[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 14900 Non

- Argument Calendar

________________________ D.C. Docket No s . 6:11

- cv - 01717

- DAB , 6:11

- cv - 01983

- DAB

6:11

- cv - 01717

- DAB
UNITED STATES OF AMERICA, for the use and benefit of RMP Capital Corp., an Illinois corporation, assignee of Southwick, Inc., Plaintiff, RMP CAPITAL CORP., an Illinois Corporation, ass ignee of Southwick, Inc.,

Plaintiff

- Appellee,

versus TURNER CONSTRUCTION CO., TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, FEDERAL INSURANCE CO., FIDELITY AND DEPOSIT COMPANY OF MARYLAND, ZURICH AMERICAN INSURANCE CO., et al.,
Defendants

- Appellants,

_________________________________________________________

Case: 15-14900 Date Filed: 01/20/2017 Page: 1 of 72 6:11

- cv - 01983

- DAB UNITED STATES OF AMERICA, for the use and benefit of Bolena Construction, Inc.,
Plaintiff

- Counter Defendant,

versus TURNER CONSTRUCTION COMPANY, a foreign corporation, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a foreig n corporation, FEDERAL INSURANCE COMPANY, a foreign corporation, FIDELITY AND DEPOSIT COMPANY OF MARYLAND/ZURICH AMERICAN INSURANCE COMPANY, a foreign corporation, LIBERTY MUTUAL INSURANCE COMPANY, a foreign corporation, et al.,
Defendants

- Counter Claimants.

________________________ Appeal s from the United States District Court for the Middle District of Florida

________________________ ( January 20, 2017 ) Before MARTIN, JORDAN and JULIE CARN ES, Circuit Judges.
PER CURIAM:

Case: 15-14900 Date Filed: 01/20/2017 Page: 2 of 73 Turner Construction Company was the general contractor for a Department of Veteran s Affairs project, on which Bolena Construction , Inc. was a subcontractor and Southwick , Inc. was a sub

- subcontractor

. Turner procured a
Mi ller Act p ayment b ond from Travelers Casualty and Surety Company of America, Federal Insurance Company, Fidelity and Deposit Company of Maryland/Zurich American Insurance Company, and Liberty Mutual Insurance Company (“the Sureties”). Bolena and RMP Capit al Corp., as assignee of Southwick, brought this suit in district court under the Miller Act, 40 U.S.C. §§
3131

– 34, seeking to collect aga inst a Miller Act payment bond. 1 On the first day
of trial Bolena and RMP jointly filed a motion to dismiss their Mil ler Act claims. The Magistrate Judge dismissed the federal claim s but exercised supplemental jurisdiction over the issue of any fees and costs related to the federal litigation. 2 Turner’s and the Sureties’ appeal of the district court’s denial of their motion for attorney’s fees is the only issue remaining in federal court

. 3 The district court held that general contractors and sureties cannot collect attorney’s fees in a case

1 “[T]he Miller Act establishes the general requirement of a payment bond to protect those who supply labor or materials to a contractor on a federal project.” F. D. Rich Co. v. United States ex rel. Indus. Lumber Co. , 417 U.S. 116, 121

– 22, 94 S. Ct. 2157, 2 161 (1974). The protection of the Miller Act payment bond extends as far as sub

- subcontractors. See J. W. Bateson Co. v. United States ex rel. Bd. of Trs. , 434 U.S. 586, 591, 98 S. Ct. 873, 876 (1978). 2 The parties conse nted to jurisdiction in the m agist rate court. Our references to the district court are to that court. 3 RMP’s appeal was dismissed for lack of prosecution because it fail ed to retain counsel

. RMP also did not file a brief in opposition to Turner’s and the Sureties’ cross

- appeal.

Case: 15-14900 Date Filed: 01/20/2017 Page: 3 of 74 originally brought under the Miller Act . We reverse and rema nd to the district

c ourt to interpret the contract provision at issue and award attorney’s fees if they are merited.
I. Turner contracted with the Department of Veteran s Affairs on a federal project and, pursuant to the Miller Act, obtained a bond from the S ureties. Bolena entered into a subcontract agreement with Turner , and Southwick entered into a sub

- subcontract agreement with Bolena. Southwick then assigned the rights to its accounts receivable to RMP . In 2011 Bole n a and RMP filed separate lawsuits to collect against Turner’s payment bond , and their lawsuits were then consolidated

. On the first day of trial Bolena and RMP moved to dismiss with prejudice their Miller Act claims. The district court granted the motion and declined to exercise supplement al jurisdiction over Bolena’s two remaining state claims. It only “retain[ ed ] jurisdiction to decide any motion for fees and costs.” Bolena then assigned its rights in the law suit to RMP. Turner and the Sureties moved for attorney’s fees and costs. The district
court granted some of the c osts but denied attorney’s fees

. With regard to attorney’s fees, the district judge first observed that the Miller Act does not explicitly provide for attorney’s fees. The court then determined that there i s precedent for awarding attorney’s fees in Miller Act cases where a contract

Case: 15-14900 Date Filed: 01/20/2017 Page: 4 of 75 provide s for fees to be awarded to the prevailing party and when that party is a subcontractor. But there is no precedent governing the award of attorney’s fees to
a gener al contractor or a surety when the sub contractor voluntarily dismisses a Miller Act claim

. The district court thus denied the motion for attorney’s fees based on this lack of precedent, reasoning that a warding attorney’s fees to a general contractor or surety would be in tension with the Miller Act’s express purpose of protecting subcontractors and suppliers on federal projects. The district
court did not interpret the contract provision at issue . This denial of attorney’s fees is the sole issue before us

. II. T he Miller Act does not mention attorney’s fees. See F. D. Rich , 417 U.S. at 126, 94 S. Ct. at 2163 (“ Nor does the Miller Act explicitly pr ovide for an award of attorneys’ fees to a successful plaintiff. ”). But under our precedent, “attorney’ s fees are a r ecoverable item under [a] Miller Act bond ” when provided for in a
contract. United S tates ex rel

. Carter Equip. Co. v. H. R. Morgan, Inc. , 554 F.2d 164, 166 (5th Cir. 1977) ; 4 accord United S tates ex rel

. Se. Mun. Supply Co. v.
Nat’ l Union Fire Ins. Co. of Pittsburg , 876 F.2d 92, 93 (11th Cir. 1989) ; see also
F. D. Rich , 417 U.S. at 126

– 30 , 94 S. Ct. at 2163

– 66 ( applying, under the Miller

4 In Bonner v. City of Prichard , 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at 1209. Case: 15-14900 Date Filed: 01/20/2017 Page: 5 of 76 Act, the “American Rule” providing for attorney’s fees if the parties contract for them )

. Several circuit courts agree. See, e.g. , GE Supply v. C & G Enterprises,
Inc. , 212 F.3d 14, 19 (1st Cir. 2000) (collecting cases from the 4th, 5th , 8th , and 9th Circuits)

. The district court was right that all our precedent governing the award of attorne y’s fees in Miller Act cases addressed subcontractors claiming attorney’s fees. But the court was wrong in hold ing that general contractors and sureties are barred from receiving attorney’s fees in any case originally brought under the Miller Act

. Th is er ror stems from the court’s misreading of the Miller Act case s . The
cases do not state a general principle that only subcontractors and sub

subcontractors who contract for attorney’s fees can receive them in cases brought under the Miller Act

. Rather , the y stand for the more limited principle that
subcontractors and sub

- subcontractors may recover contracted

- for attorney’s fees from the Miller Act payment bond

. See, e.g. , H.R. Morgan , 554 F.2d at 166 (“[A]ttorney’ s fees are a recoverable item under [a] Mil ler Act bond.”) ; see also F.D. Rich , 417 U.S. at 128, 94 S. Ct. at 2164 ( discussing “ the award of attorneys’ fees in suits on construction bonds”)

. In light of t h is limited principle , t he lack of precedent allowing for the recovery of attorney’s fees in M iller Act c ases by general contractors and sureties makes sense . Miller Act payment bonds are procured by general contractors from sureties for the protection of subcontractors

Case: 15-14900 Date Filed: 01/20/2017 Page: 6 of 77 and sub

- subcontractors. See supra note 1. G eneral contractors or sureties would not seek to recover against their own bond

. Thus , the district court erred in deriving a broad principle from this absence of precedent. Like all other parties to contracts, g eneral contractors on federal projects and their sureties can recover atto rney’s fees where a contract allocates attorney’s fees
to them

. See, e.g. , Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co. , 549
U.S. 443, 448, 127 S. Ct. 1199, 1203 (2007) (The American Rule can “be overcome by an enforceab le contract allocating attorney’ s fees ” (quotation omitted)). Here the contract that Turner and the Sureties claim entitles them to an award of attorney’s fees was between Southwick and Bolena. We remand to the district court to interpret that contract in the first instance , s o as to determine whether it entitles Turner and the Sureties to an award of attorney’s fees , and if so how much

. REVERSED and REMANDED

.

Case: 15-14900 Date Filed: 01/20/2017 Page: 7 of 7