                              UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



JAVIER LOPEZ CASTRO, et al.,

        Plaintiffs,
               v.                                           Civil Action No. 13-818 (JEB)
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND, et al.,

        Defendants.


                                   MEMORANDUM OPINION

       Plaintiffs, who worked as laborers for a sub-subcontractor in the construction of a District

of Columbia building, allege that they were underpaid for their efforts. They have sued under

the federal Davis-Bacon Act (DBA), 40 U.S.C. § 3141 et seq., in an effort to collect against the

prime contractor’s construction bond, which was secured pursuant to the District of Columbia’s

Little Miller Act (DCLMA), D.C. Code § 2-201.02 et seq. Defendant insurance companies

guaranteed the bond as co-sureties. In moving to dismiss, they now maintain that Plaintiffs are

not eligible to sue on the bond, and that even if they were, they have failed to comply with a one-

year statute of limitations. Plaintiffs counter that they are not only eligible, but that they also

benefit from a two-year limitations statute, which applies to suits brought by workers, as opposed

to suppliers and sub-contractors. The Court ultimately agrees with Plaintiffs and holds both that

they have stated a claim under the DBA and that their action is timely.

I.     Background

       Plaintiffs were employed by S & J Acoustics, a second-tier subcontractor (or sub-

subcontractor) retained to complete ceiling installation on the Consolidated Forensic Laboratory,


                                                   1
a building owned by the District of Columbia. See Am. Compl., ¶¶ 2, 5. Pursuant to the DBA,

40 U.S.C. § 3141, et seq., and the DCLMA, D.C. Code § 2-201.01, et seq., the project’s prime

contractor, Whiting-Turner Contracting Co., provided a payment bond to the District of

Columbia as an assurance that project laborers would receive payment at Department of Labor-

mandated hourly rates. See Am. Compl., ¶¶ 3, 8. In bringing this action against Defendants (1)

Fidelity and Deposit Company of Maryland and (2) Travelers Casualty and Surety Company of

America, who insured Whiting-Turner’s bond as co-sureties, see id., ¶ 3, Plaintiffs allege that

they were not paid for their contributions to the project in accordance with these designated wage

rates. See id., ¶¶ 16-18, 21. As background, the DCLMA requires contractors on government-

funded projects to secure payment bonds to protect the interests of suppliers of materials and

subcontractors, and the DBA establishes prevailing wage rates for workers who contribute to

government-funded construction projects.

       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., ¶¶ 23-25.

As the project had since wound up and all payments had been released to Whiting-Turner, the

DOL investigator closed the case without making any findings on Plaintiffs’ eligibility for relief

under the DBA. See id., ¶¶ 24-25. After Plaintiffs brought suit and Defendants filed their

Motion to Dismiss, the Court sua sponte raised the issue of subject-matter jurisdiction,

questioning whether Plaintiffs had sufficiently exhausted their administrative remedies with

DOL. See Order to Show Cause at 2-3. Out of deference to DOL’s plenary role in making DBA

back-wage determinations, the Court issued a temporary stay in the proceedings and ordered

Plaintiffs to return to DOL and request that conclusive findings be made. See ECF No. 16



                                                 2
(Order) at 4. Plaintiffs did so, but without success. DOL refused to take further action on the

ground that the government had already made all payments to the prime contractor and had no

further funds to withhold. See Joint Status Report, ¶¶ 6-7 & Exh. A. Satisfied that Plaintiffs had

made all efforts to exhaust remedies with DOL, the Court concluded that it did have subject-

matter jurisdiction under the DBA and could consequently address the substance of their claims

and Defendants’ pending Motion to Dismiss. See Castro v. Fid. & Deposit Co. of Maryland, No.

13-818, 2014 WL 495464 (D.D.C. Feb. 7, 2014).

       Plaintiffs have since moved to amend their Complaint in order to clarify the contractual

arrangement in effect between prime contractor Whiting-Turner and S&J Acoustics, Plaintiffs’

employer. See Am. Compl., ¶ 5 & Exh. B. The Court permitted the amendment without

objection from Defendants, who argue that dismissal is nevertheless appropriate.

II.    Legal Standard

       In evaluating a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), the

Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the

benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air

Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d

605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v.

FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The Court need not accept as true, however, “a

legal conclusion couched as a factual allegation,” or an inference unsupported by the facts set

forth in the Complaint. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006)

(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (internal quotation marks omitted).

III.   Analysis

       In weighing Defendants’ Motion, the Court must consider the respective scopes of



                                                  3
application of sections of the three statutes implicated in this case – namely, § 2-201.02 of the

DCLMA, § 3144(a)(2) of the DBA, and § 255 of the Portal-to-Portal Act, 29 U.S.C. § 251, et

seq. – and the interrelationships among them. Application of these statutes, Defendants contend,

demonstrates that Plaintiffs do not qualify for any remedy. But even if they did so qualify,

Defendants nevertheless maintain that Plaintiffs’ suit is untimely.

       To support these positions, Defendants offer a number of justifications that intersect and

overlap, making them somewhat challenging to parse. What is evident is that this suit poses

novel issues, and that neither Plaintiffs nor Defendants have much in the way of precedent to

guide them. To date, the opinions that have discussed the DBA, the DCLMA (and its model, the

Federal Miller Act), and the PPA have done so in piecemeal fashion, providing only a limited

analytical framework for cases such as this one. In responding to Defendants’ arguments,

therefore, the Court must traverse largely uncharted territory. It thus begins with a discussion of

whether a remedy is available under either the DCLMA or DBA and then proceeds to consider

the limitations question.

       A. Availability of Remedy

       Defendants first argue that Plaintiffs cannot invoke the DCLMA to sue on Whiting-

Turner’s payment bond because eligibility under the statute is restricted to those suppliers of

labor and materials that have been retained either by the prime contractor or by an immediate

subcontractor. See Mot. to Dismiss at 9; Reply at 1-2. Since Plaintiffs were hired by a second-

tier subcontractor, Defendants suggest that they fall outside of the scope of the statute. See

Supp. to Mot. to Dismiss at 3.

       Defendants further maintain that Plaintiffs also have no remedy under the DBA. They

premise this argument on the text of DBA § 3144(a)(2), which provides that “laborers and



                                                 4
mechanics have the same right [of] action . . . as is conferred by law on persons furnishing labor

or materials.” See Reply at 4. The use of the phrase “same right,” according to Defendants,

demonstrates that § 3144(a)(2) does not actually grant aggrieved workers an independent cause

of action, but merely references the applicable bond statute – in this case, DCLMA § 2-201.02.

See Mot. to Dismiss at 9; Reply at 1 (“Plaintiffs do not have separate cause [sic] of action against

the Defendants in this case under the DBA . . . .”). Alternatively, even if § 3144(a)(2) does

create a freestanding cause of action, Defendants reason that the result should be the same

because “the rights, if any, that were conferred [by §3144(a)(2)] were limited by the express

terms of the bond statute.” Reply at 7. The DBA, by this logic, merely duplicates the DCLMA,

mirroring its procedural requirements and limitations on eligibility.

       To address Defendants’ contentions, the Court first analyzes the scope and requirements

of the DCLMA. It then turns to an examination of § 3144(a)(2) of the DBA to determine

whether it provides an independent remedy with its own terms and conditions.

               1. The DCLMA

       The DCLMA, D.C. Code § 2-201.02 et seq., is modeled after the federal Miller Act, 40

U.S.C. § 3131, and opinions interpreting the latter statute provide persuasive authority for

disputes under the former. See Hartford Acc. & Indem. Co. v. D.C., 441 A.2d 969, 972 (D.C.

1982). First promulgated as the Heard Act of 1894, see Act of August 13, 1894, ch. 280, 28 Stat.

278, as amended by Act of February 24, 1905, ch. 778, 33 Stat. 811, the Miller Act was designed

to address a relatively narrow yet significant dilemma posed by federally funded construction

projects. Ordinarily, when a supplier or subcontractor contributes to a private construction

project, it can protect itself against default by the prime contractor by securing a lien against the

underlying property. Government property, by contrast, cannot generally be subject to a lien.



                                                  5
See Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 264 (1999). The principle of “sovereign

immunity [leaves] suppliers . . . without the protection of the [materialman’s and] mechanics’

liens normally available in private industry.” U.S. ex rel. E & H Steel Corp. v. C. Pyramid

Enterprises, Inc., 509 F.3d 184, 186 (3d Cir. 2007) (citing Blue Fox, Inc., 525 U.S. at 264-65).

Recognizing this imbalance, the Miller Act was “intended to provide an alternative remedy to

protect the rights of these suppliers,” F. D. Rich Co. v. U.S. ex rel. Indus. Lumber Co., Inc., 417

U.S. 116, 122 (1974), by requiring every contractor on a federal contract valued above a certain

threshold to secure a payment bond in advance of construction. See 40 U.S.C. § 3131(b). The

DCLMA was adopted to serve the same end, “protect[ing] subcontractors supplying labor and

material to a [District of Columbia] government project.” Hartford Acc. & Indem. Co., 441 A.2d

at 972.

          Suppliers and contractors have few procedural hurdles to contend with when they sue on

a prime contractor’s bond. If a supplier has not received payment within a 90-day period, it need

only notify the prime contractor of its intention to collect on the bond before initiating a suit.

See § 3131(b); D.C. Code § 2-201.02(a). Neither the Miller Act nor the DCLMA require the

aggrieved party to seek administrative review of a claim before turning to the courts. See id.

          Congress did impose sharp restrictions on the scope of the Miller remedy, however, and

only those parties with close links to the prime contractor can claim the protections of the bond.

Those who have an attenuated connection to a project and operate further down the chain of

commerce are excluded from coverage. See F. D. Rich Co., Inc., 417 U.S. at 122. The

limitations on Miller’s coverage are geared to avoid the risk that a prime contractor could be held

to account for the debts of a third party simply because that third party’s materials happened to

make their way to a job site. See, e.g., id.; U.S. ex rel. E & H Steel Corp., 509 F.3d at 187. As



                                                  6
the Supreme Court has recognized, the Miller bond remedy was designed “to extend no further

than to sub-subcontractors,” J.W. Bateson Co. v. U.S. ex rel. Bd. of Trustees, 434 U.S. 586, 591

(1978) (emphasis added), leaving “[t]hose in more remote relationships, including persons

supplying labor or material to a mere materialman” without protection. F. D. Rich Co., 417 U.S.

at 122.

          In addition to excluding those beyond two degrees of contractual privity to the prime

contractor, the Miller Act has another limitation. Unlike the DBA and other federal labor and

wage statutes, Miller was not designed with the welfare of workers in mind, but was instead

tailored to protect suppliers and subcontractors. In the Supreme Court’s reading, the Miller Act

“exclude[s] ordinary laborers” from its scope, only extending to those “who perform[] for and

take[] from the prime contractor a specific part of the labor or material requirements of the

original contract.” Clifford F. MacEvoy Co. v. U.S. ex rel. Calvin Tomkins Co., 322 U.S. 102,

109 (1944).

          The restricted scope of application of these bond statutes means that Plaintiffs cannot

qualify under the terms of the DCLMA alone because they neither worked in the capacity of

suppliers or subcontractors, nor were they hired by Whiting-Turner or an immediate

subcontractor. Indeed, if the DCLMA furnishes the only available remedy in cases such as this

one, many workers employed directly at a job site would never be able to collect on a prime

contractor’s bond, either because they were hired beyond a certain orbit of contractual privity,

see J.W. Bateson Co., 434 U.S. at 591, or because they only qualify as “ordinary laborers,” who

are ineligible under the Supreme Court’s reading of the bond statute.

                 2. DBA § 3144(a)

          The game is not over, however, because the DBA protects precisely those “ordinary



                                                   7
laborers” that the Miller Act appears to exclude. The DBA applies to any construction contracts

for public works and public projects that exceed $2,000 in value and to which either the Federal

Government or the District of Columbia is a party. See 40 U.S.C. § 3142(a). It obliges

contractors on such projects to pay workers in accordance with prevailing wage rates, established

by the Secretary of Labor. See id. In the event that contractors do not comply with prevailing

wage rates, a worker may seek redress through the mechanism set out in DBA § 3144(a)(2).

Promulgated in 1935 – just six days after the federal Miller Act was updated to reflect its current

language – § 3144(a)(2) is broadly worded, granting a right of action to “all the laborers and

mechanics who have not been paid the wages required” pursuant to the DBA. In contrast to the

Miller Act and DCLMA, which condition their protections on a requisite level of contractual

proximity to the prime contractor, DBA eligibility appears to hinge upon a laborer’s presence at

the job site. Section 3144(a)(2) stipulates that each “contractor or subcontractor” involved in a

“contract” governed by the DBA “shall pay all mechanics and laborers employed directly on the

site of the work, unconditionally and at least once a week . . . regardless of any contractual

relationship which may be alleged to exist between the contractor or subcontractor and the

laborers and mechanics.” § 3142(c)(1) (emphasis added).

       Although the DBA does not separately delineate the terms “contract,” “contractor,”

“subcontractor,” or “laborer,” these terms are defined in corresponding regulations promulgated

by the Secretary of Labor. See 29 C.F.R. § 5.2. The term “contract” comprises “any prime

contract which is subject . . . to the labor standards provisions of [the DBA] and any subcontract

of any tier thereunder, let under the prime contract.” § 5.2(h) (emphasis added). This definition,

unlike that in the DCLMA, is not limited by a particular degree of separation from the prime

contractor. The regulations, in fact, expressly disavow any requirement that a worker



                                                 8
demonstrate a particular contractual relationship, instead providing that “[e]very person

performing the duties of a laborer or mechanic in the construction . . . of a public building or

public work . . . is employed regardless of any contractual relationship alleged to exist between

the contractor and such person.” § 5.2(o). The regulatory definition of “laborer” is governed by

function, not by contractual formality, and extends to “at least those workers whose duties are

manual or physical in nature.” § 5.2(m).

       Even in the unlikely event that a court were to find the text of the DBA ambiguous, it

would still be bound to apply DOL’s regulatory definitions in making its decision. “Because the

Secretary of Labor has interpreted the Act,” courts must defer to the Secretary’s judgment

provided that these “interpretations are reasonable.” AKM LLC v. Sec’y of Labor, 675 F.3d

752, 754 (D.C. Cir. 2012) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.

837, 843 (1984)). In this case, the regulatory interpretations are more than merely reasonable –

they are grounded in the most basic common sense. Because a prime contractor should have

ample notice of laborers working at its project site, it can institute sufficient controls to ensure

that they are accounted for and paid for their contributions, regardless of any particular

contractual arrangement. In contrast to the situation with suppliers, who may come and go

without any physical connection to a job site, there is far less risk that laborers will be

completely “[un]known to the prime contractor,” U.S. ex rel. E & H Steel Corp., 509 F.3d at

187, and thereby expose it to unforeseen liability.

               3. Interplay Between Statutes

       Regardless of the DBA’s general scope of application, Defendants nevertheless argue that

§ 3144(a)(2) does not create a freestanding cause of action, and even if it does, whatever remedy

it provides is functionally identical to that offered by the DCLMA. This is evident, Defendants



                                                   9
argue, in the text of § 3144(a)(2), which offers workers only the “same right . . . as is conferred

by law on persons furnishing labor or materials.” See Mot. to Dismiss at 9; Reply at 1, 4-8.

Neither common sense nor a holistic reading of § 3144(a)(2) supports such a result.

       Clearly titled as a “[r]ight of action,” DBA § 3144(a)(2) provides that, if the Secretary of

Labor’s withholdings under the terms of a contract are “insufficient to reimburse all the laborers

and mechanics who have not been paid the wages required[,] . . . the 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.” (Emphasis

added). Two points are notable here. First, the express title of § 3144(a)(2) indicates that

Congress believed that it was creating a new and fully functional right of action, and not merely

a superficial reference to remedies already available under the bond statutes. While many battles

have been waged over whether or not an aggrieved worker can claim an implied right of action

under the DBA and thereby circumvent the administrative-exhaustion requirements of § 3144(a),

see, e.g., Univers. Research Ass’n v. Coutu, 450 U.S. 754, 780 (1981), courts have long

recognized that § 3144(a)(2) furnishes an express cause of action once remedies have been

exhausted. See, e.g., U.S. ex rel. Bradbury v. TLT Const. Corp., 138 F. Supp. 2d 237, 241

(D.R.I. 2001).

       Second, the formulation “all the laborers . . . who have not been paid” sets an expansive

scope of application that is not obviously restricted by what follows. If Congress had intended to

limit the scope of eligibility to sue on a bond to the narrow class of workers who might qualify

under the terms of the Miller Act, it stands to reason that the legislature would have said so in

clear and unambiguous terms or, more plausibly, would have completely omitted § 3144(a)(2)

from the DBA. If Defendants are correct, § 3144(a)(2) would be mere surplusage, offering



                                                 10
nothing of value over and above the remedies already available via the Miller Act and DCLMA.

The Court cannot ignore the “‘cardinal principle of statutory construction’ that ‘a statute ought,

upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall

be superfluous, void, or insignificant.’” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting

Duncan v. Walker, 533 U.S. 167, 174 (2001)).

       Perhaps even more troubling, Defendants’ assessment of § 3144(a)(2) would create two

arbitrary classes of workers – first, those who satisfy the technical qualifications imposed by the

terms of the Miller Act and DCLMA, and second, all otherwise DBA-eligible workers. If the

Court were to endorse Defendants’ highly restrictive interpretation, it might encourage prime

contractors to insulate themselves behind several layers of subcontracts and thus opt out of the

obligation to pay DBA-mandated wages, particularly as a project draws to a close and the

government is no longer able to withhold funds. It should be obvious, accordingly, that all

laborers present on the worksite of a DBA-eligible project should stand to benefit from the Act’s

protections, regardless of contractual formalities. The Court thus concludes that § 3144(a)(2) of

the DBA creates an independent cause of action that grants the ability to collect on a prime

contractor’s bond to all eligible on-site workers, regardless of who hired them.

       B. Applicable Statute of Limitations

       Defendants’ final challenge pertains to the timeliness of this action. Because Plaintiffs

narrowly missed the cut-off point for the DCLMA’s one-year statute of limitations, see D.C.

Code § 2-201.02, due in large part to their efforts to exhaust administrative remedies with DOL,

Defendants urge the Court to dismiss the suit. See Mot. to Dismiss at 3-4; Reply at 4. Plaintiffs,

however, assert that they benefit from a two-year period conferred by Section 255 of the Portal-

to-Portal Act. Having already argued that all of the DCLMA’s terms and conditions – including



                                                11
its statute-of-limitations provision – are incorporated by reference into the DBA § 3144(a)(2),

see Mot. to Dismiss at 9; Reply at 1, Defendants maintain that the Portal-to-Portal Act did not

alter the limitations period available under the DBA, at least for suits on a prime contractor’s

bond. See Reply at 5-6. To further support this argument, Defendants rely upon past Supreme

Court dictum that describes the PPA and Miller Act statutes of limitations as “incompatible,” and

which might be read as obliquely questioning whether the PPA period applies to suits on a prime

contractor’s bond. See id. (citing Coutu, 450 U.S. at 779-82). Ultimately, the Court agrees with

Plaintiffs, finding that the plain language of PPA § 255, along with its drafting history and

certain practical considerations, demonstrates Congress’s intention to afford workers a two-year

window for actions such as this one.

       The Court begins with the text of the PPA, which offers convincing evidence that a two-

year statute of limitations should govern in DBA suits to collect back wages against a prime

contractor’s bond. PPA § 255(a) provides, in relevant part:

               Any action . . . to enforce any cause of action for unpaid minimum
               wages, unpaid overtime compensation, and liquidated damages . . .
               under the Fair Labor Standards Act . . . the Walsh-Healey Act, or
               the Davis-Bacon Act . . . may be commenced within two years
               after the cause of action accrued, and every such action shall be
               forever barred unless commenced within two years after the cause
               of action accrued, except that a cause of action arising out of a
               willful violation may be commenced within three years after the
               cause of action accrued.

(Emphasis added.)

       As Plaintiffs note, the language “any action . . . to enforce any cause of action for unpaid

wages” is expansive and appears to embrace all civil suits brought by workers to enforce DBA

wage requirements. See Opp. at 7. While this limitation period has been found to apply to suits

involving other statutes specifically named in § 255(a), particularly the Walsh-Healey Act, see


                                                 12
Unexcelled Chem. Corp. v. United States, 345 U.S. 59, 63-65 (1953), this Court is not aware of

any opinion that has definitively addressed whether this longer period controls when an

aggrieved worker seeks to collect on a Miller bond pursuant to DBA § 3144(a)(2). In the Walsh-

Healey context, the Supreme Court has explained that where the “cause of action seems to be

precisely described by and expressly included” in the text of the PPA, that limitations provision

should control. See id. at 65. Accordingly, “when Congress, though perhaps mistakenly or

inadvertently, has used language which plainly brings a subject matter into a statute, its word is

final.” Id. It is not the role of the courts to conclude “that Congress did not mean what it said.”

Id. This reasoning is no less compelling in the DBA context.

       The PPA’s background and drafting history also support a literal reading of § 255. As

the Supreme Court has explained, the PPA was “intended to curtail the numerous suits for unpaid

compensation and liquidated damages under the FLSA,” following an earlier decision holding

that workers could seek back-wage compensation for the time incurred transiting to and from

their places of employment. Coutu, 450 U.S. at 780 (citing Anderson v. Mount Clemens Pottery

Co., 328 U.S. 680 (1946)). In addition to prohibiting workers from claiming such “portal-to-

portal” compensation under the FLSA, the Walsh-Healey Act, and the DBA for time spent

commuting to and from their jobs, the PPA also established a single limitations period for any

back-wage and overtime-compensation claim brought pursuant to these three statutes. “Although

no portal-to-portal suits had been filed under the Davis-Bacon [Act] . . . Congress chose to

include [the DBA] within the scope of the Portal-to-Portal Act on the ground that [the DBA],

like the FLSA, related to minimum wages and [was] therefore affected by the Mount Clemens

decision.” Id. (internal citations omitted).

       The Supreme Court has examined the interactions among the DBA, the Miller Act, and



                                                 13
the PPA’s statute-of-limitations provision on just one occasion, and only tangentially. See id. at

779-82. In Coutu, the plaintiff argued that the presence of differing limitations periods in the

PPA and the Miller Act “affirm[ed] the existence of a private cause of action under the [DBA]”

in addition to the express cause of action found in § 3144(a)(2). See id. The Supreme Court

disagreed, chastising the plaintiff for reading too much into the PPA and commenting that, “even

if the [PPA] had been intended to create a longer statute of limitations” for DBA actions on a

bond, this did not prove that the DBA contained an implied cause of action in addition to the §

3144(a)(2) remedy. Id. According to the Court, “Congress simply did not recognize that it had

created two incompatible statutes of limitations under the Davis-Bacon Act.” Id. The Coutu

opinion did not further explore the relationship among the PPA, the DBA, and the Miller Act,

nor did it definitively rule on which limitations period should control in a case such as this.

Defendants nevertheless argue that because the Court described the two periods as

“incompatible,” the “applicability of the Miller Act one (1) year limitation is evidenced by the

fact that the Supreme Court did not strike either one of the acts down.” Reply at 6.

       More likely, the Court’s response was only intended to discredit the theory that the

difference between the PPA and Miller Act limitations periods amounted to congressional

affirmation that the DBA offered two avenues for worker redress – the express remedy of

§ 3144(a)(2) and a functionally separate implied remedy. The discrepancy between the two

periods was simply not on Congress’s radar at the time it promulgated the PPA.

       Later observations in the Coutu case, also in dictum, further undermine Defendants’

argument. In its review of the Act’s drafting history, the Court observed that remarks made

during Senate debate on the PPA “strongly suggest[] that the limitations period . . . was designed

to apply to the explicit statutory remedy set forth in [§ 3144(a)(2) of] the Davis-Bacon Act.”



                                                 14
Coutu, 450 U.S. at 780 n.34 (citing 93 Cong. Rec. 2252 (1947) (statement of Sen. McGrath)).

Indeed, during debate over the PPA limitations period, Senator J. Howard McGrath of Rhode

Island argued that a two-year window might not be generous enough for DBA actions because

the “administrative procedures which are necessary to determine the validity of the workman’s

claim for back wages under the Davis-Bacon Act frequently take a considerable length of time

which may very easily run for a period of more than 2 years.” Id.

       When considered in this historical context, there appears to be even less support for

Defendants’ argument that, due to the supposed incompatibility between the limitations periods

in the PPA and Miller Act, back-wage suits initiated under the DBA – unlike those brought

under the FLSA and Walsh-Healey Act – must be initiated within a one-year window. The

difference between the two limitations periods can, in this Court’s view, be explained by the

dissimilar conditions facing workers and suppliers when they sue against the prime contractor’s

bond – conditions that Congress took into account when promulgating the PPA. As already

discussed above, the Miller Act and DBA § 3144(a) protect two distinct groups of aggrieved

persons and impose different prerequisites for bringing a civil action. To repeat: suppliers and

subcontractors, unlike workers, are not required to exhaust any administrative remedies before

initiating an action in federal court; if they have not been paid within a 90-day period, they can

seek immediate redress. See 40 U.S.C. § 3133; see also D.C. Code § 2-201.02(a). Workers,

however, must first seek a remedy with DOL, proceeding against the prime contractor’s bond

only after the government determines that it has not withheld sufficient funds under the contract.

See Lopez Castro, 2014 WL 495464, at *5. Congress would thus have had good reason to afford

workers a longer limitations period.

       The facts of this case provide an apt example. Although Plaintiffs promptly notified the



                                                 15
prime contractor of their alleged underpayment and filed an administrative complaint with DOL

in July of 2012, see Am. Compl., ¶¶ 22-23, DOL did not assign the matter to an investigator until

February of 2013 or provide any response to Plaintiffs until April of the same year. See id., ¶¶

24-25. The shorter limitations period would thus punish people like Plaintiffs for delays largely

beyond their control.

        The Court, therefore, concludes that because Plaintiffs’ DBA action is subject to a two-

year statute of limitations, it is timely.

IV.     Conclusion

        For the forgoing reasons, this Court will issue a contemporaneous Order this day denying

Defendants’ Motion to Dismiss.



                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge
Date: April 14, 2014




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