Smith v. Clark/Smoot/Russell, A JV

Smith v. Clark/Smoot/Russell, A JV

Opinion

 [*427]  WYNN, Circuit Judge

] To bring an action under the False Claims Act, a relator must, among other things, file his complaint under seal and maintain that seal for a period of sixty days. Although the False Claims Act complaint in this matter was properly filed under seal, the relator's attorney revealed to the relator's employer the existence of the complaint well before the end of the sixty day waiting period. Finding a violation of the seal requirement, the district court dismissed the relator's action with prejudice.

On appeal, we conclude that the dismissal [**2]  of Smith's case with prejudice was inappropriate under the False Claims Act because the seal violation did not incurably frustrate the seal's statutory purpose. Furthermore, neither of the district court's alternative reasons for dismissing Smith's claims—the doctrine of primary jurisdiction and failure to comply with Civil Procedure Rule 9(b)—warrant dismissal with prejudice. We also conclude that the district court erred when it dismissed Smith's retaliation claim. Accordingly, we reverse the dismissals and remand for further proceedings.

Relator Brian K. Smith worked on several federal construction projects in 2012 and 2013: the City Market on O Street project ("City Market"), the Smithsonian Institution's National Museum of African-American  [*428]  History and Culture ("African-American Museum"), and the Smithsonian National Zoo project ("National Zoo"). Due to their size, these projects were subject to the Davis-Bacon Act, 40 U.SC. §§ 3141-3144, 3146, 3147.

The Davis-Bacon Act requires contractors and subcontractors performing federally funded or assisted contracts of more than $2,000 to set forth stipulations in covered contracts agreeing to pay their workers no less than the locally prevailing wages.¹ Id. § 3142. The Secretary [**3]  of Labor sets the prevailing wages, which fall under four wage schedules (Building, Residential, Highway, and Heavy) and several different labor categories (painter, plumber, laborer, bricklayer, etc.). Id. When a dispute arises regarding the proper classification of a particular type of work, the Department of Labor makes a determination of the prevailing wage. 29 C.F.R. § 5.11(a).

In this matter, the complaint named several defendants. However, only Defendants Shirley Contracting Co., LLC, which does business as Metro Earthworks ("Shirley/Metro"), and Clark Construction Group, LLC ("Clark") (collectively, "Defendants") are properly before us because Smith did not raise the dismissal of the other defendants on appeal. See, e.g., United States v. Al—Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004).

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