Rack & Ballauer Excavating Co., Inc. v. Cincinnati City of
1:13-cv-00030
S.D. OhioFeb 8, 2013Background
- R&B, RB South, and Randy Rack allege Cincinnati’s policies block equal bidding on municipal contracts.
- RB South bid on Ardmore and Dellers Glen projects but was not awarded either despite submitting the lowest bids.
- Plaintiffs challenge Cincinnati’s Apprenticeship Requirement (CMC 320-5), Pre-Apprenticeship Fund (CMC 320-7), Local Hiring (CMC Chapter 318), and lack of bid-protest procedures.
- Chapter 318 was enacted in 2012 and suspends until at least March 14, 2013; it would require 30–40% local hours and 20% disadvantaged worker hours.
- Chapter 320 imposes 20% apprentice ratio and pension/healthcare requirements, including contributions to Fund 701; Cincinnati claims RB South was exempt from certain provisions.
- The court denies the TRO, finding plaintiffs have not demonstrated entitlement to preliminary relief, with standing and merits being central questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge Chapter 318/320 | Plaintiffs have standing due to present injury and imminent enforcement. | Implementation may be delayed and no present injury or certainty of harm shown. | Standing unresolved; TRO denied on merits anyway. |
| Constitutionality of Chapter 318 under Privileges and Immunities | Chapter 318 violates the Privileges and Immunities Clause by disadvantaging nonresidents. | No sufficient injury or evidence of protection against local unemployment; no constitutional violation shown. | Chapter 318 survived standing analysis but weighed as unconstitutional under P&I. |
| ERISA preemption of Chapter 320 | Chapter 320 imposes pension/health requirements tied to ERISA plans. | ERISA preemption applies where state law relates to employee welfare plans. | Chapter 320 preempted by ERISA. |
| Bid-protest procedures and due process | Lack of protest procedures violates due process and state law. | No requirement for protest procedure; no protected property interest shown. | No due process violation; no irreparable harm; bids already awarded; TRO denied. |
Key Cases Cited
- Toomer v. Witsell, 334 U.S. 385 (U.S. 1948) (fundamental right to engage in commerce; Privileges and Immunities analysis)
- Ward v. Maryland, U.S. 418 (1870) (U.S.) (commerce as a fundamental right under Toomer framework)
- Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996) (standard for TROs mirrors preliminary injunction standards; status quo preservation)
- McPherson v. Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d 453 (6th Cir. 1997) (injunction factors balanced, none controlling; likelihood of success essential)
- Ass’n Builders & Contrs. v. Mich. Dep’t of Labor & Econ. Growth, 543 F.3d 275 (6th Cir. 2008) (ERISA preemption considerations for state apprenticeship/benefit-mandating statutes)