U.S. ex rel. Bradbury v. Tlt Const. Corp.

• Decision Date: 30 March 2001
• Docket Number: No. CIV.A. 00-025 L.,CIV.A. 00-025 L.
• Citation: 138 F.Supp.2d 237
• Parties: UNITED STATES of America, for the Use and Benefit of Ronald R. BRADBURY, Plaintiff, v. TLT CONSTRUCTION CORP., Reliance Insurance Company, and Richard Hudson, d.b.a. RHL Flooring, Defendants.
• Court: U.S. District Court — District of Rhode Island

Page 237

138 F.Supp.2d 237

UNITED STATES of America, for the Use and Benefit of Ronald R. BRADBURY, Plaintiff, v. TLT CONSTRUCTION CORP., Reliance Insurance Company, and Richard Hudson, d.b.a. RHL Flooring, Defendants.

No. CIV.A. 00-025 L.

United States District Court, D. Rhode Island.

March 30, 2001.

Charles S. Kirwan, Pawtucket, RI, for Plaintiff.

Carrie L. Dussault, Morrison, Mahoney & Miller, Providence, RI, for Defendants.

OPINION AND ORDER

LAGUEUX, District Judge.

In this case, Ronald R. Bradbury ("plaintiff") brings suit under the Miller Act, 40 U.S.C. §§ 270a-270d (1994), and state contract law to recover $21,680 in unpaid wages he claims are due because of his employment on a federal construction project in Middletown, Rhode Island ("the Project"). The United States Navy hired defendant TLT Construction Corp. ("TLT") as the primary contractor on the Project. Defendant Reliance Insurance Company ("Reliance") was the surety on the Project's required Miller Act bond. TLT and Reliance (collectively "defendants") move this Court to dismiss plaintiff's action for "failure to state a claim upon which relief can be granted" pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons discussed below, defendants' motion to dismiss is denied.

Background

In June 1998, plaintiff began working for defendant Richard Hudson, d.b.a. RLH Flooring ("Hudson"),¹ a subcontractor on the Project. Plaintiff asserts that Hudson contracted with him to sand and tape on the Project at a rate of $12.00 per hour. According to plaintiff, the Secretary of the Department of Labor set a minimum Davis-Bacon Act wage of $28.50 per hour for the type of work plaintiff performed on the Project.

In September 1998, while still employed by Hudson, plaintiff received a $1.00 per hour raise, bringing his wage to $13.00 per hour, still below the $28.50 per hour wage plaintiff claims Hudson was required to pay him under the Davis-Bacon Act. During the first week in February 1999, TLT removed Hudson from the Project. According to plaintiff, from that time through the end of April, TLT retained plaintiff's services and paid him $28.50 per hour for the same type of work he had performed previously on the Project. Plaintiff has brought suit on the Miller Act payment bond, seeking to recover $21,680 which he claims he is owed in unpaid Davis-Bacon wages for the period of time he worked on the Project and was paid less than $28.50 per hour.

Standard for Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6)

In ruling on a motion to dismiss, the court construes the complaint in the light most favorable to plaintiff, taking all wellpleaded allegations as true and giving plaintiff the benefit of all reasonable inferences. See Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir.1998). A case should be dismissed under Rule 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

Jurisdiction

The matter is properly before the Court pursuant to 28 U.S.C. § 1331 and 40 U.S.C. § 270b(b).

Discussion

Plaintiff has brought suit for unpaid wages against defendants' Miller Act payment bond. The Miller Act requires that before a contractor may be awarded a federal construction contract, the contractor must post a payment bond "for the protection of all persons supplying labor and material in the prosecution" of the construction project. 40 U.S.C. § 270a(a)(2). The Miller Act further provides that "[e]very person who has furnished labor or material" for a federal construction project subject to the Miller Act's payment bond requirement "shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him." Id. § 270b(a). Moreover, the Miller Act expressly provides that laborers who were hired by subcontractors may sue the primary contractor if they provide the primary contractor with sufficient notice as prescribed by statute. Id. In this case, plaintiff asserts that his Miller Act claim is appropriate because he provided labor on a federal construction project subject to the Miller Act's payment bond requirement and is owed unpaid wages.

Defendants argue that plaintiff's action should be dismissed. Defendants contend that plaintiff's action is more properly classified as a claim for unpaid wages under the Davis-Bacon Act and that plaintiff has failed to comply with the Davis-Bacon Act's procedural requirements for bringing a claim for unpaid wages. At this point in the litigation, defendants have not challenged the substantive elements of plaintiff's Miller Act claim, namely that: (1) plaintiff performed labor on the Project; (2) plaintiff is owed money in connection with his work on the Project; and (3) defendants posted a Miller Act payment bond in connection with the Project. Defendants agree that the Miller Act permits a laborer to bring suit against the payment bond "for the amount, or the balance thereof" that he is owed on his contract. 40 U.S.C. § 270b(a). However, defendants contend that this language allows a plaintiff to sue only for an established sum that he is owed. Defendants argue that plaintiff cannot sue under the Miller Act for the "amount" he is owed until he has received an administrative determination that he is owed unpaid Davis-Bacon Act wages and that insufficient funds have been withheld to compensate him. 40 U.S.C. § 276a-2(b)(1994). Defendants assert that plaintiff's Miller Act claim is an attempt to circumvent the extensive administrative process that accompanies the Davis-Bacon Act and, as such, this action should be dismissed.

Plaintiff strenuously challenges the notion that his Miller Act claim is in any way limited by the procedures prescribed in the Davis-Bacon Act. But, plaintiff acknowledges that "the applicable Davis-Bacon Act wage determination supplies the wage rate by which [p]laintiff shall prove the calculation of his bond claim for underpaid wages." Pl.'s Mem. in Supp. of his Objection to Defs.' Mot. to Dismiss at 9. Plaintiff argues that his reliance on the wage rates imposed by the Davis-Bacon wage determination does not affect his Miller Act claim. Plaintiff cites the Eighth Circuit's decision in United States ex rel. Olson v. W.H. Cates Constr. Co., 972 F.2d 987 (8th Cir.1992) to support the proposition that his Miller Act claim is completely separate from the Davis-Bacon Act and the procedures therein. Specifically, plaintiff points to that Court's conclusion that "the Davis-Bacon and Miller Acts have different and independent aims, and do not, either explicitly or implicitly, limit one another." Id. at 992. But that language, when examined in the context in which it is used, has no bearing on this case. The issue in the Olson case was whether an employee could "furnish[ ] labor" under the Miller Act if his job title was not listed on the construction project's list of Davis-Bacon Act's job classifications. Id. at 991. Unlike the case at bar, the appellant in Olson did not rely on the Davis-Bacon Act to establish his Miller Act claim. Here, plaintiff's case turns on whether a Davis-Bacon Act violation occurred. Therefore, plaintiff's claim is properly classified as a Miller Act claim brought to recover unpaid Davis-Bacon Act wages. Accordingly, an examination of the Davis-Bacon Act and its requirements is necessary.

Any contract subject to the Davis-Bacon Act requires the contractor or subcontractor to pay any mechanics or laborers employed at the work site a wage that is no less than the minimum prescribed by the Secretary of Labor. 40 U.S.C. § 276a. See also Universities Research Ass'n v. Coutu, 450 U.S. 754, 756, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981). The Davis-Bacon Act requires that these wage specifications apply to any contract for the construction or repair of any public building or public work for the United States to which the United States is a party. 40 U.S.C. § 276(a). Pursuant to 40 U.S.C. § 276(c), the Secretary of Labor has promulgated extensive regulations regarding the Davis-Bacon Act and its enforcement. See generally 29 C.F.R. §§ 1, 3, 5, 6, and 7. These regulations are referenced in all government contracts subject to the Davis-Bacon Act. Id. § 5.5.

Defendants argue with force that plaintiff's claim should be dismissed because no private right of action exists under § 1 of the Davis-Bacon Act. Plaintiff contests this point only half-heartedly, choosing instead to argue that his Miller Act claim is entirely separate from the Davis-Bacon Act and that defendants' arguments regarding § 1 are not relevant to this case. Although the issue has not been argued extensively by plaintiff, it does merit some discussion. If defendants are wrong and § 1 provides a private cause of action then their motion to dismiss would fail on that ground. However, to the extent necessary, this Court agrees with defendants and concludes that no private right of action exists under § 1 of the Davis-Bacon Act.

The majority of courts that have addressed the issue have agreed with this conclusion. The leading decision in this area is the Fifth Circuit's opinion in United States ex rel. Glynn v. Capeletti Bros., Inc., 621 F.2d 1309 (5th Cir.1980), which several other courts have followed, including: Peatross v. Global Assocs., 849 F.Supp. 746, 749 (D.Haw.1994); and Weber v. Heat Control Co., 579 F.Supp. 346, 348 (D.N.J.1982) aff'd. 728 F.2d 599 (3rd Cir. 1984). Accord Operating Eng'rs Health & Welfare Trust Fund v. JWJ Contracting Co., 135 F.3d 671, 676 (9th Cir.1998). But see McDaniel v. Univ. of Chicago, 548 F.2d 689, 692-95 (7th Cir.1977)(holding that § 1 of the Davis-Bacon Act contains an implied private right of...