876 F. Supp. 2d 1305
S.D. Fla.2012Background
- Plaintiffs challenge Florida’s Cuba Amendment to Fla. Stat. § 287.135, enacted as Chapter 2012-196, arguing it violates the Supremacy Clause, the Federal Foreign Affairs Power, and the Foreign Commerce Clause.
- Plaintiff Odebrecht Construction, Inc. is a Florida corporation; its parent Odebrecht S.A. has subsidiaries involved in Cuba, including COI Overseas Ltd., which is connected to a near-$1 billion Port of Mariel project in Cuba.
- Cuba Amendment bars a company engaged in business operations in Cuba from bidding on or renewing contracts over $1 million with state or local agencies unless it certifies no Cuban business operations, with penalties for false certification and three-year bid ineligibility.
- Defendant Ananth Prasad, FDOT Secretary, administers and enforces the Cuba Amendment for contracts valued at $1 million or more.
- Federal sanctions regime governing Cuba (TWEA, CDA, Libertad Act, Trade Sanctions Reform and Export Enhancement Act) grants broad presidential discretion, including waivers, and is cited as conflicting with the Cuba Amendment’s approach.
- Court granted a preliminary injunction, determining substantial likelihood that the Cuba Amendment is unconstitutional under the Supremacy Clause, Foreign Affairs Power, and Foreign Commerce Clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Cuba Amendment conflict with federal supremacy? | Cuba Amendment undermines federal sanctions and calibration of policies. | Florida may regulate procurement consistent with its concerns; no field preemption shown. | Likely conflict and preemption; superseded by federal policy. |
| Does Cuba Amendment violate the federal foreign affairs power? | Amendment disrupts presidential sanctions and diplomacy with Cuba. | State action can impact foreign relations without broad disruption. | Likely violates federal foreign affairs power. |
| Does Cuba Amendment violate the Foreign Commerce Clause? | Discriminatory against foreign companies and reaches beyond Florida’s borders. | Market-participant exception applies; state can set procurement conditions in its market. | Likely violates Foreign Commerce Clause; not saved by market-participant doctrine. |
| Is the Cuba Amendment operable in light of federal authority? | Termination provision indicates operative status even if federal law changes. | Inoperative by its own terms only if federal law ceases to authorize the rule. | Likely inoperative by its own terms given current federal framework. |
Key Cases Cited
- Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) (field preemption and conflict with federal sanctions; central to preemption analysis)
- Japan Line Ltd. v. Los Angeles County, 441 U.S. 434 (1979) (Foreign Commerce Clause and need for national unity in foreign trade)
- Ex parte Young, 209 U.S. 123 (1908) (injunctive relief against state officials for constitutional violations)
- National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999) (five-factor considerations for preemption/field considerations in foreign affairs)