UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) JIBRIL IBRAHIM, ) ) Plaintiff, ) ) v. ) Civil Action No. 11-1070 (ESH) ) MID-ATLANTIC AIR OF DC, LLC, ) ) Defendant. ) ) MEMORANDUM OPINION

Plaintiff Jibril Ibrahim has sued Mid-Atlantic Air of DC, LLC (“Mi d-Atlantic”), alleging that it “breach[ed] and alter[ed] employment c ontracts” by “refusing to pay differential pay scale” and failing to pay him at the rate re quired under the Davis-Bac on Act. (Notice of Removal, Ex. A [“Compl.”] at 1, 3-4.) Mid-Atla ntic now moves to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that the Davis-Bacon Act does no t provide a private right of action to recover unpaid wages. For the following reasons, the Court will grant the motion to dismiss. BACKGROUND Ibrahim was hired by Mid-Atlantic as a laborer at the Park Vista Apartment Complex and at the Fort View Apartment Complex in Washingt on, DC. (Compl. at 2-3.) He alleges that MidAtlantic paid him $12.54 per hour at both cons truction sites, even though at a previous construction job he was paid $18.00 an hour, and even though Mid-Atlan tic typically pays plumbers “normal” salaries. ( Id. at 2.) He alleges that the co ntractor at Fort View “is Davis-2 Bacon,” but his complaint does not indicate whethe r the Park Vista site was also covered by the

Davis-Bacon Act. 1 ( Id. at 2-3.) On May 24, 2011, Ibrahim filed a claim for $5,000 in Small Claims Court for the District of Columbia. ( Id. at 1.) Ibrahim’s Complaint argued that Mid-Atlantic’s failure to “pay differential pay scale” constitutes a “contract br each” entitling him to “differential pay.” ( Id. at 1-2.) Mid-Atlantic removed the case to this C ourt (Notice of Removal, Ex. B, at 1) and moved to dismiss Ibrahim’s claims on June 9, 2011. (Def.’s Mot. to Dismiss [“Def.’s Mot.”] at 1-2.) ANALYSIS I. STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint “must contain sufficient factual matter, accep ted as true, to ‘state a claim to relief that is plausible on its face,’” such that a court may “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)). In ruli ng on a 12(b)(6) motion, a court may consider facts alleged in the complaint, documents attached to or incorporated in the complaint, matters of which courts may take judicial notice, and documents appended to a motion to dismiss whose authenticity is not disputed, if they are referred to in the comp laint and integral to a claim. U.S. ex rel. Folliard v. CDW Tech. Servs., Inc. , 722 F. Supp. 2d 20, 24-25 (D.D.C. 2010).

1 The Davis-Bacon Act requires that contracts for “constructi on, alteration, or repair” in excess of $2,000, to which the federal government or the District Columbia is a party, shall include provisions listing “minimum wages” for “laborers and mechanics” based on “prevailing” wages for “corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in th e civil subdivision of the State . . . or in the District Columbia if the work is to be performed there,” as dete rmined by the Secretary of Labor. 40 U.S.C. §§ 3142(a)-(b).3 II. IBRAHIM’S CLAIMS UNDER THE DAVIS-BACON ACT Mid-Atlantic argues that Ibrahim cannot sue for unpaid wages under the Davis-Bacon Act, 40 U.S.C. §§ 3141 et seq ., and that he must instead file an administrative complaint with the Department of Labor. (Def.’s Mot. at 2-3.) Ib rahim does not argue that he has a right to sue under the Davis-Bacon Act. Rather, he argues th at his claims do not arise under the Act because the jobs he worked on were “contracted with the District of Columbia,” rather than the federal government, that the Act, therefore, does not appl y, and that the Court lacks jurisdiction. (Pl.’s Opp’n at 4-5.) Ibrahim fails to note that the Davis-Bacon Act applies to “every contract in excess of $2,000, to which the Federal Government or the District of Columbia is a party, for construction, alteration, or repair . . . .” 40 U.S.C. § 3142(a) (emphasis added); see also Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of

Labor , 461 U.S. 624, 646 (1983) (Davis-Bacon Act “covers virtually all construction projects to

which the United States or the District of Colu mbia is a party”) (Marshall, J., dissenting). Moreover, Ibrahim’s complaint alleges that the Fo rt View project was re quired to comply with Davis-Bacon (Compl. at 3), a nd the contract governing his wo rk on the Park Vista complex explicitly states that the project is governed by the Davis-Bacon Act. 2 (Def.’s Mot, Ex. B at 1.) Thus, because Ibrahim’s claims arise under one of the “laws . . . of the United States,” the Court has jurisdiction under 28 U.S.C. § 1331. 3

2 Ibrahim did not attach this contract to his complaint. However, Ibrahim has not disputed its authenticity, it is referred to in hi s complaint and his claim for breach of contract necessarily rests on it. (Compl. at 1.) Theref ore, the Court may consider the exhibit without converting this motion to dismiss into a motion for summary judgment. KBI Transp. Servs. v. Med. Transp. Mgmt., Inc. , 679 F. Supp. 2d 104, 108 n.4 (D.D.C. 2010).

3 For this reason, Ibrahim’s argument that D.C. law applies because the projects he worked on were “contracted with the District of Columbia, and the D.C. Courts are repositories of their own laws” (Pl.’s Opp’n at 5) is equally unavailing.4 Plaintiff cannot bring his claims under the Act in this Court. The “majority of courts that

have addressed the issue” have concluded that no private right of action exists under 40 U.S.C. § 1342, the section of the Davis- Bacon Act at issue here. U.S. ex rel. Bradbury v. TLT Constr. Corp. , 138 F. Supp. 2d 237, 240 (D.R.I. 2001) (collecting cases); see also Grochowski v.

Phoenix Constr. , 318 F.3d 80, 85 (2d Cir. 2003) (“A lthough the Supreme Court has not considered whether the [Davis-Bacon Act] conf ers a private right of action on an aggrieved employee for back wages, the great weight of authority indicate s that it does not.”) Although case law in this Circuit also suggests that no private right of action exists, see Kenney v. Roland Parson Contracting Corp. , 790 F. Supp. 12, 16 n.3 (D.D.C. 1992), rev’d on other grounds , 28 F.3d 1254 (D.C. Cir. 1994), the Court need not deci de the issue because Ibrahim conceded it by failing to contest Mid-Atlantic’s argument that he may not su e under the Davis-Bacon Act. Buggs v. Powell , 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (concl uding that the court may treat as conceded any arguments raised in a dispositive mo tion that the plaintiff fails to address in his opposition). Moreover, Ibrahim cannot evade the requirement that he seek administrative relief simply by arguing that his claims arise unde r D.C. law. He does not allege that Mid-Atlantic contracted to pay him eighteen dollars an hour or that he entered into any special contractual arrangement prior to beginning work, and he provides no explan ation or justification under D.C. law for his claims. Indeed, his complaint makes clear that the “pay scale” to which he believes he is entitled is mandated by the Davis-Bacon Act. (Compl. at 2-3 (“pay scale is higher at this work [s]ite

because the contractor is Davi s-Bacon”).) Even if Ibrahim had stated a claim under D.C. contract law, it would likely be foreclosed by the Davis-Bacon Act. As the Second Circuit wrote, in a similar case,5 At bottom, [his] state-law claims are indi rect attempts at privately enforcing the prevailing wage schedules contained in th e [Davis-Bacon Act]. To allow a thirdparty private contract action aimed at en forcing those wage schedules would be inconsistent with the underlying purpose of the legislative scheme and would interfere with the implementation of that scheme to the same extent as would a cause of action directly under the statute.

Grochowski , 318 F.3d at 86 (internal quotation marks om itted). Ibrahim conceded that “no private right of action exists under the relevant statute.” Id. Thus, because his attempt to bring

his claim under some unidentified state law is “clearly an impermissi ble ‘end run’ around” the Davis-Bacon Act, 4 his complaint must be dismissed. Id. III. AMENDING THE COMPLAINT At the end of his opposition brief, Ibrahim stat es that, if necessary, he “reserves the right to amend the complaint to cure defective jurisd ictional amount and pleadings – so he may come within the jurisdiction of the Court for RICO Act violations , conspiracy (18 U.S.C. §§ 1961 et

seq. ) and Labor Law violations . . . .” (Pl.’s Opp’ n at 5.) Whatever the merits of these claims, the Circuit has clearly stated that “a brief request for leave to amend if the District Court were to dismiss,” contained in an opposition to a motion to dismiss, does not constitute a motion for

leave to amend. City of Harper Woods Emps.’ Ret. Sys. v. Olver , 589 F.3d 1292, 1304 (D.C. Cir. 2009). Therefore, the Court need not honor Ibrahim’s “res erv[ation]” of his ri ghts. (Pl.’s Opp’n at 5.)

4 Ibrahim suggests the doctrine of forum non conveniens justifies remanding the case. (Pl.’s Opp’n at 4.) However, this doctrine is a “tool” used to “ensure th at a trial court neither asserts jurisdiction over a case that lacks a significant connection with the forum, nor applies the law of a state with no interest in the matter,” Saleh v. Titan Corp. , 580 F.3d 1, 31 (D.C. Cir. 2009) (Garland, J., dissenting), and does not prevent a defendant fr om removing a case to federal court when the court has jurisdiction under 28 U.S. C. § 1331. Ibrahim’s claims arise under the Davis-Bacon Act, all of the rele vant acts took place within the District of Columbia, and both parties are domiciled in the District. ( See generally Compl. at 1, 3-4.) Thus, the Court has jurisdiction over this case and the doctrine of foru m non conveniens does not apply.6 CONCLUSION For the foregoing reasons, the Court will grant Mid-Atlantic’s motion to dismiss. A separate Order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge Date: August 10, 2011