United States Court of Appeals, District of Columbia Circuit
September 10, 2015
Appeals from the United States District Court for the
District of Columbia. (No. 1:13-cv-00730).
Koppel, Attorney, U.S. Department of Justice, argued the
cause for appellants. With him on the briefs were Benjamin C.
Mizer, Acting Assistant Attorney General, Vincent H. Cohen,
Jr., Acting U.S. Attorney, and Michael Jay Singer, Attorney.
Jeffrica J. Lee, Attorney, U.S. Department of Justice,
entered an appearance.
R. Yellig and Esmeralda Aguilar were on the brief for
intervenors-defendants-appellants Metropolitan Regional
Council of Carpenters, et al.
Schifferle, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the
cause for appellee District of Columbia. With him on the
brief were Karl A. Racine, Attorney General, Todd S. Kim,
Solicitor General, and Loren L. AliKhan, Deputy Solicitor
Baskin argued the cause and filed the brief for appellee CCDC
J. McKeon was on the brief for amici curiae Associated
Builders and Contractors, Inc. and National Association of
Manufacturers in support of appellee CCDC Office LLC. Shelly
L. Ewald entered an appearance.
GARLAND,[*] Chief Judge, KAVANAUGH, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
is a large private development in the heart of Washington,
D.C. It features upscale retail stores such as Hermès,
Boss, and Louis Vuitton; high-end restaurants such as DBGB
and Centrolina; the large private law firm of Covington &
Burling; and luxury residences.
question in this case is whether the Davis-Bacon Act applies
to the construction of CityCenterDC. As relevant here, the
Davis-Bacon Act applies when the District of Columbia enters
into a " contract . . . for construction" of "
public works."  The Act guarantees prevailing wages to
construction workers on those projects. If the Act applies
here, the construction workers who helped build CityCenterDC
might be entitled to higher wages than they in fact received.
statutory definition reveals, two conditions must be present
in order for the Davis-Bacon Act to apply here: (1) D.C. must
have been a party to the contracts for construction of
CityCenterDC, and (2) CityCenterDC must be a public
work. To illustrate, suppose the District of Columbia
contracted with a construction contractor to build a new
public park. That would be a classic example of a
construction project covered by the Davis-Bacon Act.
this case differs from the classic Davis-Bacon scenario in
two critical respects, each of which independently
suffices to take the CityCenterDC construction project
outside the reach of the Davis-Bacon Act.
the District of Columbia was not a party to the construction
contracts for the building of CityCenterDC. D.C. owns the
land on which CityCenterDC stands, but D.C. rented the land
to private developers in a series of 99-year leases. The
private developers then entered into construction contracts
with general contractors to build CityCenterDC. The
developers -- not D.C. -- contracted with the construction
contractors who built CityCenterDC. That matters for purposes
of the Davis-Bacon Act. Put simply, because D.C. was not a
party to the construction contracts, the Davis-Bacon Act does
not apply to CityCenterDC.
and an independent reason why the Davis-Bacon Act does not
apply here, CityCenterDC is not a " public work."
To qualify as a public work, a project must possess at least
one of the following two characteristics: (i) public funding
for the project's construction or (ii) government
ownership or operation of the completed facility, as with a
public highway or public park. Here, CityCenterDC's
construction was not publicly funded, and CityCenterDC is not
a government-owned or government-operated facility. So
CityCenterDC is not a public work.
short, D.C. was not a party to the contracts for construction
of CityCenterDC, and CityCenterDC is not a public work. For
either of those two alternative and independent reasons, the
Davis-Bacon Act does not apply to the construction of
bears emphasis, moreover, that in the 80 years since its
enactment, the Davis-Bacon Act has never been
applied to a construction project such as CityCenterDC that
is privately funded, privately owned, and privately operated.
The novelty of the U.S. Department of Labor's
interpretation strongly buttresses our conclusion that the
Act does not apply here. See, e.g., FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 160, 120 S.Ct.
1291, 146 L.Ed.2d 121 (2000); Loving v. IRS, 742
F.3d 1013, 1021, 408 U.S.App. D.C. 281 (D.C. Cir. 2014).
thorough and persuasive opinion, the District Court held that
the Davis-Bacon Act does not apply to CityCenterDC. We affirm
the judgment of the District Court.
evaluate whether the Davis-Bacon Act applies to the
construction of CityCenterDC, we begin by examining the
history of the Act, the details of CityCenterDC, and the
procedural background of this case.
1931, Congress passed and President Hoover signed the
Davis-Bacon Act. By that point in the Great Depression,
economic activity, including construction, had already
declined significantly. To offset the dropoff in private
construction and to help put construction workers back to
work, the Federal Government launched a variety of
construction projects to build and repair public works. But
the government construction projects led to a collateral
problem. Some government agencies awarded construction
contracts to contractors who hired cheap itinerant labor and
made low-wage bids. The market impact, Congress believed, was
to depress wages for local construction workers below what
the local workers otherwise would receive.
prevent government contracts from depressing wages for local
construction workers, the Davis-Bacon Act guaranteed
prevailing local wages to construction workers on federal and
D.C. construction projects for public buildings. Offering a
succinct summary of the Act's purpose, one Member of
Congress remarked: " The purpose of this bill is to
require the contractors, including subcontractors, to pay not
less than the prevailing rate of wages for work of a similar
nature in the city, town, village, or other civil division of
the State in which the public buildings are located, or in
the District of Columbia." 74 Cong. Rec. 6515 (1931)
(statement of Rep. Kopp) (internal quotation marks omitted).
initially enacted, the Davis-Bacon Act covered only federal
and D.C. contracts for construction of " public
buildings." Pub. L. No. 71-798, 46 Stat. 1494 (1931). In
1935, Congress passed and President Franklin Roosevelt signed
a new law that amended the Act to cover federal and D.C.
contracts for construction of " public works," as