Unpublished Disposition, 883 F.2d 1023 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1023 (9th Cir. 1987)

James C. BULLOCK, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 88-1141.

United States Court of Appeals, Ninth Circuit.

Submitted June 7, 1989.* Resubmitted June 30, 1989.Decided Aug. 17, 1989.

Before TANG, CANBY and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

This appeal presents the question of whether the Davis-Bacon Act, 40 U.S.C. §§ 26(a), 276(a), confers a private right of action for back wages on an employee working under a contract containing the wage guarantees mandated by the Act.

* James Bullock was an employee of ATL, Inc., a Hawaiian construction contractor whose principal client was the United States Department of Defense. James E. Busher and Diane L. Miller, ATL officers and shareholders, were indicted in September 1984. Among other counts, the indictment charged that ATL evaded the requirements of Davis-Bacon, paying lower wages than those required by the Act and falsely signing certifications that the required wages were being paid. After a jury trial, Busher and Miller were convicted of (1) violating RICO by submitting false statements to the government, 18 U.S.C. § 1001; (2) presenting false claims to the government, 18 U.S.C. § 287; (3) mail fraud, 18 U.S.C. § 1341; (4) tax evasion 26 U.S.C. § 7201; and (5) submitting false income tax returns, 26 U.S.C. § 7206(1). Pursuant to the RICO conviction, Busher and Miller were required to forfeit stocks and real property.1  As part of the liquidation process, the court-appointed trustee directed all persons with claims against ATL to file petitions with the district court setting forth the nature of their claims. On April 22, 1987, Bullock filed a claim for wages and interest in excess of $30,000, claiming that he was paid by ATL at a rate below that mandated by the Davis-Bacon Act. Bullock's petition for claim was denied by the district court on December 29, 1987, on the grounds that the Davis-Bacon Act does not confer a private right of action. On appeal, Bullock claims 69,877.62 in wages and interest.

II

The Davis-Bacon Act provides that every federal contract in excess of $2,000 "for construction, alteration, and/or repair ... of public buildings or public works of the United States ... shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing" for corresponding classes of laborers and mechanics employed on similar projects in the locality. All contracts based on the specifications must contain a stipulation that the contractor will pay wages not less than those stated in the specifications. Bullock argues that he is entitled to bring suit for back wages to enforce the wage levels guaranteed by Davis-Bacon. We disagree.

The issue of whether a statute creates a private right of action is ultimately "one of congressional intent, not one of whether [the court] thinks it can improve upon the statutory scheme that Congress enacted into law." Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979). To determine whether Congress intended to create the private right of action asserted here, we consider the four factors set forth in Cort v. Ash, 422 U.S. 66, 78 (1975): the language of the statute; its legislative history; its underlying purpose; and whether the cause of action is "one traditionally relegated to state law." Cort, 422 U.S. at 78. We are aided in our evaluation of these factors by the Supreme Court's analysis of the Davis-Bacon Act in Universities Research Association v. Coutu, 450 U.S. 754 (1981). The Court's holding in that case was limited to the determination that the Act did not confer a private right of action for back wages under a contract that does not contain Davis-Bacon stipulations. The Court explicitly reserved the question of whether the Act creates an implied private right of action to enforce a contract, like the one at issue here, that contains specific Davis-Bacon stipulations as to wage rates. Coutu, 450 U.S. at 769. However, we find the Supreme Court's analysis of the congressional intent underlying the Davis-Bacon Act to be relevant in determining whether a private cause of action exists in the instant case.

III

On its face the Act appears to be a minimum wage law designed for the benefit of workers. See Coutu, 450 U.S. at 771; United States v. Binghamton Constr. Co., 347 U.S. 171, 178 (1954); Walsh v. Schlecht, 429 U.S. 401, 411 (1977). However, to determine whether a private cause of action should be implied under a statute, we must examine not only whether the statute was enacted to benefit a specific class, but also whether the statute expressly conferred rights upon that benefitted class. Coutu, 450 U.S. at 772. The language of the Davis-Bacon act does not confer rights directly on individuals. Id. "Since Sec. 1 is simply 'phrased as a directive to federal agencies engaged in the disbursement of public funds,' its language provides no support for the implication of a private remedy." Id. (citation omitted).

In addition, Congress explicitly authorized workers to sue on the contractor's bond if the payments withheld by a contracting agency were insufficient to supplement the workers' pay to Davis-Bacon standards. This explicit congressional grant of a right of action on the contractor's bond militates against Bullock's suggestion that we read a more general private right of action into the Act. " [W]hen legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies." National Railroad Passenger Corp. v. National Ass'n of Railroad Passengers, 414 U.S. 453, 458 (1974).

Turning to the legislative history, we find that congressional objectives also fail to support the implication of a private right of action. First, the legislative history demonstrates that Congress intended the sole method for workers to enforce the statute to be by suit against the contractor's bond. See Coutu, 450 U.S. at 776-777 and n. 28. Second, the fact that in 1964, the House of Representatives refused to consider an amendment to the Act conferring a private right of action on a worker claiming that the employer had failed to pay the required wages, suggests that such a right was not believed to exist in the unamended Act. Coutu, 450 U.S. at 777-779. Finally, the Supreme Court rejected the argument that the Portal-to-Portal Act, 29 U.S.C. § 251, implicitly recognized the existence of or conferred a private right of action under the Davis-Bacon Act, suggesting instead that the statute of limitations period in the Portal-to-Portal Act applied only to the explicit statutory remedies provided under the Davis-Bacon Act. Coutu, 450 U.S. at 780-81 and n. 34.2 

IV

Given our analysis of the first two Cort factors, we need not examine the final two. Neither the statute's language nor its legislative history indicate congressional intent to create a federal right in favor of the plaintiff. " [T]he remaining two Cort factors cannot by themselves be a basis for implying a right of action." Coutu, 450 U.S. at 771 n. 21 (citation omitted).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

On appeal, this court remanded for a determination of whether the statutorily mandated civil forfeiture was so disproportionate as to violate the eighth amendment. On remand, the district court found that the forfeiture was not unconstitutional

 2

Subsequent to submission of this case, we issued an order requiring supplemental briefing on whether Bullock could assert a claim as a third-party beneficiary of the contract between ATL and the federal government and whether this claim qualified as a "legal interest" within the meaning of 18 U.S.C. § 1963(1) (2). Although the government concedes that the "facts alleged by Mr. Bullock may present a third-party beneficiary claim," Bullock states that he has no third-party claim and does not intend to assert one. Because Bullock concedes this issue, we need not address it