Opposition Brief — Capeletti Bros. v. Broward County

6) 0 i 15 az er 6 ag

N Gee QO-~b5. 55 MAY 28 1991

QFFICE OF THE CLckK

In The

Supreme Court of the United States

October Term, 1990

*

CAPELETTI BROTHERS, INC.,

WEEKLEY ASPHALT PAVING,

INC., WESTWIND CONTRACTING,

INC., and HARDRIVES COMPANY,

Petitioners,

vs.

BROWARD COUNTY, and L.A. HESTER,

the Administrator of Broward County,

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court Of

Appeals For The Eleventh Circuit

r

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

JOHN J. CopELaN, JR., EsQ. ARTHUR J. ENGLAND, Jr., Eso.*

Broward County Attorney Henry Latimer, Esq.

Government Center CHARLES M. AuSLANDER, Esq.

Suite 423 FINE JACOBSON SCHWARTZ NASH

115 South Andrews Biock & ENGLAND

Avenue One CenTrust Financial

Fort Lauderdale, Center

Florida 33301 100 S.E. Second Street

Miami, Florida 33131

(305) 577-4000

Counsel for Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED (RESTATED)

Whether a non-minority construction contractor has

standing to challenge a county disadvantaged business

enterprise ordinance in the absence of an allegation that a

specific contract bid has been rejected for noncompliance

with the law.

il

TABLE OF CONTENTS

Page

Question Presented (Restated) ............-++++++5: i

i ee ere. ree ee ee iii

Statement of the Case ...........cccceceeseeneseus: 1

Summary of Argument ............-2eeee eee eee ee 3

Argument ....... 6... cece eee eee eee e eee eenaees 4

1. Petitioners lack standing to sue.............. a

2. The Court of Appeals decision does not conflict

with other court of appeals decisions ........ 11

Catia oe cd es yan 0 ee ee 14

ili

TABLE OF AUTHORITIES

Page

CASES

Alten v. Wright, 466 U.S. 737 (1964) .................. 5

Board of Regents v. Roth, 408 U.S. 564 (1977).......... 7

City of Richmond v. J.A. Croson Co., 488 U.S. 469,

ER eee 6, 8, 10, 12

Cone Corp. v. Florida Dep't of Transportation, 921

par weer Ghee Suet, BORE)... ........55. a 6, 71, Iz, 14

Constructors Ass'n of Western Pennsylvania v. Kreps,

ee ee. Se ewe, FO. 1977).................. 13

Contractors Ass'n of Eastern Pennsylvania, Inc. v.

Philadelphia, 735 F. Supp. 1274 (E.D. Pa. 1990)..... 12

Cunningham v. Adams, 808 F.2d 815 (11th Cir. 1987) ..... 7

Diamond v. Charles, 476 U.S. 54 (1986)................ 6

Economic Development Corp. of Dade County, Inc. v.

Stierheim, 782 F.2d 952 (11th Cir. 1986)............. 7

Metro Broadcasting, Inc. v. Federal Communications

Commission, U.S. __, 110 S. Ct. 2997 (1990) ..7, 10

Michigan Road Builders Ass‘n, Inc. v. Milliken, 834

“so 13

Milwaukee County Pavers Ass‘n v. Fiedler, 922 F.2d

yaks ann n ence wei aneancenss 13

Milwaukee County Pavers Ass'n v. Fiedler, 707 F.

ee ) 13

Milwaukee County Pavers Ass'n v. Fiedler, 710 F.

SS |) 13

iv

TABLE OF AUTHORITIES —- Continued

Page

Rhode Island Chapter, Associated General Contractors

of America, Inc. v. Kreps, 450 F. Supp. 338 (D. R. I.

SOEs 0665 5s 0e6s nb b05 006 54055664465006450 005604 13

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) ............. 9

Warth v. Seldin, 422 U.S. 490 (1975) .......... 6. eee ee. 9

Whitmore v. Arkansas, __ U.S. __, 110 S. Ct. 1717

Tere rT Teeter ere ere 4, 6

OTHER AUTHORITIES

Article III Section 2, Constitution of the United

I aa CERES KOO RUA aan esdea ss e508 Fas 2, 4, 6

County ordinance, Section 20-275(1)................-. 1

County ordinance, Section 20-275(2)(a)-(c) ............ 1

County ordinance, Section 20-275(2)(c)(2)............. 1

County ordinance, Section 20-276(1).................. 1

in oe siete Pe ee

STATEMENT OF THE CASE

The statement of the case provided by petitioners

omits highly relevant factual information regarding the

precise nature of the county ordinance challenged. The

Disadvantaged Business Enterprise (“DBE”) Ordinance

assailed is a law directed to increasing the participation

of small, disadvantaged business enterprises in county-

administered procurement projects. The ordinance does

not employ a mandatory quota system, or bind specific

contracts to a set-aside pool.

Rather, it is a policy statement favoring affirmative

action when necessary to attain broadly stated annual

goals for the participation of disadvantaged minority

contractors. See, County ordinance, § 20-275(1) and the

opinion of the district court at petitioners’ App. 3. The

ordinance specifically cautions that its goals are

“benchmarks for achievement, not mandates for complete

attainment.” § 20-276(1); Pet. App. 4. A waiver of the

participation goal may be obtained on any contract

opened for bidding by the county. The ordinance pos-

sesses Only a rebuttable presumption that a minority con-

tractor is disadvantaged. § 20-275(2)(a)-(c). If the

presumption is challenged, then the disadvantaged con-

tractor and the county must establish the particularized

existence of social and economic disadvantage before the

ordinance is applied. § 20-275(2)(c)(2).

Given the nature of this law - a non-quota, non-set-

aside, waiver endowed affirmative action policy — it is

understandable that the district court would conclude

that it had been requested “to set itself up as a constitu-

tional board of inquiry [to] issue an advisory opinion on

the constitutionality of the county’s program. ...” In the

absence of allegation that petitioners had ever lost a

contract due to the DBE ordinance, the district court

found their challenge to lack Article III § 2 standing or

ripeness.

Two other factual statements in the petition require

comment. Reference is made to “sworn testimony of the

principals of two of the plaintiffs” regarding effects of

this kind of ordinance on non-minority companies,

including an alleged loss of a specific contract by one of

the petitioners. (Petition at 6, n. 1). That testimony was

not addressed to the DBE ordinance. It was commentary

regarding the alleged effects of a different ordinance,

with different characteristics, which had been adopted by

a different county in Florida. (Petition at 14). Petitioners’

request to the district court to take judicial notice of this

testimony was never ruled on.

This record contains an unrebutted affidavit of a

county contracting official, based on a review of county

records, which was filed in connection with the county’s

motion to dismiss. That affidavit indicated that bids sub-

mitted by petitioners (1) were not accepted because more

competitive bids had been submitted by other prime con-

tractors who had complied with applicable DBE goals, (2)

were in fact accepted as lowest responsive bid, or (3) in

one instance were rejected as the lowest bid solely for

lack of a required competency certification which had

nothing to do with the DBE ordinance.

Lastly, petitioners certainly enlarge upon the record

when they argue that they must comply with the DBE

ordinance to their detriment “in order to remain in busi-

ness.” (Petition at 8). Perhaps petitioners may be granted

some room to wax emotionally in their advocacy, but the

fact is they supplied no proof which would even remotely

suggest that their ability to compete and survive in the

construction business in Broward County was impaired

by the existing DBE ordinance. Indeed, the contrary

implication can readily be drawn from the county’s affi-

davit, demonstrating that at least one of the petitioners

had obtained a construction contract in compliance with

the ordinance.

The district court dismissed the suit with prejudice,

based on petitioners’ acknowledgment that they could

not amend their claims tc assert a contract they lost by

virtue of the DBE ordinance. The court of appeals

affirmed summarily on the basis of Cone Corp. v. Florida

Dep't of Transportation, 921 F.2d 1190 (11th Cir. 1991).

¢

SUMMARY OF ARGUMENT

The petitioners do not have standing to challenge the

DBE ordinance in the absence of pleading or proof that

they have been denied a specific contract because of the

law, or sought and obtained a waiver from application of

the law. The mere fact that petitioners are contractors in

Broward County, or that the DBE ordinance may increase

their cost of doing business, does not change this result.

The law applies uniformly to all bidders for public

contracts. There is no entitlement to a public contract and

assuredly no constitutionally-secured protection to a par-

ticular profit from a public contract. Petitioners’ sugges-

tion that compliance with the ordinance will impair their

reputations or cause the demise of their businesses is an

insubstantial and hypothetical concern.

The Eleventh Circuit decision in this case is consis-

tent with decisions of the other courts of appeal. There is

no reason for the Court to accept this case for plenary

review on the basis of conflict.

S

ARGUMENT

1. Petitioners lack standing to sue.

The petitioners’ argument on standing reads like a

smorgasbord of case law fragments, diffusing the require-

ments of standing into nine questionable categories. (Peti-

tion at 10-18). This approach is a mask, designed to

obscure their lack of the “injury-in-fact” which the law

has always required. The Article III case or controversy

requirement is traditionally viewed as a three-pronged

test requiring (1) a clear demonstration of distinctive

injury-in-fact, (2) causation, and (3) redressability. Whit-

more v. Arkansas, _ U.S. __, 110 S.Ct. 1717, 1723 (1990).

Each element must be separately shown, and courts are

powerless to create jurisdiction by embeliishing on defi-

cient allegations of standing (id.) regardless of remonstra-

tions that the consequence “is unduly restrictive, is

unrealistic,” or not in accord with what “most lawyers

would feel, would constitute a ‘case or controversy.’ ”

(Petition at 6, 10). The three elements were not shown

here.

Se CEE

At its core, the petitioners’ argument consists of the

view that compliance with the DBE ordinance harms

them, for standing purposes, in two ways: (1) it increases

costs so as to reduce their expected profits; and (2) it has

an intangible effect on their reputation and quality of job

performance, which in the long run will reduce the

growth rate of their businesses. On these twin bases, they

request a declaration of unconstitutionality and an

injunction against continued use of the DBE ordinance.

Nowhere in the record is there any suggestion that the

ordinance has ever operated to deprive any of the peti-

tioners of a single contract.

Petitioners’ grounding for their suit, that the DBE

ordinance exists and they do business in the county, has

never been adequate to supply standing. First, the exis-

tence of government discrimination (assuming the ordi-

nance does that) is not in and of itself a basis for relief.

That is,

an asserted right to have the Government act in

accordance with law is not sufficient, standing

alone, to confer jurisdiction on a federal court.

‘[A]ssertion of a right to a particular kind of

Government conduct, which the Government

has violated by acting differently, cannot alone

satisfy the requirements of Art. III without

draining those requirements of meaning.’ (Cita-

tions omitted).

Respondents . . . have no standing to complain

simply that their Government is violating the

law.

Allen v. Wright, 468 U.S. 737, 755-756 (1984).

Second, the petitioners have realistically raised no

more than their status as interested public contractors to

challenge allegedly unconstitutional governmental con-

duct. A status-based claim has never sufficed to secure

Article III standing. Diamond v. Charles, 476 U.S. 54, 66-68

(1986). Their mere presence as contractors ready and

willing to perform public construction contracts does not

satisfactorily allege injury “concrete in both a qualitative

and temporal sense.” Whitmore v. Arkansas, ____ U.S. __,

110 S.Ct. 1717, 1723 (1990). Petitioners have experienced

no distinct and palpable injury. Their allegation of harm

is neither actual nor imminent. Rather, it rests limply on

the mere presence of a law, and their status as entities

interested in changing that law. The vague fear that repu-

tation and quality of workmanship will decline, unrooted

in any specific example of such impact, must be rejected

out of hand as too conjectural and hypothetical an expres-

sion of imminent or actual harm.

Decisively, the petitioners have failed to assert that

any county bid has been foreclosed to them, or that one

was not obtained after they sought a waiver of the DBE

component in a particularized setting. Compare the grant

of standing in City of Richmond v. J.A. Croson Co., 488 U.S.

469 (1989) (specific bid lost because of set-aside require-

ment), with its denial in Cone Corp. v. Florida Dep't of

Transportation, 921 F.2d 1190 (11th Cir. 1991) (no contract

specific loss alleged or proved).

An additional flaw in the petitioners’ position is

inherent in their “lost profits” thesis. A private party

seeking a public contract has no constitutionally-based

right to a particular expectation of profit or level of cost.

To demonstrate a property interest in a public benefit,

including the fruits of a public contract,

7

[a] person clearly must have more than an

abstract need or desire for it. He must have

more than a unilateral expectation of it. He

must, instead, have a legitimate claim of entitle-

ment to it.

Board of Regents v. Roth, 408 U.S. 564, 577 (1977).

Petitioners possess no entitlement to a public con-

tract. They may harbor a unilateral expectation that they

may obtain one, but nothing more. The Court recently

reiterated this point in Metro Broadcasting, Inc. v. Federal

Communications Commission, __ U.S. __, 110 S.Ct. 2997

(1990), which sustained an affirmative action program

established for minority-owned applicants of broadcast

licenses. The Court there expressed the view that no

applicants possessed a

settled expectation that their applications will

be granted without consideration of public

interest factors such as minority ownership.

Award of a preference . . . thus contravenes ‘no

legitimate firmly rooted expectation[s]’ of com-

peting applicants (citation omitted).

110 S.Ct. at 3026. The Eleventh Circuit has faithfully

applied this well-settled principle. Cunningham v. Adams,

808 F.2d 815 (11th Cir. 1987); Economic Development Corp.

of Dade County, Inc. v. Stierheim, 782 F.2d 952 (11th Cir.

1986). The absence of generalized entitlement to a public

contract assuredly means there is no constitutionally pro-

tected interest in petitioners’ unilaterally anticipated

profit from that desired contract.

Turning to petitioners’ fragmentation of standing, it

can be demonstrated that even their nine sub-theses pro-

vide no more substance to the case than its whole. Peti-

tioners first argue their challenge is ripe. It is not, in light

of the absence of real or imminent injury as discussed

above. Without project-specific pleading, there is no

showing that an ordinance applied on a case-by-case

basis and open to waiver will ever affect them. Addi-

tionally, the lack of project specificity means that the

Court cannot know the parameters of an equal protection

or due process inquiry, for differing standards may well

apply to federally-funded, state-funded or “hybrid” affir-

mative action policies. Croson, 488 U.S. 469, 109 S.Ct. 706,

726-727 (1989).

Petitioners’ second element is mootness. This point is

itself moot, of course, because there is no concrete, rip-

ened controversy based on true injury. Any mootness

question is simply irrelevant to this dispute.

The third element noted is the requirement of

adverse litigants. The parties’ alleged adversity stems

only from the fact that they are named adversely in the

lawsuit. These non-minority contractors are not adverse

to Broward County vis-a-vis any interest or stake which

is relevant to standing, as the county’s DBE ordinance has

not caused them to lose a contract. Nor is its mere pres-

ence even distinctive to them, since all potential contrac-

tors must utilize a DBE component or obtain its waiver.

The fourth element addressed is that the suit not be

collusive or feigned. While this is certainly not a friendly

suit, this cannot overcome the lack of any real contro-

versy that would arise, for example, from a contract-

specific controversy.

Petitioners’ fifth element finally reaches the question

of Article III injury. All that has been previously said will

not be repeated here to prove once again the obvious

shortcomings of petitioners’ position on this point. Their

reliance on Warth v. Seldin, 422 U.S. 490 (1975), and on

Village of Arlington Heights v. Metropolitan Housing Devel-

opment Corp., 429 U.S. 252 (1977), merits comment, how-

ever, if only to dramatize the insubstantial nature of their

argument.

Petitioners here are like the prospective home

builders who in Warth were found to lack standing for a

failure to allege any specific project currently precluded

by the zoning ordinance in question, or by the city’s

enforcement of it. Warth, 422 U.S. at 516. Those home

builders further failed to allege that they had sought a

variance from the ordinance with which they desired not

to comply. Id. This is a direct parallel to petitioners’ lack

of project-specific pleading and to the absence of an

averment that the DBE ordinance has caused a contract to

be lost or an applied-for waiver denied.

Arlington Heights is no more fruitful for petitioners.

The plaintiff there asserted a specific housing develop-

ment to which he would move, but for the fact that

discriminatory action had prevented its construction. In

that circumstance, there could have been no more direct a

proof of specific injury. Contrariwise, innumerable con-

tracts have been let under the DBE ordinance here yet no

government action has precluded these petitioners from

obtaining a contract either by applying or by seeking a

waiver.

The sixth factor addressed by petitioners is stated as

a hybrid of injury and remedy. It addresses injury only,

however, and even then is thrice flawed. The argument

wrongly assumes that the mere existence of the ordinance

10

itself assures standing, which it does not. It wrongly

asserts that added costs of compliance are constitu-

tionally significant, which they are not. And it asserts

that petitioners are losing work for having to comply

with the ordinance, which is a factual flourish of the pen

having no source in the record of this proceeding.

The seventh element proffered is that petitioners pos-

sess more than mere taxpayer status. Their having con-

tractor status perhaps makes the contention true, but the

argument misses the meaningful point. Like mere tax-

payers (in the standing-deficient sense), petitioners are

unable to demonstrate individualized injury because they

can show no impact on them which is different from all

others, similarly situated — that is, all other contractors.

(Petition at 17). They must, of course, as Croson teaches.

In that case, discrete injury befell a contractor who was

barred by a set-aside mechanism from obtaining a spe-

cific contract. Notably, Croson’s injury did not suffice as

an at-large grant of Article III standing for all other

potential Richmond contractors.

The eighth element proffered is that a litigant must

assert harm to his rights or those of another which

directly affect him. While this is a correctly stated sub-

element of the injury component of standing, it is not

useful here. Petitioners argue that they should be free to

choose subcontractors and suppliers without regard to

race, or to bid and be chosen without regard to race. The

Court’s decision in Metro Broadcasting makes clear, how-

ever, that there is no absolute right to obtain a public

contract without consideration of these factors. (In any

event, the eighth element posed by petitioners is

11

decidedly a merits-based question which cannot be

addressed in this case.)

The ninth element posed by petitioners is once again

their unique re-characterization of the injury-in-fact com-

ponent of standing. (Petition at 18-19). Their arguments

boil down to assertions that a declaration of unconstitu-

tionality will alleviate any potential harm to them, and

that they are sufficiently “directly affected” by the DBE

ordinance to make the dispute concrete. This version of

the requirement that their injury be “distinct and palpa-

ble” is so watered-down as to be unrecognizable. The first

prong is no more than an “ends justify the means”

demand for relief. Petitioners’ assertion that they may be

directly affected by the ordinance, in the sense that they

operate subject to the laws in Broward County, does not

mean that Article III gives them license to test the consti-

tutionality of the law.

In sum, the nine-factored incantation summoned by

petitioners cannot magically conjure a concrete injury

where there is none. They have no standing to challenge

the ordinance.

2. The Court of Appeals decision does not conflict

with other court of appeals decisions.

Neither the Court of Appeals’ per curiam decision

nor its earlier decision in Cone Corp. v. Florida Dep’t of

Transportation, 921 F.2d 1190 (11th Cir. 1991), conflict with

any other federal appellate court decision. Although peti-

tioners claim conflict with two other courts of appeal (the

First and Third Circuits), they fail to cite a single federal

appellate decision to support that claim. (Petition at 20).

12

Their reliance, rather, is on district court decisions in

those circuits to establish purported conflict. This reliance

in fact confirms the prematurity of review.

As always, review should be postponed until appel-

late courts have had the opportunity to consider the

applications of standing doctrines articulated here and in

Cone. Nor would the Court’s jurisdiction be prudently

exercised merely to review any challenge, however incon-

sequential, simply because the petitioner attempts to (as

here) bootstrap to the Court’s recent decision in City of

Richmond v. ].A. Croson Co., 488 U.S. 469, 109 S.Ct. 706

(1989).1

In any event, the Court of Appeals’ decision in this

case and in Cone reflect no conflict even with the district

court decisions cited by petitioners. Contractors Ass’n of

Eastern Pennsylvania, Inc. v. Philadelphia, 735 F.Supp. 1274

(E.D. Pa. 1990), for example, is wholly consistent with

both this case and with Cone. There the district court

found that four of nine contractor-associations possessed

standing to challenge the constitutionality of DBE

requirements because the pleadings and proof established

palpable injury to members of the associations from a loss

of bids or an exclusion from specific markets.? Five

1 Decisions rendered well prior to Croson are inappropri-

ate support for conflict-based review. The Court does not wield

its jurisdiction to prognosticate how pre-Croson cases would

have been decided in Croson’s new context.

2 Those members had established that they had been the

lowest bidders but had been disqualified, had been precluded

from submitting a bid, or had been disqualified because they

were not a minority bidder.

13

associations which were unable to establish individu-

alized injury to any of their members were denied stand-

ing.

Similarly, Rhode Island Chapter, Associated General Con-

tractors of America, Inc. v. Kreps, 450 FSupp. 338 (D.R.I.

1978), and Constructors Ass'n of Western Pennsylvania v.

Kreps, 441 FSupp. 936 (W.D. Pa. 1977), are in harmony

with the Court of Appeals’ decision and with Cone. In

both Rhode Island and Kreps, the plaintiff-associations

demonstrated that some of their members lost bids or

contracts or, in Kreps, that they lost the opportunity to be

selected as a subcontractor because of DBE requirements.

Under these circumstances, the associations were found

to possess the necessary standing to litigate the constitu-

tional questions posed.

Petitioners hypothesize conflict with Milwaukee

County Pavers Ass'n v. Fiedler, 922 F.2d 419 (7th Cir. 1991),

and Michigan Road Builders Ass’n, Inc. v. Milliken, 834 F.2d

583 (6th Cir. 1987). (Petition at 20-21, n. 13). Neither

Fiedler nor Milliken generates decisional conflict, however,

since neither mentions, much less addresses or passes on

any Article III standing issue.? Silence on an issue creates

no implication of a position, as the Cone decision duly

noted.

We are aware that two recent decisions of this

circuit did not explicitly address the issue of

3 Even the district court decisions in Fiedler did not

address the issue of standing, apparently because the defen-

dants did not raise the issue. Milwaukee County Pavers Ass’n v.

Fiedler, 707 F.Supp. 1016 (W.D. Wis. 1989); Milwaukee County

Pavers Ass'n v. Fiedler, 710 F.Supp. 1532 (W.D. Wis. 1989).

14

standing and allowed contractors to pursue

declaratory and injunctive relief against the

operation of county and city minority business

set-aside programs. . . . Since the opinions

handed down in support of these decisions did

not address the standing issue, we infer no view

on the issue from these decisions.

Cone, 921 F.2d at 1207 n. 52 (citations omitted) (emphasis

added).

¢

CONCLUSION

Petitioners have not identified one single decision

which has conferred standing based on allegations as

remote from a genuine case or controversy as those

asserted here. The absence of any allegation of specific,

palpable injury of an individualized nature was properly

viewed as fatal to petitioners’ standing by both the Dis-

trict Court and the Court of Appeals. Nor has a faithful

application of the law of standing by the Eleventh Circuit

created decisional conflict among the federal appellate

courts. For these reasons, petitioners’ request for the issu-

ance of a writ of certiorari should be denied.

Respectfully submitted,

JOHN J. COPELAN, JR., Esq. ARTHUR J. ENGLAND, Jr., Esq.*

Broward County Attorney Henry Latimer, Esq.

Government Center Cuaries M. AusLanper, Esq.

Suite 423 FINE JACOBSON SCHWARTZ NASH

115 South Andrews BLtock & ENGLAND

Avenue One CenTrust Financial

Fort Lauderdale, Center

Florida 33301 100 S.E. Second Street

Miami, Florida 33131

(305) 577-4000

Counsel for Respondents

*Counsel of Record