MERIT CONSTRUCTION ALLIANCE et al., Plaintiffs, Appellees, v. CITY OF QUINCY, Defendant, Appellant.
No. 13-2189
United States Court of Appeals, First Circuit.
July 16, 2014.
III. Sentencing as a Career Offender
After he was convicted, Rodriguez was sentenced as a career offender, based upon determinations by the district court that Rodriguez‘s prior convictions were lawful. Rodriguez now argues that his sentence in this case violates the Sixth Amendment prohibition against judicial fact finding. It does not.
“[F]acts that expose a defendant to a punishment greater than that otherwise legally prescribed [are] by definition ‘elements’ of a separate legal offense.” Apprendi v. New Jersey, 530 U.S. 466, 483 n. 10, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As such, those facts must be “alleged in the indictment and found by the jury.” Id. However, “[i]n Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), [the Supreme Court] recognized a narrow exception to [the] general rule [stated above] for the fact of a prior conviction.” Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2160 n. 1, 186 L.Ed.2d 314 (2013). “In Alleyne, the Supreme Court [also] stated that Almendarez-Torres ... remains good law.” United States v. Carrigan, 724 F.3d 39, 51 n. 4 (1st Cir.2013) (citing Alleyne, 133 S.Ct. at 2160 n. 1). “This being the case, we must reject [Rodriguez‘s] argument that his ... Sixth Amendment rights were implicated when ... the jury was not required to pass on [his prior convictions.]” Paladin, 748 F.3d at 452.
IV. Conclusion
The judgment of the district court is affirmed.
Christopher N. Souris and Krakow & Souris, LLC on brief for New England Regional Council of Carpenters, amicus curiae.
Christopher C. Whitney, with whom Scott K. Pomeroy and Pierce Atwood LLP were on brief, for appellees.
Maurice Baskin and Littler Mendelson, P.C. on brief for Associated Builders and Contractors, Inc., amicus curiae.
Before THOMPSON and SELYA, Circuit Judges, and McCONNELL,* District Judge.
SELYA, Circuit Judge.
This case presents not one, but two, questions of considerable import, each of which implicates the
I. BACKGROUND
In 2012, defendant-appellant City of Quincy (the City) solicited bids for a construction project at a middle school. Would-be bidders were required to certify compliance with the City‘s euphemistically named Responsible Employer Ordinance (the Ordinance). Pertinently, the Ordinance demands that bidders on municipal public works projects “engage[] in a bona fide apprentice training program” registered with the Massachusetts Department of Labor Standards.
This bidding condition brought with it a legal cloud; a federal district court had ruled that
The district court granted a preliminary injunction barring enforcement of the apprentice training requirement, based largely on its earlier decision in the Fall River case. See Merit Constr. All. v. City of Quincy (Merit I), No. 12-10458, 2012 WL 1357656, at *2, *4 (D.Mass. Apr. 18, 2012). Summary judgment in favor of the plaintiffs followed apace. See Merit Constr. All. v. City of Quincy (Merit II), No. 12-10458, 2013 WL 396123, at *3 (D.Mass. Feb. 1, 2013).
To the victor belong the spoils, and the next stage of the battle involved attorneys’ fees. The district court granted the plaintiffs’ motion for fees and awarded them the amount of $81,007.85. See Merit Constr. All. v. City of Quincy (Merit III), No. 12-10458, 2013 WL 3984596, at *3 (D.Mass. Aug. 2, 2013). The City unsuccessfully sought reconsideration of the fees order. See Merit Constr. All. v. City of Quincy (Merit IV), No. 12-10458, 2013 WL 4446935, at *3 (D.Mass. Aug. 21, 2013). This timely appeal followed.
II. ANALYSIS
In this venue, the City for the first time questions the plaintiffs’ standing to sue. Because this challenge implicates subject matter jurisdiction, we are obligated to address it despite its lateness. See Am. Fiber & Finishing, Inc. v. Tyco Healthcare Grp., LP, 362 F.3d 136, 138-39 (1st Cir.2004) (“[I]t is firmly settled that challenges to federal subject matter jurisdiction may be raised for the first time on appeal.“).
The Constitution limits federal-court jurisdiction to actual cases and controversies. See
When an unincorporated association seeks to open the doors of a federal court, it must demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in
The first element of this triad inquires into the existence of “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal quotation marks and citations omitted). The second element asks whether the alleged injury is “fairly traceable to the challenged action of the defendant.” Id. (internal quotation mark and alterations omitted). The third element asks whether it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (internal quotation marks omitted).
The Alliance‘s members pass this tripartite test with flying colors. Among their ranks are contractors that neither maintain apprentice training programs nor satisfy the Ordinance‘s graduation quota. Those members suffer injury because they want to bid on public works projects in Quincy but are constrained from doing so by the strictures of the Ordinance. If the plaintiffs prevail, the Ordinance will be declared null and void, thus removing the injury-causing obstruction to their bidding eligibility.
Similarly, the Alliance meets the criteria for associational standing. At least some of its members have individual standing, and preserving its members’ bidding capabilities closely relates to its raison d‘être. To cinch matters, nothing about an
The City, in effect, attempts to confess and avoid. It disputes none of the conclusions recounted above but, rather, tries to graft a requirement of an
Of course,
Having determined that an actual case and controversy exists, we proceed to chew on the meat of the appeal: preemption and attorneys’ fees. We address these subjects sequentially.
A. Preemption.
The City assigns error to the district court‘s ruling that
”
When considering a claim of preemption, “our task is to ascertain Congress’ intent in enacting the federal statute at issue.” Shaw, 463 U.S. at 95. With respect to
The Supreme Court has distilled the statute‘s “relate to” language into two independently sufficient alternatives: “a connection with or reference to” an
The battle here, as waged by the parties, focuses on the “connection with” component of the two-sided
To begin, it is important to note that programs “established or maintained for the purpose of providing ... apprenticeship or other training” qualify as
Of course, not every conceivable connection will support preemption. For example, state laws that merely exert an “indirect economic influence” on a plan do “not bind plan administrators to any particular choice” and, thus, do not come within
With such a compendium of stipulations in place, we have no difficulty concluding that the Ordinance goes far beyond simply influencing
The City balks. It asserts that even if its Ordinance constitutes a mandate, that should not be the end of the matter. In support, it suggests that “[t]he key distinction is between a statute that mandates or effectively mandates an aspect of law with which
This assertion is true as far as it goes, but it does not take the City very far.
The Ordinance plainly disturbs that balance. Let us offer an example. Although the Ordinance requires the graduation of at least one apprentice within the previous twelve months, see
There is yet another reason why the City‘s argument does not work. The Dill- ingham Court, while finding no preemption there, was careful to distinguish situations in which an “apprenticeship program is required by [state] law to meet [the state‘s] standards.” 519 U.S. at 332. The Ordinance trips this snare: it not only mandates the standards that apprentice training programs must follow but also mandates that employers actually have such programs in place as a condition of bidding. This dual mandate goes too far: not even “discharging all of its apprentices will release an employer or a program from the reach” of the Ordinance. Assoc‘d Builders, 543 F.3d at 282. Because the Ordinance unqualifiedly demands the maintenance of a specific type of apprentice training program as a condition of bidding, it exceeds the boundaries of what
In an effort to change the trajectory of the debate, the City seeks to wrap itself in the mantle of the Court‘s statement that “an employee benefit program not funded through a separate fund is not an
This is anfractuous reasoning. “[W]hether a State requires an existing plan to pay certain benefits, or whether it requires the establishment of a separate plan where none existed before, the problem is the same.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 13, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987). A plan administrator put to such a choice is still “[f]aced with the difficulty or impossibility of structuring administrative practices according to a set of uniform guidelines.” Id.
The lesson of Fort Halifax is pertinent here. To comply with the Ordinance, an employer with an
The decision in Golden Gate Restaurant Ass‘n v. City & County of San Francisco, 546 F.3d 639 (9th Cir.2008), loudly bruited by the City, is not to the contrary. There, the Ninth Circuit held that requiring a certain level of health-care expenditures — which might, but need not, be spent through an
The City next contends that the
Looking for comfort in any quarter, the City proposes an analogy to the Supreme Court‘s statement that a state “may force the employer to choose between providing disability benefits in a separately administered plan and including the state-mandated benefits in its
Scraping the bottom of the barrel, the City asseverates that in passing the Ordinance, it merely acted as a participant in the market for construction services. This role, it says, immunizes its actions from
This asseveration stalls before it starts. The City failed to raise this issue in its summary judgment papers and, “[i]f any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.” Teamsters Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.1992). The market participation theory is, therefore, not properly before us.3
We summarize succinctly.
That ends this aspect of the matter. We conclude that
B. Attorneys’ Fees.
This leaves the issue of attorneys’ fees. After entering summary judgment,
Here, too, a procedural obstacle looms. The City advanced these objections for the first time in its motion for reconsideration of the fee award. To succeed on such a motion, “the movant must demonstrate either that newly discovered evidence (not previously available) has come to light or that the rendering court committed a manifest error of law.” Calderón-Serra v. Wilmington Trust Co., 715 F.3d 14, 20 (1st Cir.2013) (internal quotation mark omitted). We review the denial of such a motion for abuse of discretion. See id.
This obstacle is formidable — but it is not insurmountable. Although a district court has substantial discretion in evaluating a motion for reconsideration, “substantial discretion is not unbridled discretion.” Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 528 (1st Cir.1991). As here, a manifest error of law may outstrip the boundaries of even that wide discretion. See, e.g., Max‘s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 678-79 (3d Cir.1999); Edward Gray Corp. v. Nat‘l Union Fire Ins. Co., 94 F.3d 363, 367-69 (7th Cir.1996). As we explain below, we think that this is the unusual case in which the error was so manifest that the motion for reconsideration should have been granted.
With respect to the City‘s first point — whether a preemption challenge qualifies as an “action” for the purposes of
As both the plaintiffs and the district court concede, the only possibility is plaintiff Ross. But there is a rub: Ross is not a participant, beneficiary, or fiduciary of any
Ross‘s standing as an eligible “participant” relies instead upon his status as a participant in his employer‘s 401(k) plan — a plan that is wholly unrelated to the contested apprentice training requirement. Such reliance depends, in turn, upon reading the
We are confident that the text of the statute is not elastic enough to allow so expansive an interpretation. The plaintiffs offer no case law or legislative history for the extraordinary proposition that Congress intended participation in a single (unrelated)
As a fallback, the plaintiffs urge us to affirm the full fee award under the Fees Act,
The district court explicitly declined to consider this argument because it premised its fee award in significant part on the
We are cognizant that the trial judge‘s “intimate knowledge of the nuances of the underlying case uniquely positions [her] to construct a condign award.” Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 292 (1st Cir.2001). With this prudential principle in mind, we think it appropriate here to allow the district court to consider, in the first instance, whether any
III. CONCLUSION
We need go no further. For the reasons elucidated above, we affirm the district court‘s grant of summary judgment, but reverse the fee award and remand to the district court for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded. No costs.
BRUCE M. SELYA
UNITED STATES CIRCUIT JUDGE