UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN JORGENSEN, Individually, and
on behalf of all other persons
similarly situated,
Plaintiff-Appellant,
                                                                No. 95-2087
v.

THE CITY OF CLARKSBURG, WEST
VIRGINIA, a municipal corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CA-94-69-1)

Argued: May 7, 1996

Decided: July 2, 1996

Before WIDENER, MURNAGHAN, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John M. Hedges, Morgantown, West Virginia, for Appel-
lant. Thomas Joseph Obrokta, Jr., JENKINS, FENSTERMAKER,
KRIEGER, KAYES & AGEE, Huntington, West Virginia, for Appel-
lee. ON BRIEF: J. Michael Benninger, WILSON, FRAME, BEN-
NINGER & METHENEY, Morgantown, West Virginia, for
Appellant. John E. Jenkins, Jr., JENKINS, FENSTERMAKER,
KRIEGER, KAYES & AGEE, Huntington, West Virginia, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In an effort to preserve local jobs, government and community
leaders in Harrison County, West Virginia, structured a loan of
$8,500,000 from public and private sources which enabled the
Anchor Hocking Glass Company to purchase and renovate a glass
manufacturing facility that was slated to close. Of that amount, state
and local entities provided $4,500,000. The remaining $4,000,000
came from the Department of Housing and Urban Development
("HUD"), an agency of the federal government, which made an Urban
Development Action Grant ("UDAG") to the City of Clarksburg,
which then lent the money to Anchor Hocking. Pursuant to Section
5310 of the Housing and Community Development Act of 1974, 42
U.S.C. § 5301 et seq. (1988 & Supp. II 1990) ("HDCA"), which gov-
erns the grant, plant employees whose continued occupation was
made possible by the UDAG grant were to be paid minimum wages
as provided by the Davis-Bacon Act, 40 U.S.C. § 276a to 276a-5 (1988).1

John Jorgensen worked for Anchor Hocking at the Clarksburg
facility during and after the renovation. He sued in federal court for
himself and others similarly situated, alleging that Anchor Hocking
failed to pay Davis-Bacon minimum wages and that the City of
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1 Section 5310 requires that laborers employed on construction work
financed in whole or in part by HDCA grants shall receive wages not less
than those prevailing for similar work in the locality in accordance with
the Davis-Bacon Act.

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Clarksburg was liable for the lost earnings. The City sought summary
judgment, claiming that it was not a state actor as Jorgensen had
alleged in his 42 U.S.C. § 1983 (1988) complaint.2

Because we find it dubious to rely on non-state status as did the
City in arguing for summary judgment, we will assume that such state
status existed.3 In addition, we accept that Jorgensen was wrongly
deprived of full wages in violation of the Davis-Bacon Act. The ques-
tion remains therefore whether Jorgensen has alleged any action or
inaction by the City of Clarksburg which may be seen as causing that
deprivation and thus violating § 1983. West v. Atkins, 487 U.S. 42, 48
(1988) (explaining that to obtain relief under § 1983, plaintiff must
prove that defendant caused a deprivation of plaintiff's federal consti-
tutional or statutory right while acting under color of state law).
Viewing the evidence in the light most favorable to Jorgensen, United
States v. Diebold, 369 U.S. 654, 655 (1962) (per curiam), we find no
such violation.

While HDCA makes Davis-Bacon standards applicable to UDAG
projects, we find nothing in the record establishing the City's liability
for Anchor Hocking's noncompliance. The grant agreement imposed
no affirmative duty on the City actually to pay part of the wages
earned by Jorgensen in performing services for Anchor Hocking.
Compare Casias v. City of Raton, 738 F.2d 392, 396 (10th Cir. 1984)
(finding possibility of state action on part of city administering federal
grant because the city expressly assumed legal and financial responsi-
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2 Section 1983 renders civilly liable any "person, who under color of
any statute, ordinance, regulation, custom, or usage of any State or Terri-
tory or the District of Columbia, subjects or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privi-
leges, or immunities secured by the Constitution and laws."
3 In light of Monell v. Department of Social Servs., 436 U.S. 658, 690-
91 (1978) (holding that municipalities are suable"persons" under
§ 1983), we find it unlikely that the City could properly be found not to
be a state actor by any court. Moreover, courts have found actions of
state and municipal agencies administering federally funded programs to
be actions undertaken under color of state law. See, e.g., Chan v. New
York, 1 F.3d 96, 106-07 (2d Cir. 1993), cert. denied, 114 S. Ct. 472
(1994); Tongol v. Usery, 601 F.2d 1091, 1097 (9th Cir. 1979).

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bility and accountability in grant documents both for awarded funds
and performance of the grant-supported activity and because the city
played an active role in the employment activities at issue). The
agreement only required that the City administer and enforce federal
labor standards. There is no federal or state law expressly mandating
that the City pay the owed wages itself. Finally, the City took no
action that prevented Anchor Hocking from satisfying its federal obli-
gation. Compare Chan v. New York, 1 F.3d 96, 106-07 (2d Cir. 1993)
(finding city officials administering federal grant program responsible
as state actors for violation of Section 5310 and Davis-Bacon Act
because the city played an active role in preventing general contrac-
tors from paying at the federally mandated levels), cert. denied, 114
S. Ct. 472 (1994).

Instead, the City endeavored to force compliance by Anchor Hock-
ing in a manner that met with HUD approval. The City regularly noti-
fied the company of its obligation to pay wages at Davis-Bacon levels
and attempted to ensure that it did so. Such calling on the employer
to obey the law was the most that HUD demanded of the City in the
way of monitoring. Going further to require actual substitution pay-
ment by the City of money owed by Anchor Hocking would necessi-
tate a provision in the UDAG grant agreement which is conspicuously
and completely lacking.

While we recognize that summary judgment may have been
granted for the wrong reason, we find the action proper nonetheless.
We therefore affirm the disposition on grounds different from those
relied on by the district court. See McMahan v. International Assoc.
of Bridge, Structural & Ornamental Iron Workers, 964 F.2d 1462,
1467 (4th Cir. 1992) (affirming on basis different from that given by
district court).

The judgment is accordingly

AFFIRMED.

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