United States District Court, District of Columbia
Terry Russell Yellig, Esmeralda Aguilar, Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, DC, for Plaintiffs.
Wayne C. Beyer, Office of Attorney General, Washington, DC, for Defendants.
AMY BERMAN JACKSON, District Judge.
Plaintiffs Pedro Angulo, Eric Shultz, and the Mid-Atlantic Regional Council of Carpenters (" Carpenters" ) (collectively " plaintiffs" ) bring this action against Vincent Gray, Mayor of the District of Columbia (" the District" or " D.C." ), and Victor Hoskins, Deputy Mayor of the District of Columbia  (together " defendants" ) under 42 U.S.C. § 1983 (2006), (" Section 1983" ), seeking declaratory and injunctive relief for alleged violations of their rights under the Davis-Bacon Act, 40 U.S.C. § 3141 et seq. (2006) (" the DBA" ). See Compl. [Dkt. # 1] ¶ 1. Defendants filed a motion to dismiss on the grounds that (1) plaintiffs have no judicially enforceable rights under the DBA because the Department of Labor (" DOL" ) has not issued a final administrative decision as to whether the DBA even applies to this case, and (2) even if plaintiffs receive a favorable decision from the DOL, they still cannot enforce that decision through Section 1983 because there is no private right of action under the DBA. See Defs.' Memorandum of Points and Authorities [Dkt. # 8] (" Defs.' Mem." ) at 5, 16. Because the Court finds that plaintiffs have no enforceable rights
under the DBA while their administrative case is pending before the DOL, it will grant defendants' motion without deciding whether a private right of action exists under the DBA.
In September 2002, then-D.C. Mayor Anthony Williams issued a request for proposals for the redevelopment of the former D.C. convention center site. Compl. ¶ 8. The redevelopment project was named CityCenterDC, and included the construction of several office, apartment, and condominium buildings, as well as a large central plaza and park. Compl. ¶ 10.
On April 25, 2009, before construction of the CityCenterDC project began, the Carpenters asked the Wage and Hour Division of the DOL to rule that the DBA applies to the project. Compl. ¶ 15. The DBA requires that construction contracts for " public buildings" or " public works" in excess of $2,000 contain a provision stating the minimum wages to be paid to certain categories of " laborers and mechanics." Compl. ¶ 13, citing 40 U.S.C. § 3142(a). These minimum wages are determined by the Secretary of Labor based on prevailing local wage rates and fringe benefits. 40 U.S.C. § 3142(b); 29 C.F.R. § 1.1. Plaintiffs would be entitled to these minimum wages and the other benefits of the DBA's labor standards if the Wage and Hour Division ruled in their favor. See Compl. ¶ 22.
On August 30, 2010, the Chief of the Wage and Hour Division's Branch of Government Contracts Enforcement issued a letter concluding that the DBA did not apply to the CityCenterDC project. Compl. ¶ 16. Plaintiffs submitted a request for reconsideration to the Wage and Hour Division's Acting Administrator (" Administrator" ). Compl. ¶ 17. In a June 2011 letter— approximately two months after construction on the CityCenterDC began— the Administrator reversed the Division's earlier decision and concluded that the project qualified as a " public work" subject to the requirements of the DBA. June 2011 Decision of the Wage and Hour Division (June 17, 2011), Ex. 1 to Compl. at 7-8 (" June 2011 Decision" ); Compl. ¶¶ 17, 19. Accordingly, the Administrator ordered that " all existing, relevant contracts, obligations, and other agreements [related to the CityCenterDC project] ... be amended, as necessary, in accordance with the DBA." June 2011 Decision at 8. The Administrator also decided that the DBA's wage and other requirements would apply prospectively starting with the first pay period week immediately following the June 2011 ruling and not retrospectively starting with the first day of construction on April 4, 2011. Id. The Administrator noted that the decision constituted " a final ruling" of the Wage and Hour Division under 29 C.F.R. § 5.13 but that " [a]ny interested party may file a petition for review with the [DOL] Administrative Review Board [" ARB" ] pursuant to 29 C.F.R. 7.9." Id.
The District of Columbia and CityCenterDC developers appealed the June 2011 decision to the ARB asserting that the CityCenterDC project is not a " public building" or " public work" subject to the requirements of the DBA because it is entirely privately financed, privately constructed, and not designed for use or occupancy by the government. See generally District of Columbia and CityCenterDC Developers' Petitions to the ARB, Exs. 2 and 3 to Defs.' Mot. to Dismiss [Dkt. # 8] (Defs.' Mot.); see also Defs.' Mot. at 1. Plaintiffs also filed an appeal to the ARB challenging the Administrator's determination that the DBA would apply prospectively from the June 2011 decision and not retroactively from the beginning of construction. MidAtlantic Regional Council
of Carpenters' Petition to the ARB, Ex. 4 to Defs.' Mot. at 1-2.
While the appeal was pending, plaintiffs petitioned the D.C. Court of Appeals for a writ of mandamus to compel the District and the developers to incorporate the DBA's labor standards into the relevant contracts as required by the Administrator's June 2011 decision. Compl. ¶ 26. In a per curiam decision, the court denied the writ and stated that while the " petitions for review are pending before the [ARB] ... further relief, if there be need for any, may be sought before the federal agency or U.S. District Court...." MidAtlantic Reg'l Council of Carpenters v. Gray, No. 10-OA-32 (D.C. Oct. 17, 2011) (per curiam), Ex. 4 to Compl. According to plaintiffs, the Wage and Hour Division has also " failed and refused" to compel defendants to comply with the June 2011 decision. Compl. ¶ 30; see also Pls.' Statement of Points and Authorities in Support of Pls.' Mot. for Summ. J. and in Opp. to Defs.' Mot. to Dismiss [Dkt. # 10] (" Pls.' Opp." ) at 9 (stating that DOL regulations do not " include a means of compelling a recalcitrant Federal agency or, as in this case, the District to comply with the Administrator's determination pursuant to section 1.6(f)" ). Dissatisfied with their failed attempts to obtain relief elsewhere, plaintiffs filed the present action asking this Court to compel defendants to comply with the Administrator's June 2011 decision. Prayer for Relief. ¶¶ 1-2. Defendants have moved for dismissal of the case. See generally Defs.' Mot. Thereafter, plaintiffs moved for ...