BIBLE v. UNITED STUDENT AID FUNDS, INC.
No. 14-1806
United States Court of Appeals, Seventh Circuit
Decided Aug. 18, 2015
799 F.3d 633
THOMAS, J., concurring
To accept the Department’s extraordinary position requires us to hold that a single letter to an assistant vice president of one guaranty agency explaining that the agency has the discretion not to charge collection costs under a repayment agreement constitutes sufficient notice for the rule that all agencies are prohibited from charging costs on rehabilitated loans. That is hardly the kind of “fair warning” required of the Department, especially since Bible seeks to “invoke the [Department’s] interpretation of ambiguous regulations to impose potentially massive liability on [USA Funds] for conduct that occurred well before that interpretation was announced.” Christopher v. SmithKline Beecham Corp., — U.S. —, 132 S.Ct. 2156, 2167, 183 L.Ed.2d 153 (2012) (quotation marks omitted).
The Department’s recent July 10, 2015, letter purporting to “restate and clarify the rules” (provided to the court by the Department as a “citation of additional authority”) is nothing short of an admission that the Department’s rule is entirely new. Ultimately, the Department is not interpreting the regulations. Instead,
What [the Department] claims for itself here is not the power to make political judgments in implementing Congress’ policies, nor even the power to make tradeoffs between competing policy goals set by Congress. It is the power to decide—without any particular fidelity to the text—which policy goals [the Department] wishes to pursue.
Michigan v. E.P.A., — U.S. —, 135 S.Ct. 2699, 2713, 192 L.Ed.2d 674 (2015) (Thomas, J., concurring) (citation omitted). This raises serious constitutional questions.
The Department’s interpretation is not entitled to deference. Furthermore, even if the Department truly interpreted the statutes and regulations prior to the events of this case as it claims, we cannot apply the interpretation to USA Funds. To subject USA Funds—indeed, an entire industry—to RICO liability based on a rule that was never enforced—and only recently announced—is manifestly unjust.
For all of these reasons, I respectfully dissent.
DUNNET BAY CONSTRUCTION COMPANY, an Illinois Corporation, Plaintiff-Appellant, v. Erica J. BORGGREN, in her official capacity as Acting Secretary for the Illinois Department of Transportation, et al., Defendants-Appellees.
No. 14-1493.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 12, 2014. Decided Aug. 19, 2015.
799 F.3d 676
Mary Ellen Welsh, Attorney, Office of the Attorney General, Chicago, IL, Ralph W. Kasarda, Attorney, Pacific Legal Foundation, Sacramento, CA, for Defendants-Appellees.
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
TINDER, Circuit Judge.
Plaintiff-Appellant Dunnet Bay Construction Company sued Defendants-Appellees Illinois Department of Transportation (IDOT) and its then-Secretary of Transportation Gary Hannig in his official capacity, alleging that IDOT’s Disadvantaged Business Enterprise (DBE) Program discriminates on the basis of race. The district court granted summary judgment to Defendants, concluding that Dunnet Bay lacked standing to raise an equal protection challenge based on race and that the DBE Program survived the constitutional and other challenges. Dunnet Bay appeals. For the reasons that follow, we affirm.
I. BACKGROUND
Dunnet Bay is a corporation that engages in general highway construction. It is prequalified to bid and work on IDOT projects and competes for federally assisted highway construction contracts awarded by IDOT. Dunnet Bay is owned and controlled by two white males. Between 2007 and 2009, its average annual gross receipts were over $52 million.
IDOT is the agency of the State of Illinois responsible for administering, building, operating, and maintaining the state highway system. It also is responsible for administering federally funded highway construction contracts in accordance with federal and state law, including the regulations promulgated by the U.S. Department of Transportation (USDOT), see
In order to receive federal-aid funds for highway contracts, IDOT must have a “disadvantaged business enterprise” participation program that complies with federal regulations. The Transportation Equity Act for the 21st Century (“TEA-21”),
States must set an overall goal for DBE participation in federally assisted contracts.
Under the regulations, a contract may be awarded to a bidder who demonstrates that it has obtained enough DBE participation to meet the DBE contract goal, or demonstrates that it made adequate good faith efforts to meet the goal even if it did not meet the goal, id.
IDOT administers the DBE program in Illinois. IDOT prepared and submitted to USDOT for approval a DBE program governing federally funded highway construction contracts. IDOT established a statewide aspirational goal for DBE participation of 22.77%. IDOT typically achieved somewhere between 10% and
IDOT has five regions that are subdivided into a total of nine districts. Each district is headed by a district engineer who is responsible for the highways in his or her district. The district engineers report to the regional engineers who report to the Director of Highways/Chief Engineer. A district engineer and equal employment opportunity (EEO) officer review each construction contract to decide whether the contract presents DBE participation opportunities. At all relevant times, Christine Reed was IDOT’s Director of Highways/Chief Engineer and was responsible for goal setting. Reed reviewed recommendations for contract goals and small business initiatives. Contracts had been withdrawn from bidding by Secretary Hannig’s predecessor to review DBE goals. After the goals were reviewed, the contracts were re-advertised with higher DBE goals.
Under IDOT’s DBE program, if a bidder fails to meet the DBE contract goal, then it may request a modification of the goal, аnd provide documentation of its good faith efforts to meet the goal. These requests for modification are also known as “waivers.” Historically, IDOT has granted goal modification requests. In calendar year 2007, it granted 57 of 63 pre-award goal modification requests; the six other bidders ultimately met the contract goal with post-bid assistance from IDOT. In calendar year 2008, IDOT granted 50 of 55 pre-award goal modification requests; the other five bidders ultimately met the DBE goal. And in calendar year 2009, IDOT granted 32 of 58 goal modification requests; the other contractors ultimately met the goals. In calendar year 2010, IDOT received 35 goal modification requests; it granted 21 of them and denied the rest.
Secretary Hannig became IDOT’s Secretary in February 2009. He named William Grunloh his Chief of Staff. From the beginning of his term, Secretary Hannig told Reed that he wanted IDOT to make a “very strong effort” in setting and attempting to achieve DBE goals. As with prior IDOT Secretaries, Secretary Hannig was concerned about increasing DBE participation in federal contracts. Indeed, his first directive to IDOT’s entire staff was to increase participation for minority companies. In a March 2009 meeting with Reed, Secretary Hannig made it “very clear that waivers would not be a part of a common practice of his administration.” As a result, Reed told the regional engineers that “the Secretary was not interested in entertaining waivers as part of his administration” and told a contracting organization that “request[s] for waivers would be closely scrutinized and would be very difficult to get.” In an April meeting about DBE participation for a bridge project, Secretary Hannig was “very adamant that waivers were not going to be an acceptable part of his administration unless [they were] absolutely positively appropriate.”
IDOT’s Director of the Office of Business and Workforce Diversity (OBWD) Larry Parrish, who recommended whether waiver requests were granted or denied and sought approval of his recommendation from Secretary Hannig, advised Carol Lyle, IDOT’s Deputy Director of OBWD,
From time to time, Reed had discussions about DBE goals with Kristi Lafleur, the Deputy Chief of Staff in the Governor’s Office who was responsible for oversight of IDOT and Darryl Harris, the Governor’s Director of Diversity Enhancement. In September 2009, Lafleur emailed Secretary Hannig that “[w]e need an action plan from [IDOT] on increasing the DBE numbers” and “we need an overhaul for the program and need to announce a new program.” Secretary Hannig responded that “an overhaul of this program is in order” but “[t]he federal guidelines make the program goals and not set asides.” Beginning with his appointment in November 2009 as Director of Diversity Enhancement, Harris made it clear to Secretary Hannig, Reed, and other IDOT personnel that DBE participation was a top priority and that goal modifications were not favored.
In early December 2009, IDOT sought bids for a highway resurfacing project for a portion of Interstate 290, known as the Eisenhower Exprеssway. There were four federally funded contracts for construction work on the Eisenhower, one of which was Contract No. 60I57, the contract at issue in this case. Henry Gray, a civil engineer and EEO Officer for District 1, set the DBE goals for the contracts. He set DBE participation goals of 8% for three of the four contracts, including Contract No. 60I57; the goal for the fourth contract was set at 10%.
In mid-December Secretary Hannig ordered the withdrawal of the invitation for bids for the Eisenhower projects. Before doing so, he had been advised that the Governor’s Office wanted a weighted average DBE participation goal of 20% for those projects. Secretary Hannig wrote Reed and Grunloh that “we need to get the [E]isenhower up to 20% minority participation” and back on schedule.1 Secretary Hannig and Reed were comfortable that the goal could be met within the law. Reed advised Secretary Hannig that the contract goals were “relatively low” and there was opportunity to increase the goals under federal law. IDOT expanded the scope of the projects and items deemed eligible for DBE consideration—by expanding the geographic areas to determine DBE eligibility, and by adding pavement patching, landscaping, and other work originally reserved for small business initiatives to the existing DBE goals. These efforts increased the weighted average of the projects to 20%. IDOT issued a revised invitation for bids for a January 2010 letting with a new DBE participation goal on Contract No. 60I57 of 22%.
Earlier in 2009, IDOT had sought approval from USDOT to use “split goals” on a Mississippi River Bridge Project. USDOT rules do not allow “split goals”—separate goals for minorities and women. On December 14, Harris sent the Governor’s Chief of Staff and others an email indicating that the Federation of Women Contractors was “willing[ ] to drop [its] opposition to split goals” on the project if IDOT implements a “no waiver policy” like that of the Capital Development Board. Harris testified that he never agreed to have IDOT implement a no-waiver policy, but rather agreed to “bring it up for consideration.”
On December 23, Secretary Hannig held a mandatory meeting with Grunloh, Reed, Parrish, and IDOT’s Chief Counsel Ellen Schanzle-Haskins, as well as with some
The FHWA approved the methodology IDOT used to establish its statewide overall DBE goal of 22.77%. The FHWA reviewed and approved the individual contract goals for work on the Eisenhower projects for IDOT’s January 15, 2010, bid letting. It also approved the IDOT DBE program amendment that required contractors to submit with their bids their DBE utilization plans and documentation of good faith efforts to meet DBE goals.
On January 6, 2010, IDOT held an informational meeting for general contractors and DBE firms regarding the January 15, 2010 bid letting. IDOT discussed changes in its DBE contracting procedures and requirements. The District 8 (Metra East) EEO Officer Lee Coleman stated that Secretary Hannig had told him that no waivers would be granted with respect to DBE contract goals for the letting. However, IDOT’s Director of Highways Reed told Secretary Hannig that a no-waiver policy was not possible because it violated the law. Secretary Hannig told Harris that a no-waiver policy was not allowed under federal law. The Secretary also advised the Governor’s Chief Operating Officer Jack Lavin that IDOT was doing its best to follow the law and did not appreciate Harris trying to interject himself into IDOT’s business.
IDOT has a “Bidders’ List,” also known as the “For Bid List of Bidders” and “For Bid List,” which identifies all approved, prequalified general contractors for each item on a letting. DBEs rely on the For Bid List so they know to which contractors to submit subcontracting quotes. DBEs typically will not submit subcontracting quotes to general contractors who are not on the For Bid List. On January 14, IDOT issued the final For Bid List, identifying the authorized bidders on each project in the January 15 letting. IDOT inadvertently left Dunnet Bay off the For Bid List.
On January 15, Dunnet Bay submitted to IDOT a bid of $10,548,873.98 for Contract No. 60I57, which was the lowest bid on the contract. Dunnet Bay’s bid was 0.73% under the engineer’s estimate but 16% over the program estimate, exceeding the latter estimate by about $1.3 million.2
Dunnet Bay requested a goal modification, also known as a waiver, based on its good faith efforts to obtain the DBE goal. In December 2009, Dunnet Bay had attended a symposium where it met some DBEs. Beginning on January 4, 2010, Dunnet Bay faxed DBE subcontractors invitations to submit quotes and followed-up about a week later with telephone calls. Dunnet Bay solicited 796 companies, 453 of which were DBEs. It had contacted DBE networking organizations such as the Black Contractors United, Chicago Minority Business Development Council, and Chicago Urban League, and advertised subcontracting opportunities on its website. In addition, Dunnet Bay’s president attended a mandatory pre-bid meeting, which provided DBEs an opportunity to network with prime contractors interested in bidding on the Eisenhower project. Dunnet Bay’s efforts were essentially the same that it had made in the past and had proven successful in meeting DBE goals. Dunnet Bay was not among those contractors who often sought goal modification requests. In fact, Dunnet Bay met the goal for 8 of the 9 bids in the January 15, 2010 letting. However, despite utilizing IDOT’s supportive services in the past, Dunnet Bay did not contact supportive services in connection with the Eisenhower project. Its president offered the explanation that supportive services were not of “any help.”
DBE subcontractors submitted to Dunnet Bay post-bid quotes that would have enabled it to meet the DBE participation goal. At least one of the subcontractors indicated that its quote would have been submitted earlier had it known that Dunnet Bay was bidding on the project, that is, had IDOT not left Dunnet Bay off the For Bid List.
An interview of Darryl Harris was published in the January 2010 issue of Capital City Courier. (Governor Quinn was facing a formidable challenger in the Democratic primary election to be held on February 2, 2010.) In the interview, Harris discussed the DBE program on the Eisenhower projects:
I can tell you one of the greatest successes that we have so far is that we have a project in the Chicago area called the Eisenhower Highway Project, which is a $90 billion dollar project. Traditionally, goals in the past were set around 6 or 8 percent. This administration can go on record that our goal is 20 percent, with one stage of that project being 30 percent for minority-owned businesses. Already you can see that the Governor is committed to providing opportunities for minorities and women....
The Governor remains steadfast on a no-waiver policy. This has been a practice in C.D.B. [Capital Development Board] for several years. So, now we’re encouraging the Department of Transportation to also have a no waiver policy.
[O]ur no-waiver policy is just that. You have to meet it. When we put goals on a project, we strongly encourage that those goal[s] are being met.
The article was not well-received by IDOT. Secretary Hannig was upset that Harris would make such statements that were contrary to federal law. Hannig had advised Harris that a “no waiver” policy was not allowed under federal law and that IDOT would not implement a policy “that was clearly in violation of the federal laws.” The article drew objection from the Illinois Road & Builders Association who wrote Governor Quinn, requesting “complete repudiation” of Harris’s statements about a “no-waiver policy.” Secretary Hannig and IDOT’s Chief Counsel responded by indicating that IDOT does not violate federal law and regulations, and that IDOT has granted and does grant waivers where appropriate.
In an email dated January 20, 2010, from Secretary Hannig to Harris and copied to Lafleur in the Governor’s Office, Hannig advised of the results of the bidding on Contract No. 60I57:
The fourth project has 4 bidders. The low bidder is over budget but close in dollar amounts but is the only bidder to miss the DBE goals. Under our rules since the lowest bidder is close to our pre-bid estimate, he would normally be given the award if he could show a good faith effort to meet the DBE goals and was granted a waiver by I.D.O.T. If I.D.O.T. rules he did not make a good faith effort I.D.O.T. could award the contract to the next lowest bidder or rebid the project.
Secretary Hannig testified that the email was mistaken because the low bidder would not normally be awarded the contract because the bid was over IDOT’s estimate. He explained, “We would have to take a look at it, and there could be some circumstances where it would be accepted.” IDOT Chief Counsel Schanzle-Haskins stated that “[IDOT] would not normally award a contract that was [$1.3 million] over the program estimate”; instead, it “normally would reject the bid.”
IDOT held a series of meetings to decide whether to award the Eisenhower contracts. Three of the bids were “way over” the program estimates. It was discussed that Dunnet Bay as the low bidder was over the program estimate, but within the awardable range. Secretary Hannig expressed concern about the race, gender, and ethnicity of the DBEs on the Eisenhower projects. Harris expressed concern that there were not enough African American subcontractors on the DBE list. Reed made recommendations to Secretary Hannig regarding whether to rebid contracts, and he followed her recommendations to rebid contracts for financial concerns. Reed recommended to Secretary Hannig that Contract No. 60I57 be rebid because the low bidder was 16% over the project estimate and was left off the For Bidders List.
In a letter dated January 22, 2010, IDOT advised Dunnet Bay that it had made a “preliminary determination” that Dunnet Bay had not made good faith efforts to meet the DBE goal. Dunnet Bay’s good faith efforts were not considered at that time, however. Rather, where the bidder failed to meet the DBE goal despite documentation of good faith efforts, IDOT initially rejected the bid and all bids as nonresponsive. According to Carol Lyle, IDOT had decided to preliminarily reject any bid that did not meet the DBE goal and allow the contractor to seek a reconsideration hearing. A reconsideration hearing was set for January 25 to allow Dunnet Bay to provide documentation of its good faith efforts.
Grunloh, Lyle, Dunnet Bay’s owner and president Tod Faerber, and Dunnet Bay employee Sarah Rose attended the reconsideration hearing. Dunnet Bay presented evidence of its good faith efforts. However, Faerber admitted that they had not used IDOT’s supportive services. Dunnet Bay argued that it would have met the contract’s DBE goal but for IDOT’s error in leaving it off the For Bid List, which impacted the DBEs’ submission of timely subcontracting quotes to Dunnet Bay.
After the reconsideration hearing, Faerber met with Lyle and Grunloh. Lyle initially believed that Dunnet Bay had demonstrated sufficient good faith efforts. She testified, however, that a major reason for this belief was because Dunnet Bay had been left off the For Bid List. Lyle subsequently expressed the opinion that Dunnet Bay could have done more to demonstrate good faith efforts, namely, by contacting supportive services as well as IDOT’s Bureau of Small Business Enterprises and the district EEO officer.
Faerber also met with Secretary Hannig to express serious concern about his ability to get a fair hearing given the Darryl Harris article, which “seemed to imply that waivers were not going to be granted.” The Secretary responded that he understood, but he was under pressure from Harris not to grant waivers. Faerber candidly testified that Secretary Hannig did not indicate whether or not IDOT would grant waivers.
Grunloh decided that Dunnet Bаy’s reconsideration request should be denied, having concluded that it had not demonstrated good faith efforts to obtain DBE participation. Although Grunloh prepared no contemporaneous writing of his reasoning, he summarized his reasons as follows: (1) Dunnet Bay did not utilize IDOT’s supportive services, and (2) the second, third, and fourth next lowest bidders were able to meet the 22% goal.
Grunloh also recommended to Secretary Hannig that the contract be rebid instead of awarded to the second lowest bidder because the low bidder (Dunnet Bay) had not been included on the final For Bid List. Similarly, Chief Counsel Schanzle-Haskins advised Secretary Hannig that IDOT “screwed up” by leaving Dunnet Bay off the bidders list, and so, in fairness, IDOT should not award the contract to the second lowest bidder. Because the low bidder was 16% over the project estimate and was left off the Final For Bid List, Secretary Hannig decided not to award the contract to the second lowest bidder and re-let Contract No. 60I57.
On February 2, Secretary Hannig contacted Faerber by telephone and advised that IDOT was not going to grant Dunnet Bay a waiver for the project and its bid was going to be rejected because it did not meet the DBE goal. Hannig explained that IDOT “felt bad” because Dunnet Bay was left off the For Bid List, and IDOT
Four separate Eisenhower Expressway projects were advertised for bids for the January 15, 2010 bid letting. IDOT granted one of four goal modifications requested from that bid letting. (Reconsideration Hearing Officer Grunloh granted modification of the DBE participation goal on March 4, 2010.) Only one of the four projects was awarded; the other three, including Contract No. 60I57, were unacceptable to IDOT and were rebundled and re-advertised for bids for a February 2010 special letting. The re-bids were “much more competitive.” Although Dunnet Bay’s bid was lower than its first bid, it was not the lowest bid; it was the third out of five bidders.
On February 26, 2010, Dunnet Bay sued IDOT and Secretary Hannig in his official capacity, asserting race discrimination and equal protection claims under
In a comprehensive and well-written opinion, the district court granted the Defendants’ motion and denied Dunnet Bay’s motion. The court concluded “that Dunnet Bay lacks Article III standing to raise an equal protection challenge because it has not suffered a ‘particularized’ injury that was caused by IDOT. Dunnet Bay was not deprived of the ability to compete on an equal basis.” Dunnet Bay Constr. Co. v. Hannig, No. 3:10-cv-3051, 2014 WL 552213, at *30 (C.D.Ill. Feb. 12, 2014). The court also determined that Dunnet Bay, which does not qualify as a small business, lacks prudential “standing to vindicate the rights of a (hypothetical) white-owned small business.” Id.
Even if Dunnet Bay had standing to bring an equal protection claim, the court concluded that the Defendants were entitled to summary judgment. Id. It stated that to establish an equal protection violation, IDOT would have to show that it was treated less favorably than another similarly situated entity. The court found that only speculation could resolve whether Dunnet Bay or any other contractor would have been awarded the Contract but for IDOT’s DBE Program. It reasoned that no one could know what the second lowest bidder’s bid would have been if it had not
Moreover, the court determined that IDOT had not exceeded its federal authority under the federal rules and that Dunnet Bay’s challenge to the DBE program fails under Northern Contracting, Inc. v. Illinois, 473 F.3d 715, 721 (7th Cir.2007), which insulates a state DBE program from a constitutional attack absent a showing that the state exceeded its federal authority. Id. at *26-29. The court determined that there was no reasonable basis to find that IDOT exceeded its federal authority by (1) setting the 22% DBE goal on the Eisenhower Contract; (2) imposing a “no waiver” policy by refusing to grant waivers of DBE goals, given that a waiver was granted in connection with the January 15, 2010 letting at issue and waivers were granted before and after that letting; (3) denying Dunnet Bay’s waiver request initially and on reconsideration upon finding that it did not make adequate good faith efforts; and (4) omitting from its denial letter the reasons why its good faith efforts were inadequate, given that the “technical” violation did not prejudice Dunnet Bay. Furthermore, because IDOT rebid the project, the court concluded that a reconsideration hearing was not required, and because the contract was not awarded to the next lowest bidder, it decided the claim was moot. Id. at *29. Dunnet Bay appeals from the district court’s judgment.
II. DISCUSSION
Dunnet Bay contends that it was denied a state highway IDOT’s DBE Program. We review the district court’s ruling on the cross-motions for summary judgment de novo, construing all reasonable inferences from the record in favor of the party against whom the motion under consideration is made. Tompkins v. Cent. Laborers’ Pension Fund, 712 F.3d 995, 999 (7th Cir.2013).
A. Dunnet Bay’s Standing to Raise an Equal Protection Claim
The first issue we address is whether Dunnet Bay has standing to challenge IDOT’s DBE Program on the ground that it discriminates on the basis of race in the award of highway construction contracts. In other words, is Dunnet Bay a proper plaintiff to challenge the DBE program on the basis of alleged race discrimination? If Dunnet Bay lacks standing, then we lack jurisdiction to consider the merits of the equal protection claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
Standing arises under Article III’s “case or controversy” requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Article III standing has three elements: (1) an “injury in fact,” that is, “an invasion of a legally protected interest which is ... concrete and particularized, and ... actual or imminent”; (2) a causal connection between the injury and the challenged conduct, meaning that the injury is “fairly traceable” to the challenged conduct; and (3) a likelihood “that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (citations and internal quotation marks omitted). These are the constitutional minimum requirements for standing. See id. at 560, 112 S.Ct. 2130.
There are also prudential limitations on standing. Lujan, 504 U.S. at 560,
“The party invoking federal jurisdiction bears the burden of establishing [the standing] elements[,] ... [and] each element must be supported ... with the manner and degree of evidence required at the successive stages of the litigation.” Edgewood Manor Apart. Homes, LLC v. RSUI Indem. Co., 733 F.3d 761, 771 (7th Cir.2013) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citations omitted)). “At the summary-judgment stage, ‘the plaintiff can no longer rest on ... mere allegations, but must set forth by affidavit or other evidence specific facts.’ ” Id. (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks and citations omitted)). Thus, because the district court decided that Dunnet Bay lacked standing at the summary judgment stage, mere allegations of standing are not enough; Dunnet Bay must present evidence to establish the elements of standing.
Dunnet Bay contends that it has standing because it has suffered an injury in fact. First, it asserts that IDOT’s race-conscious DBE program prevented it from competing on equal footing with DBE contractors and prevented it from being awarded the contract. Dunnet Bay also claims that it was injured because the DBE program forcеd it to participate in a discriminatory scheme.
The Supreme Court addressed standing to raise an equal protection challenge to race-conscious government contracting programs in Northeastern Fla. Chapter, Associated General Contractors of America v. Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993), and Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). In Northeastern Florida, an association of contractors challenged a Jacksonville, Florida ordinance setting aside 10% of city contracts for businesses that were minority- or women-owned. Once a project was earmarked for minority business enterprise bidding, it was “deemed reserved for minority business enterprises only” and non-minority business enterprises could not even bid on the project. 508 U.S. at 658, 113 S.Ct. 2297. The Court concluded:
When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an
equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.
Id. at 666, 113 S.Ct. 2297. The Court held that “in the context of a challenge to a set-aside program, the ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract.” Id. Therefore, to establish standing to challenge a set-aside program, a plaintiff “need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.” Id.; see Gratz v. Bollinger, 539 U.S. 244, 262, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (holding that Caucasian applicant for university admission had standing to seek prospective relief challenging university’s use of race in its admissions policy where he was denied admission but a minority applicant with his qualifications would have been admitted and applicant was “able and ready” to apply as a transfer student if the university stopped using race in its admissions policy).
In Adarand, the Court addressed whether a subcontractor had standing to raise an equal protection challenge to a law that gave general contractors a direct financial incentive to hire subcontractors controlled by “socially and economically disadvantaged individuals.” 515 U.S. at 204, 115 S.Ct. 2097. The plaintiff submitted the low bid but was not awarded the subcontract and submitted evidence that the general contractor would have accepted its bid, but for the subcontractor compensation clause that provided it additional payment for hiring the disadvantaged subcontractor. Id. at 205, 115 S.Ct. 2097. The plaintiff also established that it often competed for contracts against companies certified as small disadvantaged businesses. Id. at 212, 115 S.Ct. 2097. The Court held that the plaintiff had standing to seek forward-looking relief because the “discriminatory classification prevent[s] the plaintiff from competing on equal footing.” Id. at 211, 115 S.Ct. 2097 (citing Northeastern Fla., 508 U.S. at 667, 113 S.Ct. 2297). In other words, because the subcontractor compensation clause made the plaintiff more expensive to hire, it could not compete on equal footing with subcontractors considered disadvantaged because of their race. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280-81 n. 14, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (holding white medical school applicant had standing to challenge school’s admissions program which reserved a prescribed number of positions in the class for disadvantaged minorities because the “injury” was the school’s “decision not to permit [him] to compete for all 100 places in the class, simply because of his race”); Alliant Energy Corp. v. Bie, 277 F.3d 916, 920-21 (7th Cir.2002) (stating that “[a] statute that deprives a firm of an opportunity to compete for business gives standing to sue”).
In arguing that it was unable to compete on equal footing with DBE contractors, Dunnet Bay asserts that it “need only show that it was excluded from competition and consideration for a government benefit because of race-based measures.” Yet Dunnet Bay has not established that it was excluded from competition or otherwise disadvantaged because of race-based measures. First, in contrast with Northeastern Florida, nothing in IDOT’s DBE program excluded Dunnet Bay from competition for any contract. IDOT’s DBE program is not a “set aside program like Jacksonville’s” in which non-minority owned businesses could not even bid on certain contracts. Under IDOT’s DBE program, all contractors—minority and non-minority con
Further, Jacksonville’s ordinance favored “minority businеss enterprises,” defined as a business with minority or female ownership. IDOT’s DBE program is designed to increase the participation of socially and economically disadvantaged businesses in construction contracts, see N. Contracting, 473 F.3d at 720-24 (holding IDOT’s DBE program constitutional), and therefore addresses a broader category of disadvantaged businesses than that addressed in Jacksonville’s ordinance. The absence of complete exclusion from competition for certain projects with minority- or women-owned businesses also distinguishes some of the other authorities cited by Dunnet Bay and amici: Eng’g Contractors Ass’n of S. Fla. Inc. v. Metro. Dade Cnty., 122 F.3d 895, 905-06 (11th Cir.1997) (holding trade associations whose members regularly performed work for county had standing to challenge county’s affirmative action program that allowed contracts to be set aside for bidding only among minority and women, business enterprise programs); Coral Constr. Co. v. King Cnty., 941 F.2d 910, 929-30 (9th Cir.1991) (holding contractor had standing to challenge county’s minority- and women-owned business enterprise program where a set-aside method applied under which a contractor had to use minority- or women-owned businesses for a certain percentage of work on the contract).
And unlike in Adarand, where the challenged law explicitly favored minority-owned subcontractors by providing a direct financial incentive to contractors to hire them, Dunnet Bay has not alleged, let alone produced evidence to show, that it was treated less favorably than any other contractоr because of the race of its owners. The lack of an explicit preference for minority-owned businesses distinguishes other authorities cited by Dunnet Bay. See Bras v. Cal. Pub. Utils. Comm’n, 59 F.3d 869, 871 (9th Cir.1995) (public utility provided a pre-qualification preference to minority- and women-owned businesses and plaintiff lost opportunity to negotiate with utility because race and gender were considered); Associated Gen. Contractors of Cal., Inc. v. Coalition for Econ. Equity, 950 F.2d 1401, 1404 (9th Cir.1991) (ordinance gave 5% bid preference to minority- and women-owned businesses for public contracts); see also Coral Constr., 941 F.2d at 914, 930 (holding contractor had standing to challenge program that gave minority- and women-owned businesses a preference for public contracts if their bid was within 5% of the lowest bid). Under IDOT’s DBE program, all contractors are treated alike and subject to the same rules.
Still other authorities cited by Dunnet Bay or amici are inapposite because the contractors’ standing was based in part on the fact that they lost an award of a contract for failing to meet the disadvantage business enterprise goal or failing to show good faith efforts, despite being the low bidders on the contract, and the second lowest bidder was awarded the contract. See Safeco Ins. Co. of Am. v. City of White House, Tenn., 191 F.3d 675, 689 (6th Cir.1999) (holding contractor and its insurer had standing to challenge the constitutionality of EPA regulations imposing a racial preference on minority subcontracts where the alleged failure to comply with the regulations resulted in the loss of a contract whiсh was awarded to the second lowest bidder and the regulations placed white subcontractors at a competitive disadvantage); Monterey Mech. Co. v. Wilson, 125 F.3d 702, 704 (9th Cir.1997) (noting that plaintiff submitted the lowest bid but did not get the contract since its “bid was disqualified because [it] did not
In contrast with these cases where thе plaintiffs had standing, Dunnet Bay cannot establish that it would have been awarded the contract on the Eisenhower project but for its failure to meet the DBE goal or demonstrate good faith efforts. The evidence, even when viewed in the light most favorable to Dunnet Bay, demonstrates that although Dunnet Bay’s bid was rejected for failing to meet the DBE goal, its bid was 16% or about $1.3 million over the program estimate, and Director Reed recommended that IDOT rebid the contract because the low bid was 16% over the project estimate and Dunnet Bay had been left off the For Bidders List. The evidence further establishes that Secretary Hannig always followed Reed’s recommendations to rebid contracts for financial concerns. Indeed, the Secretary decided to rebid the contract because the low bidder was 16% over the project estimate and was left off the final For Bid List.
Moreover, even assuming that Dunnet Bay could establish that it was excluded from competition with DBEs or that it was disadvantaged as compared to DBEs, it cannot show that any difference in treatment was because of race. The regulations define a DBE as “a for-profit small business concern” that is owned or controlled “by one or more individuals who are both socially and economically disadvantaged.”
To put it differently, Dunnet Bay has not established that the denial of equal treatment resulted from the imposition of a racial barrier. Accordingly, this case is unlike those relied on by Dunnet Bay where the plaintiff established that the difference in treatment and any additional costs and burdens imposed on it were because of race (or gender). For example, in Monterey Mechanical, the challenged ordinance provided that “contracts awarded by ... [the state] for construction ... shall have statewide participation goals of not less than 15 percent for minority business enterprises [and] not less than 5 percent for women business enterprises” 125 F.3d at 704 (citing
As for its second alleged injury, Dunnet Bay argues that it was forced to participate in a discriminatory scheme and was required to consider race in subcontracting. In Monterey Mechanical, the court held that “[a] person required by the government to discriminate by ethnicity or sex against others has standing to challenge the validity of the requirement, even though the government does not discriminate against him.” Id. at 707. This holding was followed in Safeco Insurance Co., 191 F.3d at 689, and Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 350 (D.C.Cir.) (noting that “forced discrimination may itself be an injury”), reh’g denied, 154 F.3d 487 (D.C.Cir.1998), but the latter court couched the issue in terms of third-party standing. It seems that Monterey Mechanical collapsed third-party standing into Article III standing. And in each of these cases—Monterey Mechanical, Safeco Insurance Co., and Lutheran Church-Missouri Synod—the plaintiffs already had established injury in fact, that is, suffered another direct harm because of the challenged statute or regulation. See Safeco Ins. Co., 191 F.3d at 689 (failure to comply with regulations resulted in the loss of a contract and institution of the lawsuit); Lutheran Church-Mo. Synod, 141 F.3d at 348-49 (FCC order found that church violated EEO regulations and imposed a fine and reporting requirements); Monterey Mech., 125 F.3d at 704 (plaintiff submitted the low bid but did not get the job because of its failure to comply with a state statute). As discussed above, where the plaintiff has established injury in fact, it may assert third-party rights.
Neither we nor the Supreme Court has adopted Monterey Mechanical’s broad view of standing. We recognize that the Court has held that “one form of injury under the Equal Protection Clause is being forced to compete in a race-based system that may prejudice the plaintiff.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (citing Adarand and Northeastern Fla.). However, the injuries asserted in Parents Involved were the denial of assignment to a certain public high school based on race and the interest “in not being forced to compete for seats at certain high schools in a system that uses race as a deciding factor in many of its admissions decisions.” Id. The plaintiffs’ children were competing
Furthermore, we agree with amicus NAACP Legal Defense & Educational Fund, Inc. that Monterey Mechanical’s broad view of standing goes against the established principle that “a plaintiff raising only a generally available grievance about government—claiming only harm to every citizen’s interest in proper application of the Constitution and laws” does not satisfy Article III’s requirement that the injury be concrete and particularized. See Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130; see also Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007) (“Our refusal to serve as a forum for generalized grievances has a lengthy pedigree.”); Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (stating thаt racial discrimination “is sufficient in some circumstances to support standing” but only those “who are personally denied equal treatment by the challenged discriminatory conduct” have Article III standing) (quotation omitted). Broadly speaking, not every contractor has “standing to challenge every affirmative-action program on the basis of a personal right to a government that does not deny equal protection of the laws.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 489 n. 26, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Dunnet Bay’s claimed injury of being forced to participate in a discriminatory scheme amounts to “a challenge to the state’s application of a federally mandated program,” which we have determined “must be limited to the question of whether the state exceeded its authority.” N. Contracting, 473 F.3d at 720-21 (holding that IDOT may rely on federal government’s compelling interest in remedying past discrimination in construction projects and that IDOT’s DBE program is narrowly tailored to achieve this interest as IDOT did not exceed its authority). Dunnet Bay was not denied equal treatment because of racial discrimination; any difference in treatment is equally attributable to Dunnet Bay’s size.
Although Dunnet Bay suggests that the second and third standing elements (causation and redressability) are not at issue, as the party invoking federal court jurisdiction, it bears the burden of establishing all three elements of standing. See Edgewood Manor Apart. Homes, 733 F.3d at 771. Amicus Pacific Legal Foundation suggests that since Dunnet Bay suffered an injury in fact under the DBE program, which we reiterate Dunnet Bay has not established, it necessarily established causation and redressability. Amicus cites Northeastern Florida, where causation and redressability followed from the Court’s definition of “injury in fact.” 508 U.S. at 666 n. 5, 113 S.Ct. 2297. Although that was true in the context of the set-aside program where causation and redressability were readily apparent, the Court did not hold that these other elements are always collapsed into an injury in fact.
Even assuming that Dunnet Bay could establish that the DBE program caused it аn injury in the first letting, it cannot establish redressability: IDOT’s decision to re-let the contract redressed any injury. As for the second letting, the evidence does not establish that the DBE program caused Dunnet Bay any injury. In the second letting, Dunnet Bay satisfied the DBE goals, but its bid was not the lowest; other contractors submitted lower bids and met the DBE participation goals. Therefore, Dunnet Bay was not awarded the contract.
Moreover, prudential limitations preclude Dunnet Bay from bringing its claim. A litigant “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499, 95 S.Ct. 2197.4 Dunnet Bay acknowledges that before a litigant may be permitted to assert another’s rights to establish a claim, he must satisfy Article III standing requirements. See Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (“[W]e conclude that appellant ... has established independently her claim to assert jus tertii standing. The operation of [the challenged statutes] plainly has inflicted ‘injury in fact’ upon appellant sufficient ... to satisfy the constitutionally based standing requirements imposed by Art. III.”); Barrows v. Jackson, 346 U.S. 249, 255-56, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) (stating that “a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation” but “this principle has no application to the instant case in which respondent has been sued for damages ... and ... a judgment against respondent would constitute a direct ... injury to her”); Lutheran Church-Mo. Synod, 141 F.3d at 349-50 (allowing the plaintiff to raise an equal protection challenge although it had not suffered an equal protection injury where it was harmed by the FCC’s order finding it in violation of еqual employment opportunity regulations); Apter v. Richardson, 510 F.2d 351, 354 (7th Cir.1975) (stating “[t]he fact that the alleged wrong may also have injured third parties does not deprive plaintiff of standing so long as she as well is injured
City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), also cited by Dunnet Bay, is inapposite. In that case, the Supreme Court was asked to review the Illinois Supreme Court’s determination that a Chicago gang ordinance was unconstitutionally vague. As the Court explained, “[w]hen a state court has reached the merits of a constitutional claim, invoking prudential limitations on the respondent’s assertion of jus tertii would serve no functional purpose” and “state courts need not apply prudential notions of standing created by this Court.” Id. at 55 n. 22, 119 S.Ct. 1849. Dunnet Bay does not ask us to review a state court’s decision as to the constitutionality of the DBE program.
A party is exempt from the prudential limitation on asserting a third party’s rights, Dunnet Bay argues, “where the limitation’s purpose is outweighed by the need to protect fundamental rights.” But Barrows, which was cited for this proposition, does not help Dunnet Bay. Barrows was a state court action to enforce a racially restrictive covenant, and the defendant was permitted to assert the equal protection rights of others in her defense against enforcement. Dunnet Bay is not defending against a state enforcement proceeding, seeking to raise the rights of others in its own defense. And as noted, the Barrows defendant had been sued for damages and thus could establish her own injury. Moreover, the Court concluded that the prudential limitation on standing was outweighed and the defendant should be allowed to assert the rights of others given the “unique situation” and “peculiar circumstances” presented where “the action of the state court ... might result in a denial of constitutional rights and ... it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court.” Barrows, 346 U.S. at 257, 73 S.Ct. 1031.
But here there is no allegation, let alone evidence, that a non-minority-owned small business could not challenge IDOT’s DBE program on equal protection grounds. Because Dunnet Bay has failed to identify an injury in fact that is fairly traceable to the challenged DBE program, it lacks Article III standing. And because Dunnet Bay has not established Article III standing, it cannot raise an equal protection challenge to the DBE program based on the rights of a non-minority small business.
B. Whether Dunnet Bay Has Sufficient Evidence that IDOT’s Implementation of the DBE Program Constitutes Unlawful Race Discrimination
In the alternative, even if Dunnet Bay has standing to raise an equal protection claim, IDOT is entitled to summary judgment. The Equal Protection Clause of the Fourteenth Amendment prohibits intentional and arbitrary discrimination. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Thus, to establish an equal protection claim under the Fourteenth Amendment, Dunnet Bay must show that IDOT “acted with discriminatory intent.” Franklin v. City of Evanston, 384 F.3d 838, 846 (7th Cir.2004).
Racial discrimination by a recipient of federal funds that violates the Equal Protection Clause also violates Title VI and
Because IDOT’s DBE program employs racial classifications, we apply strict scrutiny in addressing Dunnet Bay’s constitutional challenge. Adarand Constructors, 515 U.S. at 235, 115 S.Ct. 2097 (“Federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest.”); N. Contracting, 473 F.3d at 720. Under strict scrutiny, “a government program that uses racial classifications must be narrowly tailored to serve a compelling governmental interest.” N. Contracting, 473 F.3d at 720. In implementing its DBE program, IDOT may properly rely on “the federal government’s compelling interest in remedying the effects of past discrimination in the national construction market.” Id. at 720. “[A] state is insulated frоm [a constitutional challenge as to whether its program is narrowly tailored to achieve this compelling interest], absent a showing that the state exceeded its federal authority.” Id. at 721; see also Milwaukee Cnty. Pavers Ass’n v. Fiedler, 922 F.2d 419, 423 (7th Cir.1991) (“Insofar as the state is merely complying with federal law it is acting as the agent of the federal government and is no more subject to being enjoined on equal protection grounds than the federal civil servants who drafted the regulations.... If the state does exactly what the statute expects it to do ... we do not see how the state can be thought to have violated the Constitution.”). Thus, the issue is whether IDOT exceeded its authority under federal law.
Dunnet Bay contends that IDOT exceeded its federal authority by effectively creating racial quotas by designing the Eisenhower project to meet a pre-determined DBE goal and eliminating waivers. If the DBE program were effectively a quota, it would be unconstitutional and violate the regulations. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (“[T]he 30% quota cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing.”);
FHWA approved IDOT’s methodology to establish its statewide DBE goal of 22.77% and approved the individual contract goals for the Eisenhower project for the January 15, 2010 bid letting. Dunnet Bay has not identified any part of the regulations that IDOT allegedly violated by reevaluating and then increasing its DBE contract goal, by expanding the geographic area used to determine DBE availability, by adding pavement patching and landscaping work into the contract goal, by including items that had been set aside for small business enterprises, or by any other means by which it increased the DBE contract goal. Indeed, as the district court concluded, “because the federal regulations do not specify a procedure for arriving at contract goals, it is not apparent how IDOT could have exceeded its federal authority,” Dunnet Bay Constr. Co., 2014 WL 552213, at *26; and this challenge is unavailing.
Next, Dunnet Bay asserts that IDOT had a “no-waiver” policy. Despite statements regarding a no-waiver policy and pressure from the Governor’s office, including from Harris, Dunnet Bay did not present sufficient evidence to raise a reasonable inference that IDOT had actually implemented a no-waiver policy. There is evidence that IDOT’s District 8 EEO Officer Coleman advised contractors at a pre-letting meeting that Secretary Hannig said that no DBE waivers would be granted for the January 15, 2010 letting. However, IDOT did not have a no-waiver policy; instead, the undisputed evidence shows that it was IDOT’s and Secretary Hannig’s policy that requests for waivers would be subjected to high-level review and would not be granted unless shown to be appropriate. IDOT’s Director of Highways Reed told Secretary Hannig that a no-waiver policy was not possible because it violated the law. The Secretary told Harris that IDOT would follow the law. So, too, IDOT’s Regional Engineer for the Metra East area Lamie testified that although Secretary Hannig said that there would be no DBE waivers, in context he was not “saying no waivers under any circumstances will ever be issued” but that waiver requests would be reviewed at a high level and had to be supported by appropriate documentation. Significantly, even since Secretary Hannig took over, IDOT granted waivers. In 2009, it granted 32 of 58 requested waivers, and the other 26 contractors ultimately met contract goals; in 2010, IDOT granted 21 of 35 requested waivers, that is, 60% of the waiver re
Dunnet Bay also challenges IDOT’s rejection of its bid without determining whether it had made good faith efforts to meet the DBE goal and contests whether IDOT’s reconsideration of its bid was meaningful in violation of
Dunnet Bay asserts that reconsideration hearing officer Grunloh “was not an independent official with no role in the original determination,” but it has offered no evidence to establish that Grunloh took any part in the initial determination that Dunnet Bay failed to make the DBE goal or make adequate good faith efforts. See id.
Furthermore, Dunnet Bay argues that it made good faith efforts to meet the DBE goal and that the reasons given for IDOT’s decision that it did not make adequate good faith efforts “do not hold up.” Dunnet Bay focuses on its efforts in attending a pre-bid meeting, advertising with DBE networking organizations, soliciting DBEs by fax, telephoning DBEs, and posting subcontracting opportunities on its own website. In total, Dunnet Bay solicited 796 companies for subcontracting work, 453 of which were DBEs.
A bidder “must show that it took all necessary and reasonable steps to achieve a DBE goal ... which ... could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful.”
Reconsideration officer Grunloh’s determination that Dunnet Bay failed to show good faith efforts is well-supported in the record. Grunloh testified that the reasons he determined Dunnet Bay failed to make good faith efforts were because it did not utilize IDOT’s supportive services, and because the 2nd, 3rd, and 4th bidders all met the goal, whereas Dunnet Bay did not even come close. Grunloh also explained that Dunnet Bay’s efforts were lacking with respect to the following areas included in the Appendix’s list: conducting market research and soliciting through all reasonable and available means the interest of all certified DBEs; providing interested DBEs with adequate information about the contract; making efforts to assist interested DBEs in obtaining bonding, lines of credit, etc.; making efforts to assist interested DBEs in obtaining necessary equipment, supplies, etc.; and effectively using services of various minority organizations to provide assistance in recruitment and placement of DBEs.
The performance of other bidders in meeting the contract goal is listed in the regulation as a consideration when deciding whether a bidder has made good faith efforts to obtain DBE participation gоals, see
Dunnet Bay asserts that it employed the same efforts for the Eisenhower project that it successfully employed on other projects. Dunnet Bay is not among those contractors who often seek goal modification. The fact that its efforts failed to secure the DBE participation goal may suggest that it was hindered by its omission from the For Bid List. But the rebidding of the contract remedied that oversight.
Dunnet Bay also points out that Lyle thought it had demonstrated good faith efforts. Given the discretion in determining whether a contractor made good faith efforts, the fact that Lyle disagreed with Grunloh and initially thought Dunnet Bay showed good faith efforts does not raise a genuine issue of fact as to Grunloh’s decision. In any event, Lyle subsequently expressed the view that Dunnet Bay could have done more to demonstrate good faith efforts, namely, by contacting supportive services as well as IDOT’s Bureаu of Small
Finally, it is true that IDOT failed to provide Dunnet Bay with “a written decision on reconsideration” explaining why it found that Dunnet Bay did not make adequate good faith efforts to meet the DBE contract goal.
III. CONCLUSION
We Affirm the district court’s judgment.
JOHN DANIEL TINDER
UNITED STATES CIRCUIT JUDGE
In re SOUTHWEST AIRLINES VOUCHER LITIGATION
Nos. 13-3264, 13-3462, 14-2591, 14-2602 and 14-2495.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 11, 2015. Decided Aug. 20, 2015.