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BUILDING & CONST. TRADES DEPT. v. DEPT. OF LABOR

No. 90-5341.

932 F.2d 985 (1991)

BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, Appellee, v. UNITED STATES DEPARTMENT OF LABOR WAGE APPEALS BOARD, et al., Appellees. Midway Excavators, Inc., et al., Appellants.

United States Court of Appeals, District of Columbia Circuit.

Decided May 17, 1991.

Rehearing and Rehearing Denied July 18, 1991.

Attorney(s) appearing for the Case

Edward E. Shumaker, III, Concord, N.H., for appellants.

Fred E. Haynes, Asst. U.S. Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Dept. of Justice, were on the brief, for appellees, U.S. Dept. of Labor Wage Appeals Bd., et al. Daniel Bensing, Washington, D.C., Asst. U.S. Atty., Dept. of Justice, also entered an appearance for appellees.

Terry R. Yellig, Washington, D.C., for appellee, Building and Const. Trades Dept., AFL-CIO.

Maurice Baskin, Washington, D.C., was on the brief, for amicus curiae, Associated Builders and Contractors, Inc., urging that the District Court's decision be reversed and Regulation 5.2(j) be invalidated as being inconsistent with the Act.

Charles E. Murphy and Robert P. Casey, Chicago, Ill., were on the brief, for amicus curiae, Associated General Contractors of America, urging that the District Court's decision be reversed.

Before WALD, SENTELLE and HENDERSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied July 18, 1991.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Midway Excavators, Inc., et al. ("Midway") appeals from a district court judgment upholding a regulation promulgated by the Secretary of Labor ("the Secretary") pursuant to the Davis-Bacon Act ("the Act"), 40 U.S.C. § 276a et seq. (1935). The challenged regulation, 29 C.F.R. § 5.2(j) (1983), includes in the...

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