715 F.3d 1268 (11th Cir. 2013), 12-13958, Odebrecht Const., Inc. v. Secretary, Florida Dept. of Transp.

Docket Nº:12-13958.
Citation:715 F.3d 1268
Opinion Judge:MARCUS, Circuit Judge:
Party Name:ODEBRECHT CONSTRUCTION, INC., a Florida corporation, Plaintiff-Appellee, v. SECRETARY, FLORIDA DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.
Attorney:James Elton Moye, Moye, O'Brien, O'Rourke, Pickert & Dillon, LLP, Maitland, FL, Raoul G. Cantero, Thomas Neal McAliley, White & Case, LLP, Miami, FL, for Plaintiff-Appellee. Gregory G. Costas, Paul J. Martin, Florida Dept. of Transp., Tallahassee, FL, Pam Bondi, Atty. Gen.'s Office, Miami, FL, fo...
Judge Panel:Before MARCUS, HILL and SILER,[*] Circuit Judges.
Case Date:May 06, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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715 F.3d 1268 (11th Cir. 2013)

ODEBRECHT CONSTRUCTION, INC., a Florida corporation, Plaintiff-Appellee,

v.

SECRETARY, FLORIDA DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.

No. 12-13958.

United States Court of Appeals, Eleventh Circuit.

May 6, 2013

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         James Elton Moye, Moye, O'Brien, O'Rourke, Pickert & Dillon, LLP, Maitland, FL, Raoul G. Cantero, Thomas Neal McAliley, White & Case, LLP, Miami, FL, for Plaintiff-Appellee.

          Gregory G. Costas, Paul J. Martin, Florida Dept. of Transp., Tallahassee, FL, Pam Bondi, Atty. Gen.'s Office, Miami, FL, for Defendant-Appellant.

          Stephen Grimes, Karen D. Walker, Holland & Knight, LLP, Tallahassee, FL, for Florida Chamber of Commerce, Amicus Curiae.

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         Clifton Scott Elgarten, Crowell & Moring, LLP, Washington, DC, for United States Telecom Ass'n, Amicus Curiae.

         Appeal from the United States District Court for the Southern District of Florida.

          Before MARCUS, HILL and SILER,[*] Circuit Judges.

          MARCUS, Circuit Judge:

         In this interlocutory appeal, the Secretary of the Florida Department of Transportation appeals the district court's order granting Odebrecht Construction, Inc. a preliminary injunction barring the Department's enforcement of a Florida law known as the " Cuba Amendment," 2012 Fla. Laws 196, § 2 (amending Fla. Stat. § 287.135). Broadly speaking, the law prevents any company that does business in Cuba— or that is in any way related to a company that does business in Cuba— from bidding on state or local public contracts in the State of Florida. See Fla. Stat. § 287.135(2) (" A company that ... is engaged in business operations in Cuba ... is ineligible for, and may not bid on, submit a proposal for, or enter into or renew a contract with an agency or local governmental entity for goods or services of $1 million or more." ); id. § 215.473(1)(c) (defining the term " company" to encompass all subsidiaries, parent companies, or affiliates of the entity).

         In a thorough opinion, the district court concluded that Odebrecht had met its burden of persuasion on all four elements of the preliminary injunction inquiry, and issued a preliminary injunction prohibiting the Florida Department of Transportation from implementing or enforcing the Cuba Amendment. After careful review, we conclude that Odebrecht has demonstrated a substantial likelihood of success on its claim that the Cuba Amendment violates the Supremacy Clause of the Constitution under principles of conflict preemption. The Cuba Amendment conflicts directly with the extensive and highly calibrated federal regime of sanctions against Cuba promulgated by the legislative and executive branches over almost fifty years. The Supremacy Clause of the Constitution " provides a clear rule that federal law ‘ shall be the supreme Law of the Land.’ " Arizona v. United States, __ U.S. __, 132 S.Ct. 2492, 2500, 183 L.Ed.2d 351 (2012) (quoting U.S. Const. art. VI, cl. 2). The Cuba Amendment differs dramatically from the federal regime as to the entities covered, the actions triggering sanctions, and the penalties imposed. The Amendment also overrides the nuances of the federal law and weakens the President's ability " to speak for the Nation with one voice in dealing" with Cuba. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 381, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). In addition, Odebrecht has demonstrated the other equitable requirements that warrant a preliminary injunction: Odebrecht would have suffered irreparable harm absent the injunction, the balance of harms strongly favored the injunction, and the injunction did not disserve the public interest. We affirm.

         I.

          Odebrecht Construction, Inc. (" Odebrecht" or " OCI" ) is a Florida construction corporation founded in 1990, with its principal place of business in Coral Gables, Florida. Since its inception, Odebrecht has been awarded 35 public contracts in Florida worth almost $4 billion. In 2011, 100% of OCI's revenue, approximately $215 million, was derived from public infrastructure

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and transportation projects. Odebrecht continues to bid successfully on high-value public contracts in Florida. Thus, for instance, in May 2012, Broward County awarded an Odebrecht joint venture a $226 million infrastructure contract at the Fort Lauderdale-Hollywood International Airport.

         As for the Florida Department of Transportation (" FDOT" ) in particular, Odebrecht has completed multiple contracts for the agency in the past with a combined value of around $170 million. Indeed, in June 2012, FDOT certified Odebrecht as qualified to bid on a number of potential FDOT contracts, with a maximum capacity of $1.8 billion . And Odebrecht has signaled its intent to bid on five different FDOT contracts through the first quarter of 2013. In short, Odebrecht is not merely a speculative participant in Florida's public contracting market; it is a frequent and active one.

         Odebrecht does not do business in Cuba, and has never done so. Odebrecht's Brazilian parent company, Odebrecht S.A., has a different chain of foreign subsidiaries unrelated to Odebrecht, however, and some of those foreign companies do business in Cuba. More specifically, Odebrecht S.A. has a Brazilian subsidiary, Companhia de desenvolvimento e Participacoes, S.A., which has another Brazilian subsidiary, Companhia de Obras e Infra-Estrutura, which has a British Virgin Islands subsidiary, COI Overseas Ltd. Both Companhia de Obras e Infra-Estrutura and COI Overseas Ltd. are involved in the Brazilian-financed expansion of the Port of Mariel in Cuba.

         The Cuba Amendment has an effective date of July 1, 2012. On June 4, 2012, before the statute went into effect, Odebrecht filed a complaint in the U.S. District Court for the Southern District of Florida, seeking declaratory and injunctive relief barring the Secretary of the Florida Department of Transportation from enforcing the Cuba Amendment. The following day, Odebrecht filed its operative amended complaint and a motion for a preliminary injunction. Odebrecht claimed that the Cuba Amendment violates the Supremacy Clause, U.S. Const. art. VI, cl. 2; the Foreign Affairs Power, see, e.g., Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968); and the Foreign Commerce Clause, U.S. Const. art. I, § 8, cl. 3. After full briefing and after conducting a thorough hearing, the district court granted the injunction. The court reviewed at length both the Cuba Amendment and the federal laws relating to Cuba, and then addressed Odebrecht's constitutional claims, concluding that Odebrecht had demonstrated a substantial likelihood of success on each of them. The court also found that Odebrecht had satisfied the other equitable requirements for a preliminary injunction.

         II.

          We review a district court's grant of a preliminary injunction for abuse of discretion. SEC v. Unique Fin. Concepts, Inc., 196 F.3d 1195, 1198 (11th Cir.1999). " [B]ut we review de novo the legal conclusions on which [preliminary injunctions] are based." ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir.2009). We review any factual findings by the district court for clear error. Unique Fin. Concepts, 196 F.3d at 1198.

          Under the familiar four-part test, a preliminary injunction is warranted if the movant demonstrates " (1) a substantial likelihood of success on the merits of the underlying case, (2) the movant will suffer irreparable harm in the absence of an injunction, (3) the harm suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction is issued, and (4) an

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injunction would not disserve the public interest." Grizzle v. Kemp, 634 F.3d 1314, 1320 (11th Cir.2011) (quoting N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 (11th Cir.2008)). Here, as in so many cases, the first question is critical. We begin— and end— our answer to that question with Odebrecht's claim that the Cuba Amendment is preempted by the long-standing and extensive federal regime limiting American companies from doing business in Cuba.

         A.

          The Supremacy Clause of the United States Constitution provides that the Constitution and the laws of the United States " shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. " Under this principle, Congress has the power to preempt state law." Arizona v. United States, __ U.S. __, 132 S.Ct. 2492, 2500, 183 L.Ed.2d 351 (2012) (citing Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000)). Preemption can occur in a number of circumstances. Its most straightforward form, express preemption occurs when Congress " enact[s] a statute containing an express preemption provision." Id. at 2500-01. That has not occurred in this case, nor is there any claim that it has. The second— field preemption— precludes the states " from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Id. at 2501 (citing Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 115, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992)). The Supreme Court has instructed us that we may infer congressional intent to displace state law altogether " from a framework of regulation so pervasive that Congress left no room for the States to supplement it or where there is a federal interest so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Id. (internal quotation marks and alterations omitted).

          Third, and most critical for our purposes, " state laws are preempted when they...

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