Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Jan. 14, 1999.
Appeal from the United States District Court for the District of Oregon, James A. Redden, District Judge, Presiding.
Before LEAVY, MCKEOWN, and WARDLAW, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Andrew T. Workinger appeals the district court's summary judgment for defendants in his action seeking prevailing rate wages under the Davis-Bacon Act, 40 U.S.C. § 276a et seq., and Oregon's Little Davis-Bacon Act, Or.Rev.Stat. § 279.348 et seq. Workinger also appeals the district court's grant of summary judgment on his third-party beneficiary claim for breach of contract.
Workinger concedes that he has no private right of action under the Davis-Bacon Act following this court's decision in Operating Eng'rs Health & Welfare Trust Fund v. JWJ Contracting Co., 135 F.3d 671, 676 (9th Cir.1998).
Our decision in Operating Eng'rs applies retroactively to divest the district court of subject matter jurisdiction over this claim. See Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993) ("When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule."). We therefore remand Workinger's Davis-Bacon Act claim with instructions to dismiss for lack of subject matter jurisdiction.
The district court did not err in granting summary judgment to defendants on Workinger's claim under Oregon's Little Davis-Bacon Act. Workinger's job involved transporting supplies from site to site, not working at the site, see Or. Admin. R. 839-16-004(5), and Workinger performed "service work," not "construction work," see Or. Admin. R. 839-16-035(7). Accordingly, the district court properly held that Workinger was not covered by the Little Davis-Bacon Act. Cf. L.P. Cavett Co. v. United States Dep't of Labor, 101 F.3d 1111, 1112 (6th Cir.1996) (the "wage provisions of the Davis-Bacon Act were not intended to apply to the truck drivers"); Stockton v. Silco Ctnstr. Co., 877 P.2d 71, 76 (Or.1994) (noting that a 1983 amendment was introduced to clarify Oregon's prevailing wage law and more closely align it with the parent statute, the federal Davis-Bacon Act).
The district court did not err in dismissing Workinger's third party beneficiary claim for breach of the public works contract. Because Workinger was not covered by the state statute and because the federal statute does not provide him a private right of action, he cannot assert a claim for breach of contract as a third-party beneficiary. See Sisters of St. Joseph of Peace, Health, and Hosp. Servs. v. Russell, 867 P.2d 1377, 1380 (Or.1994) (party seeking to enforce a contract must be an intended beneficiary).
Defendants' motion to strike portions of Workinger's excerpt of record is granted and defendants' motion for sanctions is denied.
AFFIRMED in part; REMANDED in part with instructions to DISMISS for lack of subject matter jurisdiction. Each party shall bear its own costs on appeal.