’s determination of heipers’ prevailing wages.

Ibid. Accordingly, the court found the methodology

for determining when a helper classification 1s

“prevailing” to be consistent with the Davis-Bacon

Act and the APA.

1]

DISCUSSION

The decision of the court of appeals is correct, and

it does not conflict with the decision of any other

court of appeals or of this Court. Hence, further

review Is unwarranted.

1. a. The Davis-Bacon Act in relevant part re

quires that covered federal contracts “contain a

provision stating the minimum wages to be_ paid

various Classes of laborers and mechanics which shall

be based upon the wages that will be determined by

the Secretary of Labor to be prevailing for the

corresponding classes of laborers and mechanics” on

similar projects in the area. 40 U.S.C. 276a(a). Thus,

by its plain terms, “the statute delegates to the

Secretary, in the broadest terms imaginable, the

authority to determine which wages are prevailing.”

Pet. App. 24a. :

Where, as in Section 276a, Congress has made an

“expheit delegation of substantive authority,” the

Secretary's rules implementing the statutory terms

are “entitled to more than mere deference or weight,”

‘entrust[ed| to the Secretary,

rather than to the courts, the primary responsibility

for interpreting the statutory term|s].”) Schweiker vy.

Gray Panthers, 4583 U.S. 34, 44 (1981). In those

circumstances, “[a] reviewing court is not free to set

‘

hecause Congress has

aside [implementing] regulations simply because it

would have interpreted the statute in a different

way.” Batterton v. Francis, 482 U.S. 416, 425 (1977).

Rather, to prevail on judicial review, petitioners must

carry the heavy burden of showing that the reg

ulations bear no relationship to “any recognized

concept” of prevailing wages, that they would defeat

the purpose of the Davis-Bacon Act, or that they are

otherwise arbitrary, capricious, or contrary to law.

See id. at 426, 428; see also Pet. App. 29a (regulation

12

is subject to review to ensure that the Secretary “is

acting consistently with the purposes of the statute

and that his choice is not arbitrary”).”

The regulations at issue in this case cannot be

invalidated under that standard. In 1983, the court of

appeals upheld the Secretary’s regulation adopting

the present definition of “helper,” and this Court

denied further review. Building & Construction

Trade Dep't v. Donovan, 464 U.S, 1069 (1984). At the

same time, however, the court of appeals also found

that a helper classification could not be employed

unless its use was “prevailing” in the relevant

locality. Pet. App. 4la-44a. As the court explained, “if

a given lower paid job classification need only be

Gdentifiable’ in the community to be used on a

government construction site, the wages paid for

some work may well be less than those ‘prevailing’ for

that work in the community.” /d. at 42a. That, in

turn, would be contrary to the purposes of the Davis

Bacon Act. Id. at 44a.

In response to that decision, the Secretary in 1989

promulgated the present regulations, limiting the use

of helpers to federal projects in areas in which the use

of helpers is a “prevailing” practice. Thus, a helper

classifieation may be used only where it reflects the

practice of contractors who pay the prevailing rate to

the majority of journeymen in the area or who employ

a majority of skilled and cemi-skilled craft workers in

the locality. 29 C.R.LR. 1.7(d)q) and (2) (1991).

Gray Panthers involved a statutory provision leaving the

question of “availabfility |” of resources to he “determined in

accordance with standards prescribed by the Secretary.” 455

US. at 44 (emphasis omitted). In Batlerton, the Court inter

preted a statute providing that “unemployment” is to be

“determined in accordance with standards prescribed by the

Secretary.” 432 U.S. at 41% nz.

b. Petitioners contest the Secretary’s approach on

the ground that it allows the use of a helper

Classification where it is merely an “identifiable,” not

a “prevailing,” practice. Pet. 12. That contention,

however, is unsupported by the pertinent regulations,

which reasonably define the circumstances in which

the use of helpers is a “prevailing practice.” If there

is a single prevailing wage for journeymen—7.c., a

rate that is paid to a majority of the journeymen in an

areca the Secretary treats as “prevailing” the prac-

tice of the contractors whese rates define the

“prevailing” journeyman wage. 29 C.F UR. 1.7(d)(1).

Where a group of contractors sets the prevailing

practice for the wage rates of journeymen, there is no

reason Why the practices of that group should not also

be deemed “prevailing” when they concern the

classification for workers hired to assist those

journeymen. In the absence of any such “majority

wage,” moreover, the Secretary has reasonably deter-

mined that the “prevailing” practice should reflect

the practice of those contractors who employ a

majority of the skilled and semi-skiied workers in a

craft in the locality. See 29 CLLR. 1.7(d)(2).) While it

is true that there may be other ways to define

Whether a classification “prevails” in a locality, peti

tioners have not demonstrated why the Secretary's

definition of “prevailing” —which closely tracks the

method used to determine a “prevailing wage” (29

Col RR. 1.2¢a)(1))-—1s irrational,

etitioners counter, however, that the Secretary's

methodology is flawed because it does not take into

account “laborers,” who may be performing semi

skilled work under the supervision of journeymen, in

determining the prevailing practice. Pet. 12-14, 19-20.

But that contention misconstrues the substance of

the helper regulations, which ino fact take such

14

“aborers” into account. As the court of appeals (Pet.

App. 12a) and-the distriet: court (id. at 65a-67a)

recognized, the regulations define “helper” not in

terms of the label that the union or the employer

attaches to its workers, but in terms of the workers’

ckill level and degree of their SUperVISION; a “helper”

ic “a semi-skilled worker * ** who works under the

direction of and assists a journeyman.” 29 CPM.

5 Yn‘). There is nothing in the Act or implement

ing regulations to suggest that such workers, even If

the union denominates them “aborers.” are to be

exeluded in determining whether a helper classifica

tion is “prevailing” or what the “prevailing: wage” is

for helpers in a locality where the classification is

employed. See Pet. App. Pla da, 65a 66a."

© Petitioners also claim that the helper regula

tions violate the APA because the preamble to the

new regulations states that semi skilled) helpers

would only rarely displace unskilled laborers; that po

sition, petitioners claim, is an unsupported departure

from the Secretary’s past assumption that low: wire

1 Petitioners ela (Pret 19 ?O) that thie Secrelary: postion

that laborers may be counted merely a post hoe ratronaliza

tion for an otherwise invalid rule. The Seeretary’s position,

however, is fully evident from the definition of a “helper,”

which states without qualification that a “helper” is a sem

killed worker who works under a journeyrnan’s supervision

oy CF BR 524A). And while it is true that the preamble to

the new regulations notes that “for the most part, labores

clascifientions will not generally meet the definition set forth

for the helper classification,” 54 Med. Reg. at) 4,238, that

observation is not equivalent to the proposition that a “aborer

will not count as a “helper” af he does satisfy the regulatory

definition. Indeed, the Seeretary rejected one proposal

(advanced by petitioners) precisely because the avathability of a

helper classification would have turned on nomenclature or job

title a aeh. Thad

1!

helpers would replace higher-wage laborers. Pet. 15

19. The Secretary, however, has always assumed that

helpers would substitute primarily for journeymen.

When the Secretary initially promulgated the helper

regulations in 1982 and proposed the present regula

tions In 1987, the ayency’s estimates of cost savings

were based on alternative assumptions of substitution

for journeymen alone and substitution for journey

men and laborers. See 52 Fred. Reg. at 31368-31371;

7 bed. Reg. at 23,650-23,651. And in 1987 the Seere

tary predicted that the “[pfrineipal substitution i

likely to be for journeymen.” 52 led. Reg. at 31,370.

hollowing a review of approximately 2,000 comments

Gneluding some submitted by petitioners) in light of

the Department's enforcement experience under the

Act, the Secretary in 1989 concluded that) helpers

would not be likely to substitute for laborers in any

nificant degree, 54 led. Rep. at 4,254, 4,237-4,23%,

1242

To be sure, the Secretary acknowledged that unton

“laborer” rates may be higher than open shop

“helper? rates. 54 led. Rep. at 4,242. That does not

compel the conclusion, however, that) helpers will

widely replace laborers. Teirst, the primary incentive

Wil be to replace journeymen with helpers, since

Journeymen are routinely the highest paid workers.

Second, as the Secretary explained ino promulyating

‘

the present reyulations, “where the majority rate

prevails for the journeymen and union rates are

Ithus] found to be prevailing in the area, the decision

rule gs not Tikely to produce a finding of prevailing

helpers.” Ibid. And where there is no majority rate

and the weighted average method is used to determine

Whether to reeoynize a helper classification

16

typically in open shop or mixed areas’ —then semi

skilled helper rates will likely be above unskilled

laborer rates. Ibid. Where that is the case, “there

will be no economic incentive for contractors to

replace laborers with helpers.” [bid.®

Further, the district court: was correct in holding

(Pet. App. 67a) that “the analytical statement that

helpers will generally not substitute for laborers does

not affect the implementation of the regulation or its

rationale, and it therefore does not affect the validity

of the rule.” With respect to the cost saving rationale

for the revision, the Secretary had estimated that

cubstantial cost savings would result) whether

helpers substituted only for journeymen or for

journeymen and laborers. See 52 Fed. Reg. at 31,070.

In addition, the question whether helpers will in fact

replace laborers has no effect on the underlying

justification for the revisions adopted by the Secre

tary. As discussed, in’ the exercise of her broad

discretion to define “prevailing wages” under the

Davis-Bacon Act, the Secretary has devised a rational

and workable method for determining whether the

helper classification prevails ina particular area.

Kiven if petitioners were correct that this rule may

result in some substitution of lower-cost helpers for

As the Secretary explained, “[wlhere there is no ‘majority’

journeyman rate and the weighted average rule controls, then

it is likely that the projects surveyed will be predominantly

open shop or a mixture of open shop and union projects.” 54

ed. Reg. at 4,238.

6 We are advised by the Department of Labor that, in any

case, if a contractor classifies as “helpers” workers who do not

meet the “helper” definition, the workers Will be found to be

misclassified, and the contractor will be required to pay the

workers the difference between the rate paid and the

applicable rate for the work performed

1”

higher-cost union laborers, the Davis Bacon Act is

nol a guarantee of the most favorable possible wages;

it merely requires contractors on covered projects to

pay the wages “prevailing” in an area. 40° USC.

Z2l6a(a). Previously, federal wages on covered pro

jects, “rather than being below those in the private

sector, |were| tn some cases far above.” Pet. App. 52a.

sy recognizing: helper classifications where the use

of helpers is a prevailing: practice, the new rules

directly advance the statutory objective of seeing Chat

Lhe wages received by workers on covered federal

projects reflect current construction industry prac

tices in each geographic area,

2. In challenging the new helper regulations,

petitioners rely heavily (Pet. 20:30) upon the Dire

lsmergency Supplemental Apprepriations for Conse

quences of Operation Desert: Shield/Desert Storm,

Mood Stamps, Unemployment Compensation Adminis

tration, Veterans Compensation and Pensions and

Other Urgent Needs Act of 1991, Pub. i. No. 102 27,

39.308, 105 Stat. 151, whieh provides in pertinent part:

Notwithstanding any other provision of law, no

funds shall be expended by the Secretary of Labor

to implement or administer the regulations

published at) 54 Federal Reyister 4254 44) (Jan

uary 27, 19%9) to be codified at 1.7(d), 5.20n)(4),

DOA )GIMA) and 5.50a)A)Gv) of tithe 29 of the

Code of federal regulations or to implement or

administer any other regulation that would have

the same or similar effect.

Petitioners’ reliance, however, is misplaced. Consis

tent with settled principles governing the interpreta

tion of substantive riders to appropriations Acts, the

court of appeals correctly held that Seetion 308 only

barred the Seeretary from expending funds to

—

18

administer and implement the helper regulations

during Fiscal Year 1991—the year in which the

pertinent appropriations Act was in effect. Pet. App.

Ta-9a,

“Since an appropriation act is made for a particular

fiseal year, the starting presumption is that every-

thing contained in the act is effective only for the

year covered.” General Accounting Office, Princi-

ples of Federal Appropriations Law 2-29 (2d ed.

1991). Accordingly, a proviso contained in such an

Act is presumed not to be permanent unless Congress

has clearly expressed its intent to the contrary. As

Justice Story explained for the Court in 1841:

It- would be somewhat unusual, to find engrafted

upon an act making special and temporary app-

ropriations, any provision which was to have a

general and permanent application to all future

appropriations. Nor ought such an intention on

the part of the legislature to be presumed, unless

it is expressed in the most clear and positive

terms, and where the language admits of no other

reasonable interpretation,

Minis v. United States, 40 U.S. (15 Pet.) A423, 445

(1841): accord, United Stutes v. Vulte, 238 U.S. 509,

514-515 (1914); Chiles v. Thornburgh, 865 F.2d 1197,

1203-1204 (11th Cir. 1989). Here, the operative lan-

guage does nothing to indicate that Congress

intended the proviso to be permanent. Pet. App. 9a.

Jecause Congress has at its ready disposal well

established terms of art that convey futurity or

permanence, see, ¢.9., Cella v. United States, 208 F.2d

723. 790 (7th Cir. 1953) (“use of the word ‘hereafter’ by

Congress as a method of making legislation per-

manent is a well-known practice”), cert. denied, 347

U.S. 1016 (1954), the court of appeals was correct in

19

reading Congress's failure to include any language of

futurity or permanence as a strong indication that

the proviso was intended to expire with the appropria-

tion Act at the end of Fiseal Year 1991.'

Indeed, a supplemental appropriations bill passed by

the House of Representative on July 28, 1992, provides

that “no funds shall be expended hereafter by the

Secretary of Labor to implement or administer [the

helper regulations].” H.R. 5620, 102d Cong., 2d Sess.

§ 301 (1992). On September 15, 1992, the Senate also

passed H.R. 5620, including the permanent rider re-

lating to the helper regulations. See 138 Cong. Rec.

S13, 446 (daily ed.). That rider, however, was ulti-

mately deleted from the bill in response to a threat-

ened veto. See Daily Lab. Rep. (BNA) No. 185, at A-15

(Sept. 21, 1992); 138 Cong. Ree. S14, 027, 514,058-

$14,089 (daily ed. Sept. 18, 1992). Nevertheless, the

recent legislative action not only confirms that this

Congress knows how to use settled terms of art to

confer permanency on the appropriations bar at issue,

lt is true that the proviso at issue, as part of an emergency

supplemental appropriation bill, did not accompany the

Department of Labor appropriation to which it apphes—a

factor recognized as some indication of permanence (see /’rin

ciples of Federal Appropriations Law, supra, at 2-31 to 2-32).

Petitioners also cite (Pet. 26-27) scattered floor statements

suggesting that some Members of Congress understood the

rider to be permanent. However, the presence or absence of

words of futurity “remains the crucial factor, and [such]

additional factors have been used for the most part to support a

conclusion based on this presence or absence.” Principles of

Federal Appropriations Law, supra, at 2-383. The court of

appeals therefore properly declined either to infer “from the

absence of an appropriation standing alone that Congress

intended to impose a permanent ban,” or to allow petitioners to

use legislative history to “reconstruct” a statute whose lan-

guage contains no suggestion of futurity. Pet. App. 9a.

20

hut also that the political branches have focused

directly on the matter at issue here. In the absence of

any conflict among the court of appeals, further

review of the court of appeals’ decision is unwar-

ranted. *

CONCLUSION

The petition for a writ of certiorari should be

denied,

Respectfully submitted.

KENNETH W. STARR

Nolicitor General

STUART M. GERSON

Assistant Attorney General

ANTHONY J. STEINMEYER

ROBERT M. LOEB

Attorneys

SEPTEMBER 1992

« Petitioners also contend that che Departments of Labor,

Health and Human Services, and Isducation, and Related

Agencies Appropriations Act of 1992, Pub. L. No. 102-170, 105

Stat. 1107 (1991), supports a permanent bar against implement

ing the helper regulations. Pet. 27-30. Congress, however,

appropriated (105 Stat. 1110) $231 ,326,000 of unrestricted funds

for the Employment Standards Administration of the Depart

ment of Labor, which implements the Davis Bacon Act. While

the Act contains several provisions barring the Secretary from

expending funds on various matters, see §§ 102-104, 105 Stat.

1114. it did not restrict the ESA from spending any part of its

appropriation to implement the helper regulations. In the

absence of any such prohibition, the Secretary is free to spend

any part of the $231 million appropriated for that purpose. See

International Union, United Automobile Workers v. Donovan,

746 F.2d 855, 860-861 (D.C. Cir. 1984), cert. denied, 474 U.S.

R25 (1985).