USA ex rel INTL. BROTHERHOOD OF ELECTRICAL WORKERS V. THE FAIRFIELD CO.
MEMORANDUM AND OPINION. SIGNED BY CHIEF JUDGE LAWRENCE F. STENGEL ON 9/26/17. 9/26/17 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA, ex rel.
OF ELECTRICAL WORKERS,
LOCAL UNION NO. 98,
THE FARFIELD COMPANY,
September 26, 2017
This case involves a claimed violation of the False Claims Act (“FCA”), 31
U.S.C.§3729 et seq., 1 where the defendant allegedly underpaid its employees with
reckless disregard for its statutory compliance under the Davis-Bacon Act (“DBA”), 40
The FCA provides:
(a) Liability for certain acts … any person who -(1) knowingly presents, or causes to be presented, to an officer or employee of the
United States Government or a member of the Armed Forces of the United States
a false or fraudulent claim for payment or approval;
(2) knowingly makes, uses or causes to be made or used, a false record or
statement to get a false claim or fraudulent claim paid or approved by the
(3) conspires to defraud the Government by getting a false or fraudulent claim
allowed or paid; …
(7) knowingly makes, uses, or causes to be made or used, a false record or
statement to conceal, avoid, or decrease an obligation to pay or transmit money or
property to the Government, … is liable to the United States Government for a
civil penalty of not less than $5,000 and not more than $10,000, plus three times
the amount of damages which the Government sustains because of the act of that
person . . . .
31 U.S.C. § 3729.
U.S.C. §267(a) et seq. 2 The plaintiff alleges that defendant, The Farfield Company
(“Fairfield”), submitted false certified payrolls and Certificates of Compliance in order to
intentionally and knowingly misclassify workers performing electrician’s work at
classifications with a lower rate of pay on prevailing wage jobs. Amend. Compl. at ¶¶ 12. Stated differently, plaintiff alleges that employees performing electrician’s work were
intentionally classified as laborers, groundsmen, and other classifications with lower pay
rates regardless of their qualifications or the actual work performed. Id. at ¶ 5. This
scheme allowed Farfield to gain a bidding advantage over its competitors by
manipulating rates of pay on federally funded public work projects. Id. at ¶ 3.
The DBA is a protective labor law that, among other things, requires certain federal
government contracts “for construction, alteration, and/or repair . . . of public buildings or public
works of the United States” to contain a provision “stating the minimum wages to be paid
various classes of laborers and mechanics.” United States ex rel. Windsor v. Dyncorp, Inc., 895
F. Supp. 844, 848-49 (E.D. Va. 1995) (citing Davis-Bacon Act, 40 U.S.C. § 276(a)). If the
contracting government agency determines that the contract is subject to the Act’s provisions,
then the agency “must determine the appropriate minimum wage for each of the various classes
of mechanics and laborers predicted to be needed for the contract.” Id.; Universities Research
Ass’n v. Coutu, 450 U.S. 754, 760 (1981); 29 C.F.R. § 5.5. “Those minimum wages must be
based upon wage rates determined by the Secretary of Labor, 40 U.S.C. § 276a, and ‘the
correctness of the Secretary’s wage rate determination is not subject to judicial review.’”
Dyncorp, Inc., 895 F. Supp. at 848-49 (citing Coutu, 450 U.S. at 761 n.10). The determination of
minimum wages is subsequently included in the request for contract bids, reviewed, and
ultimately incorporated into the contract. Id.
The Department of Labor regulations also require the contractor to maintain and submit payroll
records containing “the name, address, and social security number of each  worker, his or her
correct classification, hourly rates of wages paid . . ., daily and weekly number of hours worked,
deductions made and actual wages paid.” Dyncorp, Inc., 895 F. Supp. at 849 (citing 29 C.F.R. §
5.5(a)(3)(i)). The contractor must then submit copies of these payroll records, 29 C.F.R. §
5.5(a)(3)(ii)(A), and a statement certifying that the payroll information is correct and complete
and that the workers have been paid “not less than the applicable wage rates . . . for the
classification of work performed.” Id. (citing 29 C.F.R. § 5.5(a)(3)(ii)(B)). Regulations further
provide that falsification of the certifications may subject the contractor to liability under the
FCA. Id.; 29 C.F.R. § 5.5(a)(3)(ii)(D).
Relator/plaintiff International Brotherhood of Electrical Workers, Local Union No.
98 (“Local 98”), on behalf of the United States of America, alleges that defendant
Farfield’s intentional and methodological misclassification of workers violated the DBA
and the FCA in the defendant’s contract with Southeastern Pennsylvania Transportation
Farfield is an electrical contractor that performed work on at least five (5)
federally funded projects between 2001 and 2009 in the Philadelphia region. Amend.
Compl. at ¶ 14. Specifically, these projects included the Girard Avenue Infrastructure
Renewal Project (“the Girard Project”); the PATCO Egress Lighting Project (“the
PATCO Project”); the SEPTA Wayne Junction to Glenside and Signal Project (“the
Wayne Junction Project”); and the SEPTA Smart Stations Project I and II (“the Smart
Stations Project”). Id. 3 Each of the projects was funded by grants from federal agencies
and the Federal Transit Administration (“FTA”). Id. at ¶¶ 18-19. The grants included
federal regulatory requirements, including the DBA. Id. at ¶¶ 20, 21.
The contracts for the projects each required Farfield to pay prevailing wages to its
employees that were determined by the Secretary of the United States Department of
Labor (“DOL”) pursuant to the DBA. Id. at ¶ 30. Farfield was also contractually required
to submit the certified payrolls and an accompanying “Certificate of Compliance” to
During a status conference held on February 1, 2017, the plaintiff advised me of their intent to
withdraw their claims relating to four of the five projects identified in their Amended Complaint,
maintaining their claims regarding only the Wayne Junction Project. To date, plaintiff has not
amended the Amended Complaint.
SEPTA or the Delaware River Port Authority (“DRPA”) on a weekly basis, which were
then submitted to the FTA. Id. at ¶¶ 32, 33.
A. Department of Labor’s 2004 Audit of Farfield
In September 2004, the DOL conducted an audit of Farfield’s practices under the
DBA, the Fair Labor Standards Act, and the Contract Work Hours and Safety Standards
Act. Pierce Aff. at ¶ 10. 4 By then, Farfield had completed the Girard Project, the PATCO
Project, and the Wayne Junction Project. Id. at ¶ 12. The audit consisted of a site visit,
interviews of Farfield employees, and documents concerning Farfield’s classification and
payment of employees. 5 Id. at ¶ 13.
B. Investigations of Farfield’s Bidding and Payment Practices
Local 98 conducted an independent investigation of Farfield’s bidding and
payment practices on the projects. Amend. Compl. at ¶ 25. Plaintiff claims that this
investigation revealed that Farfield misclassified a significant number of its workers to
pay them a lower rate than required. Id. at ¶ 26. Specifically, plaintiff claims that in order
to gain a bidding advantage, Farfield manipulated the number of workers it planned to
assign to each DOL classification by intentionally allocating individuals to the Laborer
and Groundsman classifications although it knew that many of these workers would be
The affidavit of Dennis Pierce was filed with Farfield’s motion to dismiss in 2012 (Doc. No.
35-2) and is attached as Exhibit B to Farfield’s response to plaintiff’s memorandum on the issue
of expert testimony (Doc. No. 138-3).
The audit revealed that Farfield had paid four (4) employees the shop rate for the Labor Day
holiday rather than the prevailing wage rate, which amounted to $811.52 owed to the underpaid
workers. Pierce Aff. at ¶ 14.
performing Electrician’s work. 6 Id. at ¶¶ 36 c, d. This allegedly allowed Farfield to
underestimate its labor costs and underbid competitors in order to win the public works
contracts. Id. at ¶¶ 25, 36g. Farfield’s course of conduct was devised, authorized and
effectuated by Farfield senior level management employees. Id. at ¶ 36.
Plaintiff alleges that once Farfield was awarded the contracts, it continued to
misclassify workers who performed electrical work and submitted fraudulent certified
payrolls to SEPTA and DRPA. 7 Amend. Compl. at ¶ 36 m. For example, plaintiff alleges
that employees classified and paid as Laborers performed Electrician’s work, such as
pulling cable, terminating wire, installing switch gears, installing junction boxes and
terminations, installing conduit and performing hot and cold wiring tasks. Id. at ¶ 36 v.
Plaintiff claims that the certified payrolls often did not reflect the proper wage rates for
the actual work performed by Farfield’s employees and were prepared and submitted
with the intention that the false certifications would be material to the FTA’s decision to
pay or approve the claims. Id. at ¶¶ 36 aa, cc.
RELEVANT PROCEDURAL HISTORY
Local 98 filed its initial Complaint on September 17, 2009. Doc. No. 1. Pursuant
to the FCA, Local 98 gave the U.S. Department of Justice (“USDOJ”) an opportunity to
The prevailing wages for a Laborer and Groundsman are less than the prevailing wage for an
Electrician. Id. at ¶¶36 e, f.
The plaintiff claims that the foreman on the work site would prepare a foreman’s log/report
identifying and recording the employees performing the work, the location of the work, and a
description of the type of work performed. Id. at ¶36 n. This information was then transferred to
a time sheet and given a Phase Code. Plaintiff alleges that the wage rate recorded on the time
sheets was crucial to the underpayment and misclassification of Farfield’s employees. Id. at ¶ 36
intervene, which it declined on September 21, 2011. 8 Doc. No. 3. The Complaint was
unsealed on October 31, 2011. Doc. No. 4. In response to defendant’s first motion to
dismiss (Doc. No. 25), Plaintiff filed an Amended Complaint on February 3, 2012. Doc.
Defendant then filed a motion to dismiss the Amended Complaint or in the
alternative for summary judgment. Doc. No. 35. Defendant argued that the Court lacked
subject matter jurisdiction because the DOL had exclusive jurisdiction over plaintiff’s
claims, which concerned classification disputes under the DBA. Doc. No. 35 at 11-13
(citing Coutu, 450 U.S. at 761, 101 S. Ct. at 1457) (also citing C.F.R. § 5.6(a)(3)). 9
The plaintiff argued in opposition that this matter did not involve a complex
classification dispute because the relevant contracts set forth a “clear and undisputed
prevailing wage practice.” Doc. No. 41 at 7-8. The plaintiff reasoned that “where a
prevailing wage practice exists and is undisputed, or where the classification of work is
not in question, the courts need not defer to the DOL.” Doc. No. 41 at 8 (citing United
An action under the FCA may be commenced in two ways. The USDOJ may file suit to collect
damages suffered as the result of fraudulent claims which cause government money to be
expended from the United States Treasury. Alternatively, a private plaintiff may bring a qui tam
action on behalf of the government to recover losses incurred because of fraudulent claims. 31
U.S.C. § 3730(b)(1). When a private plaintiff brings a qui tam action, the government is
permitted to intervene. But the private plaintiff may continue his suit even if the government
declines to intervene. 31 U.S.C. § 3730(c)(1). If the qui tam suit is ultimately successful, the
private plaintiff, known as a relator, is entitled to up to 30% of the funds the government
recovers. 31 U.S.C. § 3730(d).
Defendant also argued that the DOL had previously investigated wrongdoing with respect to
classifications and therefore plaintiff could not bring a subsequent action. In addition, defendant
argued that plaintiff failed to state its FCA claim with the requisite particularity called for by
Fed. R. Civ. P. 9(b) and that plaintiff failed to supplement the deficient pleadings even in its
States ex rel. Plumbers & Steamfitters Local Union No. 342 v. Dan Caputo Co., 152 F.3d
1060 (9th Cir. 1998) (per curiam)). Plaintiff distinguished the present case from Dyncorp,
Inc., supra, noting that in that case, the classification dispute was complex because “the
underlying contract was for work falling beneath two separate federal wage laws and the
classifications of work subject to the two laws were not aligned.” Doc. No. 41 at 10. In
contrast, the plaintiff argued that this case did not involve such complexity because the
undisputed wage rates were clearly stated in the contract and because the DOL’s
classification of work under the contract was also undisputed. Doc. No. 41 at 10.
In my Memorandum dated July 2, 2013, I denied defendant’s motion to dismiss
and held, in part, that this court had subject matter jurisdiction. The decision hinged on
the fact that the classifications at issue were not complex:
The dispute is, in fact, whether Defendant properly classified its employees for
purposes of wage determinations under the DBA. However, these classifications
are not complex and were previously defined by the department of labor with
regard to the work performed.
Although very muddled, the dispute here is simply whether the Defendant
misclassified the workers into categories, for which the DOL has previously
determined the type of work within each classification. This misclassification
allegedly resulted in the underpayment of workers. The parties dispute the
appropriate payment for the classifications; however, I find that the alleged falsity
of the false statement “is not dependent on interpretation” of classifications and
wage determinations. Therefore, jurisdiction is appropriate in the court system.
U.S. ex rel. Int’l Brotherhood of Electrical Workers, Local Union No. 98 v. The Farfield
Co., No. 09-4230, 2013 WL 3327505 at *7 (E.D.Pa. Jul. 2, 2013).
A status conference was held on February 1, 2017 at which time the plaintiff
explained that it wished to offer three electrical trade industry experts as witnesses at
trial. Defendant opposed the request. I issued an Order setting forth a briefing schedule
on the issue of expert testimony. On February 17, 2017, the plaintiff filed a memorandum
of law on the issue of non-scientific testimony. Doc. No. 137. The plaintiff argued, in
part, that trade industry testimony would aid the trier of fact “to determine the proper
classification to assign for various types of work performed by Farfield tradesman . . . .”
Id. at 6. Expert testimony was “critical for Plaintiff to be able to prove that Farfield
misclassified its employees . . .” Id. at 17.
In response, defendant argued not only that expert testimony was improper but
also that this court lacked subject matter jurisdiction. Doc. No. 138. The defendant’s
primary argument essentially boils down the following: if the classifications at issue are
so complex as to require expert testimony, then this Court lacks jurisdiction and the
matter should be dismissed and referred to the DOL. Id.
On March 9, 2017, the plaintiff moved for leave to file a reply brief addressing
arguments outside the scope of non-scientific expert testimony. Doc. No. 139. On
September 12, 2017, I issued an order granting the plaintiff’s motion for leave to reply.
On September 19, 2017, plaintiff filed a reply brief. Doc. No. 141. The issue is whether
the Court has jurisdiction to address plaintiff’s claims under the DBA and the FCA, or if
the issue of worker classifications and wage determinations must first be referred to the
DOL under the doctrine of primary jurisdiction. 10
The primary jurisdiction doctrine “allows courts to refer a matter to the relevant
agency whenever enforcement of the claim requires the resolution of issues which have
been placed within the special competence of an administrative body.” Charvat v.
Echostar Satellite, LLC, 630 F.3d 459, 466 (6th Cir. 2010); MCI Telecomms. Corp. v.
Teleconcepts, Inc., 71 F.3d 1086, 1105 (3d Cir. 1995) (primary jurisdiction applies where
“the administrative agency cannot provide a means of complete redress to the
complaining party and yet the dispute involves issues that are clearly better resolved in
the first instance by the administrative agency charged with regulating the subject matter
of the dispute.”) (internal quotations and citations omitted).
Primary jurisdiction does not divest the federal court of subject matter jurisdiction.
Reiter v. Cooper, 507 U.S. 258, 268 (1993). Under the doctrine, a court may defer
adjudication until the administrative agency has made a designated determination.
Padgett v. Stein, 406 F. Supp. 287, 302 (M.D. Pa. 1975); see Fieger v. United States
Att’y Gen., 542 F.3d 1111, 1121 (6th Cir. 2008) (“[Under] the doctrine of primary
jurisdiction, . . . federal courts are to abstain from hearing certain administrative-related
Defendant argues that this court lacks subject matter jurisdiction to hear the case, improperly
conflating subject matter jurisdiction with the primary jurisdiction doctrine. As discussed below,
primary jurisdiction does not divest a federal court’s subject matter jurisdiction. It merely
“postpones” the Court’s ability to hear a case. Ferrare v. IDT Energy, Inc., No. 14-4658, 2015
WL 3622883, at *3 (E.D.Pa. Jun. 10, 2015). The issue in this case is not whether this court has
subject matter jurisdiction, which it does. The issue is whether the matter must be referred to the
DOL for resolution of the proper worker classifications.
matters until the appropriate agency has had the opportunity to interpret unanswered
technical and factual issues.”); see also Erie Ins. Exchange ex rel. Beltz v. Stover, 619
Fed. Appx. 118, 121 (3d Cir. 2015) (“referrals on the basis of primary jurisdiction do not
expel the parties from federal court. Rather, such referrals are better viewed as
jurisdictional abstention in cases where protection of the integrity of a regulatory scheme
dictates preliminary resort to the agency which administers the scheme. Court jurisdiction
is not thereby ousted, but only postponed.”) (internal citations and quotations omitted).
The Third Circuit applies a four-factor test to determine whether the doctrine of
primary jurisdiction is applicable:
(1) Whether the question at issue is within the conventional experience of judges
or whether it involves technical or policy considerations within the agency’s
particular field of expertise; (2) Whether the question at issue is particularly within
the agency’s discretion; (3) Whether there exists a substantial danger of
inconsistent rulings; and (4) Whether a prior application to the agency has been
Baykeeper v. NL Indus., Inc., 660 F.3d 686, 691 (3d. Cir. 2011).
When these factors weigh in favor of the application of the doctrine, a court will
either dismiss the matter without prejudice or stay its proceedings in order to give the
parties a reasonable opportunity to refer the matter to an agency for an administrative
ruling. United States ex rel. Wall v. Circle C. Constr., L.L.C., 697 F.3d 345, 352 (6th Cir.
2012) (reversed on other grounds); Erie, 619 Fed. Appx. At 121-122 (noting that it was
“immaterial that the District Court opted to dismiss the action without prejudice rather
than issue a stay . . . the Supreme Court has specifically sanctioned dismissal without
prejudice as appropriate when referring issues to an administrative agency on the basis of
Congress enacted the FCA to protect government funds and property from
fraudulent claims. Specifically, the FCA imposes liability on any person who “knowingly
presents” to the government a “false or fraudulent claim for payment or approval,”
Dyncorp, Inc., 895 F. Supp. at 849-50 (quoting 31 U.S.C. § 3729(a)(1) (Supp. 1995)), or
who “knowingly makes . . . a false record” in order to have “a false or fraudulent claim
paid or approved by the government.” Id. (quoting 31 U.S.C. § 3729(a)(2)).
FCA suits may be preempted in cases involving specific factual issues that are
reserved for agency discretion, or involving an underlying regulatory scheme that
addresses identical fraudulent activity. Courts have held that FCA suits based on DBA
violations 11 are preempted when the assessment of falsity turns on whether the defendant
misclassified its employees-a factual determination that is reserved for the DOL. See e.g.,
Dyncorp, Inc., 895 F. Supp. at 851; Found. for Fair Contr., Ltd. v. G&M E. Contr., Inc.,
259 F. Supp. 2d 329 (D.N.J. 2003); Wall, 697 F.3d at 353.
Whether the doctrine of primary jurisdiction is applicable, therefore, depends on
whether the claims’ false or fraudulent nature would require the Court to decide a matter
The DBA requires that government construction contracts contain a provision stating, “the
minimum wages to be paid various classes of laborers and mechanics . . . shall be based on the
wages the Secretary of Labor determines to be prevailing” in the locality. 40 U.S.C. § 3142(a)(b). This is based on the tasks the workers perform. Tele- Sentry Sec., Inc. v. Secretary of Labor,
Case No. 90-0912, 1991 WL 178135, at *4 (D.D.C. Aug. 30, 1991). Therefore, the Secretary of
the DOL has exclusive authority to establish minimum wages for particular classifications of
laborers and mechanics in particular localities and to define the work that is included within each
classification where there is any ambiguity.
exclusively reserved for the Secretary of the DOL. Where it “is impossible to determine
whether [defendant] submitted a false claim to the government without first determining
whether [defendant] actually misclassified an employee in a given instance….[,] the
responsibility for resolving such disputes rests not with the courts, but with the
Department of Labor.” DynCorp., Inc., 895 F. Supp. at 851. 12 See United States ex rel.
Local Union 217 v. G.E. Chen Constr., Inc., 954 F. Supp. 195, 197 (N.D. Cal. 1997)
(holding that to the extent that the plaintiffs’ FCA claims were based on allegations that
the defendants misclassified employees, the court lacked jurisdiction to decide those
claims, which were within the sole jurisdiction of the DOL); Dan Caputo, 152 F.3d at
1062 (holding in FCA suit regarding contractors’ classification of employees for
purposes of the DBA, that deferral to the DOL was appropriate “only with respect to the
resolution of how particular types of work should be classified but not with respect to
whether the Contractors misclassified their employees”).
It is undisputed that the relevant contracts are subject to the DBA and, therefore,
the DOL is responsible for determining the proper work classifications and the
appropriate prevailing minimum wage of employees within each classification on the
public works project. The issue is whether this case concerns complex classifications,
which would necessitate deference to the DOL.
In my previous order denying defendant’s motion to dismiss, I held that although
the dispute at issue was whether defendant properly classified its employees, the
The DynCorp court also held that “a Davis-Bacon Act worker classification dispute, by itself,
is not an FCA claim because such disputes must be resolved by the Department of Labor.” 895
F. Supp. at 852.
“classifications were not complex and were previously defined by the Department of
Labor with respect to work performed.” The plaintiff’s recent request for expert
testimony cuts against this holding. Plaintiff’s counsel is correct that expert testimony
will aid the trier of fact in understanding the various classifications and wage
determinations. It is this need for expert testimony that suggests that the classifications
are complex. It follows that this issue is properly left to the DOL and the doctrine of
primary jurisdiction is applicable. See Dyncorp Inc., 895 F. Supp. at 852 (“That both
parties have retained experts to assist the jury in this undertaking further underscores the
wisdom in requiring classification disputes to be resolved in the administrative arena.”).
I find further support for the doctrine’s application in the four-factor test
enumerated by the Third Circuit. It is undisputed that worker classifications and wage
determinations are technical policy considerations in the DOL’s field of expertise. The
issue of worker classifications is within the agency’s discretion, and is expressly reserved
for the Secretary of the DOL. In light of the complexity of the classifications, which is
highlighted by the need for expert testimony, there is a substantial danger of inconsistent
rulings. Finally, although the DOL has ruled, generally, on these classifications, a prior
application has not been made in this specific case. Applying these factors, it is
appropriate to defer to the primary jurisdiction of the DOL.
The court’s analysis in Framlau Corp. v. Dembling, 360 F.Supp. 806
(E.D.Pa.1973), is instructive. There, the defendant argued that the court lacked subject
matter jurisdiction because the issue concerned the scope of a classification under the
DBA. Id. at 809. Specifically, the defendant argued that the plaintiff’s claim was not
subject to judicial review, reasoning:
[P]laintiff’s claim concerns an interpretation by the Secretary of Labor of his own
prevailing wage determination, i.e., what activities constitute the work of a
plumber, electrician, etc., and what phases of construction activities constitute the
work of a laborer . . . .
Id. The court agreed, noting that “the scope of a classification is part of the wage
determination process and exclusively within [the Secretary of Labor’s] jurisdiction and
that the correctness of his determination of wage rates is not subject to judicial review.”
Likewise, here, the plaintiff asserts that expert testimony is necessary to define the
scope of the worker classifications and the interpretation of wage rates. The plaintiff
concedes that “at issue in this litigation are the following worker classifications (in order
of highest wage rate to lowest wage rate): Journeyman, Lineman, Laborer, and
Groundman [sic].” Doc. No. 137 at n. 2. More specifically, plaintiff argues:
[T]rade industry testimony would certainly be helpful for the trier of fact in
understanding the specialized nature of electrical work, as well as differences
between various classifications of electrical workers. Hearing such testimony
would also assist the trier of fact to determine the proper worker classification to
assign for various types of work performed by Farfield tradesman, and thereby
whether there is liability with respect to misclassification of employees, as well as
the extent of damages.
Id. at 6. Plaintiff also argues that experts are necessary to evaluate the wage
determination process because the Secretary of Labor did not include instructions on
ensuring proper classification and compensation. Id. at 10. Expert testimony would
The court ultimately held that it had subject matter jurisdiction because the plaintiff sought
review of the absence of due process, not review of the substantive decision. Id.
provide a “base of knowledge through which to ensure compliance with the Davis Bacon
Act” and is necessary to demonstrate that the defendant misclassified its employees. Id. at
The very fact that plaintiff urges the necessity of expert testimony to elucidate the
proper worker classifications leads me to believe that this is a complex classification
dispute, and is a determination exclusively reserved for the Secretary of Labor. On the
other hand, if plaintiff is disputing the Secretary’s interpretation of employee
classifications and wage rate determinations, this too is not subject to judicial review.
Coutu, 450 U.S. at 761; Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052 (D.D.C. Nov. 23,
2007) (“we hold that the court lacks subject matter jurisdiction over the Company’s claim
that the findings in the limited area practice survey that determined the locally prevailing
practice of classifying jobs are not supported by substantial evidence because this
represents a challenge to the substantive correctness of the Secretary’s wage
determinations. Wage determinations implicitly include the locally prevailing practice of
classifying jobs.”). 14 Either way, the “alleged falsity of the statement” is in fact
“dependent on interpretation” of worker classifications and wage determinations. I find
The court’s analysis in Abhe, supra, involved a substantive challenge to the DOL’s findings.
Plaintiff argues that this case does not involve a substantive challenge, instead arguing that
expert testimony is necessary to inform the fact-finder as to the “nature of Local 98 and Local
126 practices, in order to demonstrate that in this case, Farfield falsely certified with reckless
disregard that it paid its employees the applicable Davis Bacon rates for the work performed.”
Doc. No. 141 at 8 (emphasis in original). The fact that plaintiff seeks expert testimony because
the wage determinations do not “on their face” demonstrate how the classifications should be
assigned requires a substantive review of the scope and correctness of the Secretary’s findings,
which is not subject to judicial review. United States v. Binghamton Constr. Co., 347 U.S. 171
(1954) (“the correctness of the [Secretary of Labor’s] determination of wage rates is not subject
to judicial review.”).
that the doctrine of primary jurisdiction is applicable and the matter should be referred to
the DOL. 15
In light of the extensive discovery that has taken place over the eight years since
this case has been pending, principles of judicial economy urge that a stay is appropriate,
rather than outright dismissal. Accordingly, I will stay this matter pending referral to the
DOL to resolve the issue of worker classifications and wage determinations.
An appropriate Order follows.
Plaintiff also argues that this court has jurisdiction based on the law of the case doctrine.
Because I agree with plaintiff that primary jurisdiction does not divest the court of subject matter
jurisdiction, this argument is moot. This Court has subject matter jurisdiction to hear plaintiff’s
claims under the DBA and the FCA, but I must defer primary jurisdiction to the DOL on the
issue of the complex worker classifications and wage determinations.
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