United Government Security Officers of America, International Union v. Chao et al

MOTION to Dismiss for Lack of Jurisdiction

D.D.C.May 21, 2007

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In Re: UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA, LOCAL NO.52, et al, Plaintiff, v. ELAINE CHAO, Secretary U.S. Department of Labor, et al, Defendant. Case No. 1:07CV00173-CKK Defendant USProtect Corporation’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim upon which Relief Can Be Granted Pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure, Defendant USProtect Corporation1 (“USProtect”), through the undersigned counsel, respectfully requests dismissal with prejudice of all claims against it because this Court lacks subject matter jurisdiction over the Complaint (at least with respect to USProtect) and the Complaint fails to state a claim upon which relief can be granted (at least with respect to USProtect). Specifically, this action is brought pursuant to the writ of mandamus statute at 28 U.S.C. § 1361; however, that law only grants the Court the right to issue a writ of mandamus against officers of the United States, which USProtect is not. Also, the Court does not have subject matter jurisdiction vis-à- vis USProtect because the Complaint is an improper attempt to bring a private enforcement action under the Service Contract Act, 41 U.S.C. § 351 et seq. (“SCA”), when it is well established that there is no private right of action under the SCA. Finally, the Complaint attempts to enforce directly against USProtect an order issued by a U.S. Department of Labor 1 The Defendant is incorrectly identified in the Complaint as “U.S. Protect, Inc.” Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 1 of 13 -2- (“DOL”) Administrative Law Judge (“ALJ”) against the DOL itself, despite the fact that USProtect was not a party to the underlying ALJ proceeding and is not subject to the ALJ order. A Memorandum of Points and Authorities in support of the foregoing motion is attached. Respectfully submitted, EPSTEIN BECKER & GREEN, P.C. /s/ Shlomo D. Katz Shlomo D. Katz (D.C. Bar No. 436030) Daniel B. Abrahams (D.C. Bar No. 375334) 1227 25th Street, N.W. Suite 700 Washington, D.C. 20037 (202) 861-1809 Facsimile (202) 861-3509 skatz@ebglaw.com Counsel to Defendant USProtect Corporation Dated: May 21, 2007 Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 2 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In Re: UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA, LOCAL NO.52, et al, Plaintiff, v. ELAINE CHAO, Secretary U.S. Department of Labor, et al, Defendant. Case No. 1:07CV00173-CKK Defendant USProtect Corporation’s Memorandum of Points and Authorities in Support of its Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim upon which Relief Can Be Granted Respectfully submitted, EPSTEIN BECKER & GREEN, P.C. /s/ Shlomo D. Katz Shlomo D. Katz (D.C. Bar No. 436030) Daniel B. Abrahams (D.C. Bar No. 375334) 1227 25th Street, N.W. Suite 700 Washington, D.C. 20037 (202) 861-1809 Facsimile (202) 861-3509 skatz@ebglaw.com Counsel to Defendant USProtect Corporation Dated: May 21, 2007 Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 3 of 13 -ii- TABLE OF AUTHORITIES Cases *Danielsen v. Burnside-OTT Aviation Training Center, Inc., 941 F.2d 1220 (D.C. Cir. 1991) ............................................................................................................. 3, 4 Carman v. Richardson et al., 357 F. Supp. 1148 (D. Vt. 1973) ................................................... 3 Cartier v. Secretary of State, 506 F.2d 191 (D.C. Cir. 1974) ....................................................... 3 Danielson v. Dole, 746 F. Supp. 160 (D.D.C. 1990) .................................................................... 3 District Lodge No. 166, Int’l Ass’n of Mach. v. TWA, 731 F.2d 711 (11th Cir. 1984) ................................................................................................................................... 4 International Association of Machinists & Aerospace Workers v. Hodgson, 515 F.2d 373 (D.C. Cir. 1975).................................................................................................. 4 Miscellaneous Service Workers, etc. v. Philco-Ford Corp., 661 F.2d 776 (9th Cir. 1981) ........................................................................................................................... 4 Statutes 28 U.S.C. § 1361..................................................................................................................... 1, 2, 3 41 U.S.C. § 351 et seq .................................................................................................................... 1 41 U.S.C. § 354............................................................................................................................... 3 Regulations 29 C.F.R. § 4.3 ........................................................................................................................... 1, 5 Federal Acquisition Regulation § 22.1007 (48 C.F.R. § 22.1007) ............................................. 5 Federal Acquisition Regulation § 52.222-43(d) (48 C.F.R. § 52.222-43(d))............................. 5 Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 4 of 13 Introduction The United Government Security Officers of America, International Union and its Local No. 52 (collectively, the “Unions”) brought this action seeking a writ of mandamus pursuant to 28 U.S.C. § 1361 to compel certain U.S. Government officials and agencies to comply with the March 7, 2006 Decision and Order of a U.S. Department of Labor (“DOL”) Administrative Law Judge (“ALJ”) in Case No. 2006-CBV-0002 (hereinafter, the “ALJ Order”). Complaint, Introduction. The Unions also are seeking a writ of mandamus against Defendant USProtect Corporation2 (“USProtect”) to enforce the same ALJ Order. Id. The underlying ALJ Order was issued in a proceeding concerning the payment of wages under the Service Contract Act, 41 U.S.C. § 351 et seq. Complaint ¶ 4.3 The ALJ Order stated that: Pursuant to the provisions of 29 C.F.R. § 4.163(c), the Administrator of the Department of Labor’s Wage and Hour Division is hereby directed to promptly issue a new wage determination in accordance with this Decision and Order. Complaint ¶ 8. The only party directed by the ALJ Order to take any action as a result of that order is the Administrator of the Department of Labor’s Wage and Hour Division. Id. And, the Administrator, has been named a defendant in this action. Complaint, Introduction. In contrast, USProtect was not even a party to the underlying ALJ proceeding or to the ALJ Order. See ALJ Order, at 1. (The ALJ Order, which may be found at http://www.oalj.dol.gov/Decisions/ALJ/ CBV/2006/WAGE_and_HOUR_DIVISI_v_US_PROTECT_INC_and_U_2006CBV00002_(MA R_07_2006)_134836_CADEC_SD.PDF, is a public record of which the Court may take judicial 2 The Defendant is incorrectly identified in the Complaint as “U.S. Protect, Inc.” 3 The SCA requires DOL to issue documents called “wage determinations” which specify the wages and fringe benefits to be paid to workers on U.S. Government service contracts. See Complaint ¶ 15 and see generally 29 C.F.R. § 4.3. Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 5 of 13 -2- notice.) And, although the Unions allege in paragraph 9 of its complaint that USProtect did not appeal the ALJ’s decision, the Unions do not allege that USProtect even knew of the ALJ’s decision. In fact, since USProtect was not a party to the ALJ proceeding, it was not even served with a copy of the ALJ Order. For the reasons stated below, USProtect, through the undersigned counsel, now moves for dismissal of the action with respect to USProtect and respectfully submits this memorandum of points and authorities in support of that motion. As discussed in greater detail below, the Complaint against USProtect should be dismissed for three reasons. First, the Court does not have subject matter jurisdiction to issue a writ of mandamus against USProtect pursuant to 28 U.S.C. § 1361. That law only grants the Court the right to issue a writ of mandamus against officers of the United States, which USProtect is not. Second, the Complaint is an improper attempt to bring a private enforcement action under the SCA. In fact, it is well established that there is no private right of action under the SCA. Finally, the Complaint attempts to enforce the ALJ Order directly against USProtect despite the fact that USProtect was not a party to the underlying ALJ proceeding and was not subject to the ALJ Order. Discussion I. THE COURT LACKS SUBJECT MATTER JURISDICTION OVER THE COMPLAINT WITH RESPECT TO USPROTECT A. A writ of mandamus may be obtained only against an Officer of the United States, and USProtect is not an Officer of the United States. The Unions have brought this action pursuant to 28 U.S.C. § 1361. Complaint ¶ 1. That statute provides: Action to Compel an Officer of the United States to Perform His Duty: The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 6 of 13 -3- of the United States or any agency thereof to perform a duty owed to the plaintiff. “It is well established that mandamus is an extraordinary remedy to be utilized only in the clearest and most compelling cases.” Danielson v. Dole, 746 F. Supp. 160, 166 (D.D.C. 1990) (citing Cartier v. Secretary of State, 506 F.2d 191, 199 (D.C. Cir. 1974)), affirmed Danielsen v. Burnside-OTT Aviation Training Center, Inc., 941 F.2d 1220 (D.C. Cir. 1991). Under the federal mandamus statute, jurisdiction “is limited to compelling a Government official or agency to perform a duty owed to the plaintiff[.]” Id. USProtect, as a private corporation, is not an officer of the United States and is not subject to a writ of mandamus under 28 U.S.C. § 1361. See Carman v. Richardson et al., 357 F. Supp. 1148, 1157 (D. Vt. 1973).4 Therefore, the Complaint against USProtect should be dismissed for lack of subject matter jurisdiction. B. The Complaint is an improper attempt to bring a private action to enforce the Service Contract Act, a statute which does not provide for a private cause of action. The Unions’ action is, in effect, an action for higher wages and/or for wage underpayments. However, 41 U.S.C. § 354(b) makes clear that only the Government may bring suit against a contractor for wage underpayments. Thus, in Danielsen v. Burnside-OTT Aviation Training Center, supra, the Court of Appeals dismissed two actions by employees under a Government service contract for wage underpayments, one of which sought the issuance of writs of mandamus to the Secretaries of Labor and the Navy. In dismissing the suits, this Court’s appellate tribunal explained that “the implication of a private right under the SCA would undercut the specific remedy prescribed by Congress.” 941 F.2d at 1228. Thus, federal court actions for wage underpayments can only be brought under the SCA and only by the 4 Also, nothing in the Complaint suggests that USProtect owes any duties to the plaintiffs in this case. Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 7 of 13 -4- Government, since that employees do not have a private right of action under the SCA. See also Miscellaneous Service Workers, etc. v. Philco-Ford Corp., 661 F.2d 776 (9th Cir. 1981) (cited with approval and followed in Danielsen v. Burnside-OTT Aviation Training Center). Likewise, in District Lodge No. 166, Int’l Ass’n of Mach. v. TWA, 731 F.2d 711 (11th Cir. 1984), an employee representative alleged that the Labor Department and the contracting officer had abdicated their responsibilities by failing to issue wage determinations. The plaintiffs sought to compel DOL to issue wage determinations and to enforce them retroactively. Again, the court found that there is no private right of action to enforce the SCA. In International Association of Machinists & Aerospace Workers v. Hodgson, 515 F.2d 373 (D.C. Cir. 1975), a union brought an action challenging the decision of the Secretary of Labor not to issue wage determinations for a particular project pursuant to the SCA and seeking to recover damages from a contractor which had entered a contract with the National Aeronautics and Space Administration without such a wage determination. The D.C. Circuit affirmed the District Court's dismissal of that action in part “because the Act does not provide such a remedy.” Id. at 379. In so doing, the Court noted that Congress had amended the SCA in 1972 to restrict the Secretary of Labor's discretion not to issue a wage determination, but that those amendments did “not create new remedies against contractors.” Id. at 379 n. 9. Like the present case, the International Association of Machinists & Aerospace Workers case involved allegations of non-determination of wages, and, in that case, the Court found that there was no statutory private remedy. For this reason also, the Complaint against USProtect should be dismissed with prejudice for lack of subject matter jurisdiction. Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 8 of 13 -5- II. THE COMPLAINT AGAINST USPROTECT SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED The Unions’ request for relief fails to state a claim upon which relief may be granted insofar as it seeks to force USProtect to comply with the ALJ Order. As noted above, the ALJ Order was directed at the Administrator of the Department of Labor’s Wage and Hour Division. Complaint ¶ 8. The ALJ Order was not directed against USProtect. Id. The Unions assert in their Complaint that USProtect has an independent duty to comply with the ALJ Order. Complaint ¶¶ 17, 21. However, that is clearly incorrect. USProtect’s duty under the SCA is to pay the wages and fringe benefits specified in a wage determination issued by DOL and incorporated into USProtect’s contract by the cognizant U.S. Government contracting officer. 29 C.F.R. §4.3(b) (“The wage rates and fringe benefits so determined for any class of service employees to be engaged in furnishing covered contract services in a locality shall be made applicable by contract to all service employees of such class employed to perform such services in the locality under any contract . . .”) (emphasis added). See also Federal Acquisition Regulation (“FAR”) § 22.1007 (48 C.F.R. § 22.1007) (“The contracting officer shall obtain wage determinations . . .”). USProtect, as a private party, cannot issue wage determinations; rather, as the ALJ found, that is the responsibility of the Administrator of the Wage and Hour Division. 29 C.F.R. § 4.3(a). And, USProtect does not decide what wage determination will be in the contract. USProtect is nothing more than an innocent bystander to this dispute between the Unions, on the one hand, and the Departments of Labor and Homeland Security, on the other hand. USProtect takes no position in that dispute, nor does it need to, since the Federal Acquisition Regulation protects USProtect’s rights in the event that DOL and the contracting officer order USProtect to pay higher wages. See FAR § 52.222-43(d) (48 C.F.R. § 52.222-43(d)). Perhaps Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 9 of 13 -6- that is why the law dictates that USProtect be left out of this litigation, as reflected in the ALJ Order which did not include any directive to USProtect. Conclusion For the foregoing reasons, the Complaint against USProtect should be dismissed with prejudice. Respectfully submitted, EPSTEIN BECKER & GREEN, P.C. /s/ Shlomo D. Katz Shlomo D. Katz (D.C. Bar No. 436030) Daniel B. Abrahams (D.C. Bar No. 375334) 1227 25th Street, N.W. Suite 700 Washington, D.C. 20037 (202) 861-1809 Facsimile (202) 861-3509 skatz@ebglaw.com Counsel to Defendant USProtect Corporation Dated: May 21, 2007 Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 10 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In Re: UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA, LOCAL NO.52, et al, Plaintiff, v. ELAINE CHAO, Secretary U.S. Department of Labor, et al, Defendant. Case No. 1:07CV00173-CKK Certificate required by LCvR 7.1 of the Local Rules of the United States District Court for the District of Columbia I, the undersigned, counsel of record for USProtect Corporation, certify that to the best of my knowledge and belief, the following are parent companies, subsidiaries or affiliates of USProtect Corporation which have any outstanding securities in the hands of the public: NONE. Respectfully submitted, EPSTEIN BECKER & GREEN, P.C. /s/ Shlomo D. Katz Shlomo D. Katz (D.C. Bar No. 436030) Daniel B. Abrahams (D.C. Bar No. 375334) 1227 25th Street, N.W. Suite 700 Washington, D.C. 20037 (202) 861-1809 Facsimile (202) 861-3509 skatz@ebglaw.com Counsel to Defendant USProtect Corporation Dated: May 21, 2007 Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 11 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In Re: UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA, LOCAL NO.52, et al, Plaintiff, v. ELAINE CHAO, Secretary U.S. Department of Labor, et al, Defendant. Case No. 1:07CV00173-CKK Order THIS COURT having considered Defendant USProtect Corporation’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim upon which Relief Can Be Granted and any opposition(s) thereto, it is hereby ORDERED that the Complaint against Defendant USProtect Corporation is dismissed with prejudice. _______________________________ Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 12 of 13 -2- Copies to: Shlomo D. Katz Daniel B. Abrahams 1227 25th Street, N.W. Suite 700 Washington, D.C. 20037 skatz@ebglaw.com Leslie Deak Law Offices of Leslie Deak 1200 G Street, N.W. Suite 800, No. 099 Washington D.C. 20005 deaklaw@comcast.net Hon. Elaine Chao Secretary, U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, D.C. 20210 Hon. Paul DeCamp Administrator, Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, D.C. 20210 Hon. Michael Chertoff Secretary, U.S. Department of Homeland Security Washington, D.C. 20528 Hon. Paul R. Durette Acting Director Federal Protective Service U.S. Department of Homeland Security Washington, D.C. 20528 Case 1:07-cv-00173-CKK Document 4 Filed 05/21/2007 Page 13 of 13