Associated Util. Contract. v. Mayor and City Coun.
| Decision Date | 09 September 2002 |
| Docket Number | No. CIV. AMD-01-1508.,CIV. AMD-01-1508. |
| Citation | 218 F.Supp.2d 749 |
| Parties | ASSOCIATED UTILITY CONTRACTORS OF MARYLAND, INC, Plaintiff, v. The MAYOR AND CITY COUNCIL OF BALTIMORE, Defendant. |
| Court | U.S. District Court — District of Maryland |
Robert Edward Gough, Maury S. Epner, Miller Miller and Canby, Rockville, MD, for Plaintiff.
William R. Phelan, Jr., Thurman W. Zollicoffer, Jr., Dan Friedman, Saul Ewing LLP, LTina Burse Greene, Baltimore, MD, for Defendant.
Plaintiff Associated Utility Contractors of Maryland, Inc. ("AUC"), filed this action against defendant Mayor and City Council of Baltimore ("the City") on or about May 23, 2001, to challenge the implementation of the public contracting affirmative action program created by Baltimore City Ordinance 00-98 and a related mayoral executive order ("the Executive Order"). Ordinance 00-98 became law upon the Mayor's approval of City Council Bill 00-0211 on November 28, 2000. Now pending is the City's motion to dismiss AUC's amended complaint, in which the City argues that AUC lacks representational standing to mount a facial challenge to Ordinance 00-98, and that AUC both lacks standing and has failed to state a claim as to its "as applied" challenge to the Executive Order. The issues have been fully briefed and I have conducted two oral hearings. The motion to dismiss shall be denied for the reasons stated below.
In an earlier case, Associated Utility Contractors of Maryland, Inc. v. Mayor and City Council of Baltimore, 83 F.Supp.2d 613 (D.Md.2000), AUC challenged the constitutionality under the Equal Protection Clause of the City's affirmative action plan which had been created under a predecessor law to Ordinance 00-98. Under that earlier affirmative action plan, the City had mandated across-the-board subcontractor set asides of 20% and 3%, covering minority business enterprises and women's business enterprises, respectively, seeking work as subcontractors on a sizeable percentage of City public works contracts in 1999. I declared that affirmative action plan unconstitutional, reasoning as follows in part:
[A] state entity must ensure that, before it embarks on an affirmative-action program, it has convincing evidence that remedial action is warranted. That is, it must have sufficient evidence to justify the conclusion that there has been prior discrimination.... I am compelled[, therefore] to analyze the evidence before the City when it adopted the 1999 setaside goals specifying the 20% MBE [minority business enterprise] participation in City construction subcontracts. For analogous reasons, the three percent WBE [women's business enterprise] preference must also be justified by preenactment evidence.
In this case, that task is extraordinarily simple. It is undisputed here that the City considered no evidence in 1999 before promulgating the construction subcontracting set-aside goals of 20% for MBEs and 3% for WBEs. Confronted with a sheer absence of any record of what evidence the City considered prior to promulgating the set-aside goals for 1999, there is simply no dispute of material fact foreclosing summary judgment in favor of plaintiff. It is thus clear, as a matter of law, that the 20% preference is not supported by a "strong basis in evidence" showing a need for a race-conscious remedial plan in 1999; nor is the three percent preference shown to be "substantially related to achievement" of the important objective of remedying gender discrimination in 1999, in the construction industry in Baltimore.
The City has repeatedly asserted throughout this case that this court should uphold the set-aside goals based upon statistics which the City is now in the process of gathering in a disparity study it has commissioned. However, the City has not provided any legal support for the proposition that a governmental entity might permissibly adopt an affirmative action plan including setaside goals and wait until such a plan is challenged in court before undertaking the necessary studies upon which the constitutionality of the plan depends. Moreover, the current study is not even complete as of the date of this Memorandum. It clearly could not have produced data upon which the City actually relied in establishing the set-aside goals for 1999.
Id. at 621-22 (citations, internal quotations, and footnotes omitted). Ordinance 00-98 is allegedly based on the studies which the City had commenced while the earlier case was pending. Specifically, Ordinance 00-98 repealed the ordinance on which the prior affirmative action plan was based, Balt. City Code §§ 217-226B (repealed), and authorized the affirmative action plan now under attack.
Without regard to whether it does or does not pass constitutional muster under the Equal Protection Clause, it cannot be denied that the affirmative action plan authorized by Ordinance 00-98 (a copy of which is attached to the complaint and incorporated by reference into the amended complaint) differs in significant respects from the City's prior affirmative action plan. Whereas under the prior ordinance, the City simply declared across-the-board set aside percentages for all City public works contracts, the present affirmative action plan strives for a far more nuanced approach.
Specifically, Ordinance 00-98 requires the City's Minority and Business Women's Opportunity Office (the "MWBOO") to set, on a contract-by-contract basis, Minority and Women's Business Enterprise ("M/WBE") contract participation goals that are "flexible and rationally related to the disparity identified in the City's contracting markets." Section 28-3(A). In setting the goals on an individual contract, the MWBOO must consider:
(1) The availability in various industry classifications and professions of MBEs and WBEs that are qualified and willing to provide goods, expertise, and services on the particular contract;
(2) The level of utilization of those firms in past contracts awarded by the City;
(3) The contract specifications;
(4) The adverse impact on non-MBEs and -WBEs; and
(5) Any other relevant factors.
Section 28-22(A). In addition, Ordinance 00-98 specifies that "for a goal to be applicable to a contract, at least 2 MBEs or WBEs must be available for that goal." Section 28-22(B). Thus, under Ordinance 00-98, whether any M/WBE participation goals will apply, and if so, what those goals will be, is determined on a contract-by-contract, and apparently a craft-by-craft basis.
Significant enforcement provisions are included in the existing affirmative action plan. Specifically, a bidder's failure to commit to utilizing M/WBEs as subcontractors in accordance with the contract-specific racial, ethnic, and gender preferences imposed by the MWBOO renders the bid nonresponsive. Section 28-48(B)(2). A successful bidder (prime contractor or subcontractor) on a contract which requires M/WBE participation goals, who fails to comply with Ordinance 00-98 is subject to a host of penalties, including disqualification from performing City contracts for up to two years and the imposition of monetary sanctions. Section 28-96.
As it did in the prior case, the City raises in the case at bar the issue of whether AUC, the sole plaintiff, has representational standing to mount a facial challenge to the affirmative action plan authorized by Ordinance 00-98. The City relies primarily on the existence of the significant differences between the operational details of the prior affirmative action plan, on the one hand, and the contract-by-contract approach, among other features, created in the existing plan. AUC contends that, for purposes of its representational standing, the differences between the prior plan and the existing plan are irrelevant, see Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 354 (D.C.Cir.), reh'g denied, 154 F.3d 487 (D.C.Cir.), and reh'g en banc denied, 154 F.3d 494 (D.C.Cir. 1998) ( ), and that its representational standing in the case at bar is equally as obvious as it was in the prior litigation.
In finding that AUC had representational standing in the earlier case, I reasoned as follows, in part:
A litigant's standing to challenge a law is a critical component of the case or controversy requirement of Article III, and thus of this court's jurisdiction to hear the challenge. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), established a three part test for determining when "an association has standing to bring suit on behalf of it members ...: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation in the lawsuit of the individual members...." Hunt, 432 U.S. at 343, 97 S.Ct. 2434; accord Friends of the Earth, Inc. v. Laidlaw Envtl. Services, 528 U.S. 167, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000); see also Maryland State Conference of NAACP Branches v. Maryland Dept. of State Police, 72 F.Supp.2d 560, 565 (D.Md.1999)....
AUC must show that AUC's members, "or any one of them," Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), would otherwise have standing to sue in their own right. Hunt, 432 U.S. at 343, 97 S.Ct. 2434. In a "long line of cases" the Supreme Court has delineated three things that an individual must establish to obtain standing in her...
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