Rack & Ballauer Excavating Co. v. City of Cincinnati
| Decision Date | 08 February 2013 |
| Docket Number | Case No. 1:13-cv-30 |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | RACK & BALLAUER EXCAVATING CO., INC. et al. Plaintiffs, v. CITY OF CINCINNATI et al., Defendants. |
This case is currently before the Court on Plaintiffs' motion for a temporary restraining order. (Doc. 9). Following an informal conference with the Court pursuant to Local Rule 65.1, the parties filed responsive memoranda. (Docs. 7, 9). The motion is now ripe for the Court's review.
Plaintiffs Rack & Ballauer Excavating Co, Inc. ("R&B"), RB South, Inc., and Randy Rack1 claim that in light of the Municipal Codes and Policies and Procedures of the Defendant City of Cincinnati, Plaintiffs cannot compete on equal footing in the municipal construction bidding process. Plaintiffs claim they are able and ready to bid on contracts but for Cincinnati's discriminatory policies that prevent them from doing so onan equal basis with other bidders, including Defendant(s) ABC Inc.(s) 1-5.2
RB South submitted two bids on the public waterworks projects that are at issue herein, the Ardmore Project and the Dellers Glen Project. (Doc. 3 at 4). RB South submitted the lowest bid for both the Ardmore and Dellers Glen Projects, but it was awarded neither project. (Id. at 11). Both RB South and R&B intend to bid on future public projects on which Cincinnati is an owner or on which city, county, state, and federal funds are expended and as to which Cincinnati applies its Apprenticeship Requirement, Pre-Apprenticeship Training Fund, Local Hiring and Disadvantaged Worker Requirements, and other requirements, the lawfulness and constitutionality of which Plaintiffs are challenging in this action. (Id. at 4).
The key City Municipal Code ("CMC") sections and practices challenged are:
(Id. at 5).
In July of 2012, Cincinnati enacted an Apprenticeship Requirement, that was codified in CMC 320-5, requiring that apprentices be used on every construction contract. (Id.) A bidder must employ apprentices at a ratio of at least 20%, employing one apprentice for every four journeypersons. (Id. at 6). A bidder not in compliance with the Apprenticeship Requirement shall not be awarded a construction contract. (Id.) The failure of a bidder to comply during the performance of a construction contract shall constitute a material breach and may subject the bidder to all remedies available to Cincinnati at law, including (1) disqualification of the bidder from bidding on current or future contract, (2) suspension of payments to the bidder under the construction contract, and (3) termination for cause. CMC 320-5.
Also in July of 2012, Cincinnati enacted the Pre-Apprenticeship Training Fund, codified in CMC 320-7. (Doc. 3 at 6). Contractors are required to pay ten cents "per hour per worker into MSDGC Fund 701 for the purpose of funding qualified Pre-Apprenticeship programs that will create a pipeline of opportunities from recruitment to placement to retention." CMC 320-7. Contractors who pay into an Apprenticeship Program directly are still required to make payment into MSDGC Fund 701. (Doc. 3 at 7).
In April 2012, Cincinnati enacted the Local Hiring Ordinance, codified in CMC Chapter 318. (Id.) Chapter 318 is currently suspended and cannot be applied to any bidder until at least March 14, 2013. (Doc. 7 at 2).
Under Chapter 318, "every construction contract that goes out to bid after the effective date of this law shall require that a minimum percentage of between 30% and 40% of all construction worker hours within each trade is performed by local residents, with no less than 20% of all construction worker hours within each trade performed by disadvantaged workers." CMC 318-3. Contractors must certify that one half of their apprenticeship hours shall be performed by local residents. CMC 318-5(c).
Finally, Cincinnati does not provide for any kind of bid-protest procedure to challenge a finding that a bidder is not responsible or that a bid is nonresponsive. (Doc. 3 at 9). Cincinnati does not notify apparent low bidders found not to be responsible and/or responsive in writing via certified or first class mail. (Id.) Under CMC 321-43, the lowest bidder may be rejected if the bid is "not in the best interests of the city."
According to Cincinnati, the MSD contracting personnel in this case did not apply the requirements of either Chapter 318 () or 320 ("because RB South indicated in its bid that it was an exempt entity") to RB South for either bid. (Doc. 7 at 3). In November 2012, Cincinnati notified Scott Rack that RB South would be awarded neither project because "it did not have enough experience." (Doc. 3 at 13). This notice was not in writing. (Id.) Cincinnati did not entertain Mr. Rack's written request for a meeting to discuss its rejection of RB South's bids. (Id.) The net difference between RB South's bids and the bids that were ultimately accepted is $119,374. (Id. at 14).
"The Sixth Circuit has explained that 'the purpose of a TRO under Rule 65 is to preserve the status quo so that a reasoned resolution of a dispute may be had.'" Reid v. Hood, No. 1:10 CV 2842, 2011 U.S. Dist. LEXIS 7631, at *2 (N.D. Ohio Jan 26, 2011) (citing Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996)). "The standard for issuing a temporary restraining order is logically the same as for a preliminary injunction with emphasis, however, on irreparable harm given that the purpose of a temporary restraining order is to maintain the status quo." Id. (citing Motor Vehicle Bd. of Calif. v. Fox, 434 U.S. 1345, 1347 n.2 (1977)).
Plaintiffs bear the heavy burden of demonstrating its entitlement to a preliminary injunction. An "injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it." Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 573 (6th Cir. 2002). (emphasis supplied).
In determining whether to grant injunctive relief, this Court must weigh four factors: (1) whether the moving party has shown a strong likelihood of success on the merits; (2) whether the moving party will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. Id.
These four considerations are factors to be balanced, not prerequisites that must be met. McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997). "Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal." Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000).
The Court finds that Plaintiffs have not alleged facts sufficient to warrant a temporary restraining order.
Plaintiffs have shown a moderate likelihood of success on the merits.
First, it is unclear whether Plaintiffs have standing to challenge either Chapter 318 or Chapter 320 in this case. Defendants claim that the requirements of neither chapter were applied to RB South for either bid in question. (Doc. 7 at 3).
Chapter 318 is currently suspended until at least March 14, 2013, although Cincinnati claims "its implementation will likely be delayed further." (Id. at 5). Plaintiffs are correct in observing that Chapter 318 is still on the books and that pre-enforcement review may be appropriate because it "imposes costly, self-executing compliance burdens." Minnesota Citizens Concerned for Life v. Federal Election Comm'n, 113 F.3d 129, 132 (8th Cir. 1997). However, for review to be appropriate under the DeclaratoryJudgment Act, 28 U.S.C. § 2201, Plaintiffs must demonstrate actual present injury or a significant certainty of future harm. Bras v. California Pub. Utilities Comm'n, 59 F.3d 869, 873 (9th Cir. 1995), cert. denied, 516 U.S. 1084 (1996). Plaintiffs have made compelling arguments that they "and many other contractors will be forced to reorganize their workforce, change the way they do business, or forego working on these public projects" as a result of Chapter 318, and that due to its imminent implementation, these harms have already begun to accrue. (Doc. 9 at 12). However, as Cincinnati claims that implementation will likely be delayed past mid-March and that a case or controversy "may never occur," it is unclear whether either a present injury or a significant certainty of future harm actually exists.
The situation surrounding Plaintiffs' standing to challenge Chapter 320 is even murkier, as Cincinnati claims that it did not inquire into RB South's compliance because RB South "indicated in its bid that it was an exempt entity under Chapter 320." (Doc. 7 at 3). This claim is neither further expounded upon by Defendant nor responded to by Plaintiffs. If such "exempt status" exists, however, and none of the requirements of Chapter 320 are actually requirements that must be met by Defendant(s) now or in the future, then no case or controversy exists around this chapter and Plaintiffs do not have standing to challenge it.
If Plaintiffs have do have standing to challenge these provisions, they...
To continue reading
Request your trial