The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER DENYING PETITIONERS' OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION
This case is an appeal from an administrative decision by the Wage and Hour Division ("WHD") of the United States Department of Labor. (Docket 1). Pursuant to 28 U.S.C. § 636(b)(1)(B), the court referred the matter to Magistrate Judge Veronica L. Duffy for a report and recommendation. The magistrate judge recommended denying petitioners' appeal and affirming the decision of WHD. (Docket 30). Petitioners timely filed objections to the report and recommendation. (Docket 33). The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). For the reasons stated below, the court overrules the petitioners' objections and adopts the report and recommendation of the magistrate judge.
Petitioners, working as metrology technicians, were employees of Bionetics Corporation ("Bionetics") under a Services Contract Act ("SCA")*fn1 contract with the United States Air Force ("Air Force") for the operation of the Ellsworth Air Force Base Precision Measurement Equipment Laboratory ("PMEL") from October 1, 1997, through September 30, 2002. (Docket 1, ¶ 1). Petitioners assert the contract improperly classified them as Electronic Technicians, Maintenance II ("EMT II").*fn2 Id. at ¶ 2. Petitioners sought a conformance action on November 16, 2000, asking the WHD to reclassify them to Engineering Technician IV ("ET IV") status. Id. at ¶ 3. WHD initially agreed they should be paid under the ET IV classification. Id. On June 21, 2002, following an objection by the Air Force, WHD withdrew the classification conformance and determined petitioners were properly classified and paid as ETM II's. Id. at ¶¶ 4 and 5.
Petitioners timely appealed to the Administrative Review Board ("ARB") for the United States Department of Labor. Id. at ¶ 6. The ARB remanded the matter to WHD, with several particularized areas of concern. In the matter of: Bionetics Corporation Dispute Concerning Job Classification and Wage Rates for Bionetics Employees Working on Contract F44650-97-D0005 at the Precision Measurement Equipment Laboratory, Ellsworth Air Force Base, South Dakota, ARB Case No. 02-094, 2004 WL 230772 (January 30, 2004) ("Bionetics I"). Following remand, the Deputy Administrator ("DA") of WHD issued a decision on October 31, 2005. (Docket 1, ¶ 8). That decision determined petitioners were properly classified as ETM II's. Id. Petitioners again appealed to the ARB. Id. at ¶ 9. On December 16, 2008, the ARB affirmed the decision of the DA. In the matter of: Bionetics Corporation Dispute Concerning Job Classification and Wage Rate for Bionetics Employees Working on Contract F44650-97-D0005 at the Precision Measurement Equipment Laboratory, Ellsworth Air Force Base, South Dakota, ARB Case No. 06-135, 2008 WL 5454135 (December 16, 2008) ("Bionetics II").
That decision constituted the final agency decision and action under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. Petitioners timely perfected their appeal to this court. The report and recommendation of the magistrate judge (Docket 30) prompted petitioners' objections (Docket 33), which can be summarized by the subsections of their objections:
I. The magistrate judge erroneously concluded the law of the case doctrine was not applicable.
II. The magistrate judge erroneously concluded there was substantial evidence to support the DA's 2005 decision.
III. The magistrate judge erroneously concluded the Air Force's application for reconsideration of the September 2001 decision was timely made.
Id. Each of those objections will be addressed with the same captions.
A. MAGISTRATE JUDGE'S FINDINGS OF FACT
Magistrate Judge Duffy prepared a detailed summary of the facts constituting the administrative record. (Docket 30). That factual summary comprises forty-four pages of the report and recommendation. Id. at pp. 3-47. The petitioners' objections do not identify any specific factual findings which are in error; but rather, they focus their objections on the magistrate judge's interpretation of those facts in analyzing the agency's final decision. (Docket 33). The court completed a de novo review of both the original administrative record (Docket 7) and the supplemental administrative record (Docket 21) and concludes the magistrate judge's statement of facts is accurate. The magistrate judge's findings of fact are adopted by the court in accordance with 28 U.S.C. § 636(b)(1)(C).
B. MAGISTRATE JUDGE'S CONCLUSIONS OF LAW
The court adopts the magistrate judge's statement of the standard of review applicable to the examination of the agency's decision. (Docket 30, pp. 47-50). As Magistrate Judge Duffy noted, "the Administrative Procedure Act ("APA") provides the sole basis for a district court's review of final agency decisions. 5 U.S.C. §§ 702, 704." (Docket 30, p. 47). "Under the APA, the ARB must uphold the WHD's findings unless they are 'contrary to the law or unsupported by substantial evidence' in the record as a whole." Id. (citing Meehan Seaway Serv. Co. v. Director, Office of Workers' Compensation Programs, 125 F.3d 1163, 1166 (8th Cir. 1997); and 5 U.S.C. §§ 706 (2)(A), (E)). "A district court's review of the ARB's decisions is governed by the same standard of review." Id. (citing Robinson v. Missouri Mining Co., 955 F.2d 1181, 1183 (8th Cir. 1992)). Also as noted by the magistrate judge, the "arbitrary and capricious" standard applies to the court's review of the agency's decision. Id. at p. 48 (citing Minnesota v. Centers for Medicare and Medicaid Services, 495 F.3d 991, 996 (8th Cir. 2007)) (other citation omitted).
"Whether an agency's action is arbitrary and capricious depends on whether 'the agency has . . . offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.' " Mausolf v. Babbitt, 125 F.3d 661, 669 (8th Cir. 1997) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). "The court is not to substitute its judgment for that of the agency." (Docket 30, p.49) (citing Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43). Moreover, "the agency must articulate a 'rational connection between the facts found and the choice made.' " Id. (citing Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The court must accept all factual findings of the agency if those ...