Remember back in 2021 when I “mused” about Dickson v. Fidelity and Deposit Company of Maryland et al.? Remember how the Eastern District of Virginia held that mere supervision does not qualify as “labor” under the federal Miller Act? Well, the 4th Circuit recently weighed in on the appeal of that case and had some interesting things to say about the definition of labor.
As a quick reminder, Plaintiff worked as a project manager on a project to repair and upgrade certain stairs at the Pentagon. Plaintiff subcontracted with prime contractor Forney Enterprises Inc. on this project. On Dec. 20, 2018, the prime contract was terminated. Plaintiff filed the Miller Act suit on Feb. 5, 2020. Dickson alleged that Fidelity and Deposit Company of Maryland, or F&D, must pay him, pursuant to the Miller Act, the amount he is owed for the labor he performed on the project. Now before the district court were cross-motions for summary judgment. In evaluating Plaintiff’s claims, the district court examined the defendant’s claims that (1) Dickson’s work did not qualify as “Labor” under the Miller Act, and (2) that the suit was not timely filed. The Eastern District of Virginia court agreed with both arguments.
The Fourth Circuit Court of Appeals disagreed with the lower court that Dickson’s supervisory work was not “labor” under the Miller Act. After a review of the history of the Miller Act (and its predecessor, the Hatch Act), the Court opined that because Dickson’s work was mostly, if not all, supervision of manual labor, and not merely “mental labor,” the work performed qualified as labor and would have been compensable. The good news for Dickson was short-lived, however, because the appellate court agreed with the lower court that the statute of limitations had run and therefore the claim was barred.
I highly recommend the 4th Circuit opinion to your reading. It goes into a fair amount of detail and analysis that is too long for a blog post but that provides good insight into the thought process courts may go through when analyzing whether certain work falls under the Miller Act and is thus allowable for a payment bond claim. As always, I recommend that all construction professionals that believe they may have a Miller Act claim consult an experienced construction attorney to analyze the claim and provide guidance.
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