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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 are laborers who worked for a third-tier subcontractor in the construction of a 

District of Columbia building. Believing that they were underpaid, they brought this action on 

May 31, 2013, against the two companies insuring the prime contractor’s construction-payment 

bond, alleging violations of the federal Davis-Bacon Act and the District of Columbia’s Little 

Miller Act. On June 24, Defendants filed Motions to Dismiss, arguing, inter alia, that the statute 

of limitations on Plaintiffs’ claims has expired and that Plaintiffs do not qualify for coverage 

under Defendants’ bonds. Although Defendants did not mention a lack of subject-matter

jurisdiction, the Court raised the issue sua sponte in an Order on September 18, requiring that

Plaintiffs show cause why the case should not be dismissed for their failure to sufficiently 

exhaust administrative remedies, as required by the Davis-Bacon Act, 40 U.S.C. § 3144(a).

After several rounds of briefing, Plaintiffs successfully requested that the Court stay the 

proceedings, allowing them to return to the Department of Labor to complete the administrative 

process. Plaintiffs now report that, despite their entreaties, DOL has refused to take any further 

action. They thus ask the Court to revisit its earlier findings on subject-matter jurisdiction in 
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light of their repeated efforts to obtain administrative relief. The Court is persuaded, and it now 

agrees that it may hear the case.

I. Background

Plaintiffs were employed by S & J Acoustics, a third-tier subcontractor retained to 

complete ceiling installation on the Consolidated Forensic Laboratory building, owned by the 

District of Columbia. See Compl., ¶¶ 2, 5. Pursuant to the Davis-Bacon Act (DBA), 40 U.S.C. 

§ 3141, et seq., and the Little Miller Act, D.C. Code § 2-201.01, et seq., the project’s prime 

contractor, Whiting-Turner, provided a payment bond to the District of Columbia as an 

assurance that project laborers would receive payment at DOL-mandated hourly rates. See

Compl., ¶¶ 3, 8. Defendants Fidelity and Deposit Company of Maryland and Travelers Casualty 

and Surety Company of America guaranteed the bond as co-sureties. See id. Plaintiffs now seek 

to collect against that bond, alleging that they were not paid for their contributions to the project

in accordance with the designated wage rates. See id., ¶¶ 21, 28-29. 

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., ¶¶ 23-24. 

As the project had since been wound up and all payments released to the prime contractor, the 

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

relief under the DBA. See id., ¶¶ 24-25. Although neither party mentioned the issue in their 

initial briefs, the Court sua sponte raised questions about its subject-matter jurisdiction to 

proceed, absent conclusive findings from DOL. See Order to Show Cause at 2-5. 

Relying on the language of § 3144(a) of the DBA, as well as opinions from a handful of 

other jurisdictions, the Court reasoned that Plaintiffs could demonstrate statutorily required 
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exhaustion of administrative remedies only after DOL had made three factual determinations –

namely, (1) that Plaintiffs had performed DBA-eligible work, (2) that they had been paid below 

the required DBA wage, and (3) that DOL had not withheld sufficient funds from the project to 

remedy these underpayments. See OSC at 2-3. Plaintiffs responded that, although they had 

attempted to comply with the administrative requirements of § 3144(a), DOL had dismissed the 

case on the ground that “the government had already made its final payment to the prime 

contractor . . . and that therefore there were no further payments the government could 

withhold.” See Response at 1. Given the lack of funds, DOL saw no need to further investigate

Plaintiffs’ DBA eligibility or the extent of any back wages owed. See id. 

Out of deference to DOL’s plenary responsibility under the DBA to make back-wage 

determinations, but also to avoid leaving Plaintiffs without an effective remedy, the Court opted 

to issue a temporary stay of the proceedings to allow Plaintiffs to return to DOL and request that 

the agency reopen the case and make the remaining administrative determinations. See ECF No. 

16 (Order) at 4. Plaintiffs have done so, but without any success. Both parties stipulate to the 

fact that DOL refuses to reopen the case, presenting DOL “Case Conclusion Notes” as proof that 

the complaint has been definitively dismissed for lack of any remaining funds. See Joint Status 

Report, ¶¶ 6-7 & Exh. A. 

Plaintiffs now urge the Court to nevertheless assert jurisdiction in this matter and allow 

them to move ahead with their claims under DBA § 3144(a) and the Little Miller Act, lest they 

be without a remedy. See Response at 9; see also, e.g., Ibrahim v. Mid-Atl. Air of DC, LLC, 802 

F. Supp. 2d 73, 76 (D.D.C. 2011) (recognizing that plaintiff would likely be foreclosed from 

bringing claim under D.C. contract law where contract relates to project governed by DBA),

aff’d, 11-7150, 2012 WL 3068460 (D.C. Cir. July 19, 2012). Defendants, however, argue that 
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DOL’s failure to make a complete set of findings under § 3144(a) creates an insurmountable 

barrier to federal-question jurisdiction. See Def. Resp. to Order at 2. The Court’s prior Order 

may have too stringently accepted the position taken by Defendants, and the Court now believes

that such a conclusion – which risks exalting form over substance – is neither compelled by the 

language and purpose of § 3144(a) nor appropriate in light of the unusual circumstances in this 

case, particularly now that Plaintiffs have again unsuccessfully pled their case to DOL. The 

Court will thus grant Plaintiffs’ request and find that it has subject-matter jurisdiction under the 

DBA to address their claims.

II. Analysis

The DBA, “a minimum wage law designed for the benefit of construction workers,” 

United States v. Binghamton Const. Co., 347 U.S. 171, 178 (1954), offers a limited cause of 

action for laborers against contractor sureties to recover unpaid wages, providing:

(1) In general. – The Secretary of Labor1 shall pay directly to 

laborers and mechanics from any accrued payments withheld under 

the terms of a contract any wages found to be due laborers and 

mechanics under this subchapter.

(2) Right of action. – If the accrued payments withheld under the 

terms of the contract are insufficient to reimburse all the laborers 

and mechanics who have not been paid the wages required under 

this subchapter, 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. . . .

40 U.S.C. § 3144(a). 

As this Court has acknowledged, § 3144(a) “could be read to mean that the right of action 

does not accrue – and thus that the courts do not have jurisdiction – until [] the Department of 

Labor has made a determination that [1] the laborer performed DBA-eligible work [2] but was

 1 As of November 21, 2013, § 3144(a) was amended, vesting the Secretary of Labor, instead of the 

Comptroller General, with responsibility for payment of back wages. See Pub.L. 113-50 (2013).
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not paid a DBA-compliant wage, and that [3] the funds available to be withheld from the 

contractor are insufficient to compensate the laborer for his underpayment.” OSC at 2. Indeed, 

several decisions, including one in this District, have suggested that DOL determinations as to 

non-payment and insufficiency of funds constitute jurisdictional conditions precedent to any 

action against a surety in district or state court. See, e.g., Johnson v. Prospect Waterproofing 

Co., 813 F. Supp. 2d 4, 7 (D.D.C. 2011) (quoting U.S. ex rel. Bradbury v. TLT Const. Corp., 138 

F. Supp. 2d 237, 241 (D.R.I. 2001)); Ybanez v. Anchor Constructors, Inc., 489 S.W.2d 730, 738 

(Tex. Civ. App. 1972). 

The District of Rhode Island’s decision in Bradbury offers the strictest reading of the 

DBA’s jurisdictional requirements, characterizing the § 3144 remedy as “available only after 

there has been an administrative determination that some money is owed and that insufficient 

funds have been withheld to compensate the affected laborer.” Bradbury, 138 F. Supp. 2d at 

241. The plaintiff in Bradbury, however, did not rely upon § 3144 to establish jurisdiction, but

instead claimed that the federal Miller Act afforded a wholly independent cause of action that 

could be exercised separately from any of the DBA’s formalities. See id. at 239. In fact, he

made no attempt to seek administrative redress in accordance with the procedures set out in § 

3144. See id. at 244. The holding in Bradbury, as a consequence, may be of limited value for 

cases like this one, where the Plaintiffs have made a good-faith effort to exhaust administrative 

remedies.

Other courts that have employed this three-pronged jurisdictional formula have similarly 

done so in response to a plaintiff’s perceived attempt to “bypass the exclusive administrative 

remedies of the DBA” by resorting to an implied cause of action or a state-law contract claim.

See Johnson, 813 F. Supp. 2d at 10; Ybanez, 489 S.W.2d at 738-39. Indeed, the majority of 
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prior decisions have examined the § 3144(a) remedy only to the extent that it forecloses a 

plaintiff from making an “end-run” around the DBA’s administrative scheme. See, e.g., Ibrahim, 

802 F. Supp. 2d at 76 (plaintiff cannot “evade the requirement that he seek administrative relief 

simply by arguing that his claims arise under D.C. law”); U.S. for Use and Benefit of Glynn v. 

Capelletti Bros., Inc., 448 F. Supp. 66, 68 (S.D. Fla. 1978) (plaintiff barred from seeking judicial 

relief while DOL administrative investigation still ongoing); Ybanez, 489 S.W.2d at 737-38 (no 

implied cause of action to challenge improper wage classification). 

None of these opinions, however, addressed the more difficult question of whether an 

affected employee may properly claim to have exhausted all remedies under § 3144 once DOL 

closes an investigation for lack of sufficient funds and refuses to make any further findings on 

remaining wages owed. Indeed, none involved a plaintiff who sought the assistance of the courts 

as a measure of last resort, only after making best efforts to obtain administrative assistance.

In this case, Plaintiffs have made not one, but two, separate demands on DOL, requesting 

full findings on their eligibility for DBA protections and on the status of any back wages owed 

under the contract, and DOL has refused to take any further action. See Joint Status Report at 1-

2. In light of the unusual facts of this case, finding that exhaustion has been completed is more 

consistent with the goals of § 3144(a).

The primary purpose of the DBA is “not [] to benefit [government] contractors, but rather 

to protect their employees from substandard earnings.” Binghamton Const. Co., 347 U.S. at 177. 

To support this goal, the Act confers an express “right of action on employees to recover from 

the contractor the amount due the employees under the minimum wage schedule.” Id. at 

176 n.12. The Supreme Court has observed that the Act’s administrative scheme is designed to 

strike a “careful balance” by providing contractors with a predictable basis upon which to 
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estimate labor costs, and laborers with an effective means to enforce wage stipulations in 

contracts. See Univs. Research Ass’n, Inc. v. Coutu, 450 U.S. 754, 782 (1981); see also id. at 

776-77 (“Congress intended to give laborers and mechanics only ‘the same right of action 

against the contractor and his sureties in court which is now conferred by the [Miller Act].’”) 

(quoting S. Rep. No. 1155, at 2; H.R. Rep. No. 1756, at 2). While Congress may have 

“concluded that the administrative process will regulate compliance with the statute more 

efficiently than the courts could through piecemeal litigation,” Bradbury, 138 F. Supp. 2d at 244, 

it does not necessarily follow that Congress intended to deny a laborer any means of redress once 

a DOL investigator has closed an investigation for lack of sufficient funds and has refused to 

make any further findings on wages owed. 

When interpreting a statute designed to benefit laborers, federal courts have consistently 

taken a more liberal approach to construction with a view to ensuring that workers are properly 

compensated for their contributions to public projects. See, e.g., Clifford F. MacEvoy Co. v. 

U.S. for Use & Benefit of Calvin Tomkins Co., 322 U.S. 102, 104 (1944) (counseling liberal 

construction where statute “clearly evidence[s] ‘the intention of Congress to protect those whose 

labor or material has contributed to the prosecution of the work.’”) (quoting U.S. for the Use & 

Benefit of Daniel H. Hill v. Am. Surety Co., 200 U.S. 197, 202-03 (1906)); U.S. to Use & 

Benefit of Bailey-Lewis-Williams of Fla., Inc. v. Peter Kiewit Sons Co. of Canada Ltd., 195 F. 

Supp. 752, 756 (D.D.C. 1961) (where literal meaning of words leads to results at variance with 

statute’s legislative goals, courts should follow legislative purpose), aff’d sub nom. Indem. Ins. 

Co. of N. Am. v. U.S. to Use & Benefit of Bailey-Lewis-Williams of Fla., Inc., 299 F.2d 930 

(D.C. Cir. 1962); U.S. ex rel. E & H Steel Corp. v. C. Pyramid Enterprises, Inc., 509 F.3d 184, 

186 (3d Cir. 2007) (interpretation should promote Congressional intent to protect those whose 
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labor and materials contribute to public projects); U.S. for Use & Benefit of T.M.S. Mech. 

Contractors, Inc. v. Millers Mut. Fire Ins. Co. of Tex., 942 F.2d 946, 950 n.9 (5th Cir. 1991). In 

order to preserve the DBA’s “careful balance” while fulfilling its primary purpose of protecting 

laborers, the § 3144(a) remedy should not be construed so expansively that it permits laborers to 

opt out of the administrative process or so narrowly that it places the laborer at the mercy of 

circumstances beyond his control. 

As Plaintiffs point out, furthermore, a number of other opinions have not insisted on the 

formulaic fulfillment of all three Bradbury prerequisites, but have instead focused principally on 

the requirement that employees allege that they made a demand on DOL, but were unable to 

collect due to insufficient funds. See Response at 7-9. The Ninth Circuit, for example, 

determined that the major barrier to jurisdiction was a plaintiff’s failure to allege that “that the 

Comptroller General withheld insufficient funds.” Operating Eng’rs Health & Welfare Trust 

Fund v. JWJ Contracting Co., 135 F.3d 671, 676 (9th Cir. 1998). Another court similarly 

reasoned that it could not assert jurisdiction unless the plaintiff demonstrated that the 

government had “withheld insufficient payments from the contractor and, therefore, was unable 

to reimburse laborers and mechanics pursuant to the contractor’s contract.” Weber v. Heat 

Control Co., 579 F. Supp. 346, 348 (D.N.J. 1982), aff’d, 728 F.2d 599 (3d Cir. 1984). Yet 

another court held that the central “condition precedent” that a plaintiff must meet before 

establishing jurisdiction over a DBA claim is the existence of “a demand on the [Secretary of 

Labor], and a refusal by him to pay.” Veder v. Bay State Dredging & Contracting Co., 79 F. 

Supp. 837, 840 (D. Mass. 1948). In other words, the government “must at least have the 

opportunity to make a preliminary determination” before an employee turns to the courts. See

id. 
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While none of these opinions is binding on this Court or addresses the precise factual 

circumstances of this case, the Court finds them persuasive inasmuch as they emphasize the most 

important criteria for jurisdiction over a DBA claim – namely, that the plaintiff first make a 

concerted effort to exhaust administrative remedies with DOL and only turn to the courts if funds 

are found to be insufficient. To refuse jurisdiction, even after a plaintiff has twice made a goodfaith effort to obtain administrative relief, would be overly technical and risk undermining the 

very purpose of the DBA and corresponding bond statutes.

Such a formalistic approach to jurisdiction, moreover, could result in unfortunate 

outcomes not likely intended by the DBA’s drafters. As several past opinions have 

demonstrated, courts have been hesitant to permit a plaintiff to assert an independent state-law 

claim for breach of contract where the claim was factually dependent on the contractor’s DBA 

obligation to pay a pre-determined wage. See, e.g., Ibrahim v. Mid-Atl. Air of DC, LLC, 802 F. 

Supp. 2d 73, 76 (D.D.C. 2011) (breach-of-contract claim dismissed on ground that it constituted 

an “indirect attempt[] at privately enforcing the [DBA’s] prevailing wage schedules”) (quoting 

Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) (internal quotation marks omitted 

in original); Johnson, 813 F. Supp. 2d at 10 (plaintiffs “cannot get around the administrative 

prerequisites of the Act simply by dressing up their claim” as a state-law contract claim). A rigid 

approach to § 3144(a) jurisdiction, as a consequence, might mean that a genuinely aggrieved 

employee could not pursue any avenue to recovery unless DOL makes a full set of administrative 

findings. In addition, refusal to entertain DBA claims in situations like this one may create a 

perverse incentive for contractors to breach their wage obligations at the end of a project’s 

lifespan, in hopes that employees will not report the problem until after final payments have been 

made and any withholdings have been released.
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In light of both the object and purpose of the DBA, and the special circumstances of this 

case, the Court finds that Plaintiffs have sufficiently exhausted their administrative remedies 

under DBA § 3144(a), and that refusal by DOL to reopen its investigations should not create an 

insurmountable barrier to this Court’s jurisdiction and Plaintiffs’ ability to seek the remedies 

intended under the statute.

III. Conclusion

For the foregoing reasons, the Court finds that it has proper subject-matter jurisdiction to 

review the substance of Plaintiffs’ claims. A contemporaneous Order will so indicate. The 

Court will now proceed to consider the merits of Defendants’ pending Motions to Dismiss, 

which will be addressed in a future Opinion.

 /s/ James E. Boasberg 

 JAMES E. BOASBERG

 United States District Judge

Date: February 7, 2014