United States District Court, District of Columbia
JAMES E. BOASBERG United States District Judge
Plaintiffs are laborers who worked for a third-tier subcontractor in the construction of a District of Columbia building. Believing that they were underpaid, they brought this action on May 31, 2013, against the two companies insuring the prime contractor’s construction-payment bond, alleging violations of the federal Davis-Bacon Act and the District of Columbia’s Little Miller Act. On June 24, Defendants filed Motions to Dismiss, arguing, inter alia, that the statute of limitations on Plaintiffs’ claims has expired and that Plaintiffs do not qualify for coverage under Defendants’ bonds. Although Defendants did not mention a lack of subject-matter jurisdiction, the Court raised the issue sua sponte in an Order on September 18, requiring that Plaintiffs show cause why the case should not be dismissed for their failure to sufficiently exhaust administrative remedies, as required by the Davis-Bacon Act, 40 U.S.C. § 3144(a).
After several rounds of briefing, Plaintiffs successfully requested that the Court stay the proceedings, allowing them to return to the Department of Labor to complete the administrative process. Plaintiffs now report that, despite their entreaties, DOL has refused to take any further action. They thus ask the Court to revisit its earlier findings on subject-matter jurisdiction in light of their repeated efforts to obtain administrative relief. The Court is persuaded, and it now agrees that it may hear the case.
Plaintiffs were employed by S & J Acoustics, a third-tier subcontractor retained to complete ceiling installation on the Consolidated Forensic Laboratory building, owned by the District of Columbia. See Compl., ¶¶ 2, 5. Pursuant to the Davis-Bacon Act (DBA), 40 U.S.C. § 3141, et seq., and the Little Miller Act, D.C. Code § 2-201.01, et seq., the project’s prime contractor, Whiting-Turner, provided a payment bond to the District of Columbia as an assurance that project laborers would receive payment at DOL-mandated hourly rates. See Compl., ¶¶ 3, 8. Defendants Fidelity and Deposit Company of Maryland and Travelers Casualty and Surety Company of America guaranteed the bond as co-sureties. See id. Plaintiffs now seek to collect against that bond, alleging that they were not paid for their contributions to the project in accordance with the designated wage rates. See id., ¶¶ 21, 28-29.
Prior to initiating this action, Plaintiffs filed an administrative complaint with DOL, requesting that payments to the project’s prime contractor be withheld until an investigation could be completed and Plaintiffs compensated for the alleged back wages. See id., ¶¶ 23-24. As the project had since been wound up and all payments released to the prime contractor, the DOL investigator closed the case without making further findings on Plaintiffs’ eligibility for relief under the DBA. See id., ¶¶ 24-25. Although neither party mentioned the issue in their initial briefs, the Court sua sponte raised questions about its subject-matter jurisdiction to proceed, absent conclusive findings from DOL. See Order to Show Cause at 2-5.
Relying on the language of § 3144(a) of the DBA, as well as opinions from a handful of other jurisdictions, the Court reasoned that Plaintiffs could demonstrate statutorily required exhaustion of administrative remedies only after DOL had made three factual determinations – namely, (1) that Plaintiffs had performed DBA-eligible work, (2) that they had been paid below the required DBA wage, and (3) that DOL had not withheld sufficient funds from the project to remedy these underpayments. See OSC at 2-3. Plaintiffs responded that, although they had attempted to comply with the administrative requirements of § 3144(a), DOL had dismissed the case on the ground that “the government had already made its final payment to the prime contractor . . . and that therefore there were no further payments the government could withhold.” See Response at 1. Given the lack of funds, DOL saw no need to further investigate Plaintiffs’ DBA eligibility or the extent of any back wages owed. See id.
Out of deference to DOL’s plenary responsibility under the DBA to make back-wage determinations, but also to avoid leaving Plaintiffs without an effective remedy, the Court opted to issue a temporary stay of the proceedings to allow Plaintiffs to return to DOL and request that the agency reopen the case and make the remaining administrative determinations. See ECF No. 16 (Order) at 4. Plaintiffs have done so, but without any success. Both parties stipulate to the fact that DOL refuses to reopen the case, presenting DOL “Case Conclusion Notes” as proof that the complaint has been definitively dismissed for lack of any remaining funds. See Joint Status Report, ¶¶ 6-7 & Exh. A.
Plaintiffs now urge the Court to nevertheless assert jurisdiction in this matter and allow them to move ahead with their claims under DBA § 3144(a) and the Little Miller Act, lest they be without a remedy. See Response at 9; see also, e.g., Ibrahim v. Mid-Atl. Air of DC, LLC, 802 F.Supp.2d 73, 76 (D.D.C. 2011) (recognizing that plaintiff would likely be foreclosed from bringing claim under D.C. contract law where contract relates to project governed by DBA), aff’d, 11-7150, 2012 WL 3068460 (D.C. Cir. July 19, 2012). Defendants, however, argue that DOL’s failure to make a complete set of findings under § 3144(a) creates an insurmountable barrier to federal-question jurisdiction. See Def. Resp. to Order at 2. The Court’s prior Order may have too stringently accepted the position taken by Defendants, and the Court now believes that such a conclusion – which risks exalting form over substance – is neither compelled by the language and purpose of § 3144(a) nor appropriate in light of the unusual circumstances in this case, particularly now that Plaintiffs have again unsuccessfully pled their case to DOL. The Court will thus grant Plaintiffs’ request and find that it has subject-matter jurisdiction under the DBA to address their claims.
The DBA, “a minimum wage law designed for the benefit of construction workers, ” United States v. Binghamton Const. Co., 347 U.S. 171, 178 (1954), offers a limited cause of action for laborers against contractor sureties to recover unpaid wages, providing:
(1) In general. – The Secretary of Labor shall pay directly to laborers and mechanics from any accrued payments withheld under the terms of a contract any wages found to be due laborers and mechanics under this subchapter.
(2) Right of action. – If the accrued payments withheld under the terms of the contract are insufficient to reimburse all the laborers and mechanics who have not been paid the wages required under this subchapter, the laborers and mechanics have the same right to bring a civil action and intervene against the contractor and the ...