Notes:

Before its effective date, the determination was stayed as to the plaintiffs and the Secretary was temporarily enjoined from putting it into effect as to them. While that order was in force, any plaintiff who entered into a contract otherwise subject to the determination was required to post a bond to pay the prescribed wage if the determination were upheld. We entered a somewhat similar order, requiring a bond of $2,000, pending the present appeal

In Lukens Steel Co. v. Perkins, 70 App. D.C. 354, 107 F.2d 627, this court expressed a different view. But the Supreme Court reversed the judgment of this court, and affirmed the judgment of the District Court dismissing the complaint, on the ground that the plaintiffs had no standing to sue. Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S. Ct. 869, 84 L. Ed. 1108. This of course left the opinion, as well as the judgment, of this court without value as a precedent

It has been suggested that the words "in the locality" are not necessarily tied to the words "currently operating", and that "similar work * * * in the locality" is a possible reading. But since it is by no means the only possible reading it is not the "plain meaning" of the Act

It is therefore immaterial that the Fulbright Amendment to the Walsh-Healey Act provides that review of the "applicability" of a minimum wage determination may be had by any "person adversely affected or aggrieved". 66 Stat. 308, 41 U.S.C.A. § 43a(b)

The Fulbright Amendment also provides that "Notwithstanding the inclusion of any stipulations required by any provision of sections 35-45 of this title in any contract subject to said sections, any interested person shall have the right of judicial review of any legal question which might otherwise be raised, including, but not limited to, wage determinations and the interpretation of the terms `locality', `regular dealer', `manufacturer', and `open market'." 41 U.S.C.A. § 43a(c). That is, a contractor who has been required to include a minimum wage stipulation in a contract need not perform the stipulation if the requirement was not in accordance with law. This is irrelevant here.

DANAHER, Circuit Judge (concurring).

I concur in the entire opinion by Chief Judge EDGERTON.

I feel impelled to say this: were it not for Textile Workers Union of America, CIO v. Allendale Company,1 I would dismiss 144 plaintiffs on the present record. Moreover, I believe the District Court should have denied intervention by defendants National Association of Cotton Manufacturers, Berkshire Fine Spinning Associates, Inc., Fitchburg Yarn Company, Hathaway Manufacturing Company and the Textile Workers Union of America, CIO, who are now here as appellants on the side of the Secretary. The Supreme Court held2 in 1940 that determinations by the Secretary under the Walsh-Healey Act3 as it then was written, are not judicially reviewable. The Act "was not intended to be a bestowal of litigable rights upon those desirous of selling to the Government; it is a self-imposed restraint for violation of which the Government — but not private litigants — can complain."4 The function of the Secretary, acting in behalf of the Government, is to find the facts,5 and make his determination which shall be conclusive upon all agencies of the United States. The Act was designed to permit the Government to supply its needs without the delays necessarily incident to judicial supervision of administrative procedure. "If the general law permits prospective bidders to challenge each wage determination of the Secretary in the courts, by a like token all employees affected could obtain judicial review."6 We have been advised that "Courts should not, where Congress has not done so, subject purchasing agencies of the Government to the delays necessarily incident to judicial scrutiny at the instance of potential sellers, which would be contrary to traditional governmental practice and would create a new concept of judicial controversies."7 Not only do such expressions by the Court correctly, in my opinion, reflect the understanding and purpose of the Congress, but this case illustrates peculiarly the situation which Congress sought to avoid. It is now nearly three years since the Secretary's determination was promulgated, and it is no more nearly effective now than when it was first made. Yet 144 plaintiffs and 5 defendants as "parties" in the District Court still, because of their status as parties, respectively have rights of appeal no matter which way our order goes.8

It is said that these "parties" are thus able completely to frustrate the reasonable fulfillment of the Congressional objective because "rights" have been conferred upon them by the Fulbright amendment,9 adopted in 1952. In terms it was provided that review "may be had within 90 days after such determination is made," and ten of the original plaintiffs sought review after the 90 day statutory period had expired. As to them the motion to dismiss should be granted. The Fulbright amendment further provided that review was to be had only "by any person adversely affected or aggrieved" by the determination. Only 14 plaintiffs have made a showing that the determination "results in direct and immediate injury."10 So, I would dismiss as to 144 "plaintiffs," leaving only the 14 in the Alabama case and none in the Covington case. The named intervening appellants by the Secretary's determination have not been subjected to or threatened with any legal wrong. They have shown no independent legal right. They are not "private Attorney Generals,"11 and the Secretary is ably represented here by the Attorney General. Even the Fulbright amendment confers no standing upon those who appear on the side of the Secretary. I believe their intervention never should have been allowed.

This is not a case involving a determination of public convenience and necessity such as National Coal Ass'n v. Federal Power Commission.12 This is not a case like Columbia System v. United States,13 where "the regulations purport to operate to alter and affect adversely appellant's contractual rights and business relations with station owners whose applications for licenses the regulations will cause to be rejected and whose licenses the regulations may cause to be revoked." This is not a case like Associated Industries v. Ickes,14 where by administrative order, the minimum prices at which coal could be sold were increased, thus affecting the very basis upon which transactions in the coal business could be conducted. Nor is the case like United States Cane Sugar Refiners' Ass'n v. McNutt,15 or Longshoremen's Union v. Boyd,16 where the suit was dismissed for want of a "`case or controversy.'" This is a case, sui generis, where "Congress, as incident to its power to authorize and enforce contracts for public works, may require that they shall be carried out only in a way consistent with its views of public policy . . .."17 No one is forced to bid for Government contracts. Not foreign to our problem are the considerations reasoned by this court in Alabama Power Co. v. Ickes.18 I believe the Congressional interest in the attainment of the objectives of the Walsh-Healey Act and the Government's undoubted right to lay down the conditions upon which its own business will be conducted compel a strict construction of the Fulbright amendment. Any other view makes a shambles of the Walsh-Healey Act, for the delays and confusion occasioned by the hordes of "parties" render a determination obsolete and ineffective. Thus those who properly may be parties are those, and only those, who can show themselves by direct and immediate injury to have been adversely affected or aggrieved by the Secretary's determination.

Notes:

96 U.S.App.D.C. 401, 226 F.2d 765. But see the dissenting opinions

Perkins v. Lukens Steel Co., 1940, 310 U.S. 113, 128, 60 S. Ct. 869, 84 L. Ed. 1108

49 Stat. 2036-2040 (1936), as amended, 41 U.S.C.A. §§ 35-45

Supra note 2, 310 U.S. at page 127, 60 S.Ct. at page 877

§ 4, 49 Stat. 2038 (1936), as amended, 41 U.S.C.A. § 38; (re the fact-finding function see Shannahan v. United States, 1938, 303 U.S. 596, 599, 58 S. Ct. 732, 82 L. Ed. 1039)

Supra note 2, 310 U.S. at page 131, 60 S.Ct. at page 879

Id. 310 U.S. at page 130, 60 S.Ct. at page 878

Cf. Fishgold v. Sullivan Corp., 1946, 328 U.S. 275, 66 S. Ct. 1105, 90 L. Ed. 1230; Boston Tow Boat Co. v. United States, 1944, 321 U.S. 632, 633, 64 S. Ct. 776, 88 L. Ed. 975

41 U.S.C.A. § 43(a)

National Coal Ass'n v. Federal Power Commission, 1951, 89 U.S.App.D.C. 135, 138, 191 F.2d 462, 465

Associated Industries v. Ickes, 2 Cir., 1943, 134 F.2d 694, 704, order vacated, 1943, 320 U.S. 707, 64 S. Ct. 74, 88 L. Ed. 414. The able opinion by Judge Frank treats of almost every conceivable situation except that presented on the record here

Supra note 10. (Even there Judge Clark, in his dissent, argued well that the petitioners were not "parties aggrieved" within the meaning of the Natural Gas Act, 15 U.S.C.A. § 717 et seq.)

1942, 316 U.S. 407, 422, 62 S. Ct. 1194, 1203, 86 L. Ed. 1563

Supra note 11

2 Cir., 1943, 138 F.2d 116 (where the petition was dismissed for lack of jurisdiction)

1954, 347 U.S. 222, 74 S. Ct. 447, 448, 98 L. Ed. 650. (The point is certainly present here.)

Ellis v. United States, 1907, 206 U.S. 246, 256, 27 S. Ct. 600, 601, 51 L. Ed. 1047

1937, 67 App.D.C. 230, 91 F.2d 303, affirmed 1938, 302 U.S. 464, 58 S. Ct. 300, 82 L. Ed. 374

WASHINGTON, Circuit Judge (dissenting).

The central issue here, of course, is whether the Walsh-Healey Act was intended to establish a nation-wide wage standard for Government contractors, or a standard based on wages prevailing in the contractor's own community. To my mind the language of the statute clearly establishes the latter standard. This court so held in a case decided shortly after the passage of the Act. Lukens Steel Co. v. Perkins, 1939, 70 App. D.C. 354, 107 F.2d 627. The opinion — an exhaustive one — was written by Associate Justice Justin Miller, and was concurred in by Associate Justice Fred M. Vinson, who had become a member of this court after serving in Congress during the very period in which the Walsh-Healey Act was passed. The reasoning of the opinion seems to me unanswerable. And the legislative history there recited shows with complete clarity what Congress intended: that bidders for Government contracts "shall pay the prevailing wages in the community where the work is performed."1

Our decision in Lukens was reversed by the Supreme Court on another ground — that the complainants lacked standing to sue. Perkins v. Lukens Steel Co., 1940, 310 U.S. 113, 60 S. Ct. 869, 84 L. Ed. 1108. The obstacle has now been removed by the Fulbright Amendment, passed in 1952. 41 U.S.C.A. § 43a. Technically, in dealing with the present case, we are not "bound" by our decision in Lukens, even though the Supreme Court did not reach the merits of that case. But its reasoning remains sound, and has not been disturbed by anything which has happened since. As far as the argument based on continued administrative interpretation is concerned, I would suppose that we were not entitled to give much weight to action which was until a short time ago completely immune to judicial review. Nor, under the circumstances here, does congressional failure to amend an act already clear on its face seem to be in any sense declaratory of the correctness of the Secretary's interpretation. The latest pronouncement of Congress — the Fulbright Amendment — certainly makes no such declaration: its passage might suggest, indeed, that Congress was not content with the Secretary's action, and wished it to be reviewed by the courts. The relevant Committee Report specifically states that failure to amend the "locality" provision of the Act is to be without prejudice to a judicial determination of the meaning of that provision. S.Rep. No. 1599, 82d Cong., 2d Sess. 31 (1952).

It is argued that to give the "locality" provision its ordinary meaning would produce an undesirable result. But — whether or not that is so — our function is to determine what Congress thought desirable, rather than to give expression to our own views on social legislation. It is also said that the purpose of the Act would be defeated by such an interpretation. But I think the majority misconceives the purpose of the Act, as revealed in the light of conditions prevailing in 1936, when it was passed. At that time, and before, it was generally thought that the Federal Government lacked power to undertake broad regulation of wages and labor standards. Control of Government contracts was thought possible, however, and in 1931 the Bacon-Davis Act was passed, imposing certain wage regulations in the field of Government construction contracts, 40 U.S.C.A. § 276a et seq., 46 Stat. 1494. In 1935 that Act was substantially revised and strengthened, 49 Stat. 1011. The 1935 revision provided — in language derived from the earlier legislation — for wage determinations based on conditions prevailing in the "city, town, village, or other civil subdivision" where the contract is to be performed. In 1936 the Walsh-Healey Act was passed to cover the field of supply contracts. Here Congress used the "locality" provision we have been discussing. Obviously both acts are based on the same philosophy and point to a standard limited to a fairly small area and to a restricted objective: that of preventing contractors from cutting wages below prevailing community levels in an effort to pare costs and thus be the lowest bidder. As the legislative history shows, there was no thought of raising wages, or of eliminating regional differentials. See Lukens at page 362 of 70 App.D.C., at page 635 of 107 F.2d.

Later, of course, greater breadth of Federal power was recognized. The Supreme Court's decision in National Labor Relations Board v. Jones & Laughlin Steel Co., 1937, 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, opened the door to more sweeping congressional action. Problems such as that of the "runaway industry," which were not intended to be dealt with by the Walsh-Healey Act, but which may underlie the Secretary of Labor's approach to that Act, may now be dealt with by explicit Federal legislation. Congress has gone far in this direction through the Fair Labor Standards Act and its amendments. Indeed, under an amendment shortly to come into effect, the minimum F.L.S.A. wage will be raised to a dollar an hour. Public Law 381, 84th Cong., 1st Sess. § 3 (1955), U. S. Code Congressional and Administrative News 1955, p. 814. That, of course, is the same as the Secretary's determination here. Surely it is better to reach decisions of that sort through congressional debate and action, rather than through strained administrative and judicial interpretation of a statute passed years ago for a different and more limited purpose.

Notes:

Congressman Greenwood at 80 Cong. Rec. 9993; quoted at page 362 of 70 App.D.C., at page 635 of 107 F.2d, together with numerous similar statements