Associated General Contractors v. SEC. OF COM., ETC., 77-3738-AAH.
| Decision Date | 20 October 1978 |
| Docket Number | No. 77-3738-AAH.,77-3738-AAH. |
| Citation | 459 F. Supp. 766 |
| Court | U.S. District Court — Central District of California |
| Parties | ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA, a Nonprofit Corporation, Engineering Contractors Association, a Nonprofit Corporation, American Subcontractors Association, a Nonprofit Corporation, Los Angeles County Chapter, National Electrical Contractors Association, Inc., a Nonprofit Corporation, Steve P. Rados, Inc., a corporation, Griffith Company, a corporation, Gordon H. Ball, Inc., a corporation, Stoddard Enterprises, a Sole Proprietorship, and Granite Construction Company, a corporation, Plaintiffs, v. SECRETARY OF COMMERCE OF the UNITED STATES DEPARTMENT OF COMMERCE, U. S. Department of Commerce, Los Angeles County, a Body Corporate and Politic, Los Angeles County Board of Supervisors, Los Angeles Flood Control District, Los Angeles County Engineer, Facilities Department of Los Angeles County, City of Los Angeles, a Municipal Corporation, Los Angeles City Council, Department of Recreation and Parks of the City of Los Angeles, Department of Public Works of the City of Los Angeles, Defendants, Charles Armistead, Marion Hill, Leo Webb, Rudolpho A. Trujillo, Harold W. Johnson, American Ass'n of Spanish Speaking Certified Public Accountants, Black Businessmen's Ass'n of Los Angeles, and NAACP, Intervenors. |
COPYRIGHT MATERIAL OMITTED
John H. Findley, Pacific Legal Foundation, Lawrence H. Kay, Associated Gen. Contractors of Cal., Sacramento, Cal., for plaintiffs.
Peter H. Kane, Asst. U. S. Atty., Los Angeles, Cal., and Deborah P. M. Seymour, Trial Atty., Employment Sec., Civ. Rights Div., U. S. Dept. of Justice, Washington, D. C., for federal defendants, Secretary of Commerce of U. S. and Dept. of Commerce.
Charles Moore, Deputy County Counsel, Los Angeles, Cal., for county defendants, Los Angeles County, Los Angeles County Bd. of Sup'rs, Los Angeles Flood Control Dist., Los Angeles County Engineer and the Facilities Dept. of Los Angeles County.
John F. Haggerty, Asst. City Atty., Los Angeles, Cal., for city defendants, City of Los Angeles, Los Angeles City Council, Dept. of Recreation and Parks of City of Los Angeles and Dept. of Public Works of City of Los Angeles.
Charles B. Johnson, Pasadena, Cal., for intervenors, Charles Armistead, Marion Hill, Leo Webb, Rudolpho A. Trujillo, Harold W. Johnson, American Ass'n of Spanish Speaking Certified Public Accountants, and Black Businessmen's Ass'n of Los Angeles.
Hairston, Webster & Johnson by John H. Sandoz, Los Angeles, Cal., for intervenor, NAACP.
Following this Court's ruling, given orally on October 31, 1977, and by way of written opinion dated November 2, 1977, that the 10% minority business enterprises provision of the Public Works Employment Act, as amended, 42 U.S.C. § 6705(f)(2), violated both the constitutional safeguard of equal protection, U.S.Const. amends. V and XIV, and Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d and § 2000d-1,1 all parties appealed directly to the United States Supreme Court under the provisions of 28 U.S.C. § 1252.2 On July 3, 1978, the Supreme Court upon consideration of the three separate appeals ordered the judgment of this Court vacated and further ordered the cause remanded to this Court "to consider the question of mootness."3
At a hearing held on August 21, 1978, this Court filed and spread the order of the Supreme Court and read said Order, in its entirety, into the record. At that time, the Court issued a briefing schedule to the parties in order to facilitate the consideration by this Court of the mootness question.4 The parties have now, in accordance with the briefing schedule, fully briefed the issues involved regarding the question of mootness. The defendants basically argue that because the Secretary of Commerce has already granted all of the funds allocated and appropriated under the Act, this Court's declaratory judgment and injunction no longer present a viable case or controversy. While apparently agreeing with the facts of the defendants' assertions, the plaintiffs argue that various aspects of the mootness doctrine compel a finding that the case is not moot. In addition, certain parties have renewed motions to intervene, which are opposed by the plaintiffs.
After full consideration and review of all the briefs, other pleadings, and affidavits submitted and filed by all of the parties, and the arguments thereon at the hearing held on this question of mootness on October 16, 1978, this Court finds and concludes that: (1) the motions to intervene should be granted, but limited to participation on the question of mootness and in any future proceedings; (2) the case is not moot; (3) the motions to dismiss are denied; and (4) the judgment of this Court is reinstated in full.
After the Court issued its "Summary Judgment for Declaratory and Injunctive Relief" in this case on November 2, 1977, Charles Armistead, Marion Hill, and other individuals and organizations, hereinafter referred to collectively as the Armistead-Hill group, and the Los Angeles Chapter of the National Association for the Advancement of Colored People, hereinafter referred to as the NAACP, filed separate motions for leave to intervene in the case.5 Before the regularly scheduled hearing on these two motions,6 all the original parties to the case filed their notices of appeal to the United States Supreme Court.7 At a hearing held on December 12, 1977, the Court denied these motions to intervene for two reasons. First, once the original parties had filed their notices of appeal to the United States Supreme Court, this Court lacked jurisdiction to entertain the motions for intervention. Second, even if the Court had had jurisdiction to entertain the motions, the parties had not brought the motions in a timely fashion as required by rule 24 of the Federal Rules of Civil Procedure. See 77 F.R.D. 31 (C.D.Cal.1977). The Court also recommended that the applicants for intervention seek leave to participate in the appeals pending before the Supreme Court as amicus curiae. Id. at 36 n. 6. The applicants for intervention filed separate notices of appeal to the Court of Appeals for the Ninth Circuit from this decision; but on August 28, 1978, the Court of Appeals dismissed the appeal of the Armistead-Hill group for failing to perfect the record on appeal.8
Following the remand of this action to this Court by the Supreme Court on July 3, 1978, this Court, as stated above, issued an "Order To Show Cause Re Question Of Mootness As Per Order Of United States Supreme Court" on August 21, 1978. After establishing the briefing schedule on the question of mootness, this Order invited the parties who had earlier sought intervention to renew their motions for intervention and to file pleadings on the mootness question in accordance with the briefing schedule.9 As suggested in the Court's Order, the parties who had earlier sought leave to intervene — the Armistead-Hill group and the NAACP — have, in addition to filing briefs on the mootness question, renewed their motions to intervene. The plaintiffs oppose the motions; the original defendants have all remained silent with respect to the motions.
Both the Armistead-Hill motion and the NAACP motion seek intervention of right, or alternatively, permissive intervention. The plaintiffs contend that neither theory justifies intervention here.
Fed.R.Civ.P. 24(a)(2). In this case, the applicants for intervention, who are either minority contractors or associations representing minority contractors, obviously have an interest relating to the subject matter of the action. Furthermore, the disposition of this action obviously might impair or impede their ability to protect that interest. The plaintiffs do not seriously challenge the motions on these grounds. Thus, the proposed intervenors meet two parts of the test for intervention of right under rule 24(a)(2). Two other parts of that test remain, however: (1) do the present defendants adequately represent the interests of the applicants? and (2) are the motions timely?
In attempting to demonstrate that the original defendants did not adequately represent the interests of the minority contractors, the NAACP argues that it could present defenses to the action not raised by the original defendants and that it has been left to the NAACP and other applicants for intervention "to play the role of the true adversary, clearly demonstrating the inadequately sic of the representation by the present defendants."10 Specifically, the NAACP criticizes the federal and local defendants for, inter alia, failing to substantiate the alleged history of discrimination against minority contractors, failing to demonstrate that no less intrusive alternative exists to the 10% race quota provision found in the PWE Act, and for failing to file motions for review of the summary judgment issued by this Court. In addition, the NAACP alleges that the government has a conflict of interest in that it allegedly is interested in distributing the funds in question without sufficient regard to seeing that minority contractors obtain their rightful percentage of those funds.11 The Armistead-Hill motion contains similar arguments.12
The plaintiffs contend, on the other hand, that the Court should...
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