USCA4 Appeal: 21-1160 Doc: 33 Filed: 04/26/2023 Pg: 1 of 34 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 21-1160 UNITED STATES EX REL. ELLIOT DICKSON, P. E.; ELLIOT H. DICKSON, P. E., Plaintiffs - Appellants, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant - Appellee, FORNEY ENTERPRISES, INC.; ZURICH AMERICAN INSURANCE COMPANY; COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, Defendants. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:20-cv-00129-CMH-JFA) Argued: March 8, 2022 Decided: April 26, 2023 Before AGEE and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit Judge. Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Agee joined. Senior Judge Floyd wrote a dissenting opinion. ARGUED: C. Thomas Brown, SILVER & BROWN, Fairfax, Virginia, for Appellants. Dominick Preston Weinkam, WATT, TIEDER, HOFFAR & FITZGERALD, LLP, USCA4 Appeal: 21-1160 Doc: 33 Filed: 04/26/2023 Pg: 2 of 34 McLean, Virginia, for Appellee. ON BRIEF: Erik B. Lawson, SILVER & BROWN, Fairfax, Virginia, for Appellants. 2 USCA4 Appeal: 21-1160 Doc: 33 Filed: 04/26/2023 Pg: 3 of 34 RICHARDSON, Circuit Judge: Under the Miller Act, contractors hired to work on government projects are required to furnish bonds to pay those who provided labor and were not paid as a result of a dispute. But not all work on a government project qualifies as “labor” under the Miller Act, 40 U.S.C. §§ 3131–34. And even when the work qualifies as labor, to claim his piece of the bond, a laborer must sue within one year of completing the labor to recover. Elliott Dickson was a subcontractor for Forney Enterprises, a contractor working for the Pentagon. Forney Enterprises was bonded through the Fidelity and Deposit Company of Maryland. Dickson worked as a project manager for Forney Enterprises, supervising others who engaged in manual labor. After Forney Enterprises’ work at the Pentagon was terminated, Dickson sued Fidelity to recover the value of the work he had not been paid for. The district court found that his supervisory work did not qualify as “labor” and granted summary judgment for Fidelity. While we find much of Dickson’s work was “labor,” the only work he performed within one year of filing suit, a materials inventory, was not “labor.” And no circumstances warrant estopping Fidelity from asserting the statute of limitations. So we affirm the district court. I. Background The Department of Defense hired Forney Enterprises as the prime contractor to renovate several staircases at the Pentagon and their accompanying fire suppression systems. Forney Enterprises then subcontracted with Elliott Dickson, a professional engineer, to work as a project manager on that contract, starting in 2015. The bulk of 3 USCA4 Appeal: 21-1160 Doc: 33 Filed: 04/26/2023 Pg: 4 of 34 Dickson’s work focused on supervising labor on the site. But Dickson performed many other tasks, including logistical and clerical duties, taking various field measurements, cleaning the worksite, moving tools and materials, and sometimes even watering the concrete himself. This work required …
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