                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
PEDRO ANGULO, et al.,                )
                                     )
                      Plaintiffs,    )
                                     )
       v.                            )                   Civil Action No. 12-0586 (ABJ)
                                     )
VINCENT C. GRAY, in his official     )
capacity as Mayor of the District of )
Columbia, et al.,                    )
                                     )
                      Defendants.    )
____________________________________)

                                    MEMORANDUM OPINION

        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 Columbia1 (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

1       Since this suit is against defendants in their official capacities, it will be treated as a suit
against the District of Columbia. See, e.g., Brandon v. Holt, 469 U.S. 464, 471−72 (1985).


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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.

                                        BACKGROUND

        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



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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. Mid-

Atlantic 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



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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. . . .” Mid-Atlantic 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 summary

judgment and filed a single brief in opposition to defendants’ motion and in support of their

motion. See generally Pls.’ Opp. The Court has stayed plaintiffs’ motion for summary judgment

pending the resolution of defendants’ motion to dismiss. Minute Order (July 13, 2012). Both

parties’ appeals of the June 2011 decision are still pending before the ARB. Defs.’ Mem. at 9.

                                    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, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); accord Bell Atl. Corp. v.

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



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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.” 556 U.S. at 678. And

“[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss.”

Id. at 679.

        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 678.

“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).

In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider

only “the facts alleged in the complaint, documents attached as exhibits or incorporated by

reference in the complaint, and matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).




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                                            ANALYSIS

        The question currently before the Court is whether the Administrator’s June 2011 ruling

gave rise to rights under the DBA that are enforceable under Section 1983. The Court concludes

that the ruling cannot be enforced in this manner while the appeal of the Administrator’s decision

is pending before the ARB. Therefore, the Court will grant defendants’ motion to dismiss.

        The DBA requires, in pertinent part, that

                every contract in excess of $2,000, to which the . . . District of Columbia
                is a party, for construction . . . of public buildings and public works . . .
                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).      The District has the initial responsibility for determining whether a

particular construction project is subject to the DBA. 29 C.F.R. § 1.4. However, the Secretary

of Labor is ultimately responsible for administering and interpreting the DBA.                  See

Reorganization Plan No. 14 of 1950, 5 U.S.C. App. (2006).                This authority, including

determining whether the statute applies to a particular project, has been delegated to the

Administrator of the Wage and Hour Division of the DOL. 29 C.F.R. § 1.1; id. § 5.13. Thus, a

party seeking to have the DBA’s minimum wage provisions incorporated into a construction

contract – in light of an unfavorable decision from the District – must request and obtain a ruling

from the Administrator stating that the DBA applies to the particular project. See 29 C.F.R. §

5.13 (“All questions relating to the application and interpretation of wage determinations . . .

[provided for by the DBA] shall be referred to the Administrator for appropriate ruling or

interpretation.”).

        Any party aggrieved by the Administrator’s final decision with respect to the application

of the DBA to a specific project may appeal that decision to the Department of Labor



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Administrative Review Board (“ARB”). See 29 C.F.R. § 7.9(a); id. § 7.1(b) and (e) (The ARB

“is an essentially appellate agency” with “jurisdiction to hear and decide in its discretion appeals

concerning questions of law and fact from final decisions under parts 1, 3, and 5 of this subtitle .

. . .”). On appeal, the ARB “may remand under appropriate instructions any case for the taking

of additional evidence and the making of new or modified findings by reason of the additional

evidence.” Id. § 7.1(e). The ARB “shall act as fully and finally as might the Secretary of Labor

concerning” a matter within the scope of its jurisdiction. Id. § 7.1(d).

       Plaintiffs seek “declaratory and injunctive relief [under Section 1983] compelling the

District as mandated in the Administrator’s June 17, 2011 [decision] to incorporate the provision

stating the minimum wages to be paid various classes of mechanics and laborers in all ‘existing,

relevant contracts, obligations and other agreements . . . as necessary in accordance with [DBA

§3142(a)].’” Pls.’ Opp. at 14; see also Prayer for Relief ¶¶ 1−2. To state a claim under Section

1983, plaintiffs must first plausibly allege that defendants deprived them of their constitutional or

statutory rights. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988); see also Iqbal,

556 U.S. at 679 (“only a complaint that states a plausible claim for relief survives a motion to

dismiss”). In an attempt to meet this standard, plaintiffs assert that the June 2011 decision

accorded them the “right under the Davis-Bacon Act” to have certain minimum wage provisions

incorporated into their construction contracts and that defendants’ failure to comply with that

decision deprives plaintiffs of that right. Compl. ¶¶ 34–35 (emphasis added). This allegation

fails on its face because the question of whether the DBA applies to the CityCenterDC project is




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still pending before the ARB. Without a final decision from the ARB, there are no statutory

“rights” that this Court can enforce under Section 1983.2

       Plaintiffs rely heavily on Hanford Atomic Metal Trades Council, Inc. v. U.S. Dep’t of

Energy, No. 99–3402, slip op. at 12 n.4 (D.D.C. June 20, 2001) to support their contention that a

decision from the Administrator constitutes a final decision from the DOL. Pls.’ Opp. at 15−17.

In Hanford, the court held that a letter from the Administrator was a “final decision” of the DOL

where neither party appealed to ARB. Hanford, No. 99–3402 at 5−12. But here, both parties

have appealed the Administrator’s decision to the ARB and thus the Administrator’s ruling is not

a final agency decision. Moreover, in its June 2011 letter, the Administrator recognized that

although its decision was a “final ruling” of the Wage and Hour Division pursuant to 29 C.F.R. §

5.13, it was not necessarily a “final ruling” on whether the DBA applies to the CityCenterDC

project, and any party could appeal the decision to the ARB. See June 2011 Decision at 8.3




2        The section of the subtitle regarding the resolution of disputes of fact or law concerning
payment of prevailing wage rates, overtime pay, or proper classification explicitly states that
“[i]f a timely response to the Administrator’s findings or ruling is not made or a timely petition
for review is not filed, the Administrator’s findings and/or ruling shall be final . . . . If a timely
response or petition for review is filed, the findings and/or ruling of the Administrator shall be
inoperative unless and until the decision is upheld by the . . . Administrative Review Board.” 29
C.F.R § 5.11(d). Although section 5.11 is not directly at issue in this case, it demonstrates that in
an analogous situation, the Administrator’s decision is not a final DOL decision while an appeal
is pending before the ARB.

3      The Court is mindful of plaintiffs’ concern that they are presently suffering irreparable
harm and that “[t]he average case pending before the ARB is resolved approximately two years
or more after a petition for review is filed.” Pls.’ Opp. at 4; Compl. ¶ 32. But if plaintiffs are
concerned that there has been an unreasonable delay in the administrative process, their proper
remedy rests under the Administrative Procedure Act, 5 U.S.C. § 706, not under Section 1983.
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                                           CONCLUSION

       Because the June 2011 decision does not give plaintiffs rights under the Davis-Bacon Act

that are enforceable under Section 1983, the Court will grant defendants’ motion to dismiss

[Dkt. # 8]. A separate order will issue.




                                             AMY BERMAN JACKSON
                                             United States District Judge

DATE: December 3, 2012




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