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 (“Mid-Atlantic”), alleging 

that it “breach[ed] and alter[ed] employment contracts” by “refusing to pay differential pay 

scale” and failing to pay him at the rate required under the Davis-Bacon Act. (Notice of 

Removal, Ex. A [“Compl.”] at 1, 3-4.) Mid-Atlantic now moves to dismiss under Fed. R. Civ. P. 

12(b)(6), arguing that the Davis-Bacon Act does not 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 Washington, DC. (Compl. at 2-3.) He alleges that MidAtlantic paid him $12.54 per hour at both construction sites, even though at a previous 

construction job he was paid $18.00 an hour, and even though Mid-Atlantic typically pays 

plumbers “normal” salaries. (Id. at 2.) He alleges that the contractor at Fort View “is Davis-
2 

Bacon,” but his complaint does not indicate whether 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 breach” entitling him to “differential pay.” (Id. at 

1-2.) Mid-Atlantic removed the case to this Court (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, accepted 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 ruling 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 complaint 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 “construction, 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 the civil subdivision of the State . . . or in the District Columbia if 

the work is to be performed there,” as determined 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.) Ibrahim does not argue that he has a right to sue 

under the Davis-Bacon Act. Rather, he argues that 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 apply, 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 Columbia is a party”) (Marshall, J., dissenting). 

Moreover, Ibrahim’s complaint alleges that the Fort View project was required to comply with 

Davis-Bacon (Compl. at 3), and the contract governing his work 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 his complaint and his claim for breach of contract 

necessarily rests on it. (Compl. at 1.) Therefore, 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) (“Although the Supreme Court has not 

considered whether the [Davis-Bacon Act] confers a private right of action on an aggrieved 

employee for back wages, the great weight of authority indicates 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 decide the issue because Ibrahim conceded it by 

failing to contest Mid-Atlantic’s argument that he may not sue under the Davis-Bacon Act. 

Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (concluding that the court may treat as 

conceded any arguments raised in a dispositive motion 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 under 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 explanation 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 Davis-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 indirect attempts at privately enforcing the 

prevailing wage schedules contained in the [Davis-Bacon Act]. To allow a thirdparty private contract action aimed at enforcing 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 omitted). 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 impermissible ‘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 states that, if necessary, he “reserves the right 

to amend the complaint to cure defective jurisdictional 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 “reserv[ation]” of his rights. (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 that 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 from 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 relevant 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 forum 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