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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2007 Decided November 23, 2007
No. 06-5305
ABHE & SVOBODA, INC.
APPELLANT
v.
ELAINE CHAO, SECRETARY,
UNITED STATES DEPARTMENT OF LABOR,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01973)
Maurice Baskin argued the cause and filed the briefs for
appellant.
Thomas R. Davies was on the brief for amicus curiae
Associated Builders and Contractors, Inc. in support of
appellant.
Benton G. Peterson, Assistant U.S. Attorney, argued the
2
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: SENTELLE and ROGERS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This appeal concerns four
challenges by a government contractor to the withholding of
contract payment for violation of the Davis-Bacon Act, 40
U.S.C. § 3141 et seq. Although the court lacks subject matter
jurisdiction to review challenges to the correctness of the
Secretary of Labor’s wage determinations under the Act, see
United States v. Binghamton Constr. Co., 347 U.S. 171, 177
(1954), we are aligned with our sister circuits in holding that we
have jurisdiction to review procedural challenges. We hold,
upon de novo review, that the district court correctly dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6) the
contractor’s claims of estoppel, failure to follow Department
regulations, and denial of due process by failing to give fair
consideration to the contractor’s challenges to the job
classification determination. However, because the court lacks
subject matter jurisdiction over the contractor’s claim that a
limited area practice survey was not supported by substantial
evidence, we dismiss that claim pursuant to Federal Rule of
Civil Procedure 12(b)(1). We affirm the grant of summary
judgment to the Secretary on the contractor’s claim that the
Department violated due process by failing to give fair notice of
the requirement to abide by local practices regarding job
classifications. Although the Secretary’s wage determination
did not expressly so state, administrative and judicial decisions
and the Act itself provided adequate notice to the Company,
particularly in light of Department regulations affording a means
3
of obtaining clarification of wage determinations and the job
classifications that they require.
I.
The Davis-Bacon Act is “a minimum wage law designed for
the benefit of construction workers,” Binghamton, 347 U.S. at
178, “‘protect[ing] local wage standards by preventing
contractors from basing their bids on wages lower than those
prevailing in the area,’” Univs. Research Ass’n v. Coutu, 450
U.S. 754, 773 (1981) (quoting H. COMM. ON EDUC. & LABOR,
87TH CONG., LEGISLATIVE HISTORY OF THE DAVIS-BACON ACT
1 (Comm. Print 1962)). The Act requires that covered
contractors pay employees “minimum wages . . . based on the
wages the Secretary of Labor determines to be prevailing for the
corresponding classes of laborers and mechanics employed on
projects of a character similar to the contract work in the civil
subdivision of the State in which the work is to be
performed . . . .” 40 U.S.C. § 3142(b). The Federal-Aid
Highway Act, which authorized the highway projects at issue,
provides that employees “shall be paid wages at rates not less
than those prevailing on the same type of work on similar
construction in the immediate locality as determined by the
Secretary of Labor” under the Davis-Bacon Act. 23 U.S.C. §
113(a).
Pursuant to the Department’s regulations, see 29 C.F.R. pts.
1, 5, 7, the function of issuing wage determinations is delegated
to the Administrator of the Wage and Hour Division. Id.
§ 1.1(a). The Administrator typically promulgates general wage
determinations at the county level, id. § 1.7(a), determining local
prevailing wages based, for example, on survey data of actual
wages paid or local collective bargaining agreements, see 40
U.S.C. § 3142(b); 29 C.F.R. § 1.3(b). A government agency,
including a State highway department, 29 C.F.R. § 1.2(d), need
4
not notify the Department before incorporating a general wage
determination into bid solicitations for a federally funded project
so long as “questions concerning its use shall be referred to the
Department of Labor . . . .” Id. § 1.5(a). While the wage
determinations may not include detailed information about the
duties covered by each job classification, the Department’s
regulations provide that “[a]ll questions relating to the
application and interpretation of wage determinations (including
the classifications therein) . . . shall be referred to the
Administrator for appropriate ruling or interpretation.” Id.
§ 5.13; see also Univs. Research Ass’n, 450 U.S. at 760-61.
Abhe & Svoboda, Inc. is a construction company primarily
engaged in the repair of large infrastructure, like bridges and
dams. In 1993 and 1994, the Company was the winning bidder
on three bridge repainting projects sponsored by the State of
Connecticut Department of Transportation (“CTDOT”).
Because the projects involved federal funding, CTDOT provided
the Company with a copy of general wage determinations that
listed applicable wages for all classifications of workers for
“Building Construction Projects” and “Heavy and Highway
Construction Projects” in the relevant counties. Under these
general wage determinations, the wages for painters, laborers,
and carpenters were each based on union collective bargaining
agreements; the relevant unions were noted in the wage
determinations by their initials.1 At least three of the wage
determinations provided to the Company expressly noted that an
“‘SU’ designation [not used for carpenters, laborers, or painters
1
For instance, the general wage determination includes the
initials PAIN0011C to indicate that wages for “Painters (Bridge
Construction)” were based on the wages established in a collective
bargaining agreement signed by District Council 11 of the
International Brotherhood of Painters and Allied Trades. See Decl. of
William Gross ¶ 6.
5
classifications] means that rates listed under that identifier do
not reflect collectively bargained wage and fringe benefit rates.
Other designations indicate unions whose rates have been
determined to be prevailing.” Further, the Company does not
contest that the wage determinations indicated that they were
based on collective bargaining agreements. Upon winning the
bid, the Company made inquiries of several other contractors
about the job classifications they had used on similar projects
but made no effort to contact the relevant unions noted in the
wage determinations. Based on these inquiries, its “nationwide
experience,” and its own “tools of the trade” analysis, the
Company determined that its employees functioned as painters,
laborers, and carpenters depending on the duties they performed
and paid them accordingly at different wage rates.
In 1996, the Wage and Hour Division began an
investigation of the Company’s classification practices,
conducting a “limited area practice survey” in accordance with
the “Field Operations Handbook” to determine the practice of
the union signatories to the collective bargaining agreements
that were the source of the wages included in the general wage
determinations. See Wage & Hour Division, Field Operations
Handbook, ch. 15, § 15f05 (1990), available at
www.dol.gov/esa/whd/foh.2 The Division contacted the unions
2
Chapter 15, § 15f05(c)(2) of the Field Operations Handbook
provides in pertinent part that:
If the applicable [wage determination] reflects union
rates for the classifications involved, the unions
whose jurisdiction the work may be within should be
contacted to determine whether the respective union
performed the work in question on similar projects in
the county in the period one year prior to the
beginning of construction of the project at issue. If
so, each union should be asked how the individuals
6
that represented the painters, laborers, and carpenters, as well as
the President of the Connecticut Construction Industries
Association. All agreed that the painters union claimed all work
performed on bridge painting projects. The Administrator found
that this was the area practice and, therefore, that the Company
had misclassified its employees when it had paid some of them
as laborers and carpenters. As the prime contractor, the
Company was subject to the withholding of contractual
payments of $1.3 million. See 40 U.S.C. § 3142(c)(3).
The Company requested review of the Administrator’s
findings, see 29 C.F.R. § 5.11(2), and, after a forty-nine day
hearing, an administrative law judge (“ALJ”) agreed that the
Company had misclassified its employees and rejected the
Company’s argument that the Department was equitably
estopped from seeking back wages. The Company appealed to
the Administrative Review Board (“ARB”), which upon de novo
review, see 5 U.S.C. § 557(b), affirmed the ALJ’s decision. In
the course of a 30-page discussion, the ARB rejected the
Company’s arguments that the ALJ’s decision should be set
aside because he had adopted the findings and conclusions of the
Administrator’s post-hearing brief virtually verbatim, and that
the Department had failed to provide adequate notice that all
employees on the bridge painting projects should be paid as
who performed that work were classified. . . . In
addition, the information provided by the unions
should be confirmed with collective bargaining
representatives of management (e.g., contractors’
associations such as local chapters of the Associated
General Contractors of America . . . ). If all parties
agree as to the proper classification for the work in
question, the area practice is established.
7
painters. The Company then sued the Secretary in federal
district court, alleging that the Department: (1) was estopped
from applying its wage determination regarding the scope of the
painters classification because CTDOT had approved of the
Company’s practice; (2) had violated the Company’s due
process right to fair consideration by affirming ALJ findings that
adopted the findings in the Administrator’s post-hearing brief;
(3) had failed to provide fair notice of the requirement that the
Company classify its employees according to union practice;
and (4) had conducted the limited area practice survey in an
arbitrary and capricious manner by failing to include non-union
contractors and by making findings that were not supported by
substantial evidence. The district court dismissed the claims
pursuant to Rule 12(b)(6) for failure to state a claim except for
the fair-notice claim, on which it granted summary judgment for
the Secretary. The Company appeals.
II.
As a threshold matter, the Secretary contends that under
Binghamton, the court lacks subject matter jurisdiction over the
three claims that were dismissed by the district court. While not
analyzing the issue as one of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1), the district court ruled
that Binghamton disallows three of the Company’s claims
because the complaint made a “substantive demand for relief,”
seeking to have the court order the Secretary to release $1.3
million in withheld payments. We agree with the Secretary that
the Binghamton bar should be analyzed through the lens of
subject matter jurisdiction, see Mistick PBT v. Chao, 440 F.3d
503, 505 (D.C. Cir. 2006), and hold that the court has subject
matter jurisdiction over the Company’s procedural claims,
notwithstanding the type of relief sought.
Consistent with the grant of jurisdiction to federal courts
8
over claims “arising under” federal law, 28 U.S.C. § 1331, “only
upon a showing of ‘clear and convincing evidence’ of a contrary
legislative intent should the courts restrict access to judicial
review,” Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)
(quoting Rusk v. Cort, 369 U.S. 367, 379-380 (1962)),
abrogated on other grounds by Califano v. Sanders, 430 U.S.
99, 105 (1977). The Davis-Bacon Act provides that the
minimum wages federal contractors pay their employees “shall
be based on the wages the Secretary of Labor determines to be
prevailing . . . .” 40 U.S.C. § 3142(b). In Binghamton, the
Supreme Court held that Congress intended the Act to preclude
judicial review of wage determinations, stating that the Act
“direct[s] the Secretary of Labor to determine, on the basis of
prevailing rates in the locality, the appropriate minimum wages
for each project. The correctness of the Secretary’s
determination is not open to attack on judicial review.” 347
U.S. at 177.
In light of the “clear and convincing evidence” requirement
of Abbott Laboratories, the Binghamton bar should be narrowly
drawn to shield only the substance of wage determinations from
judicial review, the contents of which the Act entrusts to the
Secretary alone. This court has held that under Binghamton the
court retains subject matter jurisdiction over Department
regulations interpreting the scope of the Davis-Bacon Act, see
Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d 1447 (D.C. Cir.
1994), and the Department’s application of its conformance
procedures, see Mistick, 440 F.3d 503. We now join our sister
circuits in holding that Binghamton does not limit the court’s
jurisdiction over procedural challenges to wage determinations
themselves. See N. Ga. Bldg. & Constr. Trades Council v.
Goldschmidt, 621 F.2d 697, 707-08 (5th Cir. 1980); Fry
Brothers Corp. v. HUD, 614 F.2d 732, 733 (10th Cir. 1980) (per
curiam); Virginia ex rel. Comm’r, Dep’t of Transp. v. Marshall,
599 F.2d 588, 592 (4th Cir. 1979). We hold that the court has
9
subject matter jurisdiction over the Company’s estoppel claim
because it does not challenge the correctness of the
Department’s determination of the local practice of classifying
the duties of painters but rather whether that determination can
be applied in light of the Company’s asserted reliance on
CTDOT approval of its practice. Likewise, the court has
jurisdiction over the Company’s Administrative Procedure Act
(“APA”) claim that the Wage and Hour Division failed to follow
Department regulations in conducting the limited area practice
survey and its two due process claims that the Department failed
to provide fair consideration of the Company’s arguments or fair
notice of the job classifications. The fact that the Company
seeks release of the $1.3 million withheld from its contract
payment does not convert these procedural claims into a
substantive attack on the wage determinations; not only does the
complaint seek “any such other and further relief as [the] Court
deems proper,” but a prayer for substantive relief does not
automatically transform a claim challenging procedure into one
challenging substance. Cf. Gen. Elec. Co. v. EPA, 53 F.3d 1324,
1328-29 (1995).
However, we hold that the court lacks subject matter
jurisdiction over the Company’s claim that the findings in the
limited area practice survey that determined the locally
prevailing practice of classifying jobs are not supported by
substantial evidence because this represents a challenge to the
substantive correctness of the Secretary’s wage determinations.
Wage determinations implicitly include the locally prevailing
practice of classifying jobs. See Fry Brothers, 614 F.2d at 733-
34; Framlau Corp. v. Dembling, 360 F. Supp. 806, 809 (E.D. Pa.
1973); cf. United States ex rel. Plumbers & Steamfitters Local
Union No. 38 v. C.W. Roen Constr. Co., 183 F.3d 1088, 1093-94
(9th Cir. 1999). Where collective bargaining agreements form
the basis of wage determinations, the practice of local signatory
unions is conclusive under Department precedent. See Fry
10
Brothers Corp., WAB Case No. 76-6, 1977 WL 14823 at *6
(1977); see also Field Operations Handbook, ch. 15, § 15f02.
Thus, the challenge to the substance of the Secretary’s
determination of the proper job classifications of the Company’s
employees runs afoul of the Binghamton bar and must be
dismissed pursuant to Rule 12(b)(1).
III.
Turning to the merits of the Company’s claims over which
the court has jurisdiction, this court reviews de novo both the
dismissal of a claim pursuant to Rule 12(b)(6) and the grant of
summary judgment. See Wilson v. Pena, 79 F.3d 154, 160 n.1
(D.C. Cir. 1996). “In determining whether a complaint states a
claim, the court may consider the facts alleged in the complaint,
documents attached thereto or incorporated therein, and matters
of which it may take judicial notice.” Stewart v. Nat’l Educ.
Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006). Three of the
Company’s claims can be readily rejected for failure to state a
claim; only its claim involving fair notice requires extended
discussion.
The Company’s estoppel claim is that CTDOT “officials
followed a deliberate course of conduct, on which [the
Company] . . . relied, by affirmatively stating that various
workers on the projects were properly classified as laborers
and/or carpenters.” Compl. ¶ 24. Even assuming principles of
equitable estoppel could be applied against the federal
government as an affirmative claim, see Heckler v. Cmty. Health
Servs., 467 U.S. 51, 60 (1984); ATC Petroleum, Inc. v. Sanders,
860 F.2d 1104, 1111-13 (D.C. Cir. 1988), the alleged
independent actions of a state government agency fail to
demonstrate “affirmative misconduct” by the federal
government, Heckler, 467 U.S. at 67 (Rehnquist, J., concurring)
(quoting INS v. Hibi, 414 U.S. 5, 8 (1973)). Therefore, this
11
claim was properly dismissed pursuant to Rule 12(b)(6). The
Company’s claim that the ARB violated its due process rights by
affirming an ALJ decision that adopted the findings and
conclusions of the Administrator’s post-hearing brief is contrary
to relevant precedent, see, e.g., United States v. El Paso Nat’l
Gas Co., 376 U.S. 651, 656 (1964), and ignores the fact that it
is the ARB’s decision, which reviewed the ALJ’s decision de
novo and discussed each of the Company’s arguments, that is
before the court. A Rule 12(b)(6) dismissal of this claim was
therefore also appropriate. And in claiming that it was arbitrary
and capricious and contrary to Department regulations to rely on
an area practice survey limited to one segment of the industry,
the Company cannot deny that, under Department precedent,
where a wage determination is based on a collective bargaining
agreement, the proper classification of employees is determined
exclusively by the practices of the signatory unions. See Fry
Brothers, WAB Case No. 76-6; Field Operations Handbook, ch.
15, § 15f05(c)(2). The Company neither identifies a regulation
to the contrary nor disputes that the relevant wage
determinations indicate that the wages for carpenters, laborers,
and painters were based on collective bargaining agreements.
The wage determinations are “public records subject to judicial
notice on a motion to dismiss.” Kaempe v. Myers, 367 F.3d 958,
965 (D.C. Cir. 2004). Because they rely on collective
bargaining agreements, only the practice of the signatory unions
was relevant to the Department’s investigation, and therefore
this claim was properly dismissed pursuant to Rule 12(b)(6).
The Company’s fair notice claim is not so readily disposed
of. Because the general wage determinations did not indicate
the proper method of classifying employees, the Company
contends that the Department failed to provide fair notice that it
had to pay its employees at the painter’s wage, rather than the
carpenter or laborer wage, or that it had a legal obligation to
base its job classifications on locally prevailing union practice.
12
The Company maintains that the Department’s application of an
unstated requirement violates the Due Process Clause under
which a regulation must provide “fair warning of the conduct it
prohibits or requires” before “penal sanctions” can be applied.
Gates & Fox Co. v. OSHA, 790 F.2d 154, 156 (D.C. Cir. 1986);
see Satellite Broad. Co. v. FCC, 824 F.2d 1 (D.C. Cir. 1987).
As the court observed in General Electric, “[i]n the absence of
notice — for example, where the regulation is not sufficiently
clear to warn a party about what is expected of it — an agency
may not deprive a party of property by imposing civil or
criminal liability.” 53 F.3d at 1328-29. However, the fact that
the wage determination did not itself explain that the Company
had to base its job classification on the practice of the relevant
unions does not end the inquiry. “[P]arties dealing with the
government ‘are expected to know the law,’” ATC Petroleum,
860 F.2d at 1111 (quoting Heckler, 467 U.S. at 63), and “there
is no grave injustice in holding parties to a reasonable
knowledge of the law,” id. at 1112. Existing administrative and
judicial decisions and the Davis-Bacon Act itself put the
Company on fair notice of what was required.
The first source of notice to the Company is the decision by
the Wage Appeals Board (“WAB”), the predecessor to the ARB,
in Fry Brothers. While this case is not officially published, its
inclusion in a commercial reporter and its treatment in
subsequent judicial and administrative cases provide adequate
notice that contractors must use the job classifications of
signatory unions when wage determinations are based on
collective bargaining agreements. In Fry Brothers, WAB Case
No. 76-6, at *6, the WAB explained:
If a construction contractor who is not bound by the
classifications of work at which the majority of
employees in the area are working is free to classify or
reclassify, grade or subgrade traditional craft work as
13
he wishes, such a contractor can, with respect to wage
rates, take almost any job away from the group of
contractors and the employees who work for them who
have established the locality wage standard. There will
be little left to the Davis-Bacon Act. Under the
circumstances that the Assistant Secretary determined
that the wage determinations that had been issued
reflected the prevailing wage in the organized sector it
does not make any difference at all what the practice
may have been for those contractors who do and pay
what they wish.
The WAB therefore found that the contractor had misclassified
its workers by failing to follow the practice of the local unions.
Id. at *5.
Fry Brothers was included in Labor Law Reports, a weekly
newsletter published by Commerce Clearing House that
identifies new developments in labor law. See CCH Online
Store, http://onlinestore.cch.com (follow “Business and
Corporate” hyperlink; then follow “Employment Law”
hyperlink). It was subsequently upheld by the Tenth Circuit,
614 F.2d 732, which does not fully explain the WAB’s decision,
but does indicate that Fry Brothers involved a dispute about the
“wage scale required for a certain group of workers,” id. at 732,
thus providing public notice of the relevance of this decision to
the determination of job classifications. Further, the relevant
portion of Fry Brothers was quoted at length in Building &
Construction Trades’ Department v. Donovan, 543 F. Supp.
1282, 1285 (D.D.C. 1982).3 The same passage was again quoted
3
The passage quoted is:
If a construction contractor who is not bound by the
classifications of work at which the majority of
14
in Tele-Sentry Security, Inc. v. Secretary of Labor, No. 90-0912,
1991 WL 178135, at *4 (D.D.C. Aug. 30, 1991), an unpublished
decision that was included in Labor Law Reports, 119 Lab. Cas.
P. 35,534, and Government Contracts Reports, 37 Cont. Cas.
Fed. P. 76,166. Additionally, the Department has incorporated
the principle of Fry Brothers into Chapter 15, § 15f05(c)(2) of
its publically available Field Operations Handbook. See also id.
at ch. 15, § 15f05(b). Fry Brothers was also frequently relied on
by the WAB prior to 1993, including in four opinions in 1991
and 1992, the two years immediately prior to the Company’s
submission of its bids.4 As a Company admittedly engaged in
hundreds of government contracts requiring Davis-Bacon Act
compliance, it follows that the Company should have known
about the requirement first enunciated in Fry Brothers and
incorporated into a broad array of administrative and judicial
decisions.
The Davis-Bacon Act also should have alerted the Company
to the fact that it could not apply its own methodology of
employees in the area are working is free to classify
or reclassify, grade or subgrade traditional craft work
as he wishes, such a contractor can, with respect to
wage rates, take almost any job away from the group
of contractors and the employees who work for them
who have established the locality wage standard.
There will be little left of the Davis-Bacon Act.
543 F. Supp. at 1285.
4
Miller Insulation Co., WAB Case No. 91-38, 1992 WL
515931, at *5 (Dec. 30, 1992); Iron Workers II, WAB Case No. 90-26,
1992 WL 465692, *2-6 (Mar. 20, 1992); More Drywall, Inc., WAB
Case No. 90-20, 1991 WL 494732, at *1-2 (Apr. 29, 1991); Van Den
Heuvel Elect., Inc., WAB Case No. 91-03, 1991 WL 523862, at *3
(Feb. 13, 1991) (Rothman, Senior Member, dissenting).
15
classifying jobs. From start to finish, the focus of the Act is on
local practice. The Act protects the wages “prevailing on the
same type of work on similar construction in the immediate
locality . . . .” 23 U.S.C. § 113(a). Long before the contracts at
issue, the court invalidated Department regulations that
permitted employers to use job classifications that deviated from
those locally prevailing. See Bldg. & Constr. Trades’ Dep’t v.
Donovan, 712 F.2d 611, 624 (D.C. Cir. 1983). The Company’s
inquiries of other contractors indicate that it knew that local
practice was relevant to classifying its employees. However, the
Company did not fulfill its obligations. As the ARB observed:
[a]lthough [the Company president] professed to be
fully conversant with [Davis-Bacon and related
statutes], wage determinations and the concept of
prevailing wages, . . . he failed to accept the actual
governing principle in [Davis-Bacon and related
statutes] classification cases: the rate to be paid for
particular tasks is the rate found to be prevailing in the
locality for that work, regardless of which tools the
workers were using.
The Company’s position that it has a right to apply its own
job classifications based on a national “tools of the trade”
analysis, on which it claimed to have relied in over 500
government contract jobs across the country, see Appellant’s Br.
at 10-11, is inconsistent with the fundamental principle of the
Davis-Bacon Act that local practice should control government
contracts. The Department’s regulations further underscore that
contractors do not have the authority to determine the scope of
job classifications based on their own methodologies, providing
a means for contractors to obtain clarification from the
Department about the proper scope of jobs under wage
determinations. 29 C.F.R. § 5.13; see also Univs. Research
Ass’n, 450 U.S. at 760-61.
16
In the face of Fry Brothers and its progeny, and the purpose
of the Davis-Bacon Act, the Company urges the court to
construe Fry Brothers narrowly to require only that contractors
abide by known union practices. Here, the relevant union
signatories were noted in the wage determinations and although
the Department might have provided more explicit guidance that
would have further forestalled a fair notice challenge, a
company engaged in work subject to the Davis-Bacon Act
cannot reasonably ignore the obvious. The Company offers no
explanation for not contacting the relevant unions or inquiring
of the Department if it was unclear about the local practices for
classifying jobs. In any event, the discussion in Fry Brothers
and the principle that underlies it do not suggest that federal
contractors may exercise less than a reasonable effort to
determine the practice of signatory unions when wage
determinations are based on collective bargaining agreements.
Whatever might be the legal effect where a signatory union
stonewalls an inquiring federal contractor, the Company made
no effort to ascertain the practices of the unions noted in the
wage determination. The objection by amicus Associated
Builders & Contractors, Inc. that the Department places too
onerous a burden on federal contractors because “they cannot
break through the union wall to adequately and clearly
determine their invariably unwritten practices and rules,”
Amicus Br. at 13, therefore rings hollow and ignores the
administrative channel for clarification provided by the
Department’s regulations in 29 C.F.R. § 5.13.
Accordingly, we affirm the grant of summary judgment to
the Secretary on the fair notice claim and we affirm the
judgment of dismissal pursuant to Rule 12(b)(6) of the other
claims except for the substantial evidence challenge, which we
dismiss pursuant to Rule 12(b)(1).