Grochowski v. Phoenix Construction

LYNCH, District Judge,

dissenting.

I dissent from Part I of the Court’s opinion.

The Davis-Bacon Act (“DBA”) requires that every “contract ... to which the United States or the District of Columbia is a party, for construction ... of public buildings ... of the United States” provide that the minimum wages to be paid to workers “shall be based upon the wages ... determined by the Secretary of Labor to be prevailing” for similar work in the locality where the work is to be performed. 40 U.S.C. § 276a. The Housing and Community Development Act (“HCDA”) incorporates this requirement into “construction work financed in whole or in part with assistance received under this chapter.” 42 U.S.C. § 5310(a). The contracts at issue in this case between the New York City Housing Authority (“NYCHA”) and the defendant contractors contained clauses conforming to this requirement, by which the defendants promised that they would pay their workers according to specific schedules of “prevailing wages” published by the Secretary of Labor for the relevant categories of workers. The plaintiff workers assert, and for purposes of this appeal it is undisputed, (1) that under ordinary common-law principles of contract, as interpreted in New York, they are third-party beneficiaries of these contractual provisions entitled to bring an action to enforce them,1 and (2) that in violation of the promises made in their contracts, the defendants did not pay plaintiffs the wages specified in the contracts.

One might have thought that the plaintiffs had pled a perfectly good cause of action. -If the facts pled are true, as they must be taken to be for purposes of this discussion, the contractors entered binding contracts in which they promised NYCHA that they would pay the plaintiffs a specified wage, and they breached those contracts. New York law apparently permits the plaintiffs to enforce the contracts as third-party beneficiaries. Far from being contrary to any federal law or policy, the contractual obligations in question conform to a specific federal requirement that such contracts include exactly these promises, and the wages specified are precisely those established by the federal agency responsible for determining the locally-prevailing wages required to be paid by the federal statutes.

But despite a federal statute that effectively requires the wages to be paid, a specific promise by the contractors that they would pay the wages, and a state common-law rule that authorizes the plaintiffs to sue to enforce that promise, the majority declares that the contractors can break their promise, and that the workers have no judicial remedy to obtain the wages they were promised by Congress, the Labor Department, the New York courts, and the contractors themselves.

*90This, one might think, is a very peculiar result. Surely, some powerful legal reason must compel a conclusion so inconsistent with common sense, common law, and common justice. The majority’s reasoning, however, boils down to two simple propositions: (1) the DBA and the HCDA do not themselves provide a private cause of action to enforce their terms, and (2) “the plaintiffs’ efforts to bring their claims as state common-law claims are clearly an impermissible ‘end run’ around” the DBA’s failure to provide a private remedy. (Maj. Op. at 86.)

I have no quarrel with the first of these propositions. It is firmly established that there is (in this circuit) no implied right of action under the HCDA or, by implication, the DBA. Chan v. City of New York, 1 F.3d 96, 102 (2d Cir.1993).2 But the plaintiffs have not based their claim directly on the HCDA and DBA; rather, they rely on the contracts between the state agencies and the plaintiffs’ employers that require that plaintiffs be paid the wages listed on a schedule, specifically incorporated into the contracts, which derives from the schedules created by the Secretary of Labor to embody the “prevailing wages” determined under the DBA. Thus, to prevail, defendants must show not merely that there is no cause of action under the DBA, but that the DBA pre-empts or otherwise precludes state law remedies to which plaintiffs would otherwise be entitled. The weight of the majority’s reasoning therefore rests not on the undisputed assertion that the DBA and HCDA do not provide them with a cause of action, but on its second proposition, that the plaintiffs may not make an “end-run” around the absence of a private right of action under the federal statutes.

That, I respectfully submit, is a slogan, not an argument. And it is an erroneous slogan at that. The very case that establishes for this circuit the absence of an implied action directly under the DBA directly refutes the majority’s assertion that the DBA’s statutory administrative remedy precludes not only an implied cause of action under that Act, but also any other remedies that effectively allow indirect enforcement of the DBA’s requirements. In Chan v. City of New York, Judge Kearse wrote for the Court (1) that Congress did not intend to create a private right of action under the DBA, id. at 102, but (2) that “[t]he fact that a statute conferring substantive rights does not itself give its beneficiaries a private right of action to enforce it does not mean that the beneficiaries are without a private remedy.” Id. at 102-03. Accordingly, the Court held that plaintiffs were entitled to sue for violations of the DBA under 42 U.S.C. § 1983. Id. at 106. The Court went on at considerable length to discuss and reject the argument that the comprehensiveness of the DBA administrative remedy scheme evinced a congressional intent to foreclose reliance on § 1983 to enforce the policies of the DBA where the other requirements for § 1983 relief were present. Id. at 104-06.

I am at a loss to see how the same scheme that is not sufficiently comprehensive to demonstrate a congressional intent to preclude § 1983 relief is sufficiently comprehensive to preempt state remedies. The majority fails to cite any actual evidence, in the language or legislative history of the DBA, that Congress intended to prevent state law contract suits based on contractual promises to pay DBA prevailing wages — promises that Congress specif*91ically required to be written'into contracts that it must have assumed would be enforceable, like any other contracts, under state law. Certainly, the majority cannot mean to argue that if the defendants had made a contract directly with the employees promising to pay the prevailing wage as determined by the Secretary of Labor under the DBA, and then breached that promise, the DBA would somehow deprive plaintiffs of their right to sue on an ordinary contract theory. I fail to see why the case is different where plaintiffs sue as third-party beneficiaries of a contract between the state agency and their employer rather than as promisees in their own right, where state contract law otherwise equates the situations.

The majority attempts to distinguish Chan by stating that there is a “presumption ... that § 1983 provides a remedy for violations of federal statutory rights, ... [but] there is no presumption in favor of a right to bring suit for such common law claims.” (Maj.Op. 85.) No authority is provided for the proposition that there is no “presumption” in favor of a right to bring common-law contract claims under the law of New York. Nor can there be, for of course there is something more than a presumption: If New York law provides a right or remedy, any plaintiff has an absolute right to invoke it, unless the New York law is contrary to or pre-empted by federal law. But the majority does not even make a pass at demonstrating that the DBA displaces state contract law, or that New York’s willingness to enforce contractual promises to pay the prevailing wage is contrary to, rather than supportive of, the federal policy embodied in the DBA.3

Defendants have no equity here. They deliberately paid vulnerable immigrant workers less than what federal law, and defendants’ own contracts with the NY-CHA, required. The plaintiffs, on the other hand, appear to be immured in a regulatory scheme that has provided them no relief whatsoever. Chan establishes that there is no overpowering congressional or judicial policy of keeping DBA-derived rights out of the courts when some other source of law provides a remedy.4 Claims based on state law theories will not unduly burden the federal courts, absent diversity of citizenship or the presence of other federal claims that will bring the cases here anyway. So what'justifies interpreting a remedial statute enacted for the benefit of workers as containing an implicit shadow agenda — not reflected in any statutory language or legislative history — to preclude state law causes of action that would enforce contractual promises to comply with federal law?

Because the majority opinion does not provide a sufficient answer, I dissent.

. The plaintiffs appear to be correct about this proposition. See Fata v. S.A. Healy Co., 289 N.Y. 401, 406-07, 46 N.E.2d 339 (1943). But the District Court did not address the question, holding that the DBA precludes reli-anee on such a theory, even if it is otherwise available under New York law. The majority agrees. Accordingly, there is no need to reach the state-law question.

. Not all circuits agree. See McDaniel v. University of Chicago, 548 F.2d 689, 695 (7th Cir.1977). The Supreme Court has recognized the conflicting authority without ruling on this issue. Universities Research Ass’n v. Coutu, 450 U.S. 754, 769, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981).

. Defendants (but not the Court) cite cases holding that the DBA and regulations of the Housing Department pre-empt state laws requiring payment of a higher wage than the DBA prevailing wage. (Phoenix Br. at li-li.) But these cases rest on the argument that such laws contravene the federal policy against permitting state-mandated wages exceeding the DBA requirements to inflate the cost of federal contracts, and have no application to a state law that requires only compliance with the DBA wage.

. Indeed, without questioning the correctness of this Circuit's holding that the DBA does not provide a private right of action in its own right, it is worth remembering that the Seventh Circuit thinks that far from precluding other judicial remedies, the DBA itself provides a private right of action. See McDaniel, 548 F.2d at 695. It is hard to see how a statute so ambiguous about private remedies can be seen to trump perfectly ordinary state contract law to which it makes no reference whatever.