                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
ERIC JOHNSON, et al.,               )
                                    )
                  Plaintiffs,       )
                                    )
      v.                            )                Civil Action No. 11-0077 (ABJ)
                                    )
PROSPECT WATERPROOFING              )
COMPANY, et al.,                    )
                                    )
                  Defendants.       )
____________________________________)


                                 MEMORANDUM OPINION

        Plaintiffs bring this proposed class action, on behalf of themselves and others similarly

situated, against defendants Prospect Waterproofing Company and its owner, George Barlow, for

unpaid wages based on state statutory and common law claims. Defendants moved to dismiss

for failure to state a claim, arguing that plaintiffs’ claims are founded on the Davis-Bacon Act

(the “Act” or “DBA”), 40 U.S.C. § 3141, et seq., which does not give rise to a private right of

action but instead establishes an administrative process for the recovery of unpaid wages. The

Court agrees and for the following reasons will grant defendants’ motion to dismiss.

   I.      Background

        The named plaintiffs in this case – Eric Johnson, Melvin Green, John Stelly, and

Jonathan Thomas – allege that they were each hired as roofers by Prospect Waterproofing

Company (“Prospect”), a roofing contractor. Am. Compl. ¶¶ 16, 33, 36, 39, 42. Plaintiffs

worked for Prospect on various federally-funded or federally-assisted construction projects in the

District of Columbia. Id. ¶ 17. Those projects were allegedly subject to the Davis-Bacon Act,

id. ¶ 18, which requires that employers pay prevailing wage rates for certain categories of jobs in
the community. 40 U.S.C. § 3142. Plaintiffs allege that defendants failed or refused to pay them

and similarly situated employees the prevailing wage rate established under the Davis-Bacon

Act.

          On November 29, 2010, plaintiff Eric Johnson filed a complaint in the Superior Court for

the District of Columbia on behalf of himself and other similarly situated employees. Green,

Stelly, and Thomas subsequently opted into the action as named plaintiffs. Plaintiffs then

amended the complaint on January 12, 2011, and that same day, defendants removed the action

to this Court.

          Plaintiffs’ amended complaint alleges that three state law causes of action arise out of

defendants’ failure to compensate plaintiffs and similarly situated employees according to the

prevailing Davis-Bacon Act rate: (1) a claim for a violation of the District of Columbia Wage

Payment and Collection Law (“DCWPCL”), D.C. Code § 32-1301, et seq.; (2) a claim for a

violation of the District of Columbia Minimum Wage Act, D.C. Code § 32-1001, et seq.; and (3)

a common law quantum meruit claim based on defendants’ retention of the difference between

the Davis-Bacon Act prevailing wage rate and what was actually paid. Plaintiffs seek, among

other relief, a judgment for the difference between the wages paid and the wages owed, all back

wages, liquidated damages, interest, and attorneys’ fees.

          Now pending before the Court is defendants’ motion to dismiss the amended complaint

for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

    II.      Standard of Review

          “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); accord Bell



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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two

principles underlying its decision in Twombly: “First, the tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions.” 129 S. Ct. at

1949. And “[s]econd, only a complaint that states a plausible claim for relief survives a motion

to dismiss.” Id. at 1950.

           A claim is facially plausible when the pleaded factual content “allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id.,

quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id.

           When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in plaintiff’s favor, and the Court should grant plaintiff “the benefit of all inferences that

can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the Court accept

plaintiff’s legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

    III.      Analysis

              A. Private right of action under the Davis-Bacon Act

           The Davis-Bacon Act requires that all laborers and mechanics working on federally

funded construction projects be paid not less than the prevailing wage in the locality where the




                                                   3
work is performed. 40 U.S.C. § 3142. 1 The Secretary of Labor (“Secretary”) “has promulgated

extensive regulations regarding the Davis-Bacon Act and its enforcement.” United States ex rel.

Bradbury v. TLT Constr. Corp., 138 F. Supp. 2d 237, 240 (D.R.I. 2001), citing 29 C.F.R. §§ 1, 3,

5–7. Every contract entered into pursuant to the Act must stipulate that the contractor shall pay

the wages established by the Secretary. 40 U.S.C. § 3142(c)(1); see 29 C.F.R. § 5.5. The

contract must also provide that if the contractor fails to pay the minimum wages specified in the

contract, the government’s contracting officer may withhold so much of the accrued payments as

may be considered necessary to pay the laborers and mechanics the difference between the

contract wages and those actually paid. 40 U.S.C. § 3142(c)(3). The Act further provides that

“[i]f the accrued payments withheld under the terms of the contract are insufficient to reimburse”

the laborers and mechanics for the wages owed, those “laborers and mechanics have the same

right to bring a civil action and intervene against the contractor and the contractor’s sureties as is

conferred by law on persons furnishing labor or materials.” Id. § 3144(a)(2). 2 “But, this purely

financial remedy is available only after there has been an administrative determination that some




1       The Act requires that “for every contract in excess of $2,000, to which the Federal
Government or the District of Columbia is a party, for construction, alteration, or repair,
including painting and decorating, of public buildings and public works of the Government or
the District of Columbia that are located in a State or the District of Columbia and which
requires or involves the employment of mechanics or laborers shall contain a provision stating
the minimum wages to be paid various classes of laborers and mechanics.” 40 U.S.C. § 3142(a).
Those “minimum wages shall be based on the wages the Secretary of Labor determines to be
prevailing for the corresponding classes of laborers and mechanics employed on projects of a
character similar to the contract work in the civil subdivision of the State in which the work is to
be performed, or in the District of Columbia if the work is to be performed there.” Id. § 3142(b).
2      The Act also includes other enforcement provisions, such as allowing the government to
terminate the contract where the contractor fails to pay the prevailing wages, and allowing the
Comptroller General to debar a contractor from future contract awards for a three-year period.
40 U.S.C. §§ 3143, 3144(b).

                                                  4
money is owed and that insufficient funds have been withheld to compensate the affected

laborer.” Bradbury, 138 F. Supp. 2d at 241.

       Defendants argue that the Davis-Bacon Act does not provide a direct private right of

action where an employer is alleged to have failed to pay the prevailing wage rates under the

Act. The Supreme Court has not yet addressed the issue, but in Universities Research Ass’n v.

Coutu, 450 U.S. 754 (1981), it held that the Act “does not confer a private right of action for

back wages under a contract that administratively has been determined not to call for Davis-

Bacon work.” Id. at 767–68 (emphasis added). The Court reasoned that to “imply a private right

of action” in that situation “would destroy [the] careful balance” between the interests of

contractors and employees and “would undercut as well the elaborate administrative scheme

promulgated” by the Secretary. Id. at 782–83. “The uniformity fostered by those regulations

would be short-lived if courts were free to make postcontract coverage rulings.” Id. at 783. The

Court “recognize[d] that some of [its] reasoning arguably applies to the question whether the Act

creates any implied right of action,” but it declined to reach that broader issue. Id. at 769 n.19.3

       Since then, “[t]he ‘majority of courts that have addressed the issue’ have concluded that

no private right of action exists under 40 U.S.C. § 1342,” the section of the Davis-Bacon Act at

issue in this case. Ibrahim v. Mid-Atlantic Air of DC, LLC, --- F. Supp. 2d ---, No. 11–1070,

2011 WL 3489110, at *2 (D.D.C. Aug. 10, 2011), quoting Bradbury, 138 F. Supp. 2d at 240

(collecting cases). In Grochowski v. Phoenix Construction, 318 F.3d 80 (2d Cir. 2003), the

Second Circuit held that the “great weight of authority indicates that” the Davis-Bacon Act does



3      The Court notes that defendants misquoted this language in their motion to dismiss by
omitting the qualifying language (“some” and “arguably”), which takes it out of its proper
context. Compare Defs.’ Mot. to Dismiss at 4 (“While the Court recognized that ‘our reasoning
applies to the question . . . .’”), with Universities Research, 450 U.S. at 769 n.19 (“While we
recognize that some of our reasoning arguably applies to the question . . . .”).
                                                  5
not “confer[] a private right of action on an aggrieved employee for back wages.” Id. at 85,

citing Operating Eng’rs Health & Welfare Trust Fund v. JWJ Contracting Co., 135 F.3d 671,

676 (9th Cir. 1998); Chan v. City of New York, 1 F.3d 96, 102 (2d Cir. 1993); Weber v. Heat

Control Co., 728 F.2d 599, 599–600 (3d Cir. 1984). Likewise, in United States ex rel. Glynn v.

Capeletti Bros., 621 F.2d 1309, 1313 (5th Cir. 1980), the Fifth Circuit examined the issue under

the four factors set forth in Cort v. Ash, 422 U.S. 66 (1975), the test used to determine whether a

private remedy is implied in a statute. 4 In a thorough and convincing analysis of those factors,

the Fifth Circuit held that the Act does not provide a private right of action for payment of

unpaid wages. 621 F.2d at 1313–17. 5

       Although the D.C. Circuit has not addressed the issue directly, another court in this

district recently cited Grochowski when it dismissed a claim for unpaid wages under the Davis-

Bacon Act. Ibrahim, 2011 WL 3489110, at *2. In Ibrahim, the court noted that the case law in

the D.C. Circuit “suggests that no private right of action exists,” as the majority of other courts

have concluded, but it declined to decide the issue because the plaintiff had conceded it. Id.,



4       The four factors are: “First, is the plaintiff ‘one of a class for whose especial benefit the
statute was enacted,’ that is, does the statute create a federal right in favor of the Plaintiff?
Second, is there any indication of legislative intent, explicit or implicit, either to create such a
remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative
scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one
traditionally relegated to state law, in an area basically the concern of the States, so that it would
be inappropriate to infer a cause of action based solely on federal law?” Glynn, 621 F.2d at
1313, quoting Cort, 422 U.S. at 78.

5       Applying the four factors, the court held: (1) “section 1 of the Act does not confer a
federal right directly on the benefited class,” 621 F.2d at 1314; (2) the legislative history of the
Act “contains no evidence of congressional intent either to create or deny private parties a right
of action under section 1,” id.; (3) “a private right of action is not ‘necessary’ to effectuate the
purposes of the statutory scheme,” id. at 1317; and (4) the “cause of action is not one
traditionally relegated to state law, in an area basically the concern of the states,” id. In sum, the
court concluded that “neither the language, the history, nor the structure of the statute supports
the implication of a private right of action in this case.” Id.
                                                  6
citing Kenney v. Roland Parson Contracting Corp., 790 F. Supp. 12, 16 n.3 (D.D.C. 1992), rev’d

on other grounds, 28 F.3d 1254 (D.C. Cir. 1994).

       The conclusion that the DBA provides no private right of action is also consistent with

the D.C. Circuit’s holding in Danielsen v. Burnside-Ott Aviation Training Center, Inc., 941 F.2d

1220 (D.C. Cir. 1991). In that case, the court addressed whether a private action may be brought

to recover wages under the Services Contract Act (“SCA”), 41 U.S.C. § 351, et seq., which

applies to service contracts but is otherwise analogous to the DBA. The plaintiffs sued their

employer for unpaid wages under the Racketeer Influenced and Corrupt Organizations (“RICO”)

Act, 18 U.S.C. §§ 1961–1968, and for common law fraud. The court held that “the implication

of a private right under the SCA would undercut the specific remedy prescribed by Congress.”

941 F.2d. at 1228. The court asked: “what plaintiff will pursue his administrative remedies

under the [SCA] where more direct and expeditious relief is available in a private suit?” Id.,

quoting Miscellaneous Serv. Workers v. Philco-Ford Corp., 661 F.2d 776 (9th Cir. 1981). The

same reasoning would apply in the case of the DBA since the administrative enforcement

schemes in the two statutes are similar. Compare 29 C.F.R. §§ 4.187–.191, 8.2–.18 with 29

C.F.R. §§ 5.6, 5.9–.13, 5.18–.19, 7.2–.18. Thus, prior case law suggests that it is likely that the

D.C. Circuit would also find that the DBA does not confer a private right of action.

       Here, plaintiffs expressly acknowledge that “[t]he parties are in agreement that the Davis-

Bacon Act does not contain a private cause of action for recovery of unpaid wages.” Pls.’ Opp.

at 7. Since, as in Ibrahim, the issue is conceded, the Court can assume, but need not decide, that

the Davis-Bacon Act does not give rise to a private right of action against an employer.




                                                7
           B. Plaintiffs cannot bypass the Davis-Bacon Act through state statutory and
              common law claims
       Plaintiffs insist that their suit can proceed whether or not the Davis-Bacon Act confers a

private right of action because they are not seeking relief under the Act. Id. at 4. They claim

that “D.C. law creates a valid claim for unpaid wages governed by the Davis-Bacon Act,” and

they point to the D.C. Wage Payment and Collection Law and the D.C. Minimum Wage Act as

the source of that claim. Id. at 7. But as courts in this circuit and elsewhere have concluded,

plaintiffs cannot get around the administrative prerequisites of the Act simply by dressing up

their claim in new language and asserting that it arises under state law.

       In Grochowski, the plaintiffs sought to recover Davis-Bacon wages allegedly owed to

them by asserting state law claims for breach of contract and quantum meruit. In dismissing

these claims, the court rejected the same argument that plaintiffs make here:

               At bottom, the plaintiffs’ state-law claims are indirect attempts at privately
               enforcing the prevailing wage schedules contained in the DBA. To allow
               a third-party private contract action aimed at enforcing those wage
               schedules would be inconsistent with the underlying purpose of the
               legislative scheme and would interfere with the implementation of that
               scheme to the same extent as would a cause of action directly under the
               statute.

318 F.3d at 86 (internal quotations omitted). 6




6       Plaintiffs’ attempt to distinguish contrary case law is not persuasive. Their reliance on
the dissent in Grochowski, see Pls.’ Opp. at 9, is unhelpful. Plaintiffs also argue that the reason
the Second Circuit upheld the dismissal of the claims in Grochowski was that the Grochowki
plaintiffs “had not brought an action under a specific statute with ‘a presumption in favor of the
right to bring suit.’” Id. at 8, quoting Grochowski, 318 F.3d at 85. But that is a misreading of
the court’s holding. It is true that the Grochowski plaintiffs selected common law breach of
contract claims, and not claims under state statutes, as the means of advancing their entitlement
to wages under the DBA. But the opinion suggests that claims based on state statutes would
have failed as well. “[T]he present contracts . . . were federally funded and, as such, are governed
by the prevailing wage requirements set forth in the DBA, not by § 220 of the New York Labor
Law. Since in this case . . . no private right of action exists under the relevant statute, the
                                                  8
       Similarly, in Ibrahim, the court held that the plaintiff “cannot evade the requirement that

he seek administrative relief simply by arguing that his claims arise under D.C. law.” 2011 WL

3489110, at *2. The court found that even if the plaintiff “had stated a claim under D.C. contract

law, it would likely be foreclosed by the Davis-Bacon Act.” Id. That is because bringing a state

law claim is “‘clearly an impermissible end run around’ the Davis-Bacon Act.” Id., quoting

Grochowski, 318 F.3d at 86. The court therefore dismissed the plaintiff’s complaint. Id. at *3.

See also Danielsen, 941 F.2d at 1228 (holding that “the private civil action, even couched in

RICO terms, will not lie for an alleged breach of the SCA.”); Miccoli v. Ray Commnc’ns, Inc.,

2000 WL 1006937, * 3 (E.D. Pa. July 20, 2000) (“Applying the teachings of Grochowski and

Danielson to this case, the court concludes that plaintiff’s claim, no matter how creative the




plaintiffs [sic] efforts to bring their claims as state common-law claims are clearly an
impermissible ‘end run’ around the DBA.” Id. at 86 (emphasis added).
        In addition, plaintiffs quote Chan, 1 F.3d at 103 (2d Cir. 1993), for the proposition that:
“the [statute’s] inquiry begins with a presumption in favor of the right to bring suit.” Pls.’ Opp.
at 8. But plaintiffs neglect to point out that the “statute” referenced in that sentence was 42
U.S.C. § 1983, not the Davis-Bacon Act. The court in Chan was asked to consider the
enforceability of the minimum wage rules in the Housing and Community Development Act
under section 1983, and it noted that “unlike the inquiry into whether a substantive statute
confers a direct private right of action, the § 1983 inquiry begins with a presumption in favor of
the right to bring suit.” Chan, 1 F.3d at 103 (emphasis added). See also Grochowski, 318 F.3d
at 80 (Chan “differentiated between a private right of action conferred by statute and an action
under § 1983.”). The court in Chan recognized the “general rule” that section 1983 was enacted
to provide a remedy for violations of federal rights. 1 F.3d at 106.
        But here, there is no corresponding presumption in favor of a right to bring suit under
D.C. law to enforce the federal rights at issue. To the extent that the D.C. Minimum Wage Act
specifically authorizes an employee to bring a civil action for unpaid wages, the statute confers
that right only for actions for wages “to which that employee is entitled under this subchapter,”
not under an unrelated federal law. D.C. Code § 32-1012(a) (emphasis added). And while the
DCWPCL includes a remedies provision, it simply permits an employee to bring an action to
recover “unpaid wages.” D.C. Code § 32-1308. The complaint here makes no allegation that
wages were unpaid other than its allegation that the wages for work on a federally funded
contract fell short of the prevailing rate under the DBA. Thus, plaintiffs’ state law claim is
indistinguishable from the asserted DBA violation at the heart of the complaint, and the Court
finds Grochowski to be more instructive than Chan.
                                                9
choice of nomenclature, is in reality a private claim for back wages under the Davis-Bacon Act

and the Service Contract Act. Neither statute allows for such a claim.”).

       In this case, plaintiffs seek to bypass the exclusive administrative remedies of the DBA

by bringing state law and quantum meruit claims. But the complaint makes clear that each of

plaintiffs’ claims is founded exclusively on the Davis-Bacon Act. Counts I and II each allege

that defendants violated the DCWPCL and the D.C. Minimum Wage Act by failing to

compensate plaintiffs “according to the prevailing Davis-Bacon rate.” Am. Compl. ¶¶ 70, 77.

Similarly, Count III alleges that defendants had an obligation to compensate plaintiffs at Davis-

Bacon prevailing wage rates, but that defendants retained the difference between the Davis-

Bacon wages and those they actually paid while still receiving the benefit of the work that

plaintiffs performed. Am. Compl. ¶¶ 83–86. Plaintiffs’ opposition reiterates that their claims are

premised upon the Act: “Taken in concert, the DCWPCL and Davis-Bacon clearly create an

actionable obligation for employers to compensate their employees with the minimum Davis-

Bacon prevailing wages required by law.” Pls.’ Opp. at 6.

       The Court therefore concludes that plaintiffs’ claims “are clearly an impermissible end

run around” the Davis-Bacon Act. Grochowski, 318 F.3d at 86. As other courts have held, if

plaintiffs could bring such an action directly in this Court, it would severely undermine the

specific remedial scheme established by Congress.




                                               10
   IV.      Conclusion

         For the foregoing reasons, the Court will dismiss plaintiffs’ complaint for failure to state

a claim upon which relief can be granted. A separate order will issue.




                                               AMY BERMAN JACKSON
                                               United States District Judge
DATE: September 21, 2011




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