Clark Const. Co., Inc. v. Pena

Decision Date18 April 1996
Docket NumberCiv. No. 95-D-447-N.
Citation930 F. Supp. 1470
PartiesCLARK CONSTRUCTION COMPANY, INC., Plaintiff, v. Federico PENA, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

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James H. Anderson, Beers, Anderson, Jackson & Smith, P.C., Montgomery, AL, Keith J. Harrison, Jeffrey L. Poston, King, Pagano & Harrison, Washington, DC, for Clark Construction Co., Inc.

Patricia A. Snyder, Redding Pitt, U.S. Attorney, Arthur G. Davis, U.S. Attorney's Office, Montgomery, AL, James C. Thomason, III, Federal Highway Administration, Atlanta, GA, for Federico F. Pena, Rodney Slater.

Janie B. Johnston Clarke, Jack Franklin Norton, Jerry L. Weidler, Alabama Department of Transportation, Legal Division, Montgomery, AL, Pamela Ragan Scott, Alabama Department of Transportation, Montgomery, AL, for James F. Butts.

MEMORANDUM OPINION

DE MENT, District Judge.

Before the court is plaintiff Clark Construction Company, Inc.'s motion for summary judgment filed August 25, 1995. The defendants responded in opposition on September 18, 1995. The director of the Alabama Department of Transportation, Jimmy F. Butts, also filed a motion for summary judgment on September 18, 1995. Because the motions involve similar issues and arise from the same set of facts, the court will address them simultaneously.1 In ruling on said motions, the court has considered the parties' respective briefs, as well as the replies and responses thereto. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the plaintiff's motion is due to be granted and that the defendant's motion is due to be denied.

JURISDICTION

This is an action arising under the United States Constitution, the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 & 2202; therefore, jurisdiction is proper under 28 U.S.C. § 1331.2 Personal jurisdiction and venue are uncontested.

STANDING

The plaintiff's legal standing to appeal the actions of the respective federal agency defendants lies in the Administrative Procedure Act, 5 U.S.C. §§ 701-706.3 Section 702 of that Act provides that "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review" thereof. The court finds that the plaintiff, as an unsuccessful bidder, has standing to challenge the federal defendants' proposed plan to award the contract to a third party. See Choctaw Mfg. Co. v. United States, 761 F.2d 609 (11th Cir.1985).

FINDINGS OF FACT AND PROCEDURAL HISTORY

In Clark Construction Co. v. Pena, 895 F.Supp. 1483 (M.D.Ala.1995) (DeMent, J.),4 the court granted plaintiff Clark Construction Company's motion for preliminary injunction, thereby enjoining the defendants from concurring in or approving the award of Alabama Project MAAF-DBAAF-214(37) to any company other than Clark Construction Company, pending a trial on the merits. Complete findings of fact are contained in Clark I, which the court herein incorporates by reference because the facts are unchanged and undisputed. The court need not repeat its previous findings but will instead set forth a brief history of the proceedings in this case.

On March 30, 1995, Clark Construction filed a motion for a temporary restraining order in the United States District Court for the District of Columbia. On March 31, 1995, the Honorable Stanley Harris, United States District Judge, held a hearing on Clark Construction's motion for a temporary restraining order. During said hearing, counsel for the federal defendants represented to the court that the traffic restriction at issue was immaterial and primarily a state concern:

What we must all recognize is that the traffic restriction issue is a very, very, very minor aspect of something that does not even amount to a Federal procurement.
Remember, what we are talking about is a procurement by the State government of one of fifty States all of which is subject to the same rules.

Pl.'s Ex. 11 at 45-46. Therefore, on April 3, 1995, Judge Harris granted Clark Construction's motion, thereby enjoining the federal defendants from funding the project, and transferred this matter to the United States District Court for the Middle District of Alabama so that the State of Alabama would have the opportunity to intervene or become a defendant.

On May 22, 1995, this court heard oral argument on Clark Construction's motion for a preliminary injunction. During said hearing, chief counsel to the Alabama Department of Transportation ("ADOT") represented to the court that, but for the action by the Federal Highway Administration ("FHWA"), the ADOT would have awarded the contract to Clark Construction. Pl.'s Ex. 6 at 13, 20 (Preliminary Injunction Tr.); Pl.'s Ex. 12 at ¶ 6 (Decl. of James F. Butts). Counsel further admitted that the ADOT originally selected Clark Construction as the awardee on grounds that Clark Construction's original bid complied with all applicable regulations and statutes, and Clark Construction was the lowest responsible bidder. Pl.'s Ex. 6 at 20 (Preliminary Injunction Tr.). Despite conceding the validity of Clark Construction's original bid, aforementioned counsel contended that Clark Construction's bid no longer exists and, thus, cannot be resubmitted to FHWA. Id. at 13.

At the preliminary injunction hearing, the FHWA argued that the State of Alabama was an indispensable party. Id. at 11. At the conclusion of the hearing, the court allowed Clark Construction to file a motion to amend its complaint to add the State of Alabama as an indispensable party. Thereafter, Clark Construction moved to amend its complaint to add James F. Butts, director of the ADOT, as an indispensable party. Despite Mr. Butts' argument that the Eleventh Amendment prevented such a suit against the State, the court granted the motion to amend on May 30, 1995. Subsequently, the court entered an order (Clark I) on June 26, 1995, granting Clark Construction's motion for a preliminary injunction and enjoining the federal and state defendants from concurring in or approving the award of Alabama Project MAAAF-DBAAF-214(37) to any company other than Clark Construction, pending a trial on the merits.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As the Supreme Court has explained the summary judgment standard:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by his own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed. R.Civ.P. 56(e).

In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11.

With these rules and principles of law in mind, the court will determine whether summary judgment is appropriate or whether there exist genuine issues of material fact that should properly proceed to trial for resolution.

DISCUSSION
I. Permanent Injunction Standard

The standard for a permanent...

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