Opposition Brief — City of New York v. Kam Shing Chan

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* Ruprane Sead, U.S.

RIEED

Nos. 93-534 and 93-535 4 OCT 92 1993

OFFICE OF THE Cifat

In The | ree OF THE (

Supreme Court of the United States

October Term, 1993

CITY OF NEW YORK; DEPARTMENT OF

HOUSING PRESERVATION & DEVELOPMENT

OF NEW YORK CITY,

Petitioners,

-against-

KAM SHING CHAN, et al.,

Respondents.

CHINESE-AMERICAN PLANNING COUNCIL, INC.,

Petitioner,

-against-

KAM SHING CHAN, et al.,

Respondents.

On Petitions For Writs Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

BRIEF IN OPPOSITION

ASIAN-AMERICAN LEGAL James Reir

DerENSE & EDUCATION (Counsel of Record)

FUND ELLEN DICHNER

99 Hudson Street GLADSTEIN, Retr & MEGINNISS

New York, New York 10013 361 Broadway, Suite 610

(212) 966-5932 New York, New York 10013

SHNEYER & SHEN, P.C. (212) 941-6161

2109 Broadway Attorneys for Respondents

New York, New York 10023

(212) 595-5500

~s A 7 Nicer *.

ca f ae " a

rt Veer tis Teg ee: ee ait ”

Ns a eee i Ta ioe

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COUNTER~-STATEMENT OF QUESTIONS PRESENTED

; oe “Whether 42 U.S.C. § 5310 secures

tc laborers and mechanics employed on

federally financed construction work a

right within the meaning of 42 U.S.C.

§ 1983 to be paid wages at not less than

prevailing wage rates determined by the

United States Secretary of Labor?

2. Whether petitioners have

demonstrated that Congress intended to

preclude resort to § 1983 to remedy

violations of § 5310, where the relevant

construction contracts require payment of

wages at not less than federal prevailing

wage rates?

3. Whether, in imposing a cap on

funding of construction contracts so low

as to render impossible compliance with

§ 5310 and in prohibiting additional

funding thereof, municipal petitioners

may have coerced or so significantly

encouraged the employer petitioner’s

violations of § 5310 that said violations

were committed under color of state law

within the meaning of § 1983?

-ii-

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTIONS

PRESENTED “see*evweeeese# tet 8 @ 1

TABLE OF CONTENTS . ..-. + «© «© © « « iii

TABLE OF AUTHORITIES ...... - V

OPINIONS BELOW ... +... +« « «© « « 1

STATUTES AND REGULATIONS INVOLVED . 2

STATEMENT OF THE CASE ..+s. .- «+. -~ 3

Statement of Facts .... . 3

Proceedings in

Damerace Coure . «= « © © « « 7

Court of Appeals Opinion .. 13

REASONS FOR DENYING CERTIORARI . « 17

is CONSISTENT WITH THIS COURT’S

PRECEDENTS, INCLUDING SUTER

V. ARTIST M., THE COURTS

BELOW CORRECTLY HELD THAT

§ 5310 SECURES FOR RESPON-

DENTS THE RIGHT TO BE PAID

AT NOT LESS THAN PREVAILING

WAGE RATES DETERMINED BY THE

SECRETARY OF LABOR .... . 20

II. THE COURTS BELOW CORRECTLY

HELD THAT CONGRESS HAS

NOT FORECLOSED RELIANCE ON

§ 1983 TO REMEDY VIOLATIONS

-iii-

OF § 5310 WHERE THE RELE-

VANT CONSTRUCTION CONTRACTS

REQUIRE PAYMENT OF WAGES

AT NOT LESS THAN FEDERAL

PREVAILING WAGE RATES “et ae 31

III. THE COURTS BELOW CORRECTLY

HELD THAT RESPONDENTS PRES-

ENT SUFFICIENT FACTS FROM

WHICH IT MAY BE FOUND THAT

PETITIONERS ACTED UNDER

COLOR OF STATE LAW .... . 45

IV. THE DECISIONS BELOW DO

NOT WARRANT REVIEW BY

Beam COWME « © +s © © © © © 52

CURCIAIOLONM « «© © « & © 0 © @ we: 57

-~iv-

TABLE OF AUTHORITIES

Pages

CASES:

Anderson v. Graham, 494 F.2d

986 (8th Cir. 1973) .... os. ae

Blue v. Craig, 505 F.2d 830

(ath Cir. 2974) . +6 «2s * 53, n.7

Blum v. Yaretsky, 457 U.S.

991 (1982) err 46, 51, n.6

Bomar v. Keyes, 162 F.2d 136

(2d Cir.), cert. denied, 332

U.S. 825 (1947 : se 53, n.7

Conley v. Gibson, 355 U.S. 41

(1957) rare Pee 47, n.5

Dixson v. United States, 465

U.S. 482 (1984) ...... 51, n.6

Glenn Electric Co. v. Donovan,

755 F.2d 1028 (3d Cir. 1985) 35, n.2

Golden State Transit Corp. v.

Los Angeles,

493 U.S. 103 (1989) ... ) a | oe

Gomez v. Florida State Employment

Service, 417 F.2d 569 (5th Cir.

$9GR as ee ee eee 53, n.7

Jackson v. Metropolitan Edison

Co., 419 U.S. 345 (1974) Aa; Gay 126

Pages

Latinos Unidos De Chelsea En Accion

v. Secretary of Housing and Urban

Development, 799 F.2d 744 (1st Cir.

1986) ~ e & © eee ee ee ee

Middlesex County Sewerage Authority

v. National Sea Clammers’ Ass’n,

453 U.S. 1 (1981) a wera! Se

Skinner v. Railway Labor Executives’

Ass'n, 489 U.S. 602 (1989) . . 46, 49

Smith v. Robinson, 468 U.S.

992 (1984) se 6 © “eo aoe Dee ees 10

Suter v. Artist M., 7.8. P

112 S. Ct. 1360 (1992) ee e passim

United States v. Binghamton Construc-

Sie Ge. . 367 U.es ita (1954) es 26

Universities Research Ass/n, Inc.

v. Coutu, 450 U.S. 754

(1981) Pate ee Dement st. 3h. 26.

West Virginia University Hospitals,

Inc. v. Casey, 885 F.2d 11 (3d Cir.

1989), cert. denied, 496 U.S. 936

(1990) .e* 2 © es © © ee eS 24-25

Wilder v. Virginia Hospital Ass/n,

496 U.S. 498 (1990) ..+s«+s.-. passim

Wright v. Roanoke Redevelopment

and Housing Authority, 479 U.S.

418 (1987) o: le ace ace Pee 21, 38, 44

STATUTES:

Civil Rights Act of 1871,

17 Stat. 13, as amended .... . 2

42 U.S.C. § 1983 eee nk & passim

Davis-Bacon Act, as amended ‘ passim

40 U.S.C. § 276a =- 276a-5 a 5

40 U.S.C. § 276a(a) .. S:- 36,-32

40 U.S.C. § 276a-1 et seq. 35, Rea

S60 U.S.C. 6 B7GNHOUN a ww 4 39

Hospital Survey and Construction

Act, 42 U.S.C. § 291e(a) (5) 54, n.8

Housing and Community Development

Act of 1974, 88 Stat. 633,

ae amended .<«.+*+«tesvveee#s* passim

42 U.S.C. § S301 @e BOM. «© 6s ts te oe 8

42 U.S.C. § 5301(c) .. . . 25-26, 29

42 U.S.C. § 5309 . « « «© « 28, 29

42 U.S.C. | Sea « 2+ « « © 2 8 passim

42 0.8.0. @ O320tO) «os eee ee ee

42 U.S.C. § 5311(b) a a a passim

Title I passim

-vii-

Medicaid Act, 42 U.S.C.

§ 1396(a)(13)(A) ..-.-.-. ee.

National Foundation on the Arts

and Humanities Act of 1965,

20 U.S.C. § 954(M) . «© «© © o «@

Older Americans Act of 1965,

42 U.S.C. § 3027(a)(14)(D) .

Reorganization Plan No. 14 of

1950, 15 F.R. 3176, 64 Stat.

1267, 5 U.S.C. App. c- * 2.2

Solid Waste Disposal Act,

42 U.S.C. § O979 « «© «© © © @ @

Titie 18 U.S.C. § 201 . « « + «

Titie 40 U.S.C. § 27GC « & vw

REGULATIONS:

a9 Cif RR. Parte a « © ew we ee

29 ©.F.R. Parte 5S «© «© © © ew @

29 C.F.R. § 5.5(a) (9) (1992) .

29 C.F.R. § 5.11(a) (1992) 3,

29: ¢.F.8. § S.18th) (129785 —C(k Fe

29 C.F.R. § 7.1(b) (1992) ..

29 C.F.R. § 7.1(e) (1992) ;

-viii-

Pages

54,

Pages

MISCELLANEOUS:

Fed. R. Civ. P. 12(b)(6) ... . 47, n.5

Message of the President,

5 U.S.C. App. ee eee 4 2, 3, 38, 39

Supreme Court Rule 10.1(a) ce 8 # 18

stge

BRIEF IN OPPOSITION

Respondents Kam Shing Chan, et al.,

submit this brief in opposition to the

petitions in Nos. 93-53‘ and 93-535 for

writs of certiorari to review a judgment

of the United States Court of Appeals for

the Second Circuit which, on

interlocutory appeal, affirmed denial of

petitioners’ motions to dismiss claims

under 42 U.S.C. § 1983 to enforce rights

secured by 42 U.S.C. § 5310.

OPINIONS BELOW

The opinion of the Court of Appeals is

reported at 1 F.3d 96 and is reprinted in

petitioners’ appendix at Al.' The

' Citations to the appendix filed in

this Court by petitioners are indicated

by a parenthesis containing an "A"

followed by the page number(s).

Citations to the Joint Appendix filed

below are indicated by a parenthesis

containing the page number(s).

-l-

—cdcemaeaa aaa ia,

opinions of the United States District

Court for the Southern District of New

York are reported at 803 F. Supp. 710 and

appear at A26 and A79. The opinion of

the magistrate judge is not reported and

is reprinted at A96.

STATUTES AND REGULATIONS INVOLVED

This case concerns the proper

interpretation of the Civil Rights Act of

1871, 17 Stat. 13, as amended, 42 U.S.C.

§ 1983, and Section 110 of the Housing

and Community Development Act of 1974, 88

Stat. 649, as amended, 42 U.S.C.

§ 5310(a), which are reprinted at A109

and A109-110, respectively. This case

also involves Reorganization Plan No. 14

of 1950, 15 F.R. 3176, 64 Stat. 1267, 5

U.S.C. App., and the Message of the

President, 5 U.S.C. App., transmitted to

Congress with the Plan. Reorganization

Plan No. 14 is reprinted at Alll. The

Message of the President appears in the

appendix to this brief. Finally, this

case concerns 29 C.F.R. § 5.11(a) (1992),

also reprinted in the appendix hereto.

STATEMENT OF THE CASE

Statement of Facts

Plaintiffs-respondents were laborers

and mechanics employed by defendant-

petitioner Chinese-American Planning

Council, Inc. ("CPC") in the performance

of construction work financed with

federal assistance received by defendant-

petitioner City of New York ("City")

under Title I of the Housing and

Community Development Act of 1974

("HCDA"), 88 Stat. 633, as amended, 42

U.S.C. § 5301 et seg. CPC and the City,

acting through its Department of Housing

Preservation & Development ("HPD"),

entered into three contracts covering

September, 1986 through December, 1989,

under which CPC was to repair and

rehabilitate City-owned housing.

Each of the contracts contained the

following clause:

The Contractor acknowledges that

this Agreement is funded under a

program providing direct financial

assistance from the Federal

government to the City and HPD and

is subject to, and the Contractor

shall comply with, the requirements

of all applicable Federal Statutes,

rules and regulations, including,

but not limited to, those set forth

in Exhibit F attached to this

Agreement.

(89, 939r, 337) (emphasis added).

Exhibit F identified Title I as one of

the "applicable Federal Statutes,"

stating: "This contract is subject to:

Title I of the Housing and Community

Development Act of 1974 {(P.L. 93-383)],

-4-

ee |

as amended ..." (120, 939ww, 373).

Title I included Section 110 of the HCDA

which, as amended and codified at 42

U.S.C. § 5310(a), provides:

All laborers and mechanics employed

by contractors or subcontractors in

the performance of construction

work financed in whole or in part

with assistance received under this

chapter shall be paid wages at

rates not less than those

prevailing on similar construction

in the locality as determined by

the Secretary of Labor in

accordance with the Davis-Bacon

Act, as amended (40 U.S.C. 276a--

276a-5) .... The Secretary of

Labor shall have, with respect to

such labor standards, the authority

and functions set forth in

Reorganization Plan No. 14 of 1950

(15 F.R. 3176; 64 Stat. 1267) and

section 276c of Title 40.

Exhibit F also provided in pertinent

part that

all laborers and mechanics must be

paid at a rate not less than those

determined by the Secretary of

Labor to be prevailing for the

locality, which rates are annexed

hereto as Exhibit A. These wage

rates are a federally mandated

minimum

(129, 939fff, 382) (emphasis in

original). Each contract contained still

another clause of identical import:

All laborers and mechanics employed

upon the work covered by this

Contract shall be paid ... at wage

rates not less than those contained

in the wage determination decision

of {the} Secretary of Labor (a copy

of which is attached and herein

incorporated by reference).

(A137, 939nnn, 390). Attached to each

contract were prevailing wage rates

determined by the Secretary of Labor.

(155, 939gggg, 409).

The 35 respondents are construction

workers most of whom emigrated from China

or Hong Kong. They were hired by CPC as —

mason tenders, painters, carpenters, and

drywall tapers and repaired and

rehabilitated City housing pursuant to

the CPC-HPD contracts. (767).

Notwithstanding the obligations imposed

by § 5310 and the aforesaid contract

-6-

provisions, CPC failed to pay respondents

at federal prevailing wage rates for any

of their work.

Proceedings in District Court

Respondents seek to recover the

difference between what they were paid

and what they were entitled to be paid.

They asserted claims under 42 U.S.C.

§§ 1983 and 5310, the CPC-HPD contracts

and New York tort law. Petitioners moved

to dismiss the federal statutory claims.

The District Court (Hon. Robert J. Ward)

denied dismissal of respondents’ § 1983

claims, but granted dismissal of the

causes of action asserted directly under

§ 5310. (A26-78).

In determining that § 5310 secures a

§ 1983 right, the Court applied the

"framework" set out in Wilder v. Virginia

Hospital Ass’n, 496 U.S. 498 (1990),

"with the modifications suggested by"

Suter v. Artist M., U.S. , tl2 S.

Ct. 1360 (1992). (A50). The Court held

that § 5310 imposes a binding obligation

to pay wages at not less than federal

prevailing wage rates ("prevailing

wages"), that § 5310 was intended to

benefit respondents directly, and that it

is clearly susceptible of judicial

enforcement. (A60-61).

Judge Ward carefully distinguished the

substantive duty to pay prevailing wages

imposed on a contractor by § 5310 from

the procedural requirement imposed on a

federal agency by, e.g., the Davis-Bacon

Act, 40 U.S.C. § 276a(a), to include

prevailing wage rate provisions in

construction contracts. (A55, 56-57).

Because § 5310 unambiguously creates the

substantive obligation, not the

procedural one, it satisfies Suter.

(A61).

The District Court also held

petitioners failed to demonstrate that

Congress foreclosed resort to § 1983 to

enforce the right secured by § 5310.

Congress has not explicitly foreclosed

§ 1983 enforcement of § 5310 (A65). The

Court therefore examined whether § 5310

creates a remedial scheme sufficiently

comprehensive to demonstrate

congressional intent to preclude a § 1983

remedy for violations of § 5310. (A62).

In particular, Judge Ward considered

whether the statutory framework is such

that allowing respondents to pursue their

§ 1983 claims would be inconsistent with

the congressional scheme. (A62-63).

That scheme balances a worker’s right

to prevailing wages with a contractor’s

interest in knowing in advance his

approximate labor costs. The contract

clauses quoted above clearly apprised CPC

of its obligation to pay wages at

prevailing rates. And the

predetermination of those rates by the

Secretary of Labor provided CPC with even

more precise notice of its labor costs.

For these reasons, the Court found that

respondents’ § 1983 action, which merely

sought enforcement of the Secretary’s

determinations, would not undermine CPC’s

interest in knowing in advance its

approximate labor costs. (A66-67).

The Court further noted: "Unlike the

comprehensive enforcement schemes in Sea

Clammers and Smith v. Robinson, neither

§ 5310 nor the Reorganization Plan

contains provisions for private judicial

-10-

remedies." (A69). Even the regulation

which establishes an administrative

procedure for resolution of disputes

concerning payment of prevailing wages,

29 C.F.R. § 5.11(a) (1992), does not allow

an employee to initiate an administrative

proceeding. (A69-70). The Court also

found that efforts to amend the Davis-

Bacon Act were not probative of an intent

to foreclose reliance on § 1983 to remedy

violations of § 5310, in light of the

"fundamental differences" between Davis-

Bacon and § 5310. (A70-71). Finally,

"there is absolutely no evidence in the

legislative history of the HCDA itself

that Congress sought to foreclose a

§ 1983 remedy under § 5310." (Id. )

The District Court also held

respondents have presented sufficient

facts from which it may be found that

-ll1l-

CPC’s challenged conduct was undertaken

under color of state law within the

meaning of § 1983. Quoting Jackson v.

Metropolitan Edison Co., 419 U.S. 345,

351 (1974), the Court held that private

action is properly deemed state action

when there is a sufficiently close nexus

such that the private party’s action may

be fairly treated as that of the State.

(A43). The facts alleged permit a

finding that the municipal petitioners

had exercised coercive power or provided

such significant encouragement that CPC’s

failure to pay prevailing wages must be

deemed to be that of the City: "as a

condition for awarding the contract," the

City imposed a cap on the funding of the

construction contract that

was so low as to make it

financially impossible for CPC to

pay prevailing wage rates as

required under 42 U.S.C. § 5310.

-12-

SS o

In short, plaintiffs have alleged

facts asserting that the municipal

defendants ensured that any

successful bidder would be forced,

for economic reasons, to violate 42

U.S.C. § 5310. If proven true,

these facts would be sufficient to

demonstrate that the municipal

defendants "exercised coercive

power or ... provided such

Significant encouragement" as to

establish 42 U.S.C. § 1983 state

action under the close nexus test.

(A47) (footnote omitted).

Court of Appeals Opinion

The District Court certified for

interlocutory appeal so much of its order

as denied the motions to dismiss

respondents’ § 1983 claims. (A79-88).

The Court of Appeals granted petitioners

permission to take such appeals. (A25).

A panel of the Second Circuit,

composed of Judges Amalya Kearse, Richard

Cardamone and Ellen Bree Burns (the

latter sitting by designation),

unanimously affirmed the denial of

petitioners’ motions to dismiss the

§ 1983 claims. After reviewing Judge

Ward’s analysis (A7-9), the Court of

Appeals, in an opinion by Judge Kearse,

rejected petitioners’ appeals "substan-

tially for the reasons stated by the

district court." (All). The Circuit

applied this Court’s decisions defining a

§ 1983 "right". (A15-17).

In the present case, we conclude

that under the Wilder analysis or,

to the extent that it differs, the

Suter analysis, § 5310 provides

these plaintiffs with a right that

is sufficiently clear to be

enforceable under § 1983 ....

(A17). The Court of Appeals held that

respondents are among the intended

beneficiaries of § 5310, that § 5310 is

cast in mandatory terms and imposes an

unambiguous obligation on CPC to pay

prevailing wages, that the obligation is

-14-

substantive and does not merely require

inclusion of a provision in a plan or

contract, and that § 5310 is capable of

judicial enforcement. (A17-18).

Like Judge Ward (A72-73), the Court of

Appeals also noted that the fact that a

statute conferring substantive rights may

not itself create a private cause of

action does not mean that the statute’s

beneficiaries are without a private

judicial remedy. (A14, 15). The Court

held that the scheme for enforcement of

§ 5310 is not "sufficiently comprehensive

to demonstrate congressional intent to

§ 1983." (A18). The HCDA contains no

provision for private judicial remedies.

(A19). Even the regulatory scheme

fashioned by the Secretary of Labor under

Reorganization Plan No. 14, in effect

preclude the remedy of suits under

-15-

adopted by § 5310, "does not make

provision for laborers to enforce their

rights administratively." (A119).

The Circuit also agreed that the facts

alleged and supported by the CPC-HPD

contracts support a finding that the

municipal petitioners "effectively

required" CPC to pay less than the

minimum wages mandated by § 5310:

CPC was required to make its bids

on wages below [the federally

mandated] levels; it was paid a sum

that did not give it sufficient

funds to pay wages at the § 5310

required minimum levels; and it was

prohibited by the Contracts from

receiving any additional funding

for the work performed thereunder.

(Id.). These facts permit a finding that

HPD exercised coercive power over and

provided significant encouragement to CPC

so as to render CPC’s challenged conduct

"under color" of state law. (A22-23).

The Court rejected the argument that the

-16-

municipal defendants acted under color of

federal, rather than state, law. The

City’s actions which caused CPC to

violate § 5310 "were not required by any

federal provision." (A24).

REASONS FOR DENYING CERTIORARI

In affirming denial by the District

Court of motions to dismiss respondents’

§ 1983 claims, the Second Circuit held:

(a) § 5310 secures to respondents the

right to be paid for federally-financed

construction work at not less than

prevailing wage rates determined by the

Secretary of Labor; (b) there is no

indication that Congress intended to

preclude resort to § 1983 to enforce

§ 5310 rights where, as here, the

relevant contracts expressly required

payment of respondents at not less than

-17-

such prevailing wage rates; (c) the

circumstances presented "easily permit

the inference" that the municipal

petitioners coerced and substantially

encouraged the employer petitioner’s

violations of § 5310, thus rendering

those violations under color of state law

for purposes of § 1983. The opinion of

the Court of Appeals, like that of the

District Court, carefully and correctly

followed the applicable decisions of this

Court, including Suter, supra.

The decision of the Court of Appeals

is not "in conflict with the decision of

another United States court of appeals on

the same matter." Compare Sup. Ct. R.

10.1(a). Indeed, in the almost twenty

years since enactment of § 5310, there

has not been a single other case in which

§ 1983 has even been invoked by a

-18-

a eeaeeemeaiaiiia

plaintiff seeking to enforce § 5310 (or

any other similarly-worded statute).

This is as true for the period since the

June 5, 1992 decision of the District

Court as for the period prior thereto.

Reliance upon § 1983 is made possible

here only because of the unprecedented

circumstances demonstrating that CPC’s

failure to pay prevailing wages was

coerced and substantially encouraged by

local governmental authorities. The

uniqueness of private contractor

liability under § 1983 deprives this case

of general importance to enforcement of

§ 5310 or other prevailing wage laws.

Contrary to petitioners’ contention,

post-Suter litigation does not evidence

confusion by the federal courts as to the

criteria for determining the availability

of § 1983 to remedy violations of federal

-19-

statutes. A reading of post-Suter

decisions shows lower courts have

uniformly and correctly adhered to the

criteria set forth in Suter and other

precedents of this Court. In sum, the

petitions do not present circumstances

warranting review by this Court of the

judgment below.

CONSISTENT WITH THIS COURT’S

PRECEDENTS, INCLUDING SUTER v.

ARTIST M., THE COURTS BELOW

CORRECTLY HELD THAT § 5310 SECURES

FOR RESPONDENTS THE RIGHT TO BE

PAID AT PREVAILING WAGE RATES

DETERMINED BY THE SECRETARY OF

LABOR.

This Court has held that in

determining whether a federal statute

secures a substantive "right" within the

meaning of § 1983, a court should

determine whether the provision in

question was intended to benefit the

-20-

putative plaintiff; whether it creates an

unambiguous, binding obligation on the

defendant against whom relief is sought;

whether the obligation is a substantive

one (or merely requires procedural

conduct); and whether the interest

asserted by the plaintiff is susceptible

of judicial enforcement (or is so vague

that it is beyond the competence of the

judiciary to enforce). Suter, 112 S. Ct.

at 1367, 1369; Wilder, 496 U.S. at 509;

Golden State Transit Corp. v. Los

Angeles, 493 U.S. 103, 106 (1989); Wright

v. Roanoke Redevelopment and Housing

Authority, 479 U.S. 418, 430-432 (1987).

The courts below faithfully and

correctly applied these criteria. See

A15-18 and A49-61. The persons to be

benefitted are specifically identified:

they are “laborers and mechanics."

(A17). The congressional objective was

to provide such persons with higher wages

than they would be entitled to receive

absent § 5310. (A54). Hence, § 5310 was

clearly intended to benefit such persons.

(A18). Section 5310 "is not merely a

hortatory ‘reasonable efforts’

provision." (A17). Rather, it creates

"an obligation that is cast ... in

mandatory terms." (A18). Use of the

term "shall" indicates Congress sought to

create a binding obligation. (A60).

Section 5310 is not merely a procedural

provision requiring inclusion of wage

terms in a state plan (or contract);

rather, it imposes on the employer the

substantive requirement that workers

"shall be paid" at no less than

prevailing wage rates. (A17). Thus,

§ 5310 falls on the substantive side of

-22-

the substantive/procedural dichotomy

drawn explicitly in Suter and implicitly

in Wilder. (A61).

The duty imposed by § 5310 "is neither

vague nor speculative nor [like the

obligation in Suter] left for

determination by the states." (A18).

"There is no ambiguity. The contractor

is required to pay such workers wages at

rates not lower than the federally

recognized prevailing rates." (Id.).

The obligation § 5310 creates "is

determinable by reference to an

unambiguous specified standard set by a

federal official - the Secretary of

Labor." (Id.). "{U]jnlike the

‘reasonable efforts’ clause" in Suter,

§ 5310 creates "an unambiguous, specific.

benchmark." (A61). Because the

Secretary of Labor predetermines wage

-23-

levels "with great specificity" (A60-61),

"(tj)he contractor knows exactly what wage

rates will need to be paid." (A611).

Accordingly, § 5310 is unambiguous and

susceptible of judicial enforcement.

The assertion that respondents are not

intended beneficiaries of Title I of the

HCDA misses the mark. See CPC’s Petition

For Writ of Certiorari ("CPC") at 46, 47;

Municipal Defendants’ Petition For Writ

of Certiorari ("City") at 24. The issue

is whether respondents are among the

intended beneficiaries of the command in

§ 5310 that laborers and mechanics "shall

be paid" prevailing wages. That the

overall objectives of a federal law may

be broader than the purpose of a

particular section therein does not mean

the former may be substituted for the

latter. See, e.g., West Virginia

-24-

University Hospitals, Inc. v. Casey, 885

F.2d 11, 20 (3d Cir. 1989), cert. denied,

496 U.S. 936 (1990), where in upholding a

§ 1983 action to enforce the Boren

Amendment, the Court held that the

relevant issue was "the specific purpose

of § 1396(a) (13) (A)," not "the broad

purpose of the Medicaid Act as a whole."

Contrary to the City’s assertion (City

at 11, 24), the courts below read § 5310

in light of Title I as a whole. See,

e.g., A59 (conclusion that respondents

are among intended beneficiaries of

§ 5310 is "entirely consistent with the

overall congressional purpose in enacting

Title I of the HCDA"). The District

Court quoted the language of 42 U.S.C.

§ 5301(c), which provides that "(t]he

primary objective of [Title I] is the

development of viable urban communities,

-25-

by providing decent housing and a

suitable living environment and expanding

economic opportunities, principally for

persons of low and moderate income."

(A59, emphasis by Court). See also A10

(Court of Appeals quoting same language).

There can be little doubt that, if

CPC had paid the prevailing wage,

rather than the substantially lower

wage actually paid to plaintiffs,

this would have provided expanded

economic opportunities for persons

of low or moderate income, namely

plaintiffs.

(A59).

Petitioners concede that 40 U.S.C.

§ 276a(a), the Davis-Bacon statute, was

"designed for the benefit" of workers.

(City at 26 (quoting United States v.

Binghamton Construction Co., 347 U.S.

171, 178 (1954)). Davis-Bacon benefits

workers indirectly: it imposes a

procedural obligation on a federal agency

to include a prevailing wage provision in

-26-

a federal construction contract. See

A56-57. By imposing the substantive duty

on a contractor to pay prevailing wages,

§ 5310 benefits workers directly. As

Davis-Bacon is "designed for the benefit"

of workers, a fortiori § 5310 is too.

Contrary to CPC at 47, the rulings

below are not inconsistent with the

holding in Universities Research Ass’n,

Inc. v. Coutu, 450 U.S. 754 (1981), that

Davis-Bacon did not confer on

construction workers a right to be paid

prevailing wages. The courts here

rejected the relevance of that holding

because of the "significant" contrast

between the obligation created by

statutes like Davis-Bacon and the duty

imposed by § 5310. (A55). See also A71

("fundamental differences" between Davis-

Bacon and § 5310) and A77, n.19

-27-

("specific language of § 5310...

differs, in important respects, from the

language of the Davis-Bacon Act ...").

See also A17 (distinguishing substantive

obligation in § 5310 from procedural

obligation to include in a writing a

promise to pay prevailing wage rates).

Petitioners’ attempt to create a

"conflict in principle" between the

decisions below and Latinos Unidos De

Chelsea En Accion v. Secretary of Housing

and Urban Development, 799 F.2d 744 (1st

Cir. 1986), fails. Latinos involved a

different statute and a different issue:

whether 42 U.S.C. § 5309 implies a

private cause of action, not whether

§ 1983 provides an express remedy for

violation of § 5310. Latinos concluded

that Title I of the HCDA was not enacted

for the “especial benefit" of the

-28-

minority community and, hence, minority

plaintiffs did not have an implied cause

of action to enforce § 5309’s generalized

prohibition on discrimination. As Judge

Ward noted, Latinos is plainly

distinguishable. (A58-59). Unlike

§ 5309, § 5310 specifically identifies

the narrow class of its beneficiaries, to

wit, “laborers and mechanics." And, as

§ 5301(c) shows, Title I was intended in

part to benefit respondents.

The City also argues that the mere

availability of an administrative

enforcement mechanism precludes the

existence of a § 1983 right. (City at

16). This confuses two conceptually

distinct matters: (a) a legal right and

(b) the redress available for the

violation of a right. The City cites

Suter to support its argument but takes

-29-

the discussion therein out of context.

In Suter, the plaintiffs argued that

unless the statute at issue were

construed to impose a substantive

"reasonable efforts" obligation, rather

than a procedural obligation to include

in a plan a provision that "reasonable

efforts" would be made, the statute would

be rendered a "dead letter." In

rejecting this argument, this Court noted

that an administrative enforcement

mechanism was still available even if the

statute only created a procedural

obligation, and hence this argument in

favor of a substantive obligation was

incorrect. See 112 S. Ct. at 1368-1369.

Respondents need not and do not make

such an argument in order to show that

§ 5310 imposes a substantive obligation

to pay prevailing wages. Hence, the

-30-

eee

refutation in Suter of the "dead letter"

argument is not pertinent here.

Il.

THE COURTS BELOW CORRECTLY HELD

THAT CONGRESS HAS NOT FORECLOSED

RELIANCE ON § 1983 TO REMEDY

VIOLATIONS OF § 5310 WHERE THE

RELEVANT CONSTRUCTION CONTRACTS

REQUIRE PAYMENT OF WAGES AT NOT

LESS THAN FEDERAL PREVAILING WAGE

RATES.

CPC states that this Court should

grant certiorari

to now decide, in the context of

section 5310 and federal housing

policy, the question it previously

left open in Universities Research

Ass’n, Inc. v. Coutu, 450 U.S. 754

(1981) -- namely, whether the

Davis-Bacon Act creates a private

right of action, albeit asserted

procedurally here under section

1983, to enforce a contract that

contains specific Davis-Bacon Act

prevailing wage stipulations.

(CPC at 13-14). With all respect, this

is obfuscation.

This case does not involve a claim

-31-

under the Davis-Bacon Act, nor is that

Act in any material way comparable to

§ 5310, the statute invoked by

respondents. Second, the issue whether

Davis-Bacon (or any other prevailing wage

statute) implies a private cause of

action is fundamentally different than

the issue actually presented here,

namely, whether the express cause of

action created by § 1983 is available to

remedy the deprivation of respondents’

rights under § 5310.

Davis-Bacon’s prevailing wage clause,

40 U.S.C. § 276a(a), Obligates a

contracting federal agency to include in

its advertised specifications and its

resulting contracts a provision requiring

the payment of wages at not less than

prevailing wage rates. (A4A). In

contrast, § 5310 imposes a duty on a

-32-

contractor doing work for a local

government to pay workers at not less

than prevailing wage rates. Davis-Bacon

and § 5310 thus differ significantly.

See ASS, 71, 77, n.19.

Whether a federal statute impliedly

creates a private cause of action to

remedy a violation of that statute is "a

different inquiry" than whether § 1983 is

available to remedy that same violation.

In the former case, the burden is upon

the plaintiff to show Congress intended

to create a private remedy. In the

latter, it is presumed from § 1983’s

express language that a remedy is

available and the burden is upon the

defendant to demonstrate that Congress

affirmatively withdrew the § 1983 remedy.

Wilder, 496 U.S. at 508-09, n.9. Thus

the argument that Congress "did not

-33-

intend to create any private right of

action" in enacting Title I (CPC at 26),