NATIONAL ASS'N OF MIN. CONT., DAYTON v. MartinezNATIONAL ASS'N OF MIN. CONT., DAYTON v. Martinez
Paula Vinette Durden, Dayton, OH, Robert A. Graham, Lee P. Reno, Washington, DC, Scott Allen King, Christine M. Haaker, Dayton, OH, for defendant.
DECISION AND ENTRY OVERRUING PLAINTIFF‘S MOTION FOR A PRELIMINARY INJUNCTION (DOC. #2), WITHOUT PREJUDICE, AND OVERRULING DFENDANTS’ JOINT MOTION TO DISMISS (DOC. # 5), WITHOUT PREJUDICE; PLAINTIFF DIRECTED TO SHOW CAUSE AS TO WHY ITS COMPLAINT SHOULD NOT BE DISMISSED ON PRINCPLES OF RIPENESS AND/OR STANDING
RICE, Chief Judge.
The Plaintiff in this action is the Dayton Chapter of the National Association of Minority Contractors (“NAMC“). The named Defendants are Mel Martinez, Secretary of the United States Department of Housing and Urban Development (“Secretary Martinez” & “HUD,” respectively), Roland Turpin, Director of the Dayton Metropolitan Housing Authority, the Dayton Metropolitan Housing Authority itself (“DMHA“), Old Dayton View LLC (“Old Dayton View“), TCG Development Services (“TGC“), Oberer Residential Construction Ltd (“Oberer Residential“) and Oberer DVA, Ltd (“Oberer DVA“). In very basic terms, HUD was created by Congress to assist local governments in their efforts to address housing issues affecting their low-income residents. See
For the reasons which follow, the Court shall OVERRULE, without prejudice, both the Plaintiffs Motion for a Preliminary Injunction and the Defendants’ Joint Motion to Dismiss, and order the Plaintiff to show cause as to why its Complaint should not be dismissed on principles of ripeness and standing.
I. Standard of Analysis for Rule 12(b)(6) and 12(b)(1) Motions to Dismiss
Pursuant to
In Ohio National Life, the Sixth Circuit laid out the procedural framework for motions brought under
Rule 12(b)(1) motions to dismiss based upon subject matter jurisdiction generally come in two varieties. A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under12(b)(6) motions to dismiss. On the other hand, when a court reviews a complaint under a factual attack, as here, no presumptive truthfulness applies to the factual allegations. Such a factual attack on subject matter jurisdiction commonly has been referred to as a “speaking motion.” See generally 5A C. Wright & A. Miller, Federal Practice and Procedure § 1364, at 662-64 (West 1969). When facts presented to the district court give rise to a factual controversy, the district court must therefore weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist. In reviewing these speaking motions, a trial court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts. (Citations omitted.)
Id. at 325. Whereas a court cannot consider factual materials outside the pleadings, which go to the merits of the plaintiffs claim, without converting a
II. Factual Background
The Court will set forth the facts as pled in the Complaint.2 The NAMC is a non-profit corporation whose membership is comprised of minority general contractors and subcontractors who work and routinely bid on construction contracts in Montgomery County, Ohio.3 (Compl. ¶ 5; Abney Aff., Compl. at Ex. 1, ¶ 2.)4 Some time prior to the filing of the NAMC‘s Complaint, HUD approved a $26 million federal grant for a neighborhood redevelopment project in Dayton, Ohio, known as the Hope VI Program. (Compl. ¶ 6.) Additional funds for the program were obtained from other, private sources, raising the project‘s total funding to over $44 million. (Id.) Defendant DMHA, a non-profit organization formed under the laws of Ohio, is the local governmental housing authority vested with the responsibility of overseeing the use of the HUD grant funds. (Id. ¶ 7.) Defendant Old Dayton View is a co-developer of the Hope VI Program. (Id. ¶ 8.) Defendant TGC is the majority shareholder in Old Dayton View. (Id. ¶ 9.) Defendant Oberer DVA is another shareholder in Old Dayton View. (Id. ¶ 10.) Defendant Oberer Residential is an affiliate of Oberer DVA. (Id. ¶ 11.)
Old Dayton View has indicated that it “desires to hire” Oberer Residential as the general contractor for each of the Hope VI Program developments, provided it can demonstrate to HUD‘s satisfaction that Oberer Residential‘s bid on each is the lowest pursuant to a competitive bidding process. (Id. ¶ 14; Procurement Policy & Guidelines (“Procurement Policy“), Compl. at Ex. 3, at unnumbered p. 2.)5 Old Dayton View has also indicated that, as an alternative means of selecting Oberer Residential as its general contractor, it “may” seek a waiver from mandatory compliance with a certain HUD regulation which generally requires a competitive bidding process to be used in the procurement of a general contractor. (Compl. ¶ 15; Procurement Policy at unnumbered p. 2.)
III. Analysis
The NAMC prays for several declaratory judgments, pursuant to
As noted, Old Dayton View expressed its “desire” to hire Oberer Residential for each of the Hope VI Program developments. It stated that it would do so pursuant to the competitive bidding process, but that it might, in the alternative, seek to hire Oberer Residential pursuant to a waiver of the competitive bidding requirement.
If the partner and/or owner entity (or any other entity with an identity of interests with such parties) wants to serve as the general contractor for the project or development, it may award itself the construction contract only if it can demonstrate to HUD‘s satisfaction that its bid is the lowest bid submitted in response
to a public request for bids [as described at 24 C.F.R. § 85.36(d) ].
With respect to how development project services are to be procured, the Court turns to
A “grantee” is defined by HUD as the government to which the HUD grant is awarded and which is accountable for the grant funds.
In paragraph 1 of its Prayer for Relief, in the Complaint, the Plaintiff seeks a declaration that
A third regulation invoked by the Plaintiff is found at
As an initial matter, it requires pointing out that the invocation of
Indeed, even assuming for the time being that
Assuming arguendo that Oberer Residential is not the same legal entity as Old Dayton View, as seems to be the case, given the facts as stated in the pleadings, the question presented by the Plaintiff is whether it (Plaintiff) has suffered an injury as a result of the latter having expressed its “desire” to award the general contract for each of the Hope VI Program housing developments to the former. Although the Court believes that the Plaintiffs Complaint is defective on a number of levels, questions of ripeness and standing stand out as significant concerns, and it is upon either or both of these grounds that the Court believes the Complaint should be dismissed. The Court will briefly examine the basic tenets of each doctrine, and it does so sua sponte because each bears on its subject matter jurisdiction.11 Be that
A. Ripeness
[B]efore addressing the merits of any appeal, [the Court] must be convinced that the claim in question is ripe for review, even if neither party has raised this issue. “The jurisdiction of federal courts is limited by
Article III of the United States Constitution to consideration of actual cases and controversies[;] therefore[,] federal courts are not permitted to render advisory opinions.” Adcock v. Firestone Tire and Rubber Co., 822 F.2d 623, 627 (6th Cir.1987). “Ripeness is more than a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed. This deficiency may be raised sua sponte if not raised by the parties.” Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990), cert. denied, 502 U.S. 943, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991) (citation omitted).
Bigelow v. Michigan Dept. of Nat‘l Res., 970 F.2d 154, 157 (6th Cir.1992). “The power of the federal judiciary is limited to those disputes ‘which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.‘” Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 526-27 (6th Cir.1998) (citing Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). The ripeness doctrine exists to ensure that federal courts decide only existing, substantial controversies, not hypothetical questions or possibilities. See Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir.2002) (citation omitted).
It is true that a declaratory judgment generally is sought before a completed injury-in-fact has occurred, and that “an individual does not have to await the consummation of threatened injury to obtain preventive relief, as long as it can demonstrate that the alleged injury is certainly impending.” Peoples Rights Organization., 152 F.3d at 527 (citations omitted). “Nevertheless, when seeking declaratory or injunctive relief, the plaintiff must demonstrate actual present harm or a significant possibility of future harm to justify pre-enforcement relief,” id., and
The difference between an abstract question and a “controversy” contemplated by the
Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).
“In order to determine whether a claim is ripe, [the] court examines (1) the likelihood that the harm alleged will ever come
It seems clear to the Court that the Plaintiff has not alleged facts demonstrating that an actual case or controversy presently exists, or is about to come into existence. It is clear on the face of the Complaint that none of the Defendants, Old Dayton View included, had taken any action with respect to the procurement of a general contractor as of the date of the filing of the Plaintiffs Complaint, and nothing has been filed with the Court in the intervening months tending to show that any such action has been taken in the interim. The first question to address, then, is whether, assuming their truth, the Plaintiffs pleadings indicate that it is likely that the alleged harms which the Plaintiff fears, i.e., 1) the award of the general contract to Oberer Residential, and 2) Old Dayton View‘s failure to take affirmative steps to assure minority representation, are likely to come to pass, such that the Defendants would be, arguably, in violation of
With respect to
As for whether it is appears likely on the face of the Complaint that Old Dayton View will violate
Second, even if the Court, albeit without any reasonable basis, were to construe the
Third, even if Old Dayton View had expressed more than a mere “desire” to hire Oberer Residential as its general contractor for the Hope VI Program developments, it has further stated that it only intends to do so “[u]pon completion of drawings and specifications.” (Compl. at Ex. 3, at unnumbered p. 2.) The Plaintiffs pleadings are devoid of any mention of a time frame, actual or anticipated, for when such drawings and specifications will be completed. Indeed, even in its Motion for Preliminary Injunction, the Plaintiff neglects to mention how imminent Old Dayton View‘s “desired” action of hiring Oberer Residential is, despite the fact that one of the factors a court must consider in ruling on such a motion is whether the party seeking relief will suffer irreparable harm without the preliminary injunction. See Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.1994). It is impossible for a party to address this factor satisfactorily without addressing the temporal component inherent therein. Again, given that the Court has no sense for how much time might pass before Old Dayton View actually gets around to awarding the general contracts at issue, it is reluctant to rule on the legality of an outcome which at this point in time can hardly be described as “likely” or of “sufficient immediacy and reality.”
Fourth, Secretary Martinez has the authority to waive any regulation for good cause shown. See
For the aforementioned reasons, the Court has serious doubts about whether the Plaintiff has presented a body of facts ripe for the Court‘s review.
B. Standing
The standing doctrine also stems from the limited nature of the Court‘s subject matter jurisdiction, as set forth in
The concerns raised above are also relevant to the question of whether the Plaintiff has suffered an injury in fact or is likely to suffer such in the very near future. The Plaintiff does not allege in its Complaint that it or any of its members have actually submitted bids for any of the general contracts, or that any such bids have been denied in an allegedly illegal manner. In fact, the Plaintiff confirms in its Memorandum in Opposition that it “has not bid to become the general contractor.” (Doc. # 8 at 5.) Apparently, this is so because the “DMHA has expressed unequivocally its intent to seek a non-competitive process for the selection of a general contractor from HUD” (id. at 6), such that to entertain hopes of having its bid selected would be fruitless. The Court disagrees. First, as its own Complaint depicts, the DMHA has not expressed an intent to do anything; Old Dayton View has. Second, to the extent the Plaintiff intended to argue that Old Dayton View has expressed unequivocally its intent to name Oberer Residential, for the reasons already stated, nothing of the like can be gleaned from the phrase “desires to hire,” and, in any event, the Complaint contains no allegations suggesting that such a desire will be acted upon any time in the near future.
For the aforementioned reasons, the Court has serious doubts about whether the Plaintiff has suffered an injury, such that it has standing to bring its action.
C. Other Claims
As a final matter, it should be noted that it is not apparent, upon the face of the Plaintiffs Complaint, how the Defendants have allegedly violated, or stand ready to violate,
IV. Conclusion
For the reasons stated herein, the Court has serious doubts about whether the Plaintiff has pled a body of facts which is ripe for consideration in this Court, and whether it has standing to bring such a suit. As these matters go to the Court‘s subject matter jurisdiction, and because the parties have not had the opportunity to address the issues themselves, the Court shall give them time to do so. Accordingly, the Plaintiff is hereby directed to file, within 20 days from date, a memorandum of law, showing cause as to why its Complaint should not be dismissed on principles of ripeness and/or standing. The Defendants may then respond pursuant to S.D. Ohio Civ. R. 7.2(a)(2). Because the Court‘s concerns pertain to its jurisdiction, the parties may, indeed should, adduce any facts which would tend to ameliorate said concerns. If it then becomes apparent, on the basis of those facts, that ripeness and standing are not issues with which the Court need be concerned, the Plaintiff should move to amend her Complaint, to state those facts.
In the meantime, the Plaintiffs Motion for a Preliminary Injunction (Doc. # 2) and the Defendants’ Joint Motion to Dismiss (Doc. # 5) are OVERRULED. Said rulings are without prejudice, and the Motions may be renewed should this Court not dismiss the suit upon its review of the parties’ briefs on the questions of ripeness and standing.