Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA,

for the use and benefit of

TIMBERLINE CONSTRUCTION

GROUP, LLC

CIVIL ACTION

VERSUS

NO. 24-669-JWD-EWD

APTIM FEDERAL SERVICES, LLC,

ET AL.

RULING AND ORDER

This matter comes before the Court on Timberline’s Motion for Summary Judgment

(“Timberline’s MSJ”) (Doc. 117) filed by Timberline Construction Group, LLC (“Timberline”).

APTIM Federal Services, LLC (“APTIM”) opposes the motion. (Doc. 133.) Timberline filed a

reply. (Doc. 138.) APTIM filed a sur-reply. (Doc. 145.) Oral argument is not necessary. The Court

has carefully considered the law, the facts in the record, and the arguments and submissions of the

parties and is prepared to rule. For the following reasons, Timberline’s MSJ is denied.

I. RELEVANT BACKGROUND

A. Factual Background

Following Hurricane Ian, the United States Army Corps of Engineers (“USACE”)

undertook to build temporary housing (“the Project”) in Lee County, Florida. (Statement of

Material Facts (“SMF”), Doc. 117-1 at 1, ¶ 1.)1 The Project was located on land owned by Habitat

Harlem Heights, LLC (“Habitat”). (Id. at 1, ¶ 2.) The Federal Emergency Management Agency

(“FEMA”) leased this land from Habitat. (Id.; see Doc. 133-1 at 1–2, ¶ 2.) At all relevant times,

1 Unless otherwise indicated (e.g., with a qualifying record citation), when the Court cites the Statement of Material

Facts, APTIM has admitted the cited material. See M.D. La. Civ. R. 56(f).

the USACE owned/was responsible for the Project. (See, e.g., Doc. 117-6 at 14 (Question: “[T]he

entity that was in the role as owner for the [P]roject would have been the [USACE]?” Answer:

“Correct.”).) The USACE hired Brice Aptim JV, LLC (“BAJV”) as general contractor. (Doc. 117-

1 at 1, ¶ 1.) BAJV subcontracted work to its member APTIM. (Id. at 2, ¶ 4.) In turn, APTIM

subcontracted work to Timberline. (Id. at 2, ¶ 7.)

The contract between the USACE and BAJV (“the Prime Contract”) included a Federal

Acquisition Regulations (“FAR”) provision commonly known as the Permits and Responsibilities

Clause. (Id. at 2, ¶¶ 5–6 (citing Doc. 117-3 at 170 (quoting 48 C.F.R. § 52.236–7)).) It reads:

The Contractor shall, without additional expense to the Government, be responsible

for obtaining any necessary licenses and permits, and for complying with any

Federal, State, and municipal laws, codes, and regulations applicable to the

performance of the work. The Contractor shall also be responsible for all damages

to persons or property that occur as a result of the Contractor’s fault or negligence.

The Contractor shall also be responsible for all materials delivered and work

performed until completion and acceptance of the entire work, except for any

completed unit of work which may have been accepted under the contract.

48 C.F.R. § 52.236–7; see also Doc. 117-3 at 170 (quoting 48 C.F.R. § 52.236–7).

The subcontract between BAJV and APTIM contained several FAR “flow down”

provisions, including the Permits and Responsibilities Clause. (Doc. 117-1 at 2, ¶ 5 (citing Doc.

117-7 at 198).) The subcontract between APTIM and Timberline (“the Timberline Subcontract”)

provided that, absent any state laws governing the Prime Contract, the subcontract was to be

“governed by and interpreted pursuant to the rules and laws of the state in which the Prime Contract

work [was] performed” (i.e., Florida). (Id. at 2–3, ¶ 8 (citing Doc. 117-8 at 23).) The Prime

Contract provided only that “United States breach of contract law shall apply.” (Id. at 3, ¶ 9 (citing

Doc. 117-3 at 167).) The parties therefore agree that Florida law governs the Timberline

Subcontract. (See Doc. 117-2 at 4 & n.1 (citing Doc. 28 at 9); see generally Docs. 117-2, 133

(analyzing and applying Florida law).)

B. Procedural Background

APTIM terminated the Timberline Subcontract on June 25, 2023. (Id. at 3, ¶ 10.)

Timberline filed suit against APTIM in the Middle District of Florida on August 11, 2023. (Id. at

3, ¶ 12.) Then, on August 15, 2024, the Middle District of Florida transferred the case to this Court

due to a forum-selection clause in the Timberline Subcontract. (Id. at 3, ¶ 13.) Shortly thereafter,

APTIM filed a Counterclaim against Timberline, alleging fraud and breach of contract, both state

law claims. (Id. at 3, ¶¶ 14–15.)

On May 16, 2025, APTIM responded to Timberline’s Requests for Admission,

acknowledging that APTIM was not a licensed contractor under Florida law. (Id. at 4, ¶ 18 (citing

Doc. 117-9); see also id. at 4, ¶¶ 20–21 (citing Docs. 117-9, 117-10).) A search of the Florida

Department of Business & Professional Regulation’s website confirmed this admission. (Id. at 4,

¶ 19 (citing Doc. 117-10).) Thus, on May 22, 2025, Timberline moved to amend its Answer to

APTIM’s Counterclaim to include the affirmative defense that, because APTIM was not licensed

under Florida law, its claims are barred pursuant to Florida Statutes § 489.128. (Doc. 106 at 1–2;

see also Doc. 106-2 at 10–11 (citing Fla. Stat. § 489.128).)2 On August 29, 2025, Timberline filed

this MSJ, raising the same argument and seeking dismissal of APTIM’s Counterclaim as well as

several of its affirmative defenses to Timberline’s Complaint. (Doc. 117 at 3.)

II. SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “The movant bears the initial burden and must identify ‘those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

2 The Magistrate Judge denied Timberline’s motion on December 23, 2025, but that decision did not dispose of the

instant motion. (See Doc. 147 at 4–11 (denying leave to amend under Federal Rule of Civil Procedure 16).)

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’”

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted)).

“A movant for summary judgment need not set forth evidence when the nonmovant bears

the burden of persuasion at trial.” Wease v. Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 997 (5th

Cir. 2019) (citing Celotex, 477 U.S. at 323 (“[W]e find no express or implied requirement in Rule

56 that the moving party support its motion with affidavits or other similar materials negating the

opponent’s claim.” (emphasis in original))). “The moving party may meet its burden to

demonstrate the absence of a genuine issue of material fact by pointing out that the record contains

no support for the non-moving party’s claim.” Id. (quoting Stahl v. Novartis Pharm. Corp., 283

F.3d 254, 263 (5th Cir. 2002)).

If the movant bears its burden of showing that there is no genuine issue of material fact,

“its opponent must do more than simply show that there is some metaphysical doubt as to the

material facts. . . . [T]he nonmoving party must come forward with ‘specific facts showing that

there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586–87 (1986) (internal citations omitted) (quoting Fed. R. Civ. P. 56(e)). The nonmovant’s

burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or by only a

scintilla of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per

curiam) (cleaned up).

Ultimately, “where the record taken as a whole could not lead a rational trier of fact to find

for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475

U.S. at 587 (cleaned up). Further:

In resolving the motion, the court may not undertake to evaluate the credibility of

the witnesses, weigh the evidence, or resolve factual disputes; so long as the

evidence in the record is such that a reasonable jury drawing all inferences in favor

of the nonmoving party could arrive at a verdict in that party’s favor, the court must

deny the motion.

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (citations omitted).

III. PARTIES’ ARGUMENTS

A. Timberline’s MSJ (Doc. 117)

Timberline first notes that any entity operating as a contractor in Florida must be so

licensed under Florida law. (Doc. 117-2 at 7 (citing Fla. Stat. § 489.113(2)).) Per Florida Statutes

§ 489.128(1), “contracts entered into on or after October 1, 1990, by an unlicensed contractor shall

be unenforceable in law or in equity by the unlicensed contractor.” (Id. (quoting Fla. Stat.

§ 489.128(1)); see also id. (citing Earth Trades, Inc. v. T & G Corp., 108 So. 3d 580, 586 (Fla.

2013); Southpoint Shore Mgmt. LLC v. Homexpo Miami Corp., 415 So. 3d 744, 747 (Fla. 3d DCA

2025)).) An entity qualifies as unlicensed if, at the time of contracting, it “d[id] not have the license

required for the scope of work being performed under the contract.” (Id. (citing Fla. Stat.

§ 489.128(1)(a), (c)).) According to Timberline, APTIM was (and remains) unlicensed in Florida.

(Id. (citing Docs. 117-9, 117-10).)

Timberline draws a parallel to Earth Trades, Inc. v. T & G Corp., where the Florida

Supreme Court held that “a subcontractor could not maintain a breach of contract claim against

the general contractor because the subcontractor was unlicensed.” (Id. at 7–8 (citing Earth Trades,

108 So. 3d at 586).) Timberline notes that, although the penalty of unenforceability “may be harsh,

it is the one chosen by the Florida legislature to protect the interests of the citizens of the state as

a matter of public policy.” (Id. at 8; see also id. (citing 6 Bruner & O’Connor on Construction

Law § 16:24 (2024)) (explaining that unenforceability is a common penalty).) Thus, Timberline

argues, APTIM cannot rely on the Timberline Subcontract for its Counterclaim or for its

affirmative defenses to Timberline’s Complaint. (Id. (citing, inter alia, Fla. Stat. § 489.128(1)).)

Second, Timberline observes that Florida Statutes § 489.103(8) exempts from Florida’s

licensing requirement “[a]ny construction, alteration, improvement, or repair carried on within the

limits of any site the title to which is in the United States or with respect to which federal law

supersedes th[e] [state law].” (Id. at 9 (quoting Fla. Stat. § 489.103(8)).) But Timberline denies

that such exemptions apply here, because (1) the Project was located on privately-owned land, (id.

(citing Doc. 117-5)), and (2) “federal law does not supersede Florida’s contractor licensing law

under these particular facts,” (id.).

Timberline focuses on the second argument. It acknowledges the Supremacy Clause but

points to the presumption against preemption. (Id. at 9–10 (citing, inter alia, Gade v. Nat’l Solid

Wastes Mgmt. Ass’n, 505 U.S. 88, 111 (1992) (Kennedy, J., concurring in part)).) Given the

presumption, courts must “examine the explicit statutory language and the structure and purpose

of the [federal] statute.” (Id. at 10 (quoting Gade, 505 U.S. at 96).) According to Timberline, “the

purpose of the FAR is to promote efficiency, integrity, and sound business practices in federal

acquisitions.” (Id. (citing 48 C.F.R. §§ 1.101–102).) It is also to “deliver on a timely basis the best

value product or service to the customer, while maintaining the public’s trust and fulfilling public

policy objectives.” (Id. at 10–11 (emphasis omitted) (quoting 48 C.F.R. § 1.102).) Lastly,

Timberline notes that the FAR’s Permits and Responsibilities Clause provides that contractors

“shall, without additional expense to the Government, be responsible for obtaining any necessary

licenses and permits, and for complying with any Federal, State, and municipal laws.” (Id. at 11

(quoting 48 C.F.R. § 52.236–7).)

Given the above—especially the Permits and Responsibilities Clause—Timberline

contends that the FAR does not preempt Florida’s licensing law. (Id.) On the contrary, the two are

in harmony, to such a degree that “a finding of preemption would actually frustrate Congress’s

purpose.” (Id.; see id. at 11–12 (citing Earth Trades, 108 So. 3d at 586) (explaining the impetus

for Florida Statutes § 489.128); see also id. at 13 (citing, inter alia, 48 C.F.R. §§ 9.103(c), 15.101–

1).) Timberline asserts that FAR Sections 9.103 and 9.104–1 do not apply to subcontractors like

APTIM. (Id. at 12.) Instead, under FAR Section 9.104–4, the prime contractor, not the federal

government, “is responsible for determining the responsibility of its prospective subcontractors.”

(Id. at 12–13 (citing 48 C.F.R. § 9.104–4).) Timberline adds that, here, provisions concerning the

determination of responsibility “are irrelevant,” because the dispute is between private parties (i.e.,

subcontractor and sub-subcontractor) and involves state law. (Id. at 13.)

Next, Timberline denies that Leslie Miller, Inc. v. Arkansas “establish[es] a categorical

prohibition on state licensing requirements for federal contractors, much less subcontractors.” (Id.

at 14 (citing Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956)).) In any event, Timberline says,

Leslie Miller and its progeny are distinguishable in that such cases involved determinations of

contractors’ responsibility. (Id.) Specifically, in Leslie Miller, the Supreme Court found that,

because Arkansas’s licensing law was similar to the Armed Services Procurement Regulations’

“responsibility” criteria, there was a risk that enforcement of the state law “would give the State’s

licensing board a virtual power of review over the federal determination of ‘responsibility’ and

would thus frustrate the expressed federal policy of selecting the lowest responsible bidder.” (Id.

at 14–15 (quoting Leslie Miller, 352 U.S. at 190).) Leslie Miller (1) “contained no discussion of

the application of licensing laws to subcontractors” and (2) merely preempted a state law

“prohibit[ing] unlicensed contractors from bidding on construction projects.” (Id. at 15.)

Essentially, Timberline argues that Gartrell Construction Inc. v. Aubry—a Ninth Circuit

decision relying heavily on Leslie Miller—is bad law. (Id. at 15 (citing Gartrell Constr. Inc. v.

Aubry, 940 F.2d 437, 438–39 (9th Cir. 1991)) (“In its opinion, the Ninth Circuit abdicated its

responsibility to perform an actual conflict preemption analysis . . . . [It] incorrectly treated Leslie

Miller as if it had created a categorical rule that state contractor’s licensing laws are always

preempted by federal procurement laws.”); see also id. at 15 n.3 (asserting that federal policy

changed post-Leslie Miller and that “the Gartrell court erred in its comparison of the federal and

state laws by failing to use the current federal policy as the basis for its analysis”).) But regardless

of whether Gartrell was rightly decided, Timberline contends that it is inapplicable because it

concerned the federal government’s determination of a contractor’s responsibility, whereas the

instant case involves private parties. (Id. at 15–16.)

Timberline also contends that Gartrell’s analysis of the Permits and Responsibilities

Clause was “severely flawed” in that it (1) read too much into Leslie Miller and (2) rendered the

clause superfluous. (Id. at 16 (citing Gartrell, 940 F.2d at 439).)3 According to Timberline, “[a]

better interpretation . . . is that the [federal] agency’s pre-award responsibility determination and

the contractor’s post-award responsibilities under state law are separate matters.” (Id. at 16–17

(quoting David S. Rubenstein, State Regulation of Federal Contractors: Three Puzzles of

Procurement Preemption, 11 U.C. Irvine L. Rev. 207, 248 (2020)).) Timberline adds that, in North

Dakota v. United States, the Supreme Court held that “federal contractors can be subject to state

3 Timberline also indicated that it could not locate the version of the Permits and Responsibilities Clause referenced

in Gartrell. (Doc. 117-2 at 16 n.4); see Gartrell, 940 F.2d at 440 (explaining that the Permits and Responsibilities

Clause was more or less identical at the time when Leslie Miller was decided). This Court has located the 1951 version

of the clause and has confirmed that the Gartrell court recited it correctly. See 32 C.F.R. § 596.531–1 (1951) (“11.

Permits and responsibility for work. The contractor shall, without additional expense to the Government, obtain all

required licenses and permits . . . .”).

regulations, even if the regulations increase the price charged to the federal government.” (Id. at

17 (citing North Dakota v. United States, 495 U.S. 423, 439–44 (1990)).)

Timberline seeks to distinguish additional cases. Specifically, it argues that United States

ex rel. DLM Development Group, Inc. v. RUSH/Consutec Joint Venture is inapposite because that

case involved “construction work . . . performed on [a] military base[]” (i.e., federally-owned

land). (Id. at 18 (citing United States ex rel. DLM Dev. Grp., Inc. v. RUSH/Consutec Joint Venture,

No. 5-22457, 2006 WL 8433268, at *1 (S.D. Fla. Apr. 26, 2006)); see also id. at 19 (citing Airport

Constr. & Materials, Inc. v. Bivens, 649 S.W.2d 830, 832 (Ark. 1983)) (implying that ownership

of the land may be salient). If anything, Timberline says, DLM supports its position here, because

the court considered the preemption argument only in the context of the subcontractor’s Miller Act

claim, not its state law claims. (Id. at 19–20 (citing DLM, 2006 WL 8433268, at *2–4).) Separately,

Timberline argues that Johnson v. Maryland “is clearly distinguishable because it involve[d] the

licensing of a federal employee, which APTIM is not.” (Id. at 20 (citing Johnson v. Maryland, 254

U.S. 51, 57 (1920)).) Finally, United States v. 9.345 Acres of Land, More or Less, Situated in

Iberville Parish “is completely irrelevant” because it is a Daubert case. (Id. (citing United States

v. 9.345 Acres of Land, More or Less, Situated in Iberville Parish, No. 11-803, 2018 WL

11421289, at *3 (M.D. La. Mar. 29, 2018) (deGravelles, J.)).)

B. APTIM’s Opposition (Doc. 133)

APTIM urges the Court to deny Timberline’s MSJ, in part because Timberline seeks to

assert an affirmative defense that it did not raise in its original Complaint or in any of its three

Amended Complaints. (Doc. 133 at 3 (citing Docs. 1, 3, 18, 63).) APTIM explains that failure to

raise an affirmative defense in a responsive pleading “forfeits the defense,” unless the party “raises

the issue at a pragmatically sufficient time,” and the other party “is not prejudiced in its ability to

respond.” (Id. at 4 (quoting NewCSI, Inc. v. Staffing 360 Sols., Inc., 865 F.3d 251, 259 (5th Cir.

2017)).) “The prejudice inquiry focuses on whether the plaintiff had sufficient notice to prepare

for and contest the defense.” (Id. (internal quotation marks omitted) (quoting NewCSI, 865 F.3d at

259).) APTIM avers that it “will be severely prejudiced if the Court permits the late assertion of

this affirmative defense” through Timberline’s MSJ. (Id.) Specifically, it suggests that, had it

known of this affirmative defense sooner, it “would have sought leave to assert” tort claims against

Timberline, that its expert reports “would have addressed the proper measure of damages” under

such claims, that its deposition questioning “would have looked markedly different,” and that

third-party discovery “could have occurred.” (Id.)

APTIM contends, however, that the Court should deny Timberline’s MSJ even if it reaches

the merits. (Id. at 5.) According to APTIM, federal laws commonly preempt state licensing laws.

(Id. at 6 (citing, inter alia, Sperry v. Fla. ex rel. Fla. Bar, 373 U.S. 369 (1963)).) In Leslie Miller,

the Supreme Court expressed general concern about frustrating federal policy by “giv[ing] [a]

State’s licensing board a virtual power of review over the federal determination of

‘responsibility.’” (Id. at 7 (emphasis omitted) (quoting Leslie Miller, 352 U.S. at 190).) And in

Gartrell, the Ninth Circuit read Leslie Miller broadly in holding that “when a license becomes

‘required’ is of no consequence to the preemption analysis.” (Id. at 8 (citing Gartrell, 940 F.2d at

439).) Gartrell also considered the import of the Permits and Responsibilities Clause and

nevertheless concluded that “state licensing laws cannot be ‘applicable,’ nor compliance with them

‘necessary,’ where [they] are preempted by federal law.” (Id. at 9 (quoting Gartrell, 940 F.2d at

440).) Lastly, APTIM claims that this Court applied Leslie Miller and its progeny in 9.345 Acres

of Land, (id. at 9–10 (citing 9.345 Acres of Land, 2018 WL 11421289, at *3–4)), and that this

District’s local rules admit different licensing requirements for attorneys appearing on behalf of

the federal government, (id. at 10 (citing M.D. La. Civ. R. 83(b))).

APTIM notes that the USACE owned the Project and that, “[a]t all relevant times, the

federal government and its laws governed the Project.” (Id. at 11 (citing, inter alia, Doc. 117-6 at

14).) Thus, APTIM says, application of Florida’s licensing law “would upset federal legislative

choices,” raising the issue of conflict preemption. (Id.) Such preemption “extend[s] to

subcontractors as well.” (Id. at 11–12 (citing DLM, 2006 WL 8433268, at *3; Bivens, 649 S.W.2d

at 831–32; Elec. Constr. Co. v. Flickinger, 485 P.2d 547, 548 (Ariz.), cert. denied, 404 U.S. 952

(1971)).) In Electric Construction Co. v. Flickinger, for example, the Arizona Supreme Court

“expressly held” that the relevant state licensing law “ha[d] no application to subcontractors

engaged in the performance of duties for the benefit of the United States.” (Id. at 12–13 (quoting

Flickinger, 485 P.2d at 549).) APTIM also observes that Florida’s licensing law “recognizes that

there are situations where ‘a state license is not required.’” (Id. at 13 (quoting Fla. Stat.

§ 489.128(1)(a)); see also id. (citing Poole & Kent Co. v. Gusi Erickson Constr. Co., 759 So. 2d

2, 6 (Fla. 2d DCA 1999)) (opining on the purpose of Florida’s law).) It asserts that “[t]his is clearly

one of those situations.” (Id.)

Next, APTIM argues that the Permits and Responsibilities Clause does not contemplate

state licenses given Leslie Miller’s holding that “a state contractor’s license was not ‘necessary.’”

(Id. (referencing Gartrell, 940 F.2d at 440).) Indeed, Timberline has cited no authority to the

contrary, nor can it point to any case which casts doubt upon Gartrell’s analysis of the clause. (Id.

at 14.) Instead, Timberline has cited a lone law review article. (Id. (citing Doc. 117-2 at 12).) Thus,

APTIM declares, “[t]here is no jurisprudential basis to reject Gartrell, and Timberline’s attempt

to distinguish the case should be disregarded by this Court.” (Id.)

In addition, APTIM contends that North Dakota is inapposite because it dealt with states’

“authority to regulate the importation of alcoholic beverages,” which is governed by the Twenty-

First Amendment. (Id. (citing North Dakota, 495 U.S. at 431); see also id. at 14–15 (citing, inter

alia, CoreCivic, Inc. v. Governor of N.J., 145 F.4th 315, 325 (3d Cir. 2025)) (“[E]ven after North

Dakota, state regulations on contractors are constitutionally invalid under the intergovernmental-

immunity doctrine if they substantially interfere with the federal government’s activities.” (cleaned

up)).) According to APTIM, state licensing laws such as Florida’s are a category apart. (Id. at 15.)

Lastly, APTIM argues that the ownership of the land (i.e., private versus federal) is

irrelevant, because the federal government leased the land and “clearly had an interest” in the

Project, and because APTIM and Timberline were both contracted to work on the Project (i.e., for

the federal government). (Id.; see also id. at 15–16 (citing, inter alia, DLM, 2006 WL 8433268, at

*3).) APTIM notes that, in other contexts, courts have rejected the distinction between ownership

and lease. (Id. at 16–17 (citing U.S. Postal Serv. v. City of Hollywood, 974 F. Supp. 1459, 1460

(S.D. Fla. 1997)).) In United States Postal Service v. City of Hollywood, for example, the court

“refused to apply state building codes to [a] federal project” on privately-owned land in light of

Johnson and Leslie Miller. (Id. (citing Hollywood, 974 F. Supp. at 1464).)

C. Timberline’s Reply (Doc. 138)

Timberline complains that APTIM has not undertaken preemption analysis, but rather has

“hid[den] behind inapplicable and non-binding cases.” (Doc. 138 at 1.) According to Timberline,

the instant case is different from others because: (1) The federal government did not determine

APTIM’s responsibility. (Id. at 1–2.) (2) “There is no state actor attempting to stop or even inhibit

the Project, which was completed[.]” (Id. at 2.) (3) The case involves state law claims by one

private party against another. (Id. at 2–3.) The federal government therefore has no interest in the

dispute. (Id. at 3.) And (4) the Project was located on privately-owned land. (Id. at 2, 4.) Timberline

contends that Leslie Miller “applied an entirely different law than the one at issue before the Court”

and that Gartrell “failed to acknowledge” the change in law and the concomitant “shift in federal

contracting policy.” (Id. at 2 (citing Leslie Miller, 352 U.S. 187; Gartrell, 940 F.2d at 439).)

According to Timberline, the purpose of the FAR is to attain the “best overall value.” (Id. (citing

48 C.F.R. §§ 1.102(a), 9.104–1); see also id. at 2–3.)

Relatedly, Timberline denies that any of the additional cases cited by APTIM “move the

needle.” (Id. at 3.) It asserts that Flickinger is inapposite because the dispute here “is between two

private parties, addressing the enforceability of a contract after completion of the Project on private

land.” (Id. at 3–4.) Likewise, Timberline contests the applicability of DLM and Bivens, accusing

APTIM of “cherry[-]pick[ing] irrelevant dicta” from cases “where the work at issue was performed

on federally owned land.” (Id. at 4 (emphasis omitted) (citing DLM, 2006 WL 8433268; Bivens,

649 S.W.2d 830).) Hollywood, too, is distinguishable, because it concerned a “local government’s

attempt to enforce its [building] code, inhibiting progress of the construction project.” (Id. (citing

Hollywood, 974 F. Supp. at 1463–65).)4 By contrast, North Dakota remains relevant because “a

4 Timberline adds that Hollywood “supports Timberline’s position because two of APTIM’s primary complaints are

that Timberline’s work failed to comply with Lee County requirements and that Lee County’s inspector failed

Timberline’s work.” (Doc. 138 at 4 (citing Doc. 118-2 at 11–14).) This argument can plausibly mean several different

things. To the extent that Timberline means to suggest that, by the logic of Hollywood, APTIM should not be able to

reference Lee County requirements in its Motion for Partial Summary Judgment (Doc. 118), Timberline should have

raised this argument in its Opposition to that motion. Alternatively, if Timberline truly means to argue that Hollywood

supports its position, then this lone sentence—without any citation to Hollywood itself—is inadequate. Still another

possibility is that Timberline means to say that APTIM’s references to the Lee County requirements belie its claim

that federal law preempts state law here. (See also Doc. 114 at 2–3; Doc. 145 at 1.) But as APTIM explained in its

Sur-Reply, the USACE expressly required conformity with “the latest revisions of the Lee County Utilities Manual.”

(Doc. 145 at 2 (citing Doc. 118-5 at 131 n.1).) In other words, APTIM’s Motion for Partial Summary Judgment

references “requirements incorporated by the federal government into . . . contract documents.” (Id. (emphasis

added).) There is no indication that the USACE similarly required that APTIM be licensed as a contractor in Florida.

(Id. at 2–3.) Thus, the Court agrees with APTIM that “[i]t is easy to harmonize” its Motion for Partial Summary

Judgment with its Opposition here. (Id. at 2.) Because APTIM’s Sur-Reply is wholly devoted to this argument, the

Court has not summarized it above.

reading of the case shows that” the Twenty-First Amendment “did not influence the Court’s

opinion.” (Id. at 3 n.1.)

Lastly, Timberline argues that, as the counterclaimant, APTIM “bears the burden of

proving the existence of a ‘valid, enforceable contract.’” (Id. at 5 (quoting Fayad v. Univ. of Miami,

395 So. 3d 203, 205 (Fla. 3d DCA 2024)).) Thus, Timberline says, it can bring this motion

regardless of the Court’s decision whether to grant leave to amend the Complaint to assert an

additional affirmative defense. (See id.) Alternatively, the Court can raise the issue of the

Timberline Subcontract’s enforceability sua sponte. (Id. (citing Rotemi Realty, Inc. v. Act Realty

Co., 911 So. 2d 1181, 1185 n.1 (Fla. 2005)).) Even if unenforceability is an affirmative defense,

Timberline avers that it has not waived the argument. (Id. at 5–6 (citing, inter alia, Walton v. City

of Verona, 82 F.4th 314, 324 (5th Cir. 2023)).)

IV. DISCUSSION

A. Whether Timberline Can Now Raise Unenforceability

1. Applicable Law

“In responding to a pleading, a party must affirmatively state any . . . affirmative defense

. . . .” Fed. R. Civ. P. 8(c)(1); see also Taylor v. Sturgell, 553 U.S. 880, 907 (2008) (citations

omitted) (“Ordinarily, it is incumbent on the defendant to plead and [to] prove such a defense.”).

“In a diversity case, substantive state law determines” what qualifies. LSREF2, Baron, L.L.C. v.

Tauch, 751 F.3d 394, 398 (5th Cir. 2014); see also 5 Wright & Miller’s Federal Practice &

Procedure § 1271 (4th ed. 2025). “Failure to timely plead an affirmative defense may result in

waiver and the exclusion of the defense from the case.” LSREF2, 751 F.3d at 398 (emphasis added)

(citing Morris v. Homco Int’l, Inc., 853 F.2d 337, 342–43 (5th Cir. 1988)).

Despite the above requirements, “there is ‘play in the joints.’” Crown Castle Fiber, L.L.C.

v. City of Pasadena, 76 F.4th 425, 439 (5th Cir. 2023) (quoting Rogers v. McDorman, 521 F.3d

381, 385 (5th Cir. 2008)). That is, “technical failure to comply precisely with Rule 8(c) is not

fatal.” Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855–56 (5th Cir. 1983) (per curiam) (citing

Jones v. Miles, 656 F.2d 103, 107 n.7 (5th Cir. 1981)). If the defendant raises the affirmative

defense “at a pragmatically sufficient time,” and the plaintiff “is not prejudiced in its ability to

respond,” then the court need not find waiver. Germain v. US Bank Nat’l Ass’n as Tr. for Morgan

Stanley Mortg. Loan, 920 F.3d 269, 274 (5th Cir. 2019) (quoting NewCSI, 865 F.3d at 259); accord

Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 610 (5th Cir. 2007) (citing

Lucas v. United States, 807 F.2d 414, 418 (5th Cir. 1986)); 5 Wright & Miller’s Federal Practice

& Procedure § 1278 (4th ed. 2025) (“[T]he substance of many unpleaded Rule 8(c) affirmative

defenses may be asserted by pretrial motions, particularly in the absence of any showing of

prejudice to the opposing party and assuming it has had an opportunity to respond.”). Such

flexibility “is consistent with the Supreme Court’s interpretation of the purpose of Rule 8(c), which

is to give the opposing party notice of the affirmative defense and a chance to argue why it should

not apply.” Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577–78 (5th Cir. 2009) (citing

Blonder-Tongue Laboratories, Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971)); see also

Morris, 853 F.2d at 342 (“The purpose of Rule 8(c) . . . is to inform the court and the parties how

the case will be tried.”).

Whether to allow a party to raise an affirmative defense despite non-compliance with Rule

8(c) is within the district court’s discretion. See Levy Gardens Partners 2007, L.P. v.

Commonwealth Land Title Ins. Co., 706 F.3d 622, 633 (5th Cir. 2013). This decision entails a

“fact-specific inquiry based on the circumstances of the case.” LSREF2, 751 F.3d at 402 (citations

omitted). The court’s “central concerns” are “[u]nfair surprise and prejudice” to the other party.

Id. (citing Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987)). Notably, courts have

“repeatedly rejected waiver arguments” when a party has raised an affirmative defense “for the

first time at summary judgment—or even later.” Walton, 82 F.4th at 324 (citing Motion Med.

Techs., L.L.C. v. Thermotek, Inc., 875 F.3d 765, 772 (5th Cir. 2017)); see, e.g., Pasco, 566 F.3d at

578 (allowing defendant to raise affirmative defense of qualified immunity at summary judgment);

Lafreniere Park Found. v. Broussard, 221 F.3d 804, 808 (5th Cir. 2000) (allowing defendants to

raise affirmative defense at summary judgment, in part because plaintiff had multiple opportunities

to brief the issue); Allied Chem., 695 F.2d at 855–56 (“There was no surprise here. Although not

pled, the [affirmative] defense was included in the . . . pretrial order.”); Grant v. Preferred Rsch.,

Inc., 885 F.2d 795, 797–98 (11th Cir. 1989) (“[I]f a plaintiff receives notice of an affirmative

defense by some means other than pleadings, ‘the defendant’s failure to comply with Rule 8(c)

does not cause the plaintiff any prejudice.’” (quoting Hassan v. U.S. Postal Serv., 842 F.2d 260,

263 (11th Cir. 1988))).

2. Analysis

Preliminarily, the Court considers whether Timberline can argue for the first time at

summary judgment that APTIM was unlicensed and therefore cannot enforce the Timberline

Subcontract. The Court need not scrutinize whether Timberline’s argument is, in fact, an

affirmative defense.5 (Compare Doc. 133 at 3–4, with Doc. 138 at 5–7.) Even assuming that it is,

5 But see Marinich v. Special Edition Custom Homes, LLC, 1 So. 3d 1197, 1198 (Fla. 2d DCA 2009) (noting that the

plaintiffs raised Florida Statutes § 489.128 as an affirmative defense to the counterclaim); SG 2901, LLC v.

Complimenti, Inc., 323 So. 3d 804, 805 (Fla. 3d DCA 2021) (“SG asserted as an affirmative defense that Complimenti

was not a licensed contractor and [was] therefore barred by statute from enforcing the parties’ contract.”); Incident365

Fla., LLC v. Ocean Pointe V Condo. Ass’n, Inc., 404 So. 3d 475, 476–77 (Fla. 3d DCA 2024) (“[The defendants]

raised numerous affirmative defenses, including unlicensed contracting under [Florida Statutes § 489.128].”); Earth

Trades, Inc. v. T & G Corp., 42 So. 3d 929, 930 (Fla. 5th DCA 2010) (“[The defendant] contends that the trial court

erred in granting a partial summary judgment, precluding [the defendant] from raising as an affirmative defense that

waiver would be too extreme a penalty given the circumstances. See Arismendez, 493 F.3d at 611

(“We need not determine whether the relevant statutory caps constitute affirmative defenses under

Texas law. Assuming arguendo that the statutory caps are affirmative defenses, [the plaintiff] has

not shown that [the defendant] waived the defense.”).

Timberline raised this argument in its Motion for Leave to File Amended Answer and

Affirmative Defenses to Counterclaim (Doc. 106), filed more than nine months before trial. (See

Doc. 105 at 2 (scheduling trial for March 2, 2026).) The argument also forms the exclusive basis

for the instant MSJ (Doc. 117), filed more than six months before trial. (See Doc. 105 at 2.) APTIM

has been given—and has taken—the opportunity to oppose both motions. (See Docs. 109, 133);

see also Walton, 82 F.4th at 324 (“[T]here is no evidence that [the plaintiffs] were prejudiced.

[They] had the opportunity to respond to the issue, and the district court even found that their [tort]

claims should survive summary judgment. Waiver did not occur here.” (internal citation omitted)).

Thus, Timberline has raised the argument “at a pragmatically sufficient time,” and APTIM has not

been “prejudiced in its ability to respond.” See Germain, 920 F.3d at 274. Timberline’s purported

“technical failure to comply precisely with Rule 8(c) is not fatal.” See Allied Chem., 695 F.2d at

855–56 (citing Jones, 656 F.2d at 107 n.7).

B. Whether Florida’s Licensing Requirement Applies

1. Applicable Law

a. Florida’s Licensing Law

“[I]n the interest of the public health, safety, and welfare,” the Florida Legislature has

enacted laws “regulat[ing] the construction industry.” Fla. Stat. § 489.101. Under the current

the contract was unenforceable . . . .”); Ramindesign, LLC v. Skarzynski, No. 23-24838, 2024 WL 3312053, at *4

(S.D. Fla. May 20, 2024) (“[Defendant] Jacek does not dispute that Plaintiff has established the elements of a breach

of contract claim. Jacek instead moves for dismissal on an affirmative defense . . . that Plaintiff is an unlicensed

contractor barred from enforcing the agreement under Florida Statute[s] § 489.128(1).”).

statutory scheme, a “contractor” is “the person who is qualified for, and is only responsible for,

the project contracted,” and “who, for compensation, undertakes to, submits a bid to, or does

himself or herself or by others construct, repair, alter, remodel, add to, demolish, subtract from, or

improve any building or structure . . . for others or for resale to others.” Id. § 489.105(3).

Additionally, in order to qualify as a “contractor,” the scope of a person’s job must be

“substantially similar to the job scope described in one of the paragraphs of [Florida Statutes

§ 489.105].” Id.; see also Full Circle Dairy, LLC v. McKinney, 467 F. Supp. 2d 1343, 1345–46

(M.D. Fla. 2006) (describing a similar two-pronged test for determining whether a person is a

“contractor”). Any person who meets the definition of “contractor” must be “certified or registered

in order to engage in the business of contracting in [Florida].” Fla. Stat. § 489.113(2); see also

Deep S. Sys., Inc. v. Heath, 843 So. 2d 378, 379 n.1 (Fla. 2d DCA 2003) (citing Fla. Stat.

§§ 489.111, 489.113, 489.117) (distinguishing between “certification licensure” and “registration

licensure”). A business entity is unlicensed if it “does not have a primary or secondary qualifying

agent in accordance with this part concerning the scope of the work to be performed under the

contract.” Fla. Stat. § 489.128(1)(a).

“As a matter of public policy, contracts entered into on or after October 1, 1990, by an

unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.” Id.

§ 489.128(1). In other words, the unlicensed contractor “has no rights or remedies for the

enforcement of the contract.” Earth Trades, 108 So. 3d at 586. Likewise, it “cannot assert

contractual defenses.” Southpoint, 415 So. 3d at 747 (citing John Hancock-Gannon Joint Venture

II v. McNully, 800 So. 2d 294, 297 (Fla. 3d DCA 2001)). But see Brock v. Garner Window & Door

Sales, Inc., 187 So. 3d 294, 296 (Fla. 5th DCA 2016) (explaining that neither Florida Statutes

§ 489.128 nor Earth Trades “precludes . . . asserting statutory defenses” (emphasis added)). These

“draconian effects of the statute” are intended “to prod contractors into obtaining the required

licensing.” Earth Trades, 108 So. 3d at 586.

There are, however, a number of exceptions to Florida’s licensing requirement. See Fla.

Stat. § 489.103. Most relevantly, the requirement “does not apply to: . . . [a]ny construction,

alteration, improvement, or repair carried on within the limits of any site the title to which is in the

United States or with respect to which federal law supersedes this part.” Id. § 489.103(8)

(emphasis added).

b. Preemption of State Licensing Laws

The Supremacy Clause provides that the U.S. Constitution “and the Laws of the United

States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” U.S.

Const. art. VI, cl. 2. Accordingly, “‘the law of the State, though enacted in the exercise of powers

not controverted, must yield’ when incompatible with federal legislation.” Sperry, 373 U.S. at 384

(quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L. Ed. 23 (1824)). “Federal law preempts

not only state laws that expressly prohibit the very act [which] the federal law allows, but those

that ‘stand as an obstacle to the accomplishment of the full purposes and objectives’ of federal

law.” Surrick v. Killion, 449 F.3d 520, 532 (3d Cir. 2006) (quoting Silkwood v. Kerr-McGee Corp.,

464 U.S. 238, 248 (1984)); accord Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 377 (2015). In other

words, for purposes of preemption, it may be “sufficient that the state law ‘impose[s] . . . additional

conditions’ not contemplated by Congress.” Surrick, 449 F.3d at 532 (quoting Sperry, 373 U.S. at

385); accord Hollywood, 974 F. Supp. at 1465 (citing Perez v. Campbell, 402 U.S. 637 (1971);

Hines v. Davidowitz, 312 U.S. 52 (1941)) (“Examination of the [state] regulation is limited to

determining whether the impact on the [federal] government’s activity is incidental or intrusive.”).

Federal regulations have preemptive force. Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458

U.S. 141, 153–54 (1982); accord Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1265–66 (11th Cir.

2004) (citing Fidelity, 458 U.S. at 153–54).

In Leslie Miller, the Supreme Court held that Arkansas’s licensing law did not apply to a

contractor performing work on behalf of the federal government. Leslie Miller, 352 U.S. at 188,

190. There, the Armed Services Procurement Regulations established certain criteria for

determining a contractor’s responsibility. Id. at 189. Arkansas’s licensing law set forth “similar

factors . . . to guide the [state’s] Contractors Licensing Board” in making its own determinations

about which contractors were worthy of licensure. Id. According to the Court, this overlap was

“sufficient to indicate conflict” between the federal regulations and Arkansas’s law. Id. at 189–90.

The Court cautioned: “Subjecting a federal contractor to the Arkansas contractor license

requirements would give the State’s licensing board a virtual power of review over the federal

determination of ‘responsibility’ and would thus frustrate the expressed federal policy of selecting

the lowest responsible bidder.” Id. at 190 (emphasis added); see also id. (quoting at length Johnson,

254 U.S. at 57); see also Johnson, 254 U.S. at 57 (“Such a requirement . . . lays hold of

[Government servants] in their specific attempt to obey orders and requires qualifications in

addition to those that the Government has pronounced sufficient.”).

Subsequently, in Gartrell, a general contractor did not obtain a California license because

it “believed that, as a contractor performing work exclusively for the federal government, it was

exempt.” Gartrell, 940 F.2d at 438. Observing that “[t]he factors [which] California considers

before granting a California contractor’s license are similar to those [which] the federal

government considers in determining responsibility,” the Ninth Circuit expressed concern that

“California, through its licensing requirements, [wa]s effectively attempting to review the federal

government’s responsibility determination.” Id. at 439. Crucially, Gartrell rejected California’s

argument that Leslie Miller was distinct because the state licensing law at issue there “plac[ed] a

condition precedent on [contractors’] right to bid [on federal contracts], whereas the California

statute” applied post-award. Id. The Ninth Circuit explained:

We do not read Leslie Miller so narrowly. The concern in Leslie Miller was that a

state was asserting a right or power of review over the federal government’s

determination of “responsibility.” The [Supreme] Court did not focus on the

distinction between bidding and performance but on the state’s interference with

the federal government’s responsibility determination. That interference occurs

when, as here, the state requires a contractor with the federal government to comply

with its licensing laws even if that requirement is not enforced until after

performance has begun.

Id. at 440; see also Leslie Miller, 352 U.S. at 188 (noting that the contractor had already

commenced work on behalf of the federal government when Arkansas sought to enforce its

licensing requirement).

As Gartrell demonstrates, Leslie Miller’s logic sweeps broadly: “A State may not enforce

licensing requirements which, though valid in the absence of federal regulation, give ‘the State’s

licensing board a virtual power of review over the federal determination’ that a person or agency

is qualified and entitled to perform certain functions, or which impose upon the performance of

activity sanctioned by federal license additional conditions not contemplated by Congress.”

Sperry, 373 U.S. at 385 (quoting Leslie Miller, 352 U.S. at 190). Consequently, courts “have

consistently held that any state law that impedes the federal government’s ability to contract—

including state licensing regimes that effectively second guess United States’ contracting

decisions—are preempted.” Student Loan Servicing All. v. Dist. of Columbia, 351 F. Supp. 3d 26,

62 (D.D.C. 2018) (citing United States v. Virginia, 139 F.3d 984, 987–89 (4th Cir. 1998); Gartrell,

940 F.2d at 439–41).6

6 See also Pub. Utils. Comm’n of State of Cal. v. United States, 355 U.S. 534, 543–44 (1958) (“Here, . . . the State

places a prohibition on the Federal Government. . . . [T]he conflict between the federal policy of negotiated rates and

Courts have also held—explicitly and implicitly—that Leslie Miller’s logic extends to

subcontractors. See, e.g., Flickinger, 485 P.2d at 548 (“[W]here the federal government does not

make a direct [responsibility] determination, can the principle of [Leslie Miller] extend to a

subcontractor to relieve [it] from complying with the state [licensing] law? We think so.”). In

Flickinger, for example, the Arizona Supreme Court considered the relevant federal regulation, 32

C.F.R. § 1.906(b) (1970),7 explaining that it “recognize[d] that subcontractors are first the

responsibility of the prime contractor, but in the end are but another arm of and, hence, the

the state policy of regulation of negotiated rates seems to us to be clear.”); Gartrell, 940 F.2d at 438 (citing Leslie

Miller, 352 U.S. 187) (“The [Leslie Miller] Court held that a state licensing requirement is invalid as applied against

a contractor with the federal government because it results in interference with federal government functions and is in

conflict with federal procurement legislation . . . .”); Virginia, 139 F.3d at 988 (“[T]he [Leslie Miller] Court held that

the federal and state regulatory schemes ‘conflict[ed]’ because the state could, in effect, declare ‘irresponsible’ a

contractor whom the federal government had declared ‘responsible.’” (quoting Leslie Miller, 352 U.S. at 190)); Penn.

Higher Educ. Assistance Agency v. Perez, 457 F. Supp. 3d 112, 123–25 (D. Conn. 2020) (citing, inter alia, Leslie

Miller, 352 U.S. at 190; Sperry, 373 U.S. at 385) (“Connecticut’s licensing scheme for student loan servicers . . .

overlaps with—and potentially interferes with—Education’s selection process for its own contractors.”); DLM, 2006

WL 8433268, at *3 (following Bivens and explaining that the case “is but one of several cases that have followed

Leslie Miller, and found state licensing laws preempted by applicable federal law where the contractor is doing

construction work for the United States”); Peter Kiewit Sons’ Co. v. State Bd. of Equalization, 505 P.2d 102, 109–10

(Mont. 1973) (citing Leslie Miller, 352 U.S. 187) (holding, consistent with a broad reading of Leslie Miller, that “the

provisions of the [Montana] Act which pertain to qualifications or competence of public contractors [are] not

applicable to federal contractors”); Flickinger, 485 P.2d at 549 (“We hold [that] Arizona’s contractor’s licensing act

has no application to subcontractors engaged in the performance of duties for the benefit of the United States.”); Metro

Tristate, Inc. v. Pub. Serv. Comm’n of W. Va., 859 S.E.2d 438, 450 (W. Va. 2021) (“The conflict preemption principle

guiding our decision is . . . that when a federal agency determines that a contractor meets some federal contract or

procurement qualification set by Congress, a state agency may not exercise its authority and impose additional state-

law qualifications that stand as an obstacle to that federal agency determination and, more specifically, to the

qualifications set by Congress.”); cf. Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 762 (9th Cir. 2025) (citing, inter alia,

Leslie Miller, 352 U.S. at 188; Gartrell, 940 F.2d at 438–39) (“Those impermissible licensing and permitting regimes

involved direct control by the state over federal government operations.”).

7 Notably, 32 C.F.R. § 1.906(b) (1970) is similar to 48 C.F.R. § 9.104–4, which Timberline has cited as relevant here.

(See Doc. 117-2 at 12–13.) The former reads:

Notwithstanding the general responsibility of a prospective contractor to demonstrate the responsibility of

his prospective subcontractors, it may be in the Government’s best interest to make a direct determination of

the responsibility of one or more prospective subcontractors prior to award of the prime contract. . . . The

determination of responsibility of a proposed subcontractor by the Government shall be based on the same

factors as are applicable in a determination of responsibility of a prospective prime contractor.

32 C.F.R. § 1.906(b) (1970) (emphasis added). Likewise, 48 C.F.R. § 9.104–4 provides:

Determinations of prospective subcontractor responsibility may affect the Government’s determination of

the prospective prime contractor’s responsibility. A prospective contractor may be required to provide written

evidence of a proposed subcontractor’s responsibility. . . . When it is in the Government’s interest to do so,

the contracting officer may directly determine a prospective subcontractor’s responsibility . . . . In this case,

the same standards used to determine a prime contractor’s responsibility shall be used by the Government

to determine subcontractor responsibility.

48 C.F.R. § 9.104–4 (emphasis added).

responsibility of the federal government.” Flickinger, 485 P.2d at 549; see also id. (“The burden

which may be imposed could in some instances frustrate the express federal policy. It is not the

fact that there may not be a conflict concerning subcontractors’ responsibility; it is the fact that

there may be.”); cf. Urbatec v. Yuma Cnty., 614 F.2d 1216, 1219 n.4 (9th Cir. 1980) (“Unlike the

contractor in Flickinger, Urbatec is not a subcontractor of the federal government, but a contractor

of the State of Arizona. Applying the state licensing statute in this case could not frustrate any

federal interest . . . .”). Likewise, in Bivens, the Arkansas Supreme Court held that the state

licensing law did not apply to the plaintiff-subcontractor, explaining: “Amplification of [Leslie

Miller’s] policy makes it clear that were even the subcontractor subject to state regulations, the

federal policy would be frustrated.” Bivens, 649 S.W.2d at 831–32; see also Gartrell, 940 F.2d at

440 n.3 (citing Flickinger, 485 P.2d 547, and Bivens, 649 S.W.2d 830, with approval).

Although the above cases are not binding here, the Court subscribes to their logic. Under

the relevant FAR provision, the federal government generally tasks the prime contractor with

determining the responsibility of subcontractors, but it also retains the power to make such

determinations itself. See 48 C.F.R. § 9.104–4. Further, a prime contractor’s determination of a

subcontractor’s responsibility may, in turn, influence the federal government’s determination of

the prime contractor’s responsibility. Id. Ultimately, then, the selection of subcontractors is the

prerogative of the federal government. And functionally, subcontractors are “another arm of . . .

the federal government.” See Flickinger, 485 P.2d at 549. Plus, if subcontractors are performing

work on a federal project, then it follows that Leslie Miller’s holding extends to them. See Bivens,

649 S.W.2d at 831–32. Otherwise, the state would remain empowered to frustrate federal

interest(s) by enforcing its licensing law against subcontractors. Cf. Urbatec, 614 F.2d at 1219 n.4;

see also Technica LLC ex rel. U.S. v. Carolina Cas. Ins. Co., 749 F.3d 1149, 1154 (9th Cir. 2014)

(explaining, albeit in the context of a Miller Act claim, that “[f]ederal subcontractors routinely bid

on projects throughout the country and often perform contracts that span multiple states”).

2. Analysis

This brings the Court to the ultimate issue: whether APTIM was subject to Florida’s

licensing requirement. At the outset, the Court notes the context in which the dispute between

Timberline and APTIM arose. Following Hurricane Ian—and pursuant to the Robert T. Stafford

Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121 et seq.—FEMA leased land from

a private owner, Habitat, in order to build temporary housing for displaced individuals. (See Doc.

117-1 at 1, ¶¶ 1–2; Doc. 133 at 11.) At all relevant times, the USACE was responsible for the

Project. (See, e.g., Doc. 117-6 at 14.) The USACE hired BAJV as general contractor. (Doc. 117-1

at 1, ¶ 1.) BAJV hired APTIM, which hired Timberline. (Id. at 2, ¶¶ 4, 7.) APTIM and Timberline

were, in other words, subcontractors working on a federal project. The Timberline Subcontract

provided for Timberline’s work on the Project. (See Doc. 117-8.)

FAR Sections 1.101 and 1.102 state the purpose of the Federal Acquisition Regulations

System: “The Federal Acquisition Regulations System is established for the codification and

publication of uniform policies and procedures for acquisition by all executive agencies.” 48

C.F.R. § 1.101. “The vision for the Federal Acquisition System is to deliver on a timely basis the

best value product or service to the customer, while maintaining the public’s trust and fulfilling

public policy objectives.” Id. § 1.102(a). With these interests in mind, the federal government

determines the responsibility of prospective contractors and, in some cases, subcontractors.8 See

id. §§ 9.104–1, 9.104–4.

8 48 C.F.R. § 9.104–1 provides: “To be determined responsible, a prospective contractor must—

(a) Have adequate financial resources to perform the contract, or the ability to obtain them (see 9.104–3(a));

Given the origin and nature of the Project, the purpose of the Federal Acquisition

Regulations System, and the persuasive logic of Leslie Miller and its progeny, the Court now

concludes that APTIM was not, in the context of this federal Project, (see, e.g., Doc. 117-6 at 14),

subject to Florida’s licensing law. The Court notes as well that Florida’s scheme appears to

contemplate precisely this result: Florida Statutes § 489.103(8) exempts “[a]ny construction,

alteration, improvement, or repair carried on within the limits of any site the title to which is in the

United States or with respect to which federal law supersedes this part.” Fla. Stat. § 489.103(8)

(emphasis added). In making this determination, the Court has carefully considered Timberline’s

many arguments against preemption. The Court discusses each in turn below.

First, Timberline contends that federal policy has shifted since Leslie Miller. (Doc. 117-2

at 15 n.3.) That is, price is no longer the “paramount consideration in federal procurement.” (Id.)

“Rather, agencies are instructed to evaluate both cost and non-cost factors . . . and to make trade-

offs that yield the best overall value.” (Id. (emphasis omitted).) Worth noting, this argument

misstates federal policy at the time when Leslie Miller was decided. See Leslie Miller, 352 U.S. at

188–90; see also Virginia, 139 F.3d at 989 n.6 (explaining that the “responsibility” determination

is not simply a matter of “select[ing] the most ‘competitive’ bid”). The policy then was to select

the “lowest responsible bidder,” which entailed consideration of a number of non-cost factors,

(b) Be able to comply with the required or proposed delivery or performance schedule, taking into

consideration all existing commercial and governmental business commitments;

(c) Have a satisfactory performance record (see 9.104–3(b) and subpart 42.15). A prospective contractor

shall not be determined responsible or nonresponsible solely on the basis of a lack of relevant

performance history, except as provided in 9.104–2;

(d) Have a satisfactory record of integrity and business ethics (for example, see subpart 42.15);

(e) Have the necessary organization, experience, accounting and operational controls, and technical skills,

or the ability to obtain them (including, as appropriate, such elements as production control procedures,

property control systems, quality assurance measures, and safety programs applicable to materials to be

produced or services to be performed by the prospective contractor and subcontractors) (see 9.104–3(a));

(f) Have the necessary production, construction, and technical equipment and facilities, or the ability to

obtain them (see 9.104–3(a)); and

(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations (see also

inverted domestic corporation prohibition at 9.108).”

enumerated in Leslie Miller itself. Leslie Miller, 352 U.S. at 188–90 (emphasis added). Indeed,

most of the factors contained in 48 C.F.R. § 9.104–1—which Timberline cites in support of its

assertion that federal policy has changed, (see Doc. 117-2 at 15 n.3)—are essentially the same as

the “responsibility” factors recited by the Leslie Miller Court, see Leslie Miller, 352 U.S. at 189.

But even if Timberline were correct that federal interests shifted post-Leslie Miller, such

that they are now more closely aligned with the interests advanced by Florida’s licensing law, the

Court would still find that the FAR preempts Florida’s licensing law here. Seemingly, Timberline

has conflated “contradiction” with “conflict,” arguing that, because Florida’s licensing law does

not contradict the FAR, there is no conflict. (See Doc. 117-2 at 2 (“[B]oth [the federal regulations

and Florida’s licensing law] share the goal of ensuring [that] contractors are capable and qualified

to perform the relevant scope of work.”); see also id. at 11–13 (arguing that Florida’s licensing

law advances federal interests, such that it is “in harmony” with the relevant federal regulations).)

But harmonization of Florida’s law with the FAR plainly raises the issue of an implied conflict. In

Leslie Miller, the source of the Court’s concern was that Arkansas’s law required the state’s

Contractors Licensing Board to consider factors similar to the federal “responsibility” criteria. See

Leslie Miller, 352 U.S. at 189–90. The Court explicitly warned: “Mere enumeration of the similar

grounds for licensing under the state statute and for finding ‘responsibility’ under the federal

statute and regulations is sufficient to indicate conflict . . . .” Id. If anything, then, Timberline’s

“harmony” argument weakens its position.

Second, Timberline argues that the inclusion of the Permits and Responsibilities Clause in

the BAJV-APTIM subcontract required APTIM to comply with Florida’s licensing law.9 (Doc.

9 At one point in its brief, Timberline also points to 48 C.F.R. § 9.104–1(g) for its requirement that a prospective

contractor “[b]e otherwise qualified and eligible to receive an award under applicable laws and regulations.” (Doc.

117-2 at 12 (quoting 48 C.F.R. § 9.104–1(g)).) The Court understands Timberline to be making a similar argument to

117-2 at 11, 16.) Notably, in Gartrell, the Ninth Circuit considered and rejected essentially the

same argument. See Gartrell, 940 F.2d at 440. The court observed that a more or less identical

clause existed when the Supreme Court decided Leslie Miller. Id.; see 32 C.F.R. § 596.531–1

(1951). It therefore determined that, pursuant to the clause, federal contractors are “required to

obtain any necessary licenses and [to] comply with any applicable state laws, codes and

regulations.” Id. (emphasis in original). But “[f]ollowing Leslie Miller, state licensing laws cannot

be ‘applicable’, nor compliance with them ‘necessary’, where such laws are preempted by federal

law.” Id. (emphasis added).

Timberline asserts that Gartrell was “severely flawed” in that it read too much into Leslie

Miller and rendered the Permits and Responsibilities Clause superfluous. (Doc. 117-2 at 16 (citing

Gartrell, 940 F.2d at 439–40).) As the Court has noted above, Gartrell is not alone in its broad

reading of Leslie Miller. In fact, Timberline has not identified a single case which contradicts

Gartrell or which proposes a narrower interpretation of Leslie Miller. (See Docs. 117-2, 138.) In

addition, the Court disagrees with Timberline that Gartrell renders the Permits and

Responsibilities Clause superfluous. (See Doc. 117-2 at 11, 16 (citing Gartrell, 940 F.2d at 439–

40).) The clause does not single out licensing laws like Florida’s. See 48 C.F.R. § 52.236–7. Nor

does it require contractors “to comply with all state laws.”10 (See Doc. 117-2 at 2 (emphasis

the above (i.e., that state licensing is textually required). But seemingly, Timberline has taken FAR Section 9.104–

1(g) out of context. This requirement cross-references FAR Section 9.108, which, with few exceptions, prohibits

“contracts with either an inverted domestic corporation, or a subsidiary of such a corporation.” 48 C.F.R. § 9.108–

2(a). Timberline gives the Court no reason to conclude that FAR Section 9.104–1(g) contemplates state licensing laws

like Florida’s. Indeed, if this sub-section did require compliance with such laws, then Leslie Miller and its progeny

would necessarily be wrongly decided. See, e.g., Leslie Miller, 352 U.S. at 188–89 (reciting the requirements for a

determination of responsibility under the Armed Services Procurement Regulations, including that a contractor “[be]

otherwise qualified and eligible to receive an award under applicable laws and regulations”).

10 The Court also notes that it is questionable whether the Permits and Responsibilities Clause mandates compliance

with all applicable “Federal, State, and municipal laws, codes, and regulations.” See 48 C.F.R. § 52.236–7. In Geren

v. Tecom, Inc., the Federal Circuit explained that the clause provides only that contractors are “‘responsible for

obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes,

and regulations applicable to the performance of the work’ so that [their] failure to perform is not excused if impeded

added).) Rather, it accounts for “any necessary licenses and permits” and “any Federal, State, and

municipal laws, codes, and regulations applicable to the performance of the work.” See 48 C.F.R.

§ 52.236–7 (emphasis added); see also Gartrell, 940 F.2d at 439–40 (reaching the same

conclusion). This language is more specific than Timberline’s argument suggests or allows.

Timberline contends that, given its reading of the Permits and Responsibilities Clause, “[a]

better interpretation” of Leslie Miller “is that the [federal] agency’s pre-award responsibility

determination and the contractor’s post-award responsibilities under state law are separate

matters.” (Doc. 117-2 at 16–17 (quoting Rubenstein, State Regulation of Federal Contractors,

supra, at 248).) The Court does not see how, as a practical matter, this line-drawing can be squared

with Leslie Miller’s concern that “[s]ubjecting a federal contractor to [a state’s] license

requirements would give the State’s licensing board a virtual power of review over the federal

determination of ‘responsibility’ and would thus frustrate the expressed federal policy.” Leslie

Miller, 352 U.S. at 190.

Assume temporarily that Timberline is correct: The USACE was not required to consider

Florida’s licensing law when awarding the Prime Contract to BAJV. But post-award, BAJV and

all subcontractors were required to obtain Florida licenses in order to operate as contractors in the

state. In this scenario, Florida would still have virtual review over the USACE’s determination,

because it would still be able to enforce its licensing law. Indeed, Florida’s power of review would

be more disruptive here, because the USACE would already have awarded the contract and would

be awaiting performance of urgent work (on an abbreviated schedule, no less). In so many words,

the Ninth Circuit reached the same conclusion in Gartrell:

by [their] failure to comply with legal obligations.” Geren v. Tecom, Inc., 566 F.3d 1037, 1045 (Fed. Cir. 2009)

(second emphasis added) (quoting 48 C.F.R. § 52.236–7); see also id. (“The Permits and Responsibilities Clause does

not broadly make failure to comply with the law a violation of the contract.”).

The [Leslie Miller] Court did not focus on the distinction between bidding and

performance but on the state’s interference with the federal government’s

responsibility determination. That interference occurs when, as here, the state

requires a contractor with the federal government to comply with its licensing laws

even if that requirement is not enforced until after performance has begun.

Gartrell, 940 F.2d at 440; see also Student Loan Servicing All., 351 F. Supp. 3d at 63 (“Here, there

is a risk that the federal government will contract with a servicer after evaluating its qualifications

under federal law and regulations, and that servicer will nevertheless be determined unqualified

by the Commissioner [of the D.C. Department of Insurance] and barred from operating in the

District of Columbia . . . .”).

The Court also disagrees that North Dakota endorses Timberline’s interpretation.11 (See

Doc. 117-2 at 17 (citing North Dakota, 495 U.S. at 427–29, 439–44); Doc. 138 at 3 n.1.) In a case

similar to this one—United States v. Virginia—the Fourth Circuit considered, at length, the

significance of North Dakota, ultimately making two observations: (1) In North Dakota, “both the

plurality and the dissenters cited Leslie Miller approvingly and reaffirmed its holding.” Virginia,

139 F.3d at 989 n.7 (citing North Dakota, 495 U.S. at 435 n.7, 440, 451–53). And (2) “[w]hile the

North Dakota regulations may have effectively altered the attractiveness of the bids placed by

different suppliers through forced price increases, the regulations did not attempt to alter the

criteria under which the federal government made its decision.” Id. “Nor did those regulations

11 Timberline insists that the Twenty-First Amendment did not influence the plurality’s decision in North Dakota. (See

Doc. 138 at 3 n.1.) This is simply incorrect. See North Dakota, 495 U.S. at 432 (“The two North Dakota regulations

fall within the core of the State’s power under the Twenty-first Amendment. . . . Given the special protection afforded

to state liquor control policies by the Twenty-first Amendment, they are supported by a strong presumption of validity

and should not be set aside lightly.”); see also id. at 439–40 (“[W]hen the Court is asked to set aside a regulation at

the core of the State’s powers under the Twenty-first Amendment, as when it is asked to recognize an implied

exemption from state taxation, it must proceed with particular care. Congress has not here spoken with sufficient

clarity to pre-empt North Dakota’s attempt to protect its liquor distribution system.” (internal citations omitted));

Lebamoff Ents., Inc. v. Huskey, 666 F.3d 455, 458 (7th Cir. 2012) (“[W]hereas ordinarily a federal law preempts a

conflicting state law, if the state law regulates alcoholic beverages the court must balance the federal and state interests;

for just as the federal interests derive constitutional protection from the supremacy clause, the state interests derive

constitutional protection from the Twenty-First Amendment, unlike the usual case in which federal preemption is

asserted. And if the state interests are within the core powers that the Twenty-First Amendment confers on the states,

there is a thumb on the scale—that is the ‘strong presumption’ or validity.”).

prevent the federal government from selecting the bid it believed was most competitive or

otherwise enable the state to second-guess the federal government’s judgment . . . .” Id. Unlike

North Dakota’s regulations, application of Florida’s licensing law would plainly, necessarily vest

the state with the power to review the federal government’s decision.

Third, Timberline seeks to distinguish—for one reason or another—all relevant cases. (See

Doc. 117-2 at 18–20; Doc. 138 at 1–4.) By and large, the Court is not persuaded by this effort. It

makes two general observations: (1) For the most part, Timberline does not explain why the

distinctions which it draws are important. (See Docs. 117-2, 138.) And (2) Timberline does not

cite a single case in support of drawing any distinction(s). (See Docs. 117-2, 138.)

As explained above, Leslie Miller’s logic extends to subcontractors, see, e.g., Flickinger,

485 P.2d at 549; Bivens, 649 S.W.2d at 831–32, so it is irrelevant that “[t]he federal government

made no responsibility determination regarding APTIM,” (see Doc. 138 at 2); see also Flickinger,

485 P.2d at 549 (“The burden which may be imposed could in some instances frustrate the express

federal policy. It is not the fact that there may not be a conflict concerning subcontractors’

responsibility; it is the fact that there may be.”). Likewise, the Court does not see the salience of

the fact that the dispute here is between private parties. See, e.g., Bivens, 649 S.W.2d at 831

(rejecting the argument that “while [Leslie Miller] involved a contractor in a direct relationship

with the federal government, the contract [at issue in Bivens] [wa]s a private matter”); DLM, 2006

WL 8433268, at *3 (following Bivens by applying Leslie Miller’s holding to a sub-subcontractor’s

federal claims against a subcontractor and a contractor); see also id. (citing Hollywood, 974 F.

Supp. at 1462–65; Gartrell, 940 F.2d at 439–41; Flickinger, 485 P.2d at 548–49).

Timberline also does not adequately explain the relevance of its observation that, here,

FEMA leased the land on which the Project took place. (See Doc. 117-2 at 9, 18–19; Doc. 138 at

2, 4.) In Hollywood, the defendant-city explicitly argued that the United States Postal Service’s

contractor needed a building permit to perform work on the postal facility because the Postal

Service leased, as opposed to owned, the facility. Hollywood, 974 F. Supp. at 1460. Citing Johnson

and Leslie Miller, the district court observed that “[t]he [c]ity’s [permitting] process directly

intrude[d] upon the Postal Service’s ability to construct the postal project at issue.” Id. at 1462–63

(citing Johnson, 254 U.S. at 57; Leslie Miller, 352 U.S. 187). The court acknowledged that the

city’s “public safety concern . . . [wa]s, of course, substantial.” Id. at 1463. But “there [wa]s no

showing that the federal government [wa]s not equally committed to public safety.” Id. The court

also rejected the argument that there was a meaningful difference between federal ownership and

lease. See id. (“Acceptance of the [c]ity’s position would mean that in the case of leased facilities,

the Postal Service’s ability to obtain uniformity and efficiency in construction would be

impeded.”). Its explanation addresses some of the distinctions which Timberline now draws:

[T]he City argues [that] it is merely requiring a private contractor that is doing work

on privately owned property to obtain a building permit and abide by the building

code. The City contends that the legal incidence of its regulation falls upon the

contractor, not the Federal Government or its instrumentalities, and thus

enforcement of the requirements is not prohibited by the supremacy clause.

However, this argument is not tenable in light of Johnson v. State of Maryland . . .

(postal employee) or [Leslie] Miller v. Arkansas . . . (contractor) where in both

cases the entity actually subject to a local regulation was not the government itself

but its employee or contractor.

Id. at 1464 (citing Gartrell, 940 F.2d at 437); see also Gartrell, 940 F.2d at 438 (focusing on

whether the project was federal); DLM, 2006 WL 8433268, at *3 (same).

Finally, Timberline posits that, because APTIM brings only state law claims after

completion of all work, federal law does not, under the circumstances, preempt Florida’s licensing

law.12 Once again, the Court disagrees. The nature and timing of the claims seem, to the Court,

irrelevant here. If the Court were to agree with Timberline on these bases, it would necessarily

find that Florida’s licensing law is applicable to subcontractors working on a federal project,

thereby empowering Florida to second-guess the federal government’s responsibility

determination.13 (See Doc. 117-2 at 16–17; Doc. 138 at 4–5); Leslie Miller, 352 U.S. at 190.

Florida Statutes § 489.103 carves out exceptions to Florida’s licensing law. Thus, the Court

must also look to these exceptions when deciding whether Timberline’s argument has merit. In

particular, the Court focuses on Florida Statutes § 489.103(8), which exempts “[a]ny construction,

alteration, improvement, or repair carried on within the limits of any site the title to which is in the

United States or with respect to which federal law supersedes this part.” Fla. Stat. § 489.103(8)

(emphasis added). Necessarily, this provision requires the Court to consider whether federal law

superseded Florida’s licensing requirement as applied to the Project. For the reasons above, the

Court determines that it did. Accordingly, Florida’s licensing requirement did not apply to APTIM

in the context of the Project. Nor, then, can the licensing requirement apply to APTIM’s state law

claims arising out of the Project or, more specifically, out of its dealings with Timberline. See Fla.

12 Relatedly, Timberline contends that, because the USACE did not determine APTIM’s responsibility, cases like

Leslie Miller and Gartrell are inapposite. (See Doc. 117-2 at 15, 18.) This argument misses the point of Leslie Miller

and Gartrell—and ignores the thrust of all other relevant cases. The issue is not whether, in the instant case, the state

sought to interfere with the federal government’s responsibility determination. Rather, the issue is that the rule which

Timberline wishes to enshrine enables the state to so interfere. See, e.g., Flickinger, 485 P.2d at 549 (“The burden

which may be imposed could in some instances frustrate the express federal policy. It is not the fact that there may

not be a conflict concerning subcontractors’ responsibility; it is the fact that there may be.”). As explained above,

Timberline’s interpretation, (see Doc. 117-2 at 16–17; Doc. 138 at 4–5), necessarily gives the state a “virtual power

of review over the federal determination of ‘responsibility,’” see Leslie Miller, 352 U.S. at 190.

13 To the extent that Timberline means to argue that “unenforceability” can only be raised in a case such as this (i.e.,

where one private party sues another after the completion of all work), (see Doc. 138 at 2–3), the Court notes that

Florida’s licensing law is intended to protect the public from shoddy work, see Fla. Stat. § 489.101. Given this purpose,

it simply would not make sense if the state could not enforce the law against subcontractors working on federal projects

before or during performance, but the subcontractors themselves could invoke the unenforceability provision in

personal disputes post-performance. Cf. Poole & Kent Co., 759 So. 2d at 6 (“We have considerable doubt that the

legislature intended this statute to be used . . . to avoid payment by the general contractor for work actually performed

by a subcontractor on a public works project.”).

Stat. § 489.103(8); see also Order (Doc. 63) at 1–2, 8, John T. Callahan & Sons, Inc. v. Associated

Constr., Inc., No. 6:03-CV-00637-GAP-KRS (M.D. Fla. May 14, 2004) (“The Army Corps of

Engineers, a United States entity, owns the Project and hence no license is required for Callahan.”).

V. CONCLUSION

Accordingly,

IT IS ORDERED that Timberline’s Motion for Summary Judgment (Doc. 117) is

DENIED.

Signed in Baton Rouge, Louisiana, on February 4, 2026.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA