Cunningham v. Adams
| Citation | 808 F.2d 815 |
| Decision Date | 26 January 1987 |
| Docket Number | No. 86-5039,86-5039 |
| Parties | T.J. CUNNINGHAM, Plaintiff-Appellant, v. Kenneth M. ADAMS, Kearen T. Marcus, Ken Spillas, Jerry L. Owens, Dorothy Wilken, individually, and in their official capacities as members of Board of County Commissioners of Palm Beach County, Florida, Board of County Commissioners of Palm Beach County, Florida, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
F. Malcolm Cunningham, Jr., Cunningham & Cunningham, P.A., West Palm Beach, Fla., for Cunningham.
Marlyn J. Altman, Palm Beach County Atty's Office, W. Palm Beach, Fla., for Adams, et al.
Appeal from the United States District Court for the Southern District of Florida.
Before JOHNSON and ANDERSON, Circuit Judges, and GARZA *, Senior Circuit Judge.
T.J. Cunningham appeals from an order of the district court denying his request for a preliminary injunction against the Board of County Commissioners of Palm Beach County, Florida, and the individual members of the Board in both their official and representative capacities. Cunningham sought to have the Board and its commissioners enjoined from awarding an airport concession to anyone other than himself or, in the event the concession had already been awarded, to have all building and/or operating activity at the concession enjoined. His complaint, filed on December 23, 1985, together with a request for a TRO/preliminary injunction, alleged that the Board had awarded the airport concession to a bidder of lesser qualifications on the basis of Cunningham's sex and race in violation of 42 U.S.C.A. Secs. 1981 and 1983.
On December 26, 1985, the trial court denied Cunningham's application on the grounds that he failed to satisfy all four of the prerequisites for a preliminary injunction. Cunningham filed a timely appeal of the district court's order. 1 The issue before this Court is whether the district court abused its discretion in denying Cunningham's request for a preliminary injunction. We conclude that it did not and accordingly affirm the district court.
On or about June 20, 1985, the Board of County Commissioners of Palm Beach County ("The Board") directed that the food and general merchandise concession in the People Express Terminal at Palm Beach International Airport be set aside for award to a Minority Business Enterprise (MBE) or a Woman Business Enterprise (WBE). Pursuant to the Board's directive, the County Department of Airports issued an announcement of solicitation of bids and an instruction sheet for prospective bidders. The instruction sheet provided, inter alia, that only certified MBEs and WBEs could bid on the concession. In addition, the instructions described the type of business the county would be looking for, and stated that the award, if made,
[would] be based upon both an objective and subjective comparative evaluation of each Bidder with respect to:
(1) The amount of the Minimum Annual Guarantee bid. (Note: Unusually high figures may be the basis for rejection of a proposal.)
(2) Depth of management, including education and years of experience.
(3) Depth and breadth of experience and history in operating other similar concessions at other airports or similar public facilities, including the ability to provide experience and qualified personnel and advisory services.
(4) Other factors which best serve the highest public interest.
The instructions also explained the procedures that the county would utilize in evaluating the bids and awarding the concession.
Three proposals were submitted in response to the county's solicitation. A ten-member Evaluation Committee, appointed by the Board, heard oral presentations from all three bidders and reviewed the proposals in accordance with the guidelines published in the Instructions to Bidders. The Committee then ranked the three prospective concessionaires using an elaborate point system. Appellant T.J. Cunningham, a black male and a licensed MBE, emerged in first place with 17 points; Wild Blue Deli, a WBE operated by a white female, finished in second place with 18 points; and Haney Enterprises was a distant third with 25 points.
Based on this method of evaluation, the Committee "recommended" T.J. Cunningham to the full Board for award of the concession. The Committee noted, however, that only one point separated T.J. Cunningham from Wild Blue Deli. In light of this closeness, the Committee recommended that the Board hear oral presentations from the top two candidates before awarding the concession. 2
The Board convened on November 26, 1985, to award the airport concession. After listening to brief oral presentations from both candidates, the Board discussed the relative qualifications of the two prospective concessionaires. Excerpts from the meeting's transcript reveal that, after stating that the candidates were virtually even and that a good argument could be made for awarding the concession to either one, one of the Board members said:
... My thought is that there are two things that lay in my mind in favor of one applicant over the other; they are not overwhelming but in terms of trying to make a decision they are things I can look at; one is one of the applications is for something, I guess, what we call, something a little different from what we have in the main terminal 3 and the other is I don't believe in our program we have yet had the opportunity or gone forward with allowing a concession to a WBE, specifically a WBE, we do have a gift shop in Delta who came in through the [MBE] 4 program and it is black women who are running it, and that was under the general MBE concept as opposed to WBE so in light of that I think they are extremely close and that is the only way I have been able to distinguish between the two and I would move we give the concession to the Wild Blue Deli.
The Board then voted 2-1 to award the concession to the Wild Blue Deli. 5
A preliminary injunction is an extraordinary remedy which should only be granted if the moving party clearly establishes: (1) a substantial likelihood that he will ultimately prevail on the merits; (2) a showing that he will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to him outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest. Johnson v. U.S. Department of Agriculture, 734 F.2d 774, 781 (11th Cir.1984); Shatel Corp. v. Mao Ta Lumber & Yacht Co., 697 F.2d 1352, 1354-55 (11th Cir.1983). The moving party must prevail on all four prerequisites before a preliminary injunction may issue. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983). The grant or denial of a preliminary injunction rests within the sound discretion of the district court and is reversible on appeal only for an abuse of that discretion or if contrary to some rule of equity. Id.; Shatel Corp., supra, 697 F.2d at 1354. "The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant 'clearly carries the burden of persuasion' as to the four prerequisites." United States v. Jefferson County, supra, 720 F.2d at 1519 (quoting Canal Authority v. Callaway, 489 F.2d 567 (5th Cir.1974)).
Cunningham's cause of action, brought pursuant to 42 U.S.C.A. Secs. 1981 and 1983, alleges that the Board's award of the concession to Wild Blue Deli violates the Fifth, Thirteenth and Fourteenth Amendments to the United States Constitution. His complaint states two basic claims: 6 (1) that the award violates his substantive constitutional rights not to be discriminated against on the basis of his race in violation of the Thirteenth and Fourteenth Amendments and (2) that the award violates his right to procedural due process pursuant to the Fifth and Fourteenth Amendments.
Appellant argues that he established a substantial likelihood that he will prevail on the merits of his claim of unconstitutional racial discrimination because the record clearly shows that the concession was awarded to a white female of lesser qualifications rather than to Cunningham as the highest and best bidder. Our review of the record, however, reveals two flaws underlying appellant's argument. First, there is no evidence that the Board's decision was in any way motivated by race. The Board did not select Wild Blue Deli over Cunningham because one proposal was submitted by a white and the other by a black, but because one was submitted by a female and the other by a male. 7 Second, the record indicates that both prospective concessionaires were equivalently qualified. The Board heard oral presentations from both Cunningham and Wild Blue Deli precisely because the difference between the two was minimal. 8 As appellee points out, although Cunningham emerged from the Committee with the lowest total points, Wild Blue Deli actually received more first place votes than did Cunningham.
The substantive constitutional issue presented by this case, then, is whether it was unconstitutional discrimination for the Board to award the airport concession to a white female pursuant to the county's WBE program rather than to a black male of similar qualifications under its MBE program. While no court has squarely addressed this precise issue, the Supreme Court has upheld the constitutionality of narrowly-tailored MBE programs against challenges from white-majority members. 9 In Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), the Court held that making race-conscious decisions pursuant to such a program is permissible so long as the program is narrowly tailored and designed to remedy an established history of discrimination. Id. at 482-84, 100 S.Ct. at 2776-77; see also South Florida Chapter of the Associated General Contractors of America...
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