                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 12a0351p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                               X
                                                -
 UNITED STATES OF AMERICA, ex rel. BRIAN

                        Plaintiffs-Appellees, --
 WALL,

                                                -
                                                    No. 10-5645

                                                ,
                                                 >
                                                -
           v.

                                                -
                       Defendant-Appellant, --
 CIRCLE C CONSTRUCTION, L.L.C.,

                                                -
                                                -
                                  Defendant. -
 PHASE TECH, LLC,
                                               N
                  Appeal from the United States District Court
               for the Middle District of Tennessee at Nashville.
              No. 07-00091—William J. Haynes, Jr., District Judge.
                                   Argued: January 11, 2012
                            Decided and Filed: October 1, 2012
    Before: SILER and GRIFFIN, Circuit Judges; and TARNOW, District Judge.*

                                      _________________

                                            COUNSEL
ARGUED: John B. Carlson, Nashville, Tennessee, for Appellants. Ellen Bowden
McIntyre, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for
Appellee. ON BRIEF: John B. Carlson, Nashville, Tennessee, for Appellants. Ellen
Bowden McIntyre, UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee,
for Appellee.




        *
        The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District of
Michigan, sitting by designation.


                                                  1
No. 10-5645         United States, et al. v. Circle C Constr.                         Page 2


                                   _________________

                                        OPINION
                                   _________________

        GRIFFIN, Circuit Judge. In this action alleging a violation of the federal False
Claims Act (“FCA”), 31 U.S.C. § 3729(a)(2) (2006), defendant Circle C Construction,
LLC (“Circle C”) appeals an order of the district court denying its motions for summary
judgment and to dismiss the amended complaint, and granting summary judgment in
favor of plaintiffs United States of America, ex rel. Brian Wall (“plaintiffs”) in the treble
damages amount of $1,661,423.13.

        We affirm the grant of summary judgment in favor of plaintiffs, but reverse the
award of damages and remand for a recalculation of the damages.

                                             I.

      The relevant underlying facts are set forth in the district court’s Memorandum
Opinion:
        Circle C signed an agreement with the Army to construct buildings at the
        Fort Campbell military base.           Circle C’s agreement included
        determinations of hourly wages for electrical workers with a base hourly
        rate of $19.19, plus fringe benefits of $3.94 an hour. Prior to this
        contract, Circle C has had government contracts for almost twenty
        (20) years. Frances Cates, a Circle C co-owner, and Dorothy Tyndall,
        Circle C’s bookkeeper, attended a training session at Fort Campbell on
        the prevailing wage requirement for federal government contracts. In
        this Fort Campbell contract, Circle C acknowledged its “familiarity with”
        the prevailing wage requirements in all of its contracts. (Docket Entry
        No. 91, Defendant's Response to Plaintiffs Statement of Undisputed Facts
        at ¶ 11). John W. Cates, Circle C’s corporate representative[,] conceded
        Circle C’s knowledge of various Davis-Bacon Act requirements. Id. at
        ¶ 14.
        Among Circle C’s contractual obligations on the Fort Campbell project
        were Circle C’s obligations to pay electricians according to the wage
        determinations in the contract, to ensure that persons doing electrical
        work were paid as electricians; to submit payroll certifications to Fort
        Campbell as a condition of payment; and to ensure that its subcontractors
        complied with [the] Davis-Bacon Act and that the payroll certification
        submitted to Fort Campbell were complete and accurate, including
No. 10-5645       United States, et al. v. Circle C Constr.                           Page 3


      information on Circle C’s subcontractors. Circle C conceded that it
      “should submit payroll certifications for all employees on the Fort
      Campbell project.” (Docket Entry No. 75-1 at 12, Exhibit 3). Circle C
      submitted its payroll certifications for the original certifications, but did
      not list Phase Tech’s employees. Circle C asserts that it never promoted
      itself as the prime contractor on this project. Yet, during this same
      period, Circle C submitted separate certified payrolls for its other
      subcontractors. Phase Tech did not submit any payroll certification for
      2004 and 2005.
      Phase Tech was Circle C’s subcontractor on at least 98 percent of the
      electrical work on the Fort Campbell project, but did not sign a written
      contract with Circle C. Circle C provided Phase Tech with the wage
      determination excerpts from its contract, but did not discuss the
      Davis-Bacon Act requirements with Phase Tech nor verify whether Phase
      Tech submitted its own payroll certifications to Fort Campbell. Circle
      C did not provide a blank payroll certification form to Phase Tech.
      Circle C lacked a protocol or procedure to monitor Phase Tech’s
      employees’ work on the Fort Campbell project and did not take measures
      to ensure payment of proper wages under the Davis-Bacon Act to Phase
      Tech’s employees. According to Charles Cooper, Phase Tech co-owner
      and certified electrician, Circle C did not inform Phase Tech of the need
      to submit certified payrolls for the Fort Campbell project until
      approximately 2006, two years after the project commenced.
      Phase Tech had eight employees, including [Relator] Wall, who worked
      on the Fort Campbell contract, performed electrical and conduit work as
      electricians. Wall, the relator, and Ryan McPherson were Phase Tech
      employees on a construction project for which Circle C was the prime
      contractor and Phase Tech was a subcontractor. Wall also performed
      preparatory and finishing work for the electrical wiring on the Fort
      Campbell project. According to John W. Cates, Circle C’s corporate
      representative for this project, Circle C neither supervised, directed nor
      paid for Wall’s or McPherson’s work on Fort Campbell’s contract.
      Circle C notes that it was neither asked or requested to pay or supervise
      the payment of Wall or McPherson.
      After this action was filed, Circle C asked Phase Tech to provide new
      payroll certifications for the years when Phase Tech’s employees were
      not included on any certified payrolls. Phase Tech provided this
      information to Circle C in December 2008.                 Phase Tech’s
      contemporaneous records include daily calendars with the names of
      Phase Tech employees and their assigned job sites as well as dates and
      times of their work. Phase Tech also has pay stubs, but not for Phase
      Tech employees on the Fort Campbell project. According to Cooper,
      Phase Tech’s owner at the time that these certifications were completed,
No. 10-5645       United States, et al. v. Circle C Constr.                          Page 4


      “I’m sure I told [John W. Cates] they weren’t-they weren’t complete.”
      (Docket Entry No. 75-8 at p. 50). Circle C never verified these 2008
      certifications for completeness and accuracy, but submitted them to Fort
      Campbell officials.
      Edison Gunter, Special Agent with the United States Department of
      Labor (“DOL”) reviewed Circle C’s and Phase Tech’s certifications for
      the Fort Campbell contract as well as Phase Tech’s daily calendars and
      pay stubs. Gunter found 62 inaccurate or false payroll certifications of
      which 53 were Circle C’s original payroll certifications from 2004 and
      2005. Despite contemporaneous records of Phase Tech employees on the
      project, Circle C did not list Phase Tech’s employees. Of the payroll
      certifications Phase Tech signed and Circle C submitted in December
      2008, nine (9) certifications were inaccurate because certification for
      Phase Tech workers did not match Phase Tech’s contemporaneous
      documents for workers on the project.
      In the December 2008 payroll certifications, Circle C listed one certified
      electrician for this project who was paid at the hourly wage of $12 to $16
      an hour. Id. The wages on these certifications are below the rates on the
      Circle C’s contract for its subcontractors’ electrical workers that required
      a wage of $19.19 per hour, plus fringe benefits of $3.94 an hour for work
      in Kentucky. The pay stubs of the original 2004 and 2005 Circle C
      payroll certifications also reflect the workers’ pay between $12 and $16
      an hour. Thus, 62 payroll certifications contained non-complying hourly
      wages for laborers as well as an electrical worker on the payroll, with the
      exception of one worker who was paid about $17 an hour.
      Karen Garnett, assistant district director in the DOL’s Louisville Office
      found Circle C’s original payroll certifications to be false, because Circle
      C knew its subcontractor Phase Tech had employees working on the
      contract, but failed to list those employees on its certified payrolls.
      According to Garnett, Circle C is also responsible for the false December
      2008 certifications because Circle C was responsible for the inaccurate
      submissions of its subcontractor. For all certifications, Phase Tech’s
      employees should have been categorized and paid as electricians because
      they performed electrical work. Garnett considered listing only one
      electrician with all other employees as laborers to be a red flag.
      Cates and Cooper who were shown comparisons of Circle C’s payroll
      certifications and Phase Tech’s contemporaneous documents, admitted
      that the certifications and records were inaccurate. Cates acknowledged
      that the wages listed for Phase Tech employees in the certification were
      less that the Davis-Bacon Act requirement for electrical workers. Circle
      C’s and Phase Tech’s December 2008 certifications include the provision
      that certifying representative states that “I pay or supervise the payment
No. 10-5645        United States, et al. v. Circle C Constr.                         Page 5


       of the persons employed by [Circle C or Phase Tech and] that during the
       payroll period . . . all persons employed on said project have been paid
       the full weekly—the full weekly wages earned . . . [and that] any payrolls
       . . . are correct and complete.” (Docket Entry No. 80, Gunter Declaration
       at pp. 3-4). The certifying agents also know that false statements in these
       certifications could subject the contractor or subcontractor to civil
       prosecution.
       For this Fort Campbell project, the United States paid Circle C a total
       five hundred sixty-five thousand, one hundred nine dollars ninety one
       cents ($565,109.91) for the electrical portion of this project based upon
       specific delivery work orders for electrical work cites without dispute
       that all of Phase Tech’s employees performed electrical works on this
       project. (Docket Entry No. 75, Plaintiff’s Statement of Undisputed Facts
       at Exhibit 6, Cooper Deposition at p. 42). Phase Tech performed 98% of
       this project’s electrical work that represents a total payment of five
       hundred fifty-three thousand eight hundred seven dollars seventy-one
       cents ($553,807.71), that was given to Circle C and is the actual amount
       that should have been paid to Phase Tech’s electrical and other workers.

United States ex rel. Wall v. Circle Constr., LLC, 700 F. Supp. 2d 926, 930–32 (M.D.
Tenn. 2010) (hereinafter the “Wall” decision).

                                            II.

       On January 25, 2007, Relator Wall filed the present action on behalf of the
United States, asserting a claim under the FCA against Circle C and Phase Tech. On
October 29, 2007, the United States intervened in the action. On October 20, 2008, the
United States moved for leave to file an amended complaint, and the district court
granted the motion on October 23, 2008. The three-count amended complaint alleged:
(1) a violation of the FCA, 31 U.S.C. § 3729(a)(2) (2006); (2) unjust enrichment; and
(3) payment by mistake.       Specifically, plaintiffs averred that all of the payroll
certifications during the period when Wall and McPherson worked at the construction
site were false because defendants (1) failed to disclose that any Phase Tech employees
worked on the Circle C contract, and (2) the payroll certifications falsely asserted that
Circle C paid the prevailing Davis-Bacon Act wages to employees, including Circle C’s
subcontracted employees, when this was not the case. The amended complaint further
alleged that the United States believed that discovery would reveal additional false
No. 10-5645             United States, et al. v. Circle C Constr.                                      Page 6


payroll certifications as well. On March 27, 2009, Circle C filed an answer to the
amended complaint.

         In May 2009, plaintiffs entered into a settlement agreement with Phase Tech,
and, in June 2009, Phase Tech was voluntarily dismissed from this lawsuit.

         Pertinent to the present appeal, the parties thereafter filed cross-motions for
summary judgment. One argument made by Circle C in its summary judgment motion
was that, under the Davis-Bacon Act, the Department of Labor, not the district court, has
primary jurisdiction over plaintiffs’ claims. Circle C also filed a motion to dismiss the
amended complaint,1 in which it objected to what it deemed the late filing of plaintiffs’
amended complaint (which resulted from the Clerk’s Office’s mistaken refiling of the
otherwise timely amended complaint). From a substantive standpoint, Circle C also
argued that plaintiffs failed to state their FCA claim with the requisite particularity called
for by Fed. R. Civ. P. 9(b), and that plaintiffs made no attempt to supplement the
deficient pleadings pursuant to Fed. R. Civ. P. 15(d).

         On March 15, 2010, the district court issued a Memorandum Opinion and Order
granting plaintiffs’ motion for summary judgment and awarding a judgment against
Circle C in the amount of $553,807.71, trebled per FCA requirements to $1,661,423.13.
See Wall, 700 F. Supp. 2d at 940. The court denied as moot Circle C’s motions for
summary judgment and to dismiss the amended complaint, finding first that Circle C’s
motions were untimely because they were filed after the court’s deadline for dispositive
motions set forth in the case management order. Id. at 929. Further, despite the Clerk’s
Office’s “technical error” in belatedly docketing and refiling plaintiffs’ amended
complaint, the court held that Circle C waived its right to file its motion to dismiss by
filing a responsive pleading (its answer to the amended complaint) before it filed the
motion. Id. at 929–30. Additionally, the court rejected Circle C’s primary jurisdiction
argument in its summary judgment motion, arguing that the Davis-Bacon Act precludes



         1
           Circle C did not specify the rule that served as the basis for its motion, thus the court interpreted
it as a Rule 12(b) motion in its opinion. See Wall, 700 F. Supp. 2d at 930.
No. 10-5645          United States, et al. v. Circle C Constr.                      Page 7


use of an FCA remedy where, as here, the specific issue is the amount of wages paid.
Id. at 930.

        The district court then addressed plaintiffs’ motion and, as to their FCA claim,
held that: (1) Circle C violated the FCA by submitting false payroll certifications to the
government regarding wages for Phase Tech employees, contrary to its agreement to
abide by Davis-Bacon requirements; and, (2) because Circle C did not have a written
subcontract with Phase Tech and did not ensure that Phase Tech complied with the
Davis-Bacon Act, its wage certifications wrongly certified that prevailing wages were
paid to Phase Tech electricians working on the Fort Campbell project, in violation of the
FCA. Id. at 939.

        With regard to plaintiffs’ unjust enrichment claim, the district court held that
Circle C was unjustly enriched by its receipt of contractual payments from the
government for electrical work by Phase Tech employees that was not paid in
compliance with its contractual wage requirements, thus rendering Circle C liable to
plaintiffs for the substantial benefits that accrued to it by virtue of its non-compliance.
Id. at 939.    The court held, however, that the unjust enrichment judgment was
cumulative given the court’s award of treble damages to plaintiffs. Id. at 939–40.

        Regarding damages that are properly measured by determining “the difference
between what the government actually paid out by reason of the false claim over and
above what it would have paid had the government known the true facts,” the district
court found the actual damages to be $553,807.71, and trebled this amount pursuant to
31 U.S.C. § 3729(a)(7), yielding a judgment of $1,661,423.13 against Circle C. Id. at
940 (citations omitted). The court declined to impose the additional civil penalty sought
by plaintiffs. Id.

        On March 22, 2010, the district court entered its judgment.            Circle C’s
subsequent motion to alter or amend the judgment was denied by the court, Wall, 700
F. Supp. 2d at 940–41, and Circle C filed a timely Notice of Appeal on May 20, 2010.
No. 10-5645        United States, et al. v. Circle C Constr.                       Page 8


                                           III.

                                            A.

       We review the district court’s order granting summary judgment de novo and its
findings of fact for clear error. ATC Distrib. Group, Inc. v. Whatever It Takes
Transmissions & Parts, Inc., 402 F.3d 700, 705 (6th Cir. 2005). Summary judgment is
proper if, viewing the facts and drawing all inferences in the light most favorable to the
nonmoving party, “‘the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” Bruederle v. Louisville
Metro Gov’t, 687 F.3d 771, 776 (6th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)).
“A genuine issue of material fact exists when there is sufficient evidence for a trier of
fact to find for the non-moving party.” Ciminillo v. Streicher, 434 F.3d 461, 464 (6th
Cir. 2006). “A ‘mere scintilla’ of evidence, however, is not enough for the non-moving
party to withstand summary judgment.” La Quinta Corp. v. Heartland Prop., LLC, 603
F.3d 327, 335 (6th Cir. 2010) (citing Ciminillo, 434 F.3d at 464). “The standard of
review for cross-motions for summary judgment does not differ from the standard
applied when a motion is filed by only one party to the litigation.” Lee v. City of
Columbus, Ohio, 636 F.3d 245, 249 (6th Cir. 2011) (citation omitted).

                                            B.

       As a preliminary matter, as Circle C argues and plaintiffs concede, the district
court did in fact err in finding that Circle C’s motion for summary judgment was
untimely filed. In its opinion, the district court stated that the deadline for filing
dispositive motions was November 13, 2009. See Wall, 700 F. Supp. 2d at 929.
However, it failed to note that it had extended that deadline “through and including
November 17, 2009,” when it granted Circle C’s second motion for an extension of time.
Circle C filed its motion for summary judgment on November 17. Thus, although Circle
C’s motion to dismiss the amended complaint, which was filed on January 12, 2010, was
untimely, its motion for summary judgment was not. The district court therefore erred
when it considered the two motions together in its analysis.
No. 10-5645        United States, et al. v. Circle C Constr.                        Page 9


       Nonetheless, this error was not prejudicial, because the district court proceeded
to address the merits of all of Circle C’s arguments made in its summary judgment
motion, including the issue of primary jurisdiction, in ruling on plaintiffs’ motion for
summary judgment. In addition, the court revisited its determination of damages when
it denied Circle C’s motion to alter or amend judgment and reaffirmed that its original
damages finding was correct. Wall, 700 F. Supp. 2d at 940–41. Thus, the district court’s
error did not preclude consideration of Circle C’s arguments or affect its ultimate ruling.
Cf. United States v. Gilmore, 282 F.3d 398, 405–06 (6th Cir. 2002) (“While lack of
timeliness was part of the district court’s rationale in denying Gilmore’s 18 U.S.C.
§ 3006A motions, we need not address that issue because we find no error in the district
court’s denial of the motions on their merits.”).

                                            C.

       Circle C raised the doctrine of primary jurisdiction as one of the grounds for
summary judgment, arguing that the doctrine should be applied to an FCA claim
involving the Davis-Bacon Act. The district court summarily dispatched this argument,
stating “courts have rejected the argument that the Davis-Bacon Act somehow precludes
use of an FCA remedy, where, as here, the specific issue is the amount of wages paid.”
Wall, 700 F. Supp. 2d at 930 (citing Foundation for Fair Contracting, Ltd. v. G & M
Eastern Contracting & Double E, LLC, 259 F. Supp. 2d 329, 339–40 & n.9 (D. N.J.
2003); United States ex rel. IBEW v. G.E. Chen Constr., Inc., 954 F. Supp. 195, 197
(N.D. Cal. 1997)). We apply de novo review to the district court’s decision regarding
primary jurisdiction. United States v. Haun, 124 F.3d 745, 747 (6th Cir. 1997).

       The primary jurisdiction doctrine is a rule of judicial construction which “allows
courts to refer a matter to the relevant agency whenever enforcement of the claim
requires the resolution of issues which, under a regulatory scheme, have been placed
within the special competence of an administrative body.” Charvat v. Echostar Satellite,
LLC, 630 F.3d 459, 466 (6th Cir. 2010) (citation and internal quotation marks omitted);
see also Fieger v. United States Att’y Gen., 542 F.3d 1111, 1121 (6th Cir. 2008)
(“[Under] the doctrine of primary jurisdiction, . . . federal courts are to abstain from
No. 10-5645            United States, et al. v. Circle C Constr.                                 Page 10


hearing certain administrative-related matters until the appropriate agency has had the
opportunity to interpret unanswered technical and factual issues.”). “When the doctrine
is applicable, court proceedings are stayed so as to give the parties reasonable
opportunity to ‘refer’ the matter to an agency seeking an administrative ruling.” Haun,
124 F.3d at 749 (citations omitted).2

         Courts have referred matters to agencies for a variety of reasons: “(1) to advance
regulatory uniformity; (2) to answer a question . . . within the agency’s discretion; and
(3) to benefit from technical or policy considerations within the agency’s . . . expertise.”
Charvat, 630 F.3d at 466 (citations and internal quotation marks omitted). “No ready
formula controls its application; courts instead look to whether the purposes of the
doctrine, including uniformity and accuracy gained through administrative expertise,
will be especially furthered by invocation in the particular litigation.” Haun, 124 F.3d
at 750. Overall, in light of the federal courts’ “unflagging obligation” to exercise the
jurisdiction accorded them, Haun, 124 F.3d at 752 (citation and internal quotation marks
omitted), primary jurisdiction “is limited . . . to cases where protection of the integrity
of a regulatory scheme dictates preliminary resort to the agency which administers the
scheme.” Fieger, 542 F.3d at 1121 (citation and internal quotation marks omitted).

         Moreover, “the doctrine does not apply when the specially competent agency is
itself the plaintiff,” because “‘deference to an agency’s primary jurisdiction makes little
sense in the context of an enforcement proceeding initiated by the agency.’” United
States v. Any and All Radio Station Transmission Equip., 204 F.3d 658, 664 (6th Cir.
2000) (quoting United States v. Alcon Lab., 636 F.2d 876, 888 (1st Cir. 1981)); see also
ICC v. Maine Cent. R. Co., 505 F.2d 590, 594 (2d Cir. 1974); ICC v. All-American, Inc.,
505 F.2d 1360, 1362 (7th Cir. 1974); CAB v. Aeromatic Travel Corp., 489 F.2d 251, 254
(2d Cir. 1973).


         2
           “Unlike exhaustion, which applies when a claim is cognizable in the first instance by the agency
alone, [p]rimary jurisdiction . . . applies where a claim is originally cognizable in the courts, and comes
into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory
scheme, have been placed within the special competence of an administrative body; in such a case the
judicial process is suspended pending referral of such issues to the administrative body for its views.”
Haun, 124 F.3d at 750 (citation and internal quotation marks omitted).
No. 10-5645        United States, et al. v. Circle C Constr.                     Page 11


       The injuries and remedies under the FCA and Davis-Bacon Act are separate and
distinct. Compare 31 U.S.C. §§ 3729, 28 C.F.R. § 85.3(a)(9) (FCA false claims, treble
damages, and civil penalties, respectively), with 40 U.S.C. §§ 3142, 3145 and 29 C.F.R.
§ 5.5 (Davis-Bacon Act wage and certification requirements and remedies). However,
“[c]ases brought pursuant to the [False Claims] Act under the so-called false
‘certification theory’ of liability necessarily implicate, to some degree, agency
knowledge.” United States ex rel. Taylor v. Gabelli, 345 F. Supp. 2d 340, 353 (S.D.
N.Y. 2004) (footnote omitted). “This is particularly true where the gravamen of the
Complaint is that defendants defrauded the Government by falsely certifying compliance
with governing administrative regulations.” Id. (footnote omitted).

       Nonetheless, “‘[m]ost courts that have considered the argument that a court
should defer resolution of a False Claims Act case pending an agency’s determination
of one or more issues in the case have rejected it.’” Id. at 354 n.60 (quoting Claire M.
Sylvia, The False Claims Act: Fraud Against the Government § 10:13, at 474 (2004)).
See, e.g., United States ex rel. Plumbers & Steamfitters Local Union No. 38 v. Ren
Constr. Co., 183 F.3d 1088, 1091–92 (9th Cir. 1999) (“[A] false certification that
workers have been paid at the legally required wage rate may give rise to liability under
the FCA. If, as the Plumbers allege, [the defendant] submitted such false certifications,
it may be liable under the False Claims Act.”); United States ex rel. Plumbers &
Steamfitters Local Union No. 342 v. Dan Caputo Co., 152 F.3d 1060, 1062 (9th Cir.
1998) (per curiam) (holding in FCA suit regarding contractors’ classification of
employees for purposes of the Davis-Bacon Act, that “deferral to the Department [of
Labor] was proper only with respect to the resolution of how particular types of work
should be classified but not with respect to whether the Contractors misclassified their
employees”); Gabelli, 345 F. Supp. 2d at 354–57 (concluding that a determination
whether the defendants acted with the requisite intent to defraud the government in
violation of the FCA did not necessitate technical, agency-specific expertise; there was
little danger of inconsistent rulings; and, given additional costs and lengthy delay that
would result from referral to the FCC, the administration of justice weighed against
application of the primary jurisdiction doctrine).
No. 10-5645        United States, et al. v. Circle C Constr.                      Page 12


       As these cases reflect, the courts have drawn a dichotomy between a contractor’s
misrepresentation of wages and its misclassification of workers. This dichotomy is best
illustrated in United States ex rel. Windsor v. DynCorp, Inc., 895 F. Supp. 844, 851–52
(E.D. Va. 1995), in which the plaintiffs brought a qui tam action against a government
contractor, DynCorp, alleging that it violated the FCA when it intentionally
misclassified, and consequently underpaid, certain employees. The district court granted
summary judgment in favor of DynCorp, holding that “it is impossible to determine
whether DynCorp submitted a false claim to the government without first determining
whether DynCorp actually misclassified an employee in a given instance,” and that
under the governing regulations, “the responsibility for resolving such disputes rests not
with the courts, but with the [DOL].” Id. at 851 (citing 29 C.F.R. §§ 5.5(a)(9), 5.6(a)(3),
5.6(b), 5.11(a)). However, the court was quick to point out that its ruling did not accord
“blanket immunity from FCA liability” to violators of the Davis-Bacon Act:

       Where the contractor’s statement may be determined to be false without
       regard to complex Davis-Bacon Act classification regulations, then a
       Davis-Bacon Act violation may form the basis of an FCA suit. That is,
       where the “falsity” of the false statement is not dependent on
       interpretation and application of those regulations, the current obstacle
       to FCA liability disappears. For example, if, unlike the instant situation,
       a contractor misrepresents the wages actually paid to its employees, or
       lies about the frequency with which they receive paychecks, an FCA
       action may be viable. In that circumstance, the jury could make a finding
       regarding the falsity of the false claim through standard fact[-]finding
       techniques, and with no intrusion into the province of the [DOL].
       Accordingly, the Davis-Bacon Act by no means precludes or preempts
       all FCA suits for false claims that happen also to be Davis-Bacon Act
       violations. It is worth emphasizing in this regard that [the plaintiff]
       claims not that DynCorp misrepresented the amount its workers were
       actually paid, but rather that its classification of certain workers was
       erroneous. Such disputes are appropriately relegated to the [DOL].

Id. at 852–53 (citation and footnotes omitted); see also Foundation for Fair Contracting,
Ltd., 259 F. Supp. 2d at 339–41 (dismissing for lack of subject-matter jurisdiction the
plaintiff’s FCA qui tam action against a public contractor because the “plaintiff’s suit
seeks to remedy fraud that the government has already investigated within its full
regulatory authority, culminating in a resolution acceptable to the DOL, based on the
No. 10-5645         United States, et al. v. Circle C Constr.                      Page 13


same set of underlying facts,” but further noting that “in an appropriate case, an FCA
claim can be predicated upon a Davis-Bacon violation”); G.E. Chen Constr., Inc.,
954 F. Supp. at 197 (citing DynCorp and holding that to the extent that the plaintiffs’
FCA claims were based on allegations that the defendants misclassified employees, the
court lacked jurisdiction to decide those claims, which were within the sole jurisdiction
of the DOL; however, the court did have jurisdiction to hear the plaintiffs’ additional
claim that the defendants submitted false statements and prepared false payroll
certifications, because those allegations did not depend on any determination of the
proper classification of workers, a DOL responsibility).

        In addressing plaintiffs’ motion for summary judgment in the present case, the
district court correctly distinguished DynCorp from the present circumstances, opining
that the core dispute here involves misrepresentation, not misclassification:

        DynCorp involved a Davis-Bacon Act “complex classification” of the
        jobs at issue on the FCA claim. Here, the undisputed proof is that all of
        Phase Tech’s employees on this project performed electrical work for
        which Davis-Bacon Act wages were clearly defined by the contract.
        There are not any complex Davis-Bacon classification regulation[s] in
        this action and DynCorp is inapplicable.

Wall, 700 F. Supp. 2d at 939.

        We agree with the district court that the doctrine of primary jurisdiction does not
foreclose plaintiffs’ FCA suit alleging Davis-Bacon Act violations where, as here, the
government was not aware of the conduct at issue until after Wall filed his complaint,
and thus did not deliberately bypass administrative procedures; the determination
whether Circle C acted with the requisite intent to defraud the government in violation
of the FCA does not necessitate technical, agency specific expertise; and the regulations
explicitly provide that the falsification of payroll certifications may subject the
contractor to civil prosecution under the FCA. Plaintiffs allege violations of the FCA
under a false certification theory; this is not a dispute over how a particular type of work
should be classified for purposes of wage determinations. Accordingly, deferral to the
No. 10-5645        United States, et al. v. Circle C Constr.                      Page 14


DOL was not warranted, and the district court properly declined to refer the case to the
DOL pursuant to the primary jurisdiction doctrine.

                                            D.

       The Davis-Bacon Act requires that government contractors pay the prevailing
wages set by the Secretary of Labor to employees working on government projects, 40
U.S.C. § 3142, with the underlying dual purpose being to “give local laborers and
contractors fair opportunity to participate in building programs when federal money is
involved and to protect local wage standards by preventing contractors from basing their
bids on wages lower than those in the prevailing area.” L.P. Cavett Co. v. U.S. Dep’t of
Labor, 101 F.3d 1111, 1113 (6th Cir. 1996). Government contracts must contain
stipulations that the contractor or subcontractor shall pay its employees the wage
determinations listed in the contract, 40 U.S.C. § 3142(c), and “insert in any subcontracts
the clauses contained in 29 C.F.R. § 5.5(a)(1) through (10) [regarding wage
determinations and payroll certifications] and such other clauses as the [federal agency]
may by appropriate instructions require.” 29 C.F.R. § 5.5(a)(6). Laborers “shall be paid
not less than the appropriate wage rate and fringe benefits in the wage determination for
the classification of work actually performed[.]” 48 C.F.R. § 52.222-6(b)(3); see also
48 C.F.R. § 52.222-6(c)(4).

       In addition, contractors and subcontractors must furnish weekly wage payroll
certifications pertaining to each employee, and prime contractors are responsible for
submitting copies of payrolls by all subcontractors and ensuring compliance by
subcontractors. 40 U.S.C. § 3145(a); 29 C.F.R. §§ 5.5(a)(3)(ii)(A), (a)(6); Nat’l Fire
Ins. Co. of Hartford v. Fortune Constr. Co., 320 F.3d 1260, 1276–77 (11th Cir. 2003).
The payment of federal funds is contingent upon the receipt of the contractors’ weekly
certifications. 40 U.S.C. § 3142. Pursuant to these regulations, “parties that contract
with the government are held to the letter of the contract[.]” United States ex rel.
Compton v. Midwest Specialties, Inc., 142 F.3d 296, 302 (6th Cir. 1998).
No. 10-5645            United States, et al. v. Circle C Constr.                                   Page 15


         In their amended complaint, plaintiffs alleged that Circle C violated 31 U.S.C.
§ 3729(a)(2) (2006), the version of the FCA then in effect.3 Subsection (a)(2) imposes
civil liability when a person “knowingly makes, uses, or causes to be made or used, a
false record or statement to get a false or fraudulent claim paid or approved by the
Government.” 31 U.S.C. § 3729(a)(2) (2006). A cause of action brought pursuant to
this subsection requires proof of several elements:

         (1) that the defendant make a false statement or create a false record with
         actual knowledge, deliberate ignorance, or reckless disregard of the truth
         or falsity of the information; (2) that the defendant have submitted a
         claim for payment to the federal government; (3) that the defendant’s
         false statement have been made with the purpose of getting a false or
         fraudulent claim paid or approved by the Government; and (4) that the
         false statement or record have been material to the Government’s
         decision to make the payment sought in the defendant’s claim.

SNAPP, 618 F.3d 505, 509 (6th Cir. 2010) (citation omitted).

         “[N]o proof of specific intent to defraud is required” for an FCA claim.
31 U.S.C. § 3729(b)(3) (2006) [now 31 U.S.C. § 3729(b)(1)(B)]. “[A]n aggravated form
of gross negligence (i.e., reckless disregard) will satisfy the scienter requirement for an


         3
           As the district court accurately noted, subsection 3729(a)(2) was revised and recodified in 2009,
when Congress enacted the Fraud Enforcement Recovery Act (“FERA”). See Pub. L. No. 111-21, § 4, 123
Stat. 1617 (2009). In its new form, it punishes any person who “knowingly makes, uses, or causes to be
made or used, a false record or statement material to a false or fraudulent claim.” 31 U.S.C.
§ 3729(a)(1)(B). Congress amended this portion of the FCA to legislatively overrule Allison Engine Co.
v. United States ex rel. Sanders, 553 U.S. 662 (2008), in which the Supreme Court held that “[w]hat
§ 3729(a)(2) demands is not proof that the defendant caused a false record or statement to be presented or
submitted to the Government but that the defendant made a false record or statement for the purpose of
getting ‘a false or fraudulent claim paid or approved by the Government.’” Id. at 671. Allison “addressed
the possibility that, rather than presenting a claim to the government itself, a defendant might instead be
a subcontractor who ‘submits a false statement to the prime contractor intending for the statement to be
used by the prime contractor to get the Government to pay its claim.’” Chesbrough v. VPA, P.C., 655 F.3d
461, 473 (6th Cir. 2011) (quoting Allison, 553 U.S. at 671). Congress replaced the words “to get” in the
former version with “material to,” thereby eliminating this intent requirement. See generally Chesbrough,
655 F.3d at 466 n.2; United States v. United Tech. Corp., 626 F.3d 313, 321 (6th Cir. 2010); SNAPP, Inc.
v. Ford Motor Co., 618 F.3d 505, 509 n.2 (6th Cir. 2010).
         The issue of the statute’s retroactive application is still “unsettled,” SNAPP, 618 F.3d at 509 n.2,
and is currently pending in this court (see Sanders v. Allison Engine Co., Inc., Docket Nos. 10-3818 and
10-3821). The district court in the present case did not rule on the issue of retroactivity because it found
that the plaintiffs had shown violations pursuant to the standards of both the pre- and post-amended
versions of § 3729. See Wall, 700 F. Supp. 2d at 938. Although the primary concern raised in Allison
regarding subcontractors’ indirect submissions is not implicated here, we agree with the district court that
summary judgment in favor of plaintiffs is supported by the record when measured by either the former
or amended requirements of § 3729.
No. 10-5645        United States, et al. v. Circle C Constr.                       Page 16


FCA violation.” United States ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 945 n.12 (10th
Cir. 2008). For purposes of the FCA, “‘a false statement is material if it has a natural
tendency to influence, or [is] capable of influencing, the decision of the decisionmaking
body to which it was addressed.’” United States ex rel. A+ Homecare, Inc. v. Medshares
Mgmt. Group, Inc., 400 F.3d 428, 445 (6th Cir. 2005) (quoting Neder v. United States,
527 U.S. 1, 16 (2005)).

       Circle C argues that the district court erred in holding that plaintiffs sufficiently
demonstrated the essential elements of an FCA claim—falsity, knowledge, and
materiality—and that there was no dispute of material fact with regard to these elements.
We disagree.

       A false statement can be shown to have been made by an express false
certification, or through the so-called “implied certification” theory, which “holds a
defendant liable for violating the ‘continuing duty to comply with the regulations on
which payment is conditioned.’” A+ Homecare, 400 F.3d at 454 n.20 (quoting United
States ex rel. Augustine v. Century Health Servs., Inc., 289 F.3d 409, 415 (6th Cir.
2002)). Here, liability is established by the express false certifications that were made.

       Circle C’s contract explicitly incorporated the Davis-Bacon requirements and
included an hourly wage determination for electrical workers, setting a base hourly rate
of $19.19, plus $3.94 in fringe benefits. Circle C, as a frequent contractor with the
government, admitted its familiarity with these requirements and acknowledged that
Frances Cates and Dorothy Tyndall attended a training session conducted by the Fort
Campbell Contracting Office regarding Davis-Bacon prevailing wage requirements.
Circle C conceded that it should submit payroll certifications for all employees on the
project, but did not include Phase Tech employees on the original certifications, although
it did submit separate payroll certifications for the other subcontractors. Circle C
acknowledged that it never paid or supervised the payment of any Phase Tech employees
and had no first-hand knowledge regarding Phase Tech’s payments to its employees. It
was only in 2006 that Circle C finally informed Phase Tech of the need to submit payroll
certifications to Fort Campbell. Once the records were provided by Phase Tech, Circle
No. 10-5645        United States, et al. v. Circle C Constr.                      Page 17


C never verified their accuracy. In fact, as established in Edison Gunter’s (Special
Agent with the DOL) Declaration, with attached exhibits and charts showing all of
Circle C’s pertinent payroll certifications, there were 62 inaccurate submissions, 53 of
which pertained to 2004 and 2005 and failed to list any Phase Tech workers. The
62 certifications also were false because they wrongly certified that the prevailing wages
were paid.

       Based upon this evidence, the district court did not err in finding that Circle C’s
original and 2008 payroll certifications at issue were expressly false because (1) they
stated that they were complete, when in fact no Phase Tech employees who worked on
the project were listed, and (2) the certifications wrongly represented that the prevailing
wages were paid to its subcontracted employees. Wall, 700 F. Supp. 2d at 939. See
United States ex rel. Kirk v. Schindler Elevator Corp., 601 F.3d 94, 116 (2d Cir. 2010),
rev’d on other grounds, 131 S. Ct. 1885 (2011) (holding that the relator stated an FCA
claim where the contractor “filed false . . . reports, necessarily knowing that they were
false because [it] in fact had no mechanism in place to identify covered [individuals].
It did so in order to procure contracts and obtain payment under existing contracts, as it
could do neither without filing the reports.”).

       As plaintiffs argue, Circle C’s reliance upon United States v. Southland Mgmt.
Corp., 326 F.3d 669 (5th Cir. 2003) (en banc) is misplaced. In Southland, the court held
that the owners of an apartment complex did not make “false claims” under the FCA in
their housing assistance payment vouchers attesting to safe and sanitary housing
conditions, because the vouchers were submitted to HUD during a corrective action
period following HUD’s notification of safety deficiencies, and the owners were
contractually entitled to the money until they failed to take corrective action following
notification. Id. at 676–77. In the present case, there are no similar contract provisions,
and the DOL was not aware of potential FCA violations until after Wall filed his
complaint.

       Circle C also argues that nine false payroll certifications submitted in December
2008 were not properly before the district court because the amended complaint was
No. 10-5645        United States, et al. v. Circle C Constr.                      Page 18


filed only two months beforehand, and the allegations in the complaint as to these
certifications were not pled with particularity. This argument was originally advanced
in Circle C’s motion to dismiss the amended complaint, and thus is foreclosed due to the
untimely filing of that motion.

       For the reasons stated by the district court, the totality of the circumstances show
that Circle C, an experienced contractor, made false statements, acted in reckless
disregard of the truth or falsity of the information, and that the false statements were
“material” to the government’s decision to make the payment sought in Circle C’s claim.
Thus, we affirm the district court’s grant of summary judgment in favor of plaintiffs on
their FCA claim.

                                            E.

       With regard to plaintiffs’ unjust enrichment claim, Circle C contends for the first
time on appeal that summary judgment was improperly granted because “the receipt of
gain is not unjust enrichment to the extent that it is generated by someone’s rightful
contribution of effort, capital or skill.” See Circle C’s Brief at 47 (quoting State of
Tennessee v. Dole, 749 F.2d 331, 337 (6th Cir. 1984)). However, this specific argument
was not raised in the district court and therefore is not properly before this court. Smith
v. County of Lenawee, 600 F.3d 686, 690 n.3 (6th Cir. 2010).

                                           IV.

       Finally, Circle C appeals the treble damages award of $1,661,423.13, based upon
a finding of actual damages in the amount of $553,807.71.

       Circle C argues that the district court’s determination that plaintiffs sustained
$553,807.71 in actual damages is based upon the speculative testimony of Jeanne Shykes
that for delivery orders 6 through 12, 14, and 15, the government paid Circle C
$3,767,399.41, and that of this total award amount, approximately fifteen percent—or
$565,109.91—was for electrical work; and assuming that Phase Tech did 98% of the
electrical work on the contract, it would amount to a total of $553,807.71 in Fort
Campbell funds that were affected. According to Circle C, counsel for the government
No. 10-5645         United States, et al. v. Circle C Constr.                    Page 19


knew from discovery that the actual figure paid to Phase Tech for work on the above
orders was $124,901.81.

        Moreover, Circle C emphasizes that only seven of the nine delivery orders
involved buildings erected in Kentucky; the other two deliveries were performed in
Tennessee. Because the amended complaint only alleged the failure to pay the
prevailing wage for an electrician for work performed in Kentucky, two of the delivery
orders should not have been included in any calculation of payments made to Phase Tech
for work performed by misclassified employees.

        Finally, Circle C asserts that it is speculative to assume, as Shykes did in her
Declaration, that if the government had investigated the Wall and McPherson
misclassification claims, which it did not do at any time during the construction project,
it would have withheld $553,807.71 from Circle C and that Circle C then would have
continued with the construction project. According to Circle C, a timely investigation
would have resolved the dispute and determined if, in fact, McPherson and Wall had
been paid the prevailing wage, and, if not, it would have resulted in payment of that
wage to them. We agree with Circle C that there are deficiencies in the district court’s
calculation of damages that require a remand for recalculation of those damages in this
instance.

        The FCA provides that violators are subject to a civil penalty of between $5,000
and $10,000, plus three times the government’s actual damages. 31 U.S.C. § 3729(a).
“Under the False Claims Act, the government may recover ‘actual damages,’ the
difference between what it paid and what it should have paid for the goods.” United
Tech. Corp., 626 F.3d at 321 (citations omitted). “Damages awarded under the [FCA]
typically are liberally calculated to ensure that they afford the government complete
indemnity for the injuries done it.” Compton 142 F.3d at 304 (citation and internal
quotation marks omitted). “[T]he government is entitled to full damages where it proves
it received no value at all.” Id. (citation omitted).

        The damages award of $1,661,423.13 (trebled from actual damages of
$553,807.71) rendered by the district court and later confirmed in its Order denying
No. 10-5645        United States, et al. v. Circle C Constr.                     Page 20


Circle C’s motion to alter or amend judgment is based upon the Declaration of Jeanne
Shykes, Supervisory Contract Specialist at the Directorate of Contracting at the Fort
Campbell Army Post. In that capacity, she administered construction and service
contracts awarded by her office. In her Declaration, she stated:

       I was requested to provide information relevant to United States ex rel.
       Brian Wall v. Circle C Construction, LLC. Fort Campbell has paid
       Circle C a total of $22,466,493.24 under contract DABK09-03-D-0003.
       This amount was for all of the delivery orders on this contract
       construction of Pre-Engineered Steel Building.
       For the specific delivery orders 6 through 12, and 14 and 15 on this
       contract—which I understand are the delivery orders at issue in this
       case—Fort Campbell paid Circle C a total of $3,767,399.41. Of this total
       award amount, approximately 15%—or $565,109.91—was for electrical
       work. Assuming that the electrical subcontractor at issue in this case did
       98% of the electrical work on the contract, that would amount to a total
       of $553,807.71 in Fort Campbell funds that were affected. For these
       same delivery orders, seven of the nine delivery orders were performed
       in Kentucky. The two other delivery orders were performed in
       Tennessee.

       Shykes further explained in her Declaration that the Contracting Office did not
suspect that inaccurate or false payrolls had been submitted at the time of performance,
and if it had known at the time that Circle C was not properly reporting its payrolls, it
would not have paid Circle C for the electrical portion of the work on the relevant
delivery orders until the issue was resolved, i.e., it would not have paid $553,807.71 to
Circle C. Based on her Declaration, the district court held that “the undisputed fact is
that the Army paid [$553,807.71] that would not have been paid if the United States had
known about Circle C’s false certifications.” Wall, 700 F. Supp. 2d at 940.

       However, in its response to interrogatories, Circle C stated that it paid Phase
Tech the following amounts on the delivery orders relevant to this case:

       $13,000 on delivery order number 6
       $12,200 on delivery order number 7
       $8,800 on delivery order number 8
       $13,898.77 on delivery order number 9
       $13,900 on delivery order number 10
No. 10-5645           United States, et al. v. Circle C Constr.                 Page 21


       $1,672 on delivery order number 11
       $15,842.08 on delivery order number 12
       $15,625.89 on delivery order number 14
       $16,635.07 on delivery order number 15

       These payments add up to a total of $111,573.81,4 which obviously would have
been higher if Circle C and its subcontractor had paid the proper Davis-Bacon Act
wages. In other words, Circle C made higher profits by accepting full payment from the
government for paying Davis-Bacon Act wages, when it was not in fact paying, either
directly or indirectly through the subcontractor, the requisite wages.

       Following our review, we conclude that Shykes’ estimation, which is lacking in
detail, does not adequately account for the discrepancy in the relevant sums presented
by the parties or accurately represent the difference between what the government
actually paid to Circle C and the payments to which Circle C would have been entitled
in the absence of its fraud. Indeed, it is impossible to discern precisely how Shykes
arrived at her total, without further data. Moreover, as Circle C argues, Shykes’
estimation includes two projects that were not performed in Kentucky and therefore,
consistent with the pleadings in the amended complaint, should not have been included
in the calculation of payments made to Phase Tech for work performed by the
misclassified employees. For these reasons, we reverse the district court’s damages
award and remand for a recalculation of damages.

                                                V.

       In summary, we affirm the district court’s judgment with regard to liability, but
reverse the award of damages and remand for a recalculation of the damages and further
proceedings.




       4
           Circle C computes a sum of $124,901.81.
