46 F. Supp. 3d 347
S.D.N.Y.2014Background
- Krol sues Arch, the Miller Act bond surety, to recover Davis-Bacon Act wages owed on a GSA project for Fox Industries at the Javits Federal Building.
- Fox allegedly paid bricklayers below prevailing wages; Krol and others were not paid the prevailing wage and benefits.
- Arch moves to dismiss under Rule 12(b)(6) (treated as Rule 12(c) judgment on the pleadings) arguing no private Davis-Bacon remedy without an administrative determination.
- Davis-Bacon Act enforces wages administratively; Section 3 allows suits on Miller Act bonds only if withheld funds are insufficient to reimburse laborers and an administrative determination occurred.
- Court analyzes whether a Miller Act/Davis-Bacon Act section 3 claim can proceed without an administrative determination and with incomplete funding, and concludes it cannot.
- Court grants Arch’s motion, dismissing the case without prejudice and denying class certification as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §3 Davis-Bacon claim requires an admin determination | Krol argues no admin determination is needed for Miller Act claims. | Arch contends section 3 requires an admin determination of a Davis-Bacon violation. | Requires admin determination; claim dismissed. |
| Whether withheld funds must be insufficient to reimburse all laborers | Krol asserts funds may be insufficient even without formal admin findings. | Arch argues sufficiency of withheld funds must be shown for relief. | Must show insufficiency of funds; claim dismissed. |
| Whether the Miller Act claim can bypass Davis-Bacon administrative procedures | Krol contends no bypass is necessary since action arises under Miller Act. | Arch maintains the Davis-Bacon admin regime controls from start to finish. | Cannot bypass admin scheme; claim dismissed. |
| Whether pleading failure supports dismissal with prejudice or without prejudice | Krol could amend to plead admin determination and funding insufficiency. | Arch seeks dismissal with prejudice or at least dismissal with prejudice to amendment. | Dismissal without prejudice; amendment possible after admin determination. |
Key Cases Cited
- Universities Research Ass’n, Inc. v. Coutu, 450 U.S. 754 (Supreme Court 1981) (admin enforcement; private action limited)
- Grochowski v. Phoenix Construction, 318 F.3d 80 (2d Cir. 2003) (no private right of action absent Davis-Bacon admin scheme)
- Bradbury v. TLT Construction Corp., 138 F. Supp. 2d 237 (D.R.I. 2001) (dismissal pending admin determination)
- Favel v. St. Paul Fire & Marine Ins. Co., No. 99-cv-60 (RFQ(GF)) (D.Mont. 2001) (dismissal pending admin determination)
- Castro v. Fidelity & Deposit Co. of Maryland, 39 F. Supp. 3d 1 (D.D.C. 2014) (discusses section 3 action vs Miller Act claim)
- United States ex rel. Glynn v. Capeletti Bros., Inc., 621 F.2d 1309 (5th Cir. 1980) (administrative enforcement framework)
- Santos v. Dist. Council of New York City & Vicinity of United Bldg. & Construction, 619 F.2d 963 (2d Cir. 1980) (accrual considerations under Davis-Bacon/Gov't action)
- Dan Caputo Co., 152 F.3d 1060 (9th Cir. 1998) (primary jurisdiction doctrine for classification disputes)