Marco Outdoor Advertising, Inc. v. Regional Transit Authority

669 months, of 21 guidelines Brazell sentence but the September, of culating that as arrears), guideline range relevant without $63,576.45 in and be- would be § 4A1.1 enhancement have been 12- would object any of Brazell failed to cause 5A, § Sentencing PSR, 18 months. See U.S.S.G. in the district contained facts Accordingly, Table. we REVERSE facts and correctly relied on those resentencing.3 REMAND for applied the enhancement. not address We need disagree.

We that the date of indict- argument

Brazell’s which a continu- the latest date on

ment is to have taken may deemed

ing offense (i.e., contention that the date

place his activity”

“voluntary illegal termination only precedes that date where indictment): Instead, we believe date ADVERTISING, MARCO OUTDOOR by ruling court erred that the district INC., Plaintiff-Appellant, during probation his vio- Brazell’s conduct v. § lated AUTHORITY, REGIONAL TRANSIT criminalizes That section wilful Defendant-Appellee, support obligations; child pay failure to presumption ability confers rebuttable Outdoor, Inc., Clear Channel only during period alleged the time pay Intervenor Defendant- 228(b). § Bra- the indictment. See Appellee. failed to make zell’s admission that he No. 05-30875. support payments during period child no probation he was on creates which Appeals, United States Court of wilful, that his failure was presumption Fifth Circuit. (i.e., any wilfulness proof and without 15, 2007. June pro- of his ability pay) during the time bation, evidence to sus- there is insufficient that he

tain the district court’s conclusion

continued to violate the statute.2 Conse- by applying that court erred

quently, 4Al.l(d),

§ there was insufficient because that Brazell had vio-

evidence to conclude a criminal sen-

lated 228 while under

tence.

III. summary,

In the district court’s miscal- guidelines resulted

culation of the Mussari, pertained only to dates before statute's enact- F.3d 2. See United States v. (9th Cir.1998) ment). (holding that conviction pay support during wilful failure to child period covering and after time dates before Villegas, v. 404 F.3d 3. See United States violated Ex Post Facto enactment of statute Cir.2005). (5th Clause, ability pay because evidence of JOLLY, Judge:

E. GRADY Circuit This cause arises under 42 U.S.C. Inc., Advertising, § 1983. Marco Outdoor (“Marco”) Regional contends (“RTA”) Authority deprived Transit it of when, property without due of law in violation of the Louisiana Public Bid (“Public Law, 38:2211, seq. et La. R.S. Law”), arbitrarily Bid RTA awarded an (“Contract”) advertising contract to an in bidder, Outdoor, ferior Clear Channel Inc. (“Clear Channel”). The district court held that Bid Law because Public Contract, apply does not to this the state property right no had created favor Marco,1 prospective such as and bidders Marco, consequently, having protected no interest, property had failed to a Kinney, (argued), III Tara Henry W. constitutional due claim. The dis Clement, Kinney Ellinghau- & Elizabeth trict therefore the case dismissed Orleans, LA, sen, Plaintiff-Appel- for New jurisdiction. question for lack of federal lant. presented argued by The issue Randy George Haley,

N. Sundiata appeal, at trial and on parties, both McKee, Carter, Haley & (argued), McKee applies whether the Public Bid Law to this LA, Orleans, Regional Transit New for in- (thereby creating property Contract a Authority. terest), under a difficult and unclear claim Louisiana law. Marco contends Sarver, Robert Richard E. Edward contend applies; RTA Clear Channel Barrasso, Usdin, Kup- (argued), Wicker unnecessary find it that it does not. We Sarver, Orleans, Freeman & New perman, that, hold question decide this because we Outdoor, LA, for Inc. Clear Channel assuming the Public Bid Law even in this property a and creates Contract, provide Louisiana state courts remedy for the adequate procedural AF- alleged deprivation.2 We therefore complaint FIRM the dismissal of Marco’s WIENER, JOLLY, DAVIS, and Before for failure to state a federal claim. Judges. Circuit Admin., 1979) (La. jurisprudence, the Public 367 So.2d 1. Under Louisiana right (creating property a in the lowest re high a Bid Law creates sponsible a works bidder to receive responsible a est bidder to receive contract contract). entity. generate that will revenue for a state Co., Transp. v. New Orleans Aviation HTW Inc. Bd., 1988); request, parties (La.App. submitted So.2d 4 Cir. 2. At Court’s supplemental briefs on this issue. Haughton Elevator Div. v. State ex rel. Div. cf. jurisdiction. Although injunction I. tion no issued, bidding process apparently was RTA initiated Re- August On came to halt. No.2004-015, under Proposals for quest sealed bids from advertis- sought which it 23, 2005, August following two-day On that would proposals ing contractors trial, bench the district court dismissed RTA ad- placing revenue for generate complaint jurisdiction. Marco’s for lack of vehicles, RTA’s transit vertisements on The district court concluded that the Pub- shelters, and transit benches. re- Contract, apply lic Bid Law did not contractors, including ceived bids from six accordingly, that RTA was not re- parties and Clear Channel. The Marco quired to award the Contract to the most financially dispute superior, whose bid is Therefore, favorable bidder. even if Mar- is, generate that which will more advertis- bid, co right submitted the best it had no 24, 2005, in ing May revenue for RTA. On under state law to receive the Contract RTA in- response inquiries, to Marco’s property right receiving and thus no planned that RTA to award formed Marco Consequently, Contract. Marco could days Channel two Contract Clear deprivation constitutionally- claim a of a May later on protected property right by the RTA. Be- action, however, May and on Marco took question cause the federal basis of its law 25, Marco filed this 42 U.S.C. 1983 suit eliminated, suit was the district court dis- against RTA in federal district court. jurisdiction. missed for lack of Marco now sought injunction preventing an Marco appeals. awarding the Contract to Clear ordering of mandamus Channel and writ II. In

RTA to award the Contract to Marco. suggested, As we have earlier we court and on appeal, the district Marco purposes appeal will assume for the of this argues financially superior that its bid is that a property right Marco has in its bid. bid, Clear Channel’s under This is not Law, enough, however. The Four Public Bid RTA must award the teenth Marco, requires Amendment also that the allegedly Contract to which submit- plaintiff, order to establish a constitu ted the best bid. Marco maintains violation, Law, tional prove deprivation it that the proper- under the Public Bid has a ty property right of the right protected by the Due Process occurred without due McCollan, process Clause of the Fourteenth Amendment of of law. See Baker v. 137, 145, 2689, This 443 U.S. Constitution. constitutional U.S. 99 S.Ct. 61 (1979).3 question ques- Thus, is the for federal sole basis L.Ed.2d 433 if even 314, (5th Cir.2002). 3. There is no merit to Marco’s claim of sub- F.3d 325 As this Court McClendon, process. pro- due Substantive Supreme stantive due observed "[t]he arbitrary, wrongful gov- "bars certain cess Court’s discussions of abusive executive ac 'regardless repeatedly emphasized ernment actions of the fairness of tion have ‘only ” procedures implement egregious used to them.’ the most official conduct can be Burch, 113, 125, arbitrary Zinermon v. 494 U.S. 110 said to be in the constitutional ” 975, (1990) (quoting L.Ed.2d (quoting County S.Ct. 108 100 sense.’ Id. at 325-26 Williams, 327, 331, Lewis, 833, 846, Daniels v. 474 U.S. 106 Sacramento v. 523 U.S. 118 662, (1986)). 1708, (1998) (quoting S.Ct. 88 L.Ed.2d 662 To state a S.Ct. 140 L.Ed.2d 1043 claim, City Heights, viable substantive "the Collins v. Harker 503 U.S. 115, 129, 1061, plaintiff must demonstrate that the state offi- 112 S.Ct. 117 L.Ed.2d 261 (1992))(internal culpability beyond omitted)). negli- quotations cial acted with mere The Columbia, gence.” City plaintiff McClendon v. 305 must therefore demonstrate that the

673 Fla., 18, 37, Regulation 496 U.S. disputed to the Bus. Law Public Bid (1990) Contract, thus created a 110 S.Ct. 110 L.Ed.2d 17 and the state has bidding (quoting Cleveland Bd. v. Louder protected of Educ. Marco, mill, 532, 542, -must further for Marco 470 U.S. 105 S.Ct. 84 (1985)). provide has failed to example, show that the state L.Ed.2d 494 For a state challenge legal process injunction depri Marco some before the available The due claim be- RTA’s action. any significant property vation “of inter adequacy fore us relates adequate constitutes an pre-depriva est” provides to a the state procedures 36-37, remedy. at tion See id. 110 S.Ct. away it before takes property owner (“[t]he may provide choose to State property. ‘predeprivation process,’ form of for exam taxpayers ple, authorizing bring suit Thus, purposes appeal, of this enjoin imposition prior to- of a tax to its satisfy process require payment”); see also Nat’l Private Truck adequate pre-depri- providing ments Council, Comm’n, Inc. v. Okla. Tax remedy re remedy.4 adequate An vation 582, 587, 132 L.Ed.2d U.S. S.Ct. acts, that, state must quires before (1995) McKesson); Har (explaining for a opportunity notice and an provide Taxation, per Dept. v. Va. 509 U.S. of owner, Sys see hearing property 101-02, 2510, 113 S.Ct. 125 L.Ed.2d 74 Parish Corp. v. Orleans tems Contractors (1993) (applying Virginia’s McKesson to (5th Bd., 571, F.3d 575-7 6 Cir. Sch. 148 laws); Realty City tax Rex Co. v. Cedar 1998) 424 Eldridge, v. Mathews of (applying (8th Cir.2003) 526, Rapids, 322 F.3d 529 893, 319, 47 L.Ed.2d 18 96 S.Ct. U.S. (holding that notice of condemnation and (1976)), protected interests are for “[w]hen availability injunction, of a state court writ prior kind of implicated, right the to some mandamus, and writ of certiorari in an of v. paramount,” Regents Bd. hearing of pro eminent domain case satisfied due 2701, Roth, 564, 569-70, 92 S.Ct. 408 U.S. cess); (1972). City Chicago, McKenzie v. 118 require L.Ed.2d 548 The “root 33 of (7th Cir.1997) 552, (holding F.3d 554-58 is “that individual process ment” of due an injunction an that a state court was ade opportunity hearing an for a be given be in pre-deprivation remedy á condem any significant quate deprived prop he is fore case, property nation where the owner re erty Corp. McKesson v. Div. interest.” Tobacco, days ceived notice 30 before the demolition Beverages Dept. Alcoholic power by deprivation ments if the results not from es abuse of the state official "shocks McClendon, at the conscience.” 305 F.3d procedure state but from a random tablished Sacramento, County (quoting 523 U.S. 326 agent. a and unauthorized action of Here, 846, 1708). at S.Ct. even if the 118 527, 541, Taylor, U.S. 101 S.Ct. Parratt v. 451 applies, Public Bid Law RTA's decision to 1908, (1981), part L.Ed.2d 420 overruled in 68 Channel instead award the Contract to Clear Williams, here, 474 relevant Daniels v. arbitrary not so so as to "shock of Marco is 327, 662, 662 U.S. 106 S.Ct. 88 L.Ed.2d Accordingly, id. Mar- the conscience.” See Burch, (1986); also Zinermon v. 494 U.S. see not have a viable substantive due co does 113, 975, (1990); 108 L.Ed.2d 100 110 S.Ct. dissent, reaching in the claim. The 422, Co., Logan Brush 455 U.S. v. Zimmerman conclusion, single opposite fails to cite a case (1982); Hud 102 S.Ct. 71. L.Ed.2d 265 any has found a this Court or where Palmer, son v. 468 U.S. 104 S.Ct. violation under simi- substantive Andrus, (1984); L.Ed.2d 393 Woodard v. lar circumstances. (5th Cir.2005); Hardy, v. 419 F.3d 348 Caine (5th Cir.1991). situations, however, 943 F.2d 1406 post-depriva- a In some require- remedy satisfy tion will Co., Airline Constr. Inc. injunction that automati cessful bidder.” could file Bd., plans the any demolition Ascension Parish Sch. 568 So.2d cally halted v. (citation omitted). (La.1990) city).5 As in Supreme the Louisiana Court noted Here, provides unsuccessful the state Construction, Legis- the Airline Louisiana hearing. notice and adequate with bidders § amended La. R.S. 38:2220 lature provides adequate the state Specifically, injunc- recognize expressly right to to a contract RTA announces notice when public entity tive relief when a violates losing bidders on notice award, puts which Law. Id. at 1032-33. Under deprived any alleged Public Bid they will be they if fail to in the bid the statute: showing There is no further action. take attorney The district in whose district a inade- in this case was that the notice here [i.e., Part Public Bid violation of this Furthermore, guarantees the state quate. occurs, attorney general, or Law] hearing to unsuccessful bidders may bring suit in any party interested Law, Bid which author- through the Public through' district court [Louisiana] bidder to sue Lou- any unsuccessful izes summary proceeding enjoin enjoin enti- isiana state court award of a contract or to seek other contract. La. ty awarding the See appropriate injunctive prevent relief to 38:2220(B). Loui- According R.S. the award of a contract which would be Court, jurispru- “Louisiana Supreme siana Part, through ordi- violation of this long recognized while dence has nary proceeding appropriate to seek in award- public body has some discretion remedy nullify a contract entered into contracts, judicial subject to re- ing public in violation of Part. this view, may sue to an unsuccessful bidder 38:2220(B). § pre- La. R.S. There are no enjoin public body executing from the the requisites aggrieved that an interested the award of the contract or to set aside party complete bringing must before an public another bidder when the contract to injunction in body arbitrarily selecting the suc- Louisiana district court.6 acted specifically bidding any Supreme 5. the Court has from on this Contract or on fu- Because injunction may satisfy a court stated that state ture RTAcontract. adequate pre-deprivation as an see, McKesson, remedy, e.g., 496 U.S. at 36- party 6. An interested need not inform the 2238, there is no merit to the 110 S.Ct. attorney general prior bringing Louisiana to process requires that due a dissent's assertion suit, generally required as under La. R.S. entity provide administrative reme- an § § 38:2220.3. La. R.S. 38:2220.3 does Systems Haughton controlling dy. are or Nor apply brought by to actions the district attor- case; us, Sys- the in this unlike case before ney, attorney general, the or an interested Haughton disqualification were tems and cases, party under La. R.S. 38:2220. See La. R.S. is, disqualification having from a ("It legislature § 38:2220.1 is the intent of the 573; Systems, bid See 148 F.3d at considered. enacting through R.S. 38:2220.1 2220.4 to Haughton, at In that con- 367 So.2d private authorize citizens other entities to text, Haughton Systems and addressed wheth- against public institute a civil action entities entity's administrative remedies sat- er a state public to deter the construction of works or process requirements isfied due for exclusion purchase supplies the of materials and in vio- bidding process. of a bidder from the See provisions seq. lation of the R.S. et 38:2211 575-76; Systems, Haughton, 148 F.3d at provisions The of these Sections shall not be Here, however, we are not So.2d at 1166. any construed to eliminate or reduce causes dealing disqualification a case. As far as with provided by shows, of action or other forms of relief accepted Marco's bid was record law, existing including but not limited suits as one of the six bids. Marco considered 38:2220.”). argue disqualified by does not that RTA has authorized R.S. For the given, to Clear reasons an unsuccessful bidder Because Channel. through a injunction hold that Marco has failed to an immediate we show seek in- and because the summary proceeding, it has been denied due of law enjoin the execution of junction may in the Fourteenth Amendment. provided contract, injunction prevents depri- Accordingly, judgment of the district property inter- any significant “of vation dismissing the court case for failure to adequate pre- therefore est” is state a federal claim is McKesson, See remedy. deprivation AFFIRMED. 36-37, The at 110 S.Ct. 2238.7 sum- U.S. an- together with RTA’s

mary proceeding, WIENER, Judge, dissenting: Circuit award, contract satis- nouncement of the process prong of the due fies the elements respectfully dissent. I am convinced that are at issue of the Due Process Clause majority opinion misapprehends in this case. of, over, glosses nature Marco’s substantive claim, due-process grounded

III. knowing as it is in the RTA’s and deliber- assume for the thus conclude: We We disregard ate law Louisiana’s bid deciding appeal this purposes (and procedure), its own announced de- to Marco’s bid and Public Bid Law having such law spite expressly been incor- properly alleged proper- has that Marco porated reference the RTA’s en- ty to receive the Con- act. abling nevertheless, tract; we that Mar- conclude fails. procedural co’s claim I. ANALYSIS authorizes explicitly The Public Bid Law long recog- The law injunctive relief State’s bid has been Marco to seek state constitutionally enjoin awarding creating protect- the contract nized as Nor, satisfy projects, dy require- for RTA must an is sufficient itself to in bids aggrieved process, Harper, at bidder exhaust RTA administrative of due see 509 U.S. ments bringing prior Systems’ suit. The RTA remedies S.Ct. discussion of procedures "[a]ny person protest state that injunctive dicta. relief is aggrieved who in connection with the solic- injunctive provides Because the relief Mar may protest award of a contract itation or adequate pre-deprivation hearing, co with an In the Director of Procurement/TMSEL.” , clearly distinguishable from Par- this case is State, Enterprises, Inc. v. 417 So.2d 6 Millette cases, progeny. ratt and its In those unlike Cir.1982), (La.App. 1 the First Cir- Louisiana us, deprivation the occurred the one before Appeals held that similar lan- cuit Court of See, e.g., any prior hearing. Ziner without permissive § guage in La. R.S. 39:1671 was 114-15, 120, 122, mon, S.Ct. 494 U.S. at 110 mandatory, ag- such that an rather than (complainant involuntarily held in mental 975 grieved party did not need exhaust admin- hospital prior without hear for five months filing suit. Id. at 10. istrative remedies before Hudson, ing); 468 U.S. at 104 S.Ct. 3194 intentionally (complainant property inmates' Systems suggested that state 7. To the extent prior destroyed by prison without officer injunctive post-deprivation relief is a court hearing); Logan, S.Ct. 455 U.S. at 102 Supreme remedy, 148 F.3d at the see McKesson, discharged employ otherwise, (complainant 1148 see Court has indicated Woodard, hearing); 36-37, prior ment without Regard- 496 U.S. at 110 S.Ct. 2238. (complainant charged excessive less, F.3d at 350 already Systems held the Court had that prior hearing); by clerk without fees entity provided adequate pre- the state Caine, (complainant doc F.2d at 1407-08 remedy through prior deprivation notice and 575-76, suspended privileges hospital clinical at separate hearing, id. at and tor’s see prior hearing). given adequate pre-deprivation without that an reme- guendo apply the entitlement of that these laws do that property

ed and or, case, high- as in this the the Marco has established that it is the best lowest— (hereafter, bidder “best responsible bidder and thus entitled to process due est— bidder”) the con- to be awarded advertised protection.3 Having thus set up proce- the purpose of the bid tract.1 obvious law One dural due strawman through such by fisc public ensuring the protect is to assumptions, though, the panel majority price the people pay the lowest avail- that down, proceeds disregard to knock (or, here, qualified work as receive able for process claim, Marco’s substantive due by privilege grant- for the the most revenue conclusionally declaring, without any dis- ed)2; protect is to another law, analysis cussion of the facts or of the the best bidder to be awarded the right of that the “RTA’s decision to award the Thus, for a advertised contract. bidder Contract to Clear Channel instead Mar- § successfully due-process to assert a arbitrary co is not so as to ‘shock the claim, ” he establish the contract must According conscience.’ to the ma- panel subject public at issue is State’s bid then, jority, solely because Marco had the bidder, law, that he is the best and he (don’t option of resorting to state court we by agency’s wronged has been award- all?), its entitlement to seek relief there party. contract to another Mar- ing being arbitrarily capriciously de- after establishing co’s of these elements would nied its best-bidder’s to be awarded pursue entitle it to Fourteenth Amend- the contract pre- somehow satisfies the § under due-process ment claims deprivation procedure administrative both Even procedural. substantive and expressly requires. For the when, today’s purposes, accept with- majority, then, the RTA’s refusal to follow majority out granting panel has presumably applicable state bid law— gotten facet of procedural procedures its own announced —which right, that procedural place- Marco’s claim alia, designed is to protect, inter a best bo, viz., pre- post-deprivation Marco’s bidder’s property right, constitutional courts, access to the State’s falls far short somehow not unconstitutionally egre- so being panacea for Marco’s substantive gious to, as to warrant access and the ills, due-process much avail- less of, attention the federal In courts. other able cure. words, so, just say because we the RTA’s forthrightly deciding Instead of the sole patent disregard of the substantive due legal parties issue addressed process rights guaranteed to Marco under court, i.e., the district whether Louisiana’s the United States Constitution cannot be applies law even bid RTA’s rectified in federal court in a 1983 ac- (I of the instant contract letting believe tion. that the bid law and would so hold appeal), majority ques- on the leaves that As I find panel majority’s the reasoning merely flawed, (as tion and unanswered assumes ar- to be fatally I too proceed shall 627, Haughton Dept. 1. Elevator Div. v. Highways, Louisiana Ex Rel. 203 La. 14 So.2d Admin., (La. (1943)). Div. So.2d 1979). The State's bid laws can create a objective allegations, proved, 3.Marco’s if high interest in either the lowest or bidder, easily leave no doubt that its bid was the best responsible depending est on the na of the six received the RTA'—-atleast before ture of the contract at issue. massaged the RTA Clear Channel's bid to Vinton, 2. Smith v. Town 216 La. elevate it above Marco’s and one other that (1949) (quoting So.2d topped original 21-22 Boxwell v. also had Clear Channel’s bid. (cid:127) Request RTA’s For majority) assumption Proposals on the The panel does (“RFP”) subject procedural to both for the contract was not that Marco is entitled despite previous before it furnished to Marco its process and substantive due property right, requests for notice of the initiation of of its conceded deprived be any advertising. Marco’s constitu- solicitation for transit and shall illustrate how (cid:127) right is violated. tional Similarly, Marco was not informed of pre-bid RTA’s conference on the process due Adverting to substantive contract. solely opinion, panel in footnote 3 of its (cid:127) proposals Of six received conclusionally that “Mar- majority declares RTA, patently Marco’s was the best co does not have a viable substantive due standpoints (guaranteed pay- from all Yet, majority claim.” never ments, revenues, percentage contrac- why simply us not. It stands mute as tells media, print tor bartered and broadcast concluding the reasons for that Marco media, marketing analysis), and and due-process claim. To has no substantive proposal Clear Channel’s was distant me, justify a I that alone would dissent. third. more, however, by why explaining shall do (cid:127)

I am convinced that Marco does indeed RTA Post-bidding, subjectively eval- due-process have a viable substantive proposals uated a previously- with claim, pursue which it is entitled to undisclosed, arbitrarily weighted formu- federal court la, baldly adding million to Clear $1.5 non-monetary proposal Channel’s majority explains, agree, As the and (which years benefits over ten one of the “[sjubstantive ‘bars certain ar- agreed had other contractors also to do bitrary, wrongful government actions for) an- yet got adding no “bonus” and Here, Marco’s substantive million) ($1.7 for non-mone- other bonus by plethora supported claim is tary proposed by benefits Clear Chan- of how the RTA arbi- allegations discrete nel, which no other bidder was advised trarily capriciously disregarded could submit. Even with this “artificial- accurately, affirmatively how it law—more ly figure,” enhanced Clear Channel’s rejected totally inap- state bid law as maximum score remained short of the 60 thumbing plicable by knowingly its nose — points only Marco’s bid had and, in requirements at Louisiana’s bid an achieved. fiat, blatantly handing agency exercise of (cid:127) post-bid, assigned Also to Clear bidder after the contract inferior 10-point compliance Channel a bonus for with that bidder to make its bid colluding Enterpris- Business Disadvantaged with the best. It is to me that these obvious (“DBE”) despite having stated that es shenanigans unquestionably resulted goals no had been established for such constitutionally-rec- deprivation of Marco’s subject despite obvious project ognized constitutionally-protected non-compliance by Clear Channel. quali- property right, putative as the best (cid:127) bidder, foregoing post-bid When all of the fied to have the contract awarded machinations failed to move Clear Chan- any to it. Lest there be doubt about the Marco, the RTA allowed euchring of Marco out of nel ahead of RTA’s audacious Channel) (and contract, subject I reiterate here the Clear Channel Clear (1) by increasing its bid its alleged RTA’s machinations as Marco to revise (which $10,186,000 to stage guaranteed payment at this of must be credited (2) $13,386,000, increasing its estimated proceedings): Marco, through its conceded disre- original pro- its sion of by 40% above

revenues (3) artificially inflating its bid gard of the bid law and the refusal to posal, original and the of Marco above those law and its own announced follow bidders. second-place by self-servingly labeling them procedures (cid:127) foregoing Indeed, accomplishing day, that inapplicable. After as to this RTA declared Clear legerdemain, on, totality what the RTA relies is the of though— even the best bidder Channel viz., (erroneously) asserted to its unilateral post-bidding despite those revenue contract without award the instant proposal Channel’s changes law, complying public with the bid which is —Clear $10,186,000, still more guaranteed RTA expressly applicable made guar- less than Marco’s than million $3 statute, enabling incorpo- its and which antee. ration reference contains no limitations must, of purposes we Assuming, as applicability public pur- of works and pre- a TRO or four-part granting test for supplies. chases of materials or could liminary injunction, Marco advocate, remand, If, as I we were to they quintes- are prove allegations, these and the fact finder were to determine that capricious, and sentially arbitrary and responsi- not the Marco somehow was best satisfy the element more than sufficient bidder, pro- ble then Marco will have no success, entitling Marco to likelihood tected to enforce in a such a restraint. panel majority 1983 action. But the has of substantive due- Typically, the focus decision, purposes today’s conceded for claims in the area bid responsible that Marco the best bidder. awarding authority laws has is whether such, having we treat Marco As must as designated an arbitrarily capriciously or protected property interest responsible best inferior contender as the (or worse) abrogated by be the whim case, every such bidder. In almost violating the RTA—at least not without (or authority acknowledges is at awarding due-process rights. Marco’s substantive It aware) subject it is to the bid least say smacks of Lewis that the Carroll law, allegedly failed to but—at least —has arbitrarily RTA did not act and capricious- statutory regulatory bid follow (1) ly despite self-servingly declaring itself contrast, Here, rules. the RTA has (2) laws, that, free of the restrictions of the bid in awarding denied from the outset contract, conducting knowing its bid dis- revenue-producing this is sub- such, and, ject regard law at all as procedures, to the state bid of its own announced (3) has insisted that its bidders have no consti- colluding with the third best of six rights. The tutionally-protected property proposal bidders to enhance that bidder’s that, for its own rea- insists further i.e., post-submission, “going after sons—or was also free to for no reason —it bid, (4) ultimately school” on Marco’s disregard guidelines proposal its own bid awarding the contract to its favored bid- impunity, with of the reve- simply because der, regardless pre-award guide- of its own awarding. nue nature of contract it was lines. cannot see how this willful—and arbitrary capricious thus noted, As to decide we are asked wheth- —behavior majority’s does not shock the conscience: arbitrarily er Marco denied its status was bidder, jaded Even as as I have become from allegedly as responsible the best living seeing in New Orleans and almost accomplished by capricious the RTA’s fa- voring daily of an to the exclu- reports inferior bidder media of this kind of behavior managed to the RTA has agencies, local America, UNITED STATES in this instance. my conscience shock Plaintiff-Appellee, II. CONCLUSION v. it, majority skirts the panel I see

As III, Defendant- Earnest JONES this case that controlled sole issue Appellant. parties that have court and district No. 06-30855. viz., whether argued appeal, on

briefed RTA, in enabling incorporat- act of the Appeals, States United Court law, public bid makes ing the Louisiana Fifth Circuit. to the award of this applicable

that law June question that RTA contract —a particular “a and unclear majority labels difficult respect, claim under Louisiana law.” With difficult, I

I not find it that because do the RTA’s plain wording

stop with trying act and refrain from

enabling legislative intent unspoken

divine statutory unambiguous

face of clear and “lawyering” should not be

language. We of the

the case as an advocate one acknowledge generally I

parties. reaching a difficult is-

preferable to avoid a case on a clear by resolving

sue of law well be what easy one—and But, do here. I majority means to path have avail-

cannot see that we such today. only options Our are to

able to us law does or does

hold that Louisiana’s bid then, here; on depending

not apply (1) answer, remand either reverse and

our (2) tiptoe around affirm. We should on the by, sponte, going sua off issue clearly

nature of Marco’s established latching claim and

process, property-right standing statutory procedural,

onto disposing of this

provision as a means of It is for these reasons

appeal. panel majority opin-

cannot concur

ion, dissent. respectfully and instead must

Case Details

Case Name: Marco Outdoor Advertising, Inc. v. Regional Transit Authority

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 15, 2007

Citation: 489 F.3d 669

Docket Number: 05-30875

Court Abbreviation: 5th Cir.