Nevada Chapter of the Associated General Contractors of America, Inc. v. Walsh

• Court: District Court, D. Nevada
• Decided: August 11, 2022
• Docket: 3:21-cv-00430
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 NEVADA CHAPTER OF THE Case No. 3:21-cv-00430-MMD-CLB ASSOCIATED GENERAL 7 CONTRACTORS OF AMERICA, ORDER INC., et al., 8 Plaintiffs, 9 v.

10 MARTY WALSH, Secretary of the United States Department 11 of Labor,

12 Defendant.

13 14 I. SUMMARY 15 Plaintiffs the Nevada Chapter of the Associated General Contractors of America, 16 Inc. (“AGC”), Associated Builders and Contractors Nevada Chapter, and the Nevada 17 Trucking Association (together, “Plaintiffs”) bring this action against Defendant Marty 18 Walsh, in his official capacity as Secretary of the United States Department of Labor. 19 Plaintiffs seek judicial review of the Administrative Review Board’s (“ARB” or the “Board”) 20 decision to affirm a series of determinations by the Administrator (the “Administrator”) of 21 the Wage and Hour Division of the United States Department of Labor (the “Department”) 22 in ARB Case No. 2020-0058.1 (ECF No. 23.) Before the Court are Plaintiffs’ motion for 23 summary judgment and Defendant’s motion to dismiss, and in the alternative, cross- 24 motion for summary judgment. (ECF Nos. 18, 20.)2 Because Defendant did not violate 25

26 1The parties stipulated that the claim raised in this action is appropriately adjudicated by the Court through cross summary-judgment motions and Defendant’s 27 administrative record. (ECF No. 14.) A certified administrative record was provided to the Court. (ECF Nos. 16, 16-1 – 16-4.) 28 1 the Davis-Bacon Act (“DBA”), 40 U.S.C. § 3142(b), nor did he violate the Department’s 2 regulations, 29 C.F.R. Part 1., and as further discussed below, the Court will grant 3 summary judgment in favor of Defendant. 4 II. BACKGROUND 5 The following facts are undisputed. Plaintiffs are three Nevada trade associations 6 representing construction contractors, transportation companies, and related firms 7 throughout Nevada. (ECF No. 23 at 2.) Plaintiffs’ representation includes construction and 8 transportation companies performing work in subdivisions in northern Nevada covered by 9 the DBA, 40 U.S.C. § 3141 et seq. (Id.) The DBA applies to contracts in excess of $2,000 10 to which the Federal Government or the District of Columbia is a party “for construction, 11 alteration and/or repair of public buildings or public works in the United States.” (ECF No. 12 16-2 at 2 (citing 40 U.S.C. §§ 3141-2148).) 13 A. Wage Survey 14 In 2017, the Administrator conducted a wage survey to establish the prevailing 15 wage rates for highway projects in Nevada. (Id. at 5.) As part of the process, the 16 Administrator contacted interested parties, and among the parties contacted was the 17 Nevada Office of the Labor Commissioner (“NOLC”). (Id.) NOLC was invited to attend 18 pre-survey briefings being held to learn about the survey process. (Id.) Additionally, NOLC 19 was provided additional information and given PowerPoint slides with a summary of the 20 Nevada survey. (Id.) This included the method and deadline to submit wage data and an 21 explanation regarding how prevailing rates were to be determined if the Administrator 22 could not collect sufficient data for a locality. (Id.) On or about September 29, 2017, the 23 survey closed with NOLC not having attended the pre-survey briefings or submitting any 24 wage data during the survey period. (Id. at 6.) 25 Over a year later, the Administrator issued wage determinations for localities 26 across Nevada. (Id.) In instances where the Administrator was unable to satisfy its internal 27 rules regarding the sufficiency of prevailing wage rates for a particular locality, the 28 Administrator expanded use of data sets to predesignated “groups” and “super groups” 1 of counties, and would proceed to the entire state until its internal rules were satisfied. 2 (Id.) 3 B. Review and Reconsideration 4 In response to the Administrator’s wage determinations, in October 2019 and April 5 2020, AGC requested the Administrator review and reconsider several wage 6 determinations. (Id.) AGC raised various concerns including its concern that the prevailing 7 wage rates were, in part, based on wage data from projects outside the relevant 8 geographic area. (Id. at 6-7.) AGC insisted that the Administrator erred because data from 9 Clark County was used to calculate the prevailing wage rages for three northern Nevada 10 counties: Carson City, Washoe, and Storey (the “Counties”). (Id. at 7.) NOLC supported 11 AGC’s requests and provided NOLC’s own wage surveys performed under state law from 12 2016 to 2019. (Id. at 8.) Both organizations requested the Administrator adopt NOLC’s 13 wage rates, or at least until the Administrator’s wage determinations could be reassessed. 14 (Id.) 15 In January and June of 2020, the Administrator issued ruling letters denying AGC’s 16 request for review and reconsideration. (Id.) The Administrator stated that she did not 17 consider NOLC’s wage surveys because it was not submitted during the Nevada survey 18 period. (Id.) Moreover, NOLC’s survey information were unusable because the rates it 19 provided did not distinguish between basic and fringe benefit rates, and the rates did not 20 pertain solely to data for highway projects. (Id.) 21 C. Appeal 22 AGC (joined by the other two Plaintiffs) subsequently appealed the Administrator’s 23 denial to the Board in ARB Case No. 2020-0058. (Id.) The Board has jurisdiction to decide 24 appeals of the Administrator’s final decisions concerning wage determinations covered 25 by the DBA. (Id.) According to the Board, Plaintiff’s raised “two points of error in their 26 appeal.” (Id. at 9.) The first being that the Administrator failed to properly investigate 27 whether NOLC possessed relevant wage information at the time of the Nevada wage 28 survey, and the second being that the Administrator erred in relying on statewide wage 1 data when determining prevailing wage rates for certain counties in northern Nevada. (Id.) 2 The Board ultimately denied Plaintiffs’ appeal. (Id. at 1-22 (the “Decision”).) 3 D. Judicial Review 4 Plaintiffs seek judicial review of the Board’s Decision denying their appeal under 5 the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (ECF No. 23 at 4.) 6 Plaintiffs allege that the Decision affirming the Administrator’s wage determinations was 7 “arbitrary and capricious” in violation of the DBA and the Department’s published 8 regulations, 29 C.F.R. Part 1. (Id. at 9-10.) Moreover, Plaintiffs allege the Decision 9 violated the DBA and the APA because the Administrator was required to consider the 10 available public data maintained by the NOLC. (Id.) 11 Plaintiffs subsequently move for summary judgment. (EFC No. 18.) In response, 12 Defendant filed a motion to dismiss for lack of subject matter jurisdiction under Federal 13 Rule of Civil Procedure 12(b)(1), and in the alternative, for summary judgment.3 (ECF No. 14 20.) Defendant challenges Plaintiffs’ standing. (Id. at 15-21.) 15 III. LEGAL STANDARD 16 A. Subject Matter Jurisdiction 17 Rule 12(b)(1) of the Federal Rules of Civil Procedure allows defendants to seek 18 dismissal of a claim or action for a lack of subject matter jurisdiction. Although the 19 defendant is the moving party in a motion to dismiss brought under Rule 12(b)(1), the 20 plaintiff is the party invoking the court’s jurisdiction. As a result, the plaintiff bears the 21 burden of proving that the case is properly in federal court. See McCauley v. Ford Motor 22 Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. Gen. Motors Acceptance Corp., 23 24 3The Court notes that Plaintiffs filed their amended complaint after Defendant filed 25 their motion seeking dismissal, and in the alternative, summary judgment. (ECF No. 23.) Plaintiffs state that they did so out of an abundance of caution in order to “plead standing 26 with greater specificity” and “render moot [Defendant’s] objections to the original 27 complaint.” (ECF No. 26 at 6.) Defendant reiterates his standing arguments with respect to the amended complaint in his reply (ECF No. 29 at 9-16), and as such, the Court will 28 address below the standing arguments as articulated in the reply rather than in the original 1 298 U.S. 178, 189 (1936)). The plaintiff’s burden is subject to a preponderance of the 2 evidence standard. See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 3 Federal courts are courts of limited jurisdiction. See Owen Equip. & Erection Co. 4 v. Kroger, 437 U.S. 365, 374 (1978). A federal court is presumed to lack jurisdiction in a 5 particular case unless the contrary affirmatively appears. See Stock West, Inc. v. 6 Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) 7 (citation omitted). “Because subject matter jurisdiction goes to the power of the court to 8 hear a case, it is a threshold issue and may be raised at any time and by any party.” 9 Mallard Auto. Grp., Ltd. v. United States, 343 F. Supp. 2d 949, 952 (D. Nev. 2004) (citing 10 Fed. R. Civ. P. 12(b)(1)). 11 B. Summary Judgment 12 “The purpose of summary judgment is to avoid unnecessary trials when there is 13 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. United States Dep’t 14 of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary judgment is 15 appropriate when the pleadings, the discovery and disclosure materials on file, and any 16 affidavits “show there is no genuine issue as to any material fact and that the movant is 17 entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 18 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a 19 reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it 20 could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 21 Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material 22 facts at issue, however, summary judgment is not appropriate. See id. at 250-51. “The 23 amount of evidence necessary to raise a genuine issue of material fact is enough ‘to 24 require a jury or judge to resolve the parties’ differing versions of the truth at trial.’” Aydin 25 Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities 26 Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a 27 court views all facts and draws all inferences in the light most favorable to the nonmoving 28 /// 1 party. See Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th 2 Cir. 1986) (citation omitted). 3 The moving party bears the burden of showing that there are no genuine issues of 4 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 5 the moving party satisfies the requirements of Rule 56 of the Federal Rules of Civil 6 Procedure, the burden shifts to the party resisting the motion to “set forth specific facts 7 showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving 8 party “may not rely on denials in the pleadings but must produce specific evidence, 9 through affidavits or admissible discovery material, to show that the dispute exists,” Bhan 10 v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply 11 show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 12 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio 13 Corp., 475 U.S. 574, 586 (1986)). “The mere existence of a scintilla of evidence in support 14 of the plaintiff’s position will be insufficient[.]” Anderson, 477 U.S. at 252. 15 Moreover, “when parties submit cross-motions for summary judgment, ‘[e]ach 16 motion must be considered on its own merits.’” Fair Hous. Council. v. Riverside Two, 249 17 F.3d 1132, 1136 (9th Cir. 2001) (citations omitted) (quoting William W. Schwarzer, et 18 al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 499 (Feb. 19 1992)). “In fulfilling its duty to review each cross-motion separately, the court must review 20 the evidence submitted in support of each cross-motion.” Id. 21 III. DISCUSSION 22 Because Defendant’s motion to dismiss is premised on Plaintiffs’ standing, as an 23 initial matter, the Court will address Defendant’s two standing arguments first and will 24 then deny the motion to dismiss. The Court will then turn to address the parties’ cross- 25 motions for summary judgment. Because both parties dispute whether the DBA and the 26 Department’s regulations weigh in their favor, the Court will address the parties’ 27 /// 28 /// 1 arguments on these two issues in turn and will conclude with granting summary judgment 2 in favor of Defendant.4 3 A. Standing 4 1. Waiver 5 Defendant argues that Plaintiffs may only challenge the Administrator’s wage 6 determinations for dump truck drivers in certain counties in northern Nevada because 7 Plaintiffs have waived other potential arguments. (ECF No. 20 at 14-15.) Defendant 8 contends that because Plaintiffs only raised substantive arguments with the Board 9 regarding the wage determination for dump truck drivers in the Counties, Plaintiffs have 10 thus waived other arguments beyond this issue. (Id.) Plaintiffs counter that they are not 11 limited to the issue Defendant asserts, but rather that they are challenging the Board’s 12 Decision “in its entirety.” (ECF No. 26 at 7-9 (emphasis removed).) Plaintiffs direct the 13 Court to their petition for review in the administrative record to highlight that they 14 challenged multiple wage determination for various northern Nevada counties, and thus 15 not limited to the issue as Defendant argues. (Id. at 8.) The Court agrees with Plaintiffs. 16 Defendant’s assertion relies on the Board’s Decision to reject what Defendant 17 states are Plaintiffs’ “other vague contentions as to different classifications of workers and 18 different counties.” (ECF No. 20 at 14 (citing ECF No. 16-2 at 21-22).) Defendant suggests 19 the vague contentions are effectively a waiver because Plaintiffs did not raise any 20 substantive arguments and thus have failed to “alert” the Department “to their position 21 and contentions.” (Id. (quoting N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 22 F.3d 1067, 1081 (9th Cir. 2011).) However, a review of the administrative record and the 23 Decision reveals that the Board recognized Plaintiffs had made requests in October 2019 24 4The parties’ briefs additionally dispute whether the Administrator violated the 25 Department’s regulations by failing to investigate and consider NOLC’s publicly available wage data. (ECF Nos. 18 at 21-24, 20 at 29-33.) Plaintiffs’ reliance on 29 C.F.R. § 1.3 is 26 inapposite because subsection (b)(3) makes clear that wages determined by State and 27 local officials may be considered when making wage rate determinations. See § 1.3(b)(3). It does not place an affirmative obligation on the Administrator to do so. As such, and for 28 the reasons discussed herein that summary judgment is granted to Defendant, the Court 1 for review and reconsideration to the Administrator, and Plaintiffs “challenged the 2 Administrator’s determinations with respect to other classifications and other localities.” 3 (ECF No. 16-2 at 21.) The Board further states in its Decision that “[s]ome of [AGC’s] 4 arguments were similar to those presented in this appeal—that the Administrator erred 5 by relying on group, super group, or statewide data to set prevailing wage rates.” (Id.) 6 Merely because the Board rejected the other challenges does not amount to a finding that 7 Plaintiffs waived other arguments, nor can it be said that the Department was not made 8 aware of Plaintiffs’ positions and contentions simply because the Board opted to reject 9 those other arguments. (See ECF No. 16-4.) Accordingly, the Court rejects Defendant’s 10 waiver argument. 11 2. Harm 12 Defendant argues that Plaintiffs do not have standing to bring the claims that have 13 not been waived as they cannot demonstrate organizational or associational standing. 14 (ECF No. 20 at 15-21.) Specifically, Plaintiffs do not have standing simply because the 15 Board denied and rejected their petition for review, but rather, Plaintiffs must show both 16 the groups’ mission has been frustrated and has caused a diversion of resources. (Id. at 17 9-10 (citing Am. Diabetes Ass’n v. U.S. Dep’t of the Army, 938 F.3d 1147, 1154-55 (9th 18 Cir. 2019)). Moreover, Defendant argues that Plaintiffs have failed to show “concrete and 19 particularized harm” or that they have suffered “apparent financial injury” for their 20 members to bring this action. (Id. at 14-16.) Citing to Ass’n of Pub. Agency Customers v. 21 Bonnerville Power Admin., 733 F.3d 939, 949-50 (9th Cir. 2013). Plaintiffs counter that 22 because they are impacted by a regulatory act there is little question that there is injury 23 under the APA. (ECF No. 26 at 10-15.) Additionally, Plaintiffs counter that under 29 C.F.R. 24 § 7.2(b), the Board’s own regulations establishes that associations of employers qualify 25 as an interested party entitled to petition the Board. (Id.) The Court agrees with Plaintiffs. 26 29 C.F.R. § 7.2 establishes who may file petitions for review and subsection (b)(1) 27 defines the term interested parties: 28 (1) Any contractor, or an association representing a contractor, who 1 wage determination, or any laborer or mechanic, or any labor organization with represents a laborer or mechanic, who is likely to 2 be employed or to seek employment under a contract containing a particular wage determination, . . . 3 4 29 C.F.R. § 7.2(B)(1). Here, Plaintiffs are three Nevada trade associations that requested 5 review and reconsideration of the Administrator’s wage determinations. (ECF No. 23 at 6 2.) The Board denied Plaintiffs’ request for review (ECF No. 16-2 at 1-22), and Plaintiffs 7 brought this action under § 702 of the APA (ECF No. 23). See 5 U.S.C. § 702 (“A person 8 suffering legal wrong because of agency action, or adversely affected or aggrieved by 9 agency action within the meaning of a relevant statute, is entitled to judicial review 10 thereof.”). The Department’s regulations and the APA support the finding that Plaintiffs 11 have standing as trade associations seeking redress of the Board’s Decision. 12 In sum, the Court finds that the Court has subject matter jurisdiction over this 13 action, see McCauley, 264 F.3d at 957, and that Plaintiffs have standing. The Court thus 14 denies Defendant’s motion to dismiss under Rule 12(b)(1). 15 B. Judicial Review Under the APA 16 The APA limits the scope of judicial review of agency actions. A court may reverse 17 an agency decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise 18 not in accordance with law.” 5 U.S.C. § 706(2)(A). The Ninth Circuit has established that 19 an agency’s action is “arbitrary and capricious” if (1) the agency fails to consider an 20 important aspect of a problem; (2) an agency offers an explanation for the decision that 21 is contradictory to the evidence; (3) the agency’s decision is so implausible that it could 22 not be ascribed to a difference in view or the product of agency expertise; or (4) the 23 agency’s decision is contrary to the governing law. See Lands Council v. Powell, 379 F.3d 24 738, 743 (9th Cir. 2004), amended by 395 F.3d 1019 (9th Cir. 2005). A review under this 25 standard is “narrow, and a reviewing court may not substitute its judgment for that of the 26 agency.” United States v. Snoring Relief Labs, Inc., 210 F.3d 1081, 1085 (9th Cir. 2000). 27 A court must uphold the agency opinion if it is reasonable or rationally based. See Nat. 28 /// 1 Res. Def. Council, Inc. v. United States EPA, 966 F.2d 1292, 1297 (9th Cir. 1992) (citing 2 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843-44 (1984)). 3 The Court will next turn to the two substantive two issues raised in the parties’ 4 cross-motions for summary judgment. 5 1. DBA 6 Plaintiffs argue that the Board’s Decision was “arbitrary and capricious” in that it 7 violated the DBA because the Administrator was prohibited from using wage rates from 8 Clark County to make wage rate determinations for northern Nevada civil subdivisions. 9 (ECF No. 18 at 17-19.) Plaintiffs contend that 40 U.S.C. § 3142(b) confines the 10 Administrator to civil subdivision of Nevada and “not the entire State itself” in which work 11 is to be performed when determining the prevailing wage. (Id. at 18.) The Administrator’s 12 use of wage rates from labor markets hundreds of miles away and known to be higher 13 than wage rates in northern Nevada bears no relationship with the conception of 14 “prevailing wage.” (Id. at 19.) Defendant counters that the Administrator acted reasonably 15 when determining wage rates because the DBA permits the use of information outside of 16 a specific county. (ECF No. 20 at 21-26.) Defendant further counters that the statute 17 provides no specific method as to how the Administrator must determine the prevailing 18 wage rates, and it was reasonable to use information from a specific county. (Id.) The 19 Court agrees with Defendant. 20 “Congress has given the Department the authority to determine the prevailing 21 wage for Davis-Bacon purposes.” United States ex rel. Local 342 Plumbers & Steamfitters 22 v. Caputo Co., 321 F.3d 926, 932 (9th Cir. 2003). Section 3142 of the DBA sets forth the 23 “rate of wages for laborers and mechanics” and subsection (b) provides the following with 24 respect to the prevailing wage:

25 (b) Based on prevailing wage.--The minimum wages shall be based on the wages the Secretary of Labor determines to be prevailing for the 26 corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the civil subdivision of the State 27 in which the work is to be performed, or in the District of Columbia if the work is to be performed there. 28 1 40 U.S.C. § 3142(b) (emphasis omitted.) 2 Plaintiffs rely on the text of § 3142(b) to assert that there is an unambiguous 3 prescribed method upon which to determine the prevailing wage and that the Department 4 is confined to wage rates from “the civil subdivision of the State” where the work is to be 5 performed. (ECF No. 18 at 18.) But Plaintiffs overlook the authority § 3142(b) vests to the 6 Secretary of Labor. A plain reading of the entire section supports the interpretation that 7 the Secretary has broad discretion to determine the prevailing wage. While Defendant 8 relies on the term “civil subdivision,” the DBA provides no guidance or definition as to this 9 term, thus, contrary to Plaintiffs’ assertion, the prescribed method is the opposite of 10 unambiguous. Plaintiffs’ argument is therefore infirmed. 11 Moreover, as another circuit observed, the legislative history of the DBA (albeit not 12 crystal clear), suggests that “Congress did not view the language in the statute as 13 foreclosing the Secretary from implementing the [Davis-Bacon] Act in a way necessary to 14 achieve its purposes.” Bldg. & Constr. Trades’ Dep’t v. Donovan, 712 F.2d 611, 618 (D.C. 15 Cir. 1983). Additionally, “Congress anticipated that the general authorization to the 16 Secretary to set the prevailing wage would encompass the power to find a way to do so 17 in the interstitial areas not specifically provided for in the statute.” Id. (citation omitted). 18 Because the Administrator did not have sufficient wage information to determine the 19 prevailing wages for localities across Nevada when the wage survey period ended, the 20 Administrator acted reasonably—as Defendant argues and the Court agrees—in looking 21 to information outside of the specific areas at issue, especially when there is no clear 22 method provided by statute in determining the prevailing wage rates. As such, the Court 23 finds that the Administrator acted within the statutory mandate set forth in § 3142(b). The 24 Decision therefore does not violate the DBA and not arbitrary and capricious for the Court 25 to set aside the Decision under the APA. 26 2. Regulation Violation 27 Citing to the various provisions of 29 C.F.R. §§ 1.2–1.7, Plaintiff argues that the 28 Board violated the Department’s own regulations for the following reasons. (ECF No. 18 1 at 19-20.) Section 1.2(a) defines “prevailing wage” as the “wage paid to the majority (more 2 than 50 percent) of the laborers or mechanics in the classification on similar projects in 3 the area during the period in question.” (Id. at 19.) Section 1.2(b) further defines “area” 4 as “the city, town, village, county or other civil subdivision of the State in which the work 5 is to be performed.” (Id. at 19-20.) Section 1.3 provides that the Administrator will 6 encourage voluntary submission of wage rate data that reflects wages paid on various 7 types of construction “in the area.” (Id. at 20 (emphasis omitted).) Moreover, § 1.7(a)-(c) 8 states that (1) the area will be the county unless sufficient wage data is unavailable, (2) if 9 no sufficient wage data is available for similar projects in the past year, then wages for 10 similar projects in surrounding counties may be considered, provided that data from 11 metropolitan counties may not be used for rural counties and vice versa, and (3) if there 12 is insufficient data from similar projects in surrounding counties or the State in the past 13 year, then wages from more than a year prior to the wage survey or the request for a 14 wage determination may be considered. (Id.) Defendant counters that the Administrator 15 holds broad discretion to determine the scope of the wage survey. (ECF No. 20 at 26-29 16 (citing § 1.7(a)-(b)).) Defendant further argues that the Department’s regulations does not 17 bar collection of data from counties that are not immediately next to the civil subdivision, 18 and the absence of a prohibition regarding the use of remote area data implies 19 permissibility under the regulations. (Id. at 27.) Moreover, Defendant directs the Court to 20 Final Rule, Procedures for Predetermination of Wage Rates, 46 FR 4306-01, 4310 (Jan. 21 16, 1981), to argue that the Department had rejected challenges to its authority to gather 22 data on a statewide basis when it promulgated its regulations in 1981. (Id. at 28-29.) The 23 Court is convinced by Defendant’s arguments. 24 29 C.F.R. § 1.7(a) provides, in relevant part, the following: “In making a wage 25 determination, the area will normally be the county unless sufficient current wage data . . 26 . is unavailable to make a wage determination.” Subsection (c) further provides that, “[i]f 27 there has not been sufficient similar construction in surround counties or in the State in 28 the past year, wages paid on projects completed more than one year prior to the 1 beginning of the survey or the request for a wage determination, as appropriate, may be 2 considered.” 29 C.F.R. § 1.7(c) (emphasis added). While the Administrator would 3 “normally” use county data in making the wage determination, the administrative record 4 here suggests—and the parties appear to do not dispute—that the Administrator did not 5 have sufficient data submitted during the wage survey to calculate the prevailing wage 6 rate for the Counties when the survey closed. (ECF No. 16-2 at 5-6.) Despite Plaintiffs 7 reliance on §§ 1.2(a)-(b), 1.3, and 1.7(a)-(c), the Court’s reading of § 1.7(c) supports the 8 finding that the Administrator is not confined to using data from counties immediately next 9 to Carson City, Washoe, and Storey. Rather, data from other counties “in the State” is 10 permissible. See § 1.7(c). 11 Even if the Court assumes that the language of the Department’s regulations is 12 ambiguous, the Final Rule, 46 FR at 4310, sheds further light on the scope of § 1.7 and 13 affirms Defendant’s position that the Administrator was not prohibited from using remote- 14 area wage data. See El Comite Para El Bienestar De Earlimart v. Warmerdam, 539 F.3d 15 1062, 1070 (9th Cir. 2008) (“[T]he preamble language should not be considered unless 16 the regulation itself is ambiguous.”) The Assistant Secretary of Labor in 1981, addressing 17 preamble objections to the use of the term “in the State” in § 1.7(c), stated the following: 18 It has been our policy that in the unusual case where there is not sufficient current wage rate data available in a county or surrounding counties, we 19 expand the area of consideration. We believe that the use of ‘in the State’ is consistent with our policy, but we do not envision except in the most 20 extraordinary circumstances that data from an entire State would be needed to make a wage determination. In view of the comments, we have added ‘in 21 surrounding counties’ immediately before ‘in the State’ in the text to clarify that when circumstances arise, the first consideration outside the county will 22 be the surrounding counties. 23 Final Rule, 46 FR at 4310 (internal quotes in original). In light of the then Assistant 24 Secretary’s statement, it would appear that the Department sought for the regulation to 25 allow the Administrator to expand the area of consideration in “extraordinary 26 circumstances.” As stated above, when the survey closed, the Administrator had 27 insufficient data. See supra at p. 11. Despite contacting interested parties and NOLC, 28 providing NOLC with additional information about the wage survey, and inviting NOLC to 1 || attend pre-survey briefings, the Administrator did not have sufficient wage information 2 || need to determine prevailing wages. Under those circumstances, the Court finds that it 3 || was within reason and the Administrator's discretion, and within the scope of § 1.7, for 4 || the Administrator to expand the area of consideration when determining the prevailing 5 || wage. 6 In sum, because the Decision was not arbitrary or capricious and because the 7 || Department was reasonable and did not engage in an unlawful action, the Board’s 8 || Decision is affirmed. The Court accordingly grants summary judgment in favor of || Defendant. 10 || V. CONCLUSION 11 The Court notes that the parties made several arguments and cited to several 12 || cases not discussed above. The Court has reviewed these arguments and cases and 13 || determines that they do not warrant discussion as they do not affect the outcome of the 14 || motions before the Court. 15 It is therefore ordered that Defendant Marty Walsh’s motion to dismiss for lack of 16 || subject matter jurisdiction (ECF No. 20) is denied. 17 It is further ordered that Defendant’s alternative motion for summary judgment 18 || (ECF No. 20) is granted. 19 It is further ordered that Plaintiffs’ motion for summary judgment (ECF No. 18) is 20 || denied. 21 The Clerk of Court is directed to enter judgment in favor of Defendant and to close 22 || this case. 23 DATED THIS 11* Day of August 2022. 24 25 ASO 26 MIRANBA M. DU 57 CHIEF UNITED STATES DISTRICT JUDGE

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