531 F.

2d 478
22 Wage & Hour Cas. (BN 1049, 78 Lab.Cas. P 33,344

UNITED STATES of America, for the Use and Benefit of

Telesfor (Ted) ROMERO, et al., Plaintiffs-Appellants,
v.
DOUGLAS CONSTRUCTION CO., INC., a corp., et al.,
Defendants-Appellees.
No. 75--1168.

United States Court of Appeals,

Tenth Circuit.
Argued Nov. 12, 1975.
Decided March 3, 1976.

Steven L. Tucker, Santa Fe, N.M. (J. E. Gallegos, of Jones, Gallegos,

Snead & Wertheim, P.A., Santa Fe, N.M., on the brief), for plaintiffsappellants.
Jay R. Gentry Ortiz, of Knight, Sullivan, Villella & Skarsgard, P.A.,
Albuquerque, N.M., for Clovis O. Herrera Corp. and American Fid. Fire
Ins. Co., defendants-appellees.
Robert K. Patten, Albuquerque, N.M. (David R. Gallagher, of Gallagher,
Ruud & Casados, Albuquerque, N.M., on the brief), for Douglas Const.
Co., Inc., defendant-appellee.
Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.
McWILLIAMS, Circuit Judge.

The issue here presented concerns the applicability of certain provisions of the
Davis-Bacon Act to low-rent housing projects built in New Mexico by the
Douglas Construction Co. for the All Indian Pueblo Housing Authority. The All
Indian Pueblo Housing Authority, hereinafter referred to as All Indian,
contracted with Douglas for the construction of two low-rent housing projects.
Douglas' surety on both projects was United States Fidelity and Guaranty

Company. Clovis O. Herrera Corporation was the plumbing subcontractor on

both projects and its surety was American Fidelity Fire Insurance Company.
Telesfor (Ted) Romero, Michael Romero and Ernest W. Vigil were employed
as plumbers by Herrera on both projects.
2

After completion of the project the two Romeros and Vigil filed, pursuant to
the Davis-Bacon Act and the Miller Act, claims with the contracting officer on
the projects, alleging that they had been paid at the rate of only $3.73 per hour,
instead of at the rate of $8.92 per hour, which latter rate was the wage scale rate
as determined by the Secretary of Labor for the kind of work they performed.
The contracting officer upheld these claims and withheld from Douglas accrued
payments totaling some $10,000. However, when Douglas, Herrera and the
Comptroller General of the United States later refused to pay the additional
wages allegedly due the two Romeros and Vigil, the latter instituted the present
proceeding. Named as defendants in the action were Douglas, Herrera and their
respective sureties. Jurisdiction was based on the Davis-Bacon Act, 40 U.S.C.
276a, et seq. and the Miller Act, 40 U.S.C. 270a, et seq. The action was
brought in the name of the United States of America, for the use and benefit of
Telesfor (Ted) Romero, Michael Romero and Ernest A. Vigil. The claim was
that the sum of $12,672.68 was due the three named plaintiffs, said sum
representing unpaid wages resulting from the fact that wages were computed on
the basis of $3.73 per hour, instead of at the rate of $8.92 per hour, the latter, as
indicated, having been the minimum wage set by the Secretary of Labor
pursuant to the Davis-Bacon Act.

Herrera and its surety filed an answer to the complaint. Douglas and its surety
filed a motion to dismiss based on the contention that the trial court lacked
subject matter jurisdiction. In this regard it was Douglas' position that the lowrent housing projects here involved were not 'Federal projects' within the
meaning of 42 U.S.C. 1416(1) and that under the terms of that statute neither
the Davis-Bacon Act nor the Miller Act had application. The trial court granted
the motion to dismiss and dismissed the action for lack of subject matter
jurisdiction. This appeal follows.

At the outset we are faced with a jurisdictional problem of our own. The notice
of appeal was filed more than thirty days, but less than sixty, after entry of the
trial court's judgment dismissing the action. Rule 4(a) of the Federal Rules of
Appellate Procedure provides that a notice of appeal in a civil case shall be filed
with the clerk of the district court within thirty days from the date of the
judgment, with the additional provision that if the United States is a party to the
proceeding, then the notice of appeal may be filed by any party to the action
within sixty days from the date of judgment. As indicated, the plaintiffs in the

present proceeding were designated in the complaint as 'United States of

America, for the use and benefit of Telesfor (Ted) Romero, Michael Romero
and Ernest A. Vigil.' It is the appellants' position that the United States of
America was a party to the action within the meaning of Rule 4(a) of F.R.A.P.,
and hence the notice of appeal, having been filed within sixty days from the
date of Judgment, was timely filed. We agree.
5

The substantive rights relied on in the instant proceedings by the plaintiffs are
the minimum wage requirements of the Davis-Bacon Act. 40 U.S.C. 276a.
Under provisions of the Davis-Bacon Act the remedy for a laborer who has not
been paid at the minimum wage designated by the Secretary of Labor is the
remedy provided under the Miller Act. 40 U.S.C. 276a--2(b). The Miller Act,
in turn, provides that an unpaid laborer, for example, has the right to 'sue on
such payment bond' for the amount due. 40 U.S.C. 270b(a). The Miller Act
goes on to provide that '(E)very suit instituted under this section shall be
brought in the name of the United States for the use of the person suing . . ..' 40
U.S.C. 270b(b). Our jurisdictional problem then turns on a determination as
to whether the United States is a party to the present proceeding within the
meaning of Rule 4(a) of F.R.A.P. Under the authorities referred to below, we
conclude that the United States is a party and therefore the notice of appeal was
timely filed.

The Supreme Court in United States Fidelity Co. v. Kenyon, 204 U.S. 349, 27
S.Ct. 381, 51 L.Ed. 516 (1906), was concerned with the statutory predecessor
to the Miller Act. The plaintiff in Kenyon was designated as the United States,
"suing herein for the benefit and on behalf of James S. Kenyon." Kenyon was a
materialman and the action was one for an unpaid bill for material in the sum of
$66.05. Subject matter jurisdiction could only be established in the federal
courts if the United States was a party to the proceeding. It was argued by way
of defense that the United States was only a nominal party, at best, and that the
real plaintiff was a private individual, in which event there was no subject
matter jurisdiction for failure to meet the then existing jurisdictional
requirement of $2,000. If the United States was itself a party to the action, then
the $2,000 requirement was not applicable. In holding that the United States in
such circumstances was a real litigant, and not a mere nominal party, the
Supreme Court commented as follows:

7 United States is not here a merely nominal or formal party. It has the legal right,
The
was a principal party to the contract, and, in view of the words of the statute, may be
said to have an interest in the performance of all its provisions. It may be that the
interests of the government, as involved in the construction of public works, will be
subserved if contractors for such works are able to obtain materials and supplies

promptly and with certainty. To that end Congress may have deemed it important to
assure those who furnish such materials and supplies that the Government would
exert its power directly for their protection.
8

Following the rule of Kenyon, the Tenth Circuit in Barnard-Curtiss Company v.

United States, 252 F.2d 94 (10th Cir. 1958), held that the United States is a real
party in interest in an action under the Miller Act and that the time within which
a notice of appeal could be filed in such proceeding was sixty days, not thirty.

The appellees would escape the rule of Kenyon and Barnard-Curtiss by

pointing out that in the instant case Douglas and Herrera did not contract with
the United States, but with All Indian, and that the surety bonds in each instance
ran in favor of all Indian and not the United States. This argument overlooks
paragraph 14 in the lease agreement between All Indian and Douglas. That
paragraph reads as follows:

14. Obligations to the United States

10is understood and agreed that while the Premises are in trust or restricted status, all
It
of the Lessee's (Douglas') obligations under this Lease, and the obligation of its
sureties, are to the United States as well as to the Lessor (All Indian).
11

In our view, under the rationale of Kenyon and Barnard-Curtiss, the United
States is a party to the present proceeding and hence the notice of appeal need
only be filed within sixty days from the date of judgment. We now address
ourselves to the merits of the appeal, namely, did the trial court itself have
subject matter jurisdiction?

12

42 U.S.C. 1401, et seq., relates to low-rent housing and in connection

therewith it is declared to be the policy of the United States to promote the
general welfare by employing its funds and credit to assist the states and their
subdivisions in providing decent housing for families of low income, 'in urban,
rural non-farm, and Indian areas.' 42 U.S.C. 1416 provides, in effect, that the
Davis-Bacon Act and the Miller Act 'shall apply to contracts (for low-rent
housing) in connection with the development or administration of Federal
projects and the furnishing of materials and labor for such projects.' 42 U.S.C.
1402(7) defines the term 'Federal project' as 'any project owned or administered
by the Authority.' 42 U.S.C. 1402(6) defines the term 'administration' as 'any
and all undertakings necessary for management, operation, maintenance, or
financing, in connection with a low-rent housing or slum-clearance project, . . .'
42 U.S.C. 1402(13) defines the term 'Authority' as meaning the United States
Housing Authority. The latter, i.e., the United States Housing Authority, is in

turn a sub-agency of the Department of Housing and Urban Development, more

familiarly known as HUD.
13

The trial court simply granted Douglas' motion to dismiss and entered an order
dismissing the action, and in connection therewith gave no explanation as to the
basis for its ruling. At least no such explanation is contained in the record now
before us. In such circumstance, we assume, though we do not know, that the
trial court was of the view that the low-rent housing projects with which we are
here concerned were not 'Federal projects' under 42 U.S.C. 1416. At least this
is the proposition which is now urged on us by Douglas. However, in the trial
court Douglas offered nothing in the way of evidentiary matter in support of its
motion to dismiss. It is true that the motion to dismiss was supported by a
memorandum brief. And it is also true that the plaintiffs resisted the motion to
dismiss with a memorandum brief of their own, supported by an affidavit of the
executive director of All Indian. However, such is a most unsatisfactory method
of ascertaining the degree of federal involvement in the development,
ownership or maintenance of the two low-rent housing projects with which we
are here concerned.

14

Douglas in its brief concedes, with commendable candor, that the 'record on
appeal contains a dearth of information pertaining to the procedures involved in
constructing the low-rent public housing here in question.' We agree and we are
further of the view that this entire matter should be more fully explored by the
trial court in an evidentiary hearing resulting in specific findings. On the record
before us we are unable to determine whether the low-rent housing projects
here involved are by virtue of 42 U.S.C. 1416 subject to the provisions of the
Davis-Bacon Act and the Miller Act. From the record before us we are unable
to determine the actual relationship between HUD and the United States
Housing Authority, on the one hand, and All Indian on the other hand. This
entire matter should be the subject of closer judicial scrutiny.

15

Judgment reversed and the cause remanded for further proceedings consonant
with the views herein expressed. If, after reconsideration of the matter, the trial
court should determine that it has subject matter jurisdiction, then the trial court
should proceed to hear the case on its merits. However, should the trial court,
after evidentiary hearing, determine that it does not have subject matter
jurisdiction then the instant appeal may be re-opened on motion, and the record
made on remand may then be certified to this court and made a part of the
present appeal. By this remand we do not mean to preclude the appellants from
advancing alternative grounds for subject matter jurisdiction, if such they have.