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FEB i"l 20lfejNO. 13-689

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V.

Agfa Construction,^Inc, > ; ">f £?.

IRespondents *<{&ih%<$ '

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On Petition for a Writ of Certiorari

To the United States Court of AppealsFor the Second Circuit;

BRIEF IN OPPOSITION

TO WRIT OF CERTIORARI,

. 4l », ; ;sf - * fp •

Joseph M. Labuda, Esq.MILMAN LABUDA!

LAW GROUP PLLC

Attorneys for Respondent3000 Marcus Ave.,

Suite 3W8

Lake Success, NY 11042(516)328-8899 i(516)328-0082, j . , -

joe@mmmlabdrlaw.c6ni - . ? ,,>in„„. <.,».,..„., w

Echo AppellatePress Inc., 30 W. Park Ave.,LongBeach,NY (516)20444 •

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QUESTION PRESENTED

Whether the Second Circuit properly dismissedPetitioner's third-party beneficiary claim for breachof contract based on its reasoning in Grochowski v.Phoenix Construction.

In the

Supreme Court of the United Statesx

Jose E. Carrion,

Petitioner,

v.

Agfa Construction, Inc.

Respondent.x

Corporate Disclosure Statement

Pursuant to Supreme Court Rule 29 and toenable justices of the court to evaluate possibledisqualification or recusal, the undersigned counsel ofrecord for Defendant, AGFA CONSTRUCTION, INC.,states that there are no parent corporations or anypublicly held corporation which owns 10% or more ofits stock.

Dated: Lake Success, New YorkFebruary 19, 2014

MILMAN LABUDA LAW GROUP PLLC

li

M&^£&BMiil*m»tsim!Mm&*&mimimmaiK*

TABLE OF CONTENTS

QUESTION PRESENTED i

CORPORATE DISCLOSURE STATEMENT ii

BRIEF IN OPPOSITION TO WRIT OFCERTIORARI 1

STATEMENT OF THE CASE 2

STANDARD 3

ARGUMENT 4

I. THE ISSUE HAS NOT BEEN

SUFFICIENTLY VETTED BY

THE LOWER COURTS 4

II. THIS CASE IS PROCEDURALLY FLAWEDWHICH WARRANTS DENIAL OF A WRITFOR CERTIORARI 6

III.THE SECOND CIRCUIT RULED

CORRECTLY IN GROCHOWSKI 7

CONCLUSION 10

in

TABLE OF AUTHORITIES

CasesArizona v. Evans. 514 U.S. 1, 23, n.l (1995) 5

Astra USA. Inc. v. Santa Clara County. Cal.,131 S. Ct. 1342, 179 L. Ed. 2d 457 (2011) 8,9

Grochowski v. Phoenix Construction.318 F.3d 80 (2d Cir. 2003) 2,6,7,8

McCrav v. New York, 461 U.S. 961, 77 L. Ed.2d 1322, 103 S.Ct. 2438 (1983) 5

Tenet v. Doe, 544 U.S. 1, 125 S. Ct. 1230 (2005) 8

Statutes

New York Labor Law § 220 2,6,7

Public Health Services Act, 42 U.S.C. § 256b 8

Davis-Bacon Act (40 U.S.C. §§ 3141-3148) 4

Other AuthoritiesH.W. Perry, Jr., Deciding to Decide:Agenda Setting in the United StatesSupreme Court 233 (1991) 5

IV

In the

Supreme Court of the United States

No. 13-689

Jose E. Carrion,

Petitioner,

V.

Agfa Construction, Inc.

Respondent.

On Petition for a Writ of Certiorarito the United States Court ofAppeals

for the Second Circuit

BRIEF IN OPPOSITION TO WRIT OF

CERTIORARI

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Respondent submits this brief in opposition tothe petition of Jose E. Carrion (hereinafter "Carrion"or "Petitioner") for a writ of certiorari seeking reviewof the decision of the United States Court of Appealsfor the Second Circuit holding that Petitioner cannotmaintain a state common law claim for breach ofcontract whose genesis derives from an allegedviolation of the Davis-Bacon Act.1

STATEMENT OF THE CASE

Petitioner worked as a laborer for Respondent.After his employment, he brought suit for severalreasons, including, inter alia, failure to pay"prevailing wages" under New York Labor Law § 220.On summary judgment, Petitioner argued that hewas a third-party beneficiary to a contract betweenAgfa and the New York City Housing Authority(hereinafter "NYCHA"). However, Petitioner'sComplaint never asserted such a claim for breach ofcontract or even referenced the Davis-Bacon Act. Thedistrict court declined to address whether Petitionerproperly alleged a breach of contract claim butgranted Agfa's motion for summary judgment for thisclaim based on the Second Circuit's holding inGrochowski v. Phoenix Construction. 318 F.3d 80 (2dCir. 2003).

1Respondent lacks the financial resources to address every issueraised by Petitioner. However, since this Court requested aresponse, Respondent submits this brief to address as manyissues as possible within its limited financial means.

-2

Based on the below reasons, this Court shoulddecline review of the instant case.

STANDARD

Pursuant to Rule 10, a petition for a writ ofcertiorari will be granted "only for compellingreasons." The Court considers the following reasonsfor considering a review on a writ of certiorari:

(a) a United States court of appealshas entered a decision in conflict with

the decision of another United States

court of appeals on the same importantmatter; has decided an importantfederal question in a way that conflictswith a decision by a state court of lastresort; or has so far departed from theaccepted and usual course of judicialproceedings, or sanctioned such adeparture by a lower court, as to call foran exercise of this Court's supervisorypower;

(b) a state court of last resort hasdecided an important federal question ina way that conflicts with the decision ofanother state court of last resort or of a

United States court of appeals;

(c) a state court or a United Statescourt of appeals has decided animportant question of federal law thathas not been, but should be, settled bythis Court, or has decided an important

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federal question in a way that conflictswith relevant decisions of this Court.

Additionally, "[a] petition for a writ of certiorari israrely granted when the asserted error consists oferroneous factual findings or the misapplication of aproperly stated rule of law." Id.

ARGUMENT

I. THE ISSUE HAS NOT BEEN

SUFFICIENTLY VETTED BY THE LOWER

COURTS

In the instant matter, Petitioner has filed theinstant petition pursuant to Rule 10 claiming thatthe New York State Court of Appeals, Montana StateCourts and the Seventh Circuit Court of Appeals areat odds with the Second Circuit Court of Appeals overwhether the Davis-Bacon Act (40 U.S.C. §§ 3141-3148), preempts a state common law cause of actionfor breach of contract. Yet, this issue has not beensufficiently considered and vetted by the Circuits andother courts to be considered now by this Court. Onthis point, Justice Ginsburg previously held:

We have in many instances recognizedthat when frontier legal problems arepresented, periods of 'percolation' in, anddiverse opinions from, state and federalappellate courts may yield a betterinformed and more enduring finalpronouncement by this Court.

Arizona v. Evans. 514 U.S. 1, 23, n.l (1995); see, e.g.,McCrav v. New York. 461 U.S. 961, 961-963, 77 L.Ed. 2d 1322, 103 S.Ct. 2438 (1983) (Stevens, J.,respecting denial of petitions for writs of certiorari)("My vote to deny certiorari in these cases does notreflect disagreement with JUSTICE MARSHALL'Sappraisal of the importance of the underlying issue ...In my judgment it is a sound exercise of discretion forthe Court to allow the various States to serve aslaboratories in which the issue receives further studybefore it is addressed by this Court."). Moreover,another anonymous Justice has stated that if anappeals court "has a ruling that seems to create aconflict, we will let it percolate to see if the conflictwill work itself out. Conflicts often work themselvesout . . . ." H.W. Perry, Jr., Deciding to Decide:Agenda Setting in the United States SupremeCourt 233 (1991).

Here, Petitioner only identifies two (2) statecourts and one other federal circuit court of appealsthat have an adverse opinion than that of the SecondCircuit. See Petition pp. 1-2, 6.2 In this case, theCourt should consider the issue as "half-brewed"since there is no "widespread disagreement." Thus,the petition should be denied until there are furtherdecisions in different states and circuits as to the

application of the preemption doctrine. This wouldallow an expanded body of lower court and state caselaw to develop that may obviate any future need forSupreme Court review, or shed additional light on orotherwise refine the issues for the Court.

2 References to the Petition are herein cited as "P-

-5-

Accordingly, the instant petition must bedenied on based on a lack of percolation.

II. THIS CASE IS PROCEDURALLY

FLAWED WHICH WARRANTS DENIAL OF A

WRIT FOR CERTIORARI

In addition, this is not the case that the Courtshould decide the issue at hand since Petitioner neverasserted a breach of contract claim pursuant to theDavis-Bacon Act or otherwise in his Complaint. Thus,he has waived the right to raise this issue with thisCourt since it was never properly pled in the lowercourt. Simply put, as fully outlined below, theprocedural posture of the case is too messy to warranta review by the Court.

In this case, Petitioner alleged in hisComplaint that he had been denied the "prevailingwage in violation of New York Labor Law § 220." [P-16a, 24a-25a]. Later, on summary judgment,Petitioner conceded that he had failed to exhaust hisadministrative remedies for his § 220 claim, yetargued that his prevailing wage claim should proceedunder the third-party beneficiary theory or that heshould be permitted to amend his complaint to addsuch a claim. [P-24a]. The District Court nevergranted Petitioner leave to amend his Complaint andnever ruled on the adequacy of Petitioner'sallegations as properly setting forth a third-partybreach of contract claim. Id. The District Court didrule that if such a claim existed, it would be barredunder Grochowski. Id. Petitioner appealed.

-6

In denying the appeal, the Second Circuit firstexplained that Petitioner failed to even file a breachof contract claim under the Davis-Bacon Act. [P-4a].Instead, Petitioner only filed a claim under § 220 ofthe New York Labor Law (a/k/a the "Little Davis-Bacon Act"). Id. Accordingly, the Court neveraddressed whether Petitioner even stated a breach of

contract claim based on a violation of the Davis-

Bacon Act. In fact, Petitioner's Complaint never evenreferenced the Davis-Bacon Act.

In addition, Petitioner has failed to explainwhy the Second Circuit would be required to applystate common law to his purported claim for breach ofcontract based on a violation of the Davis-Bacon Act

when the only reference to any statute in hisComplaint is to New York Labor Law § 220. Thus,Petitioner has waived his right to raise thispreemption issue for the first time with this Court.

Based on Petitioner's failure to actually raise abreach of contract claim in his Complaint, this case isprocedurally flawed and is a less than perfect vehiclefor the Court to take a trip down "Preemption Drive."This is not the case that the Court should consider

this preemption issue.

III. THE SECOND CIRCUIT RULED

CORRECTLY IN GROCHOWSKI

The Grochowski Court held that "[t]o allow athird-party private contract action aimed at enforcingthose wage schedules would be inconsistent with theunderlying purpose of the legislative scheme andwould interfere with the implementation of that

7-

scheme to the same extent as would a cause of actiondirectly under the statute." 318 F.3d at 86 (internalquotation marks omitted). The Grochowski analysisis consistent with the Court's reasoning in Astra.

In fact, as noted by the Second Circuit in theinstant matter, the Court referred to its analysis in.Grochowski "approvingly" where it determined thatplaintiffs could not sue as third-party beneficiaries ofcontracts under the Public Health Services Act, 42U.S.C. § 256b. [P-lOa] citingAstra USA. T„p v HnTltQClara County Cal, 131 S. Ct. 1342, 1348, 179 L. Ed.2d 457 (2011). Here, assuming Petitioner properlyraised a breach of contract claim, the contract atissue would be based on another federal statute theDavis-Bacon Act.

In Astra, the Court held that covered entitieshad no right to sue under the statute nor could theymaintain a breach of contract action as third-partybeneficiaries. 131 S. Ct. 1342. 1347 (IIS 9m^ TheCourt acknowledged that although the suits werelabeled differently, suits to enforce § 340B and suitsto enforce PPSAs were in substance one and thesame, and thus they must be treated the same "[n]omatter the clothing in which [340B entities] dress^!irTTCi?imS-" 131 S- Ct at 1345 citing Tenet v. Pop544 U.S. 1, 8, 125 S. Ct. 1230 (2005). Accordingly, theCourt held that permitting such asuit, would "allo[w]third parties to circumvent Congress's decision not topermit private enforcement of the statute." 131 S Ctat 1348.

AdditionaUy, the Astra Court noted thatspreading the enforcement burden is hardly what

Congress contemplated when it «enforcement in the government" l3i q °entrali*ed(County's challenge is at nrl? U „ S-Ct at 1349administrative and nf ^ Con^ess' unitarysimilar. SpecScdlv nTf SCheme)- He^> it fcLabor ha's tlVXl^nt^ D"ent ofcompliance with the DavrS T** t0 ensureindividuals to bri^ pw"' n^ h is not forReaches of conSIh ^l^J^Department of Labor's powers 7 Wlthln the

^at sprouTtVVdS :tatd;Part\COntraCt S^^ Court eflbcti^M^J^^ *»

9-

case.

CONCLUSION

This Court should decline to hear the instant

Dated: Lake Success, New YorkFebruary 24, 2014

Respectfully Submitted,

Joseph M. Labuda, Esq.MILMAN LABUDA

LAW GROUP PLLC

Attorneys for Respondent3000 Marcus Ave.,Suite 3W8

Lake Success, NY 11042(516) 328-8899(516) 328-0082

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