United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 15, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-30875
_____________________
MARCO OUTDOOR ADVERTISING, INC.,
Plaintiff - Appellant,
versus
REGIONAL TRANSIT AUTHORITY,
Defendant - Appellee,
CLEAR CHANNEL OUTDOOR, INC.,
Intervenor Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
Before JOLLY, DAVIS, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This cause arises under 42 U.S.C. § 1983. Marco Outdoor
Advertising, Inc., (“Marco”) contends that the Regional Transit
Authority (“RTA”) deprived it of property without due process of
law when, in violation of the Louisiana Public Bid Law, La. R.S. §
38:2211, et seq. (“Public Bid Law”), RTA arbitrarily awarded an
advertising contract (“Contract”) to an inferior bidder, Clear
Channel Outdoor, Inc. (“Clear Channel”). The district court held
that because the Public Bid Law does not apply to this Contract,
the state had created no property right in favor of prospective
bidders such as Marco,1 and consequently, Marco, having no
protected property interest, had failed to state a constitutional
due process claim. The district court therefore dismissed the case
for lack of federal question jurisdiction.
The issue presented and argued by the parties, both at trial
and on appeal, is whether the Public Bid Law applies to this
Contract (thereby creating a property interest), a difficult and
unclear claim under Louisiana law. Marco contends that it applies;
RTA and Clear Channel contend that it does not. We find it
unnecessary to decide this question because we hold that, even
assuming the Public Bid Law applies and creates a property interest
in this Contract, Louisiana state courts provide an adequate
procedural remedy for the alleged deprivation.2 We therefore
AFFIRM the dismissal of Marco’s complaint for failure to state a
federal claim.
I.
On August 6, 2004, RTA initiated Request for Proposals No.
2004-015, under which it sought sealed bids from advertising
1
Under Louisiana jurisprudence, the Public Bid Law creates a
property right in the highest responsible bidder to receive a
contract that will generate revenue for a state entity. HTW
Transp. Co., Inc. v. New Orleans Aviation Bd., 527 So.2d 339, 342
(La. App. 4 Cir. 1988); cf. Haughton Elevator Div. v. State ex rel.
Div. of Admin., 367 So.2d 1161, 1165 (La. 1979) (creating a
property right in the lowest responsible bidder to receive a public
works contract).
2
At the Court’s request, the parties submitted supplemental
briefs on this issue.
2
contractors for proposals that would generate revenue for RTA by
placing advertisements on RTA’s vehicles, transit shelters, and
transit benches. RTA received bids from six contractors, including
Marco and Clear Channel. The parties dispute whose bid is
financially superior, that is, which will generate more advertising
revenue for RTA. On May 24, 2005, in response to Marco’s
inquiries, RTA informed Marco that RTA planned to award the
Contract to Clear Channel two days later on May 26.
Marco took action, however, and on May 25, Marco filed this 42
U.S.C. § 1983 suit against RTA in federal district court. Marco
sought an injunction preventing RTA from awarding the Contract to
Clear Channel and a writ of mandamus ordering RTA to award the
Contract to Marco. In the district court and on appeal, Marco
argues that its bid is financially superior to Clear Channel’s bid,
and that under the Public Bid Law, RTA must award the Contract to
Marco, which allegedly submitted the best bid. Marco maintains
that under the Public Bid Law, it has a property right protected by
the Due Process Clause of the Fourteenth Amendment of the U.S.
Constitution. This constitutional question is the sole basis for
federal question jurisdiction. Although no injunction was issued,
the bidding process apparently came to a halt.
On August 23, 2005, following a two-day bench trial, the
district court dismissed Marco’s complaint for lack of
jurisdiction. The district court concluded that the Public Bid Law
did not apply to the Contract, and accordingly, that RTA was not
3
required to award the Contract to the most favorable bidder.
Therefore, even if Marco submitted the best bid, it had no right
under state law to receive the Contract and thus no property right
in receiving the Contract. Consequently, Marco could not claim a
deprivation of a constitutionally-protected property right by the
RTA. Because the federal question basis of its law suit was
eliminated, the district court dismissed for lack of jurisdiction.
Marco now appeals.
II.
As we have earlier suggested, we will assume for the purposes
of this appeal that Marco has a property right in its bid. This is
not enough, however. The Fourteenth Amendment also requires that
the plaintiff, in order to establish a constitutional violation,
prove that the deprivation of the property right occurred without
due process of law. See Baker v. McCollan, 443 U.S. 137, 145
(1979).3 Thus, even if the Public Bid Law applies to the disputed
3
There is no merit to Marco’s claim of substantive due
process. Substantive due process “bars certain arbitrary, wrongful
government actions ‘regardless of the fairness of the procedures
used to implement them.’” Zinermon v. Burch, 494 U.S. 113, 125
(1990) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). To
state a viable substantive due process claim, “the plaintiff must
demonstrate that the state official acted with culpability beyond
mere negligence.” McClendon v. City of Columbia, 305 F.3d 314, 325
(5th Cir. 2002). As this Court observed in McClendon, “[t]he
Supreme Court’s discussions of abusive executive action have
repeatedly emphasized that ‘only the most egregious official
conduct can be said to be arbitrary in the constitutional sense.’”
Id. at 325-26 (quoting County of Sacramento v. Lewis, 523 U.S. 833,
846 (1998) (quoting Collins v. City of Harker Heights, 503 U.S.
115, 129 (1992))(internal quotations omitted)). The plaintiff must
therefore demonstrate that the abuse of power by the state official
4
Contract, and the state has thus created a protected property right
in the bidding process for Marco, Marco must further show that the
state has failed to provide Marco some legal process to challenge
RTA’s action. The due process claim before us relates only to the
adequacy of procedures that the state provides to a property owner
before it takes away the property.
Thus, for purposes of this appeal, the state may satisfy due
process requirements by providing an adequate pre-deprivation
remedy.4 An adequate remedy requires that, before it acts, the
state must provide notice and an opportunity for a hearing to the
property owner, see Systems Contractors Corp. v. Orleans Parish
Sch. Bd., 148 F.3d 571, 575-76 (5th Cir. 1998) (applying Mathews v.
Eldridge, 424 U.S. 319 (1976)), for “[w]hen protected interests are
implicated, the right to some kind of prior hearing is paramount,”
“shocks the conscience.” McClendon, 305 F.3d at 326 (quoting
County of Sacramento, 523 U.S. at 846). Here, even if the Public
Bid Law applies, RTA’s decision to award the Contract to Clear
Channel instead of Marco is not so arbitrary so as to “shock the
conscience.” See id. Accordingly, Marco does not have a viable
substantive due process claim. The dissent, in reaching the
opposite conclusion, fails to cite a single case where this Court
or any court has found a substantive due process violation under
similar circumstances.
4
In some situations, however, a post-deprivation remedy will
satisfy due process requirements if the deprivation results not
from established state procedure but from a random and unauthorized
action of a state agent. Parratt v. Taylor, 451 U.S. 527, 541
(1981), overruled in part not relevant here, Daniels v. Williams,
474 U.S. 327 (1986); see also Zinermon v. Burch, 494 U.S. 113
(1990); Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); Hudson
v. Palmer, 468 U.S. 517 (1984); Woodard v. Andrus, 419 F.3d 348
(5th Cir. 2005); Caine v. Hardy, 943 F.2d 1406 (5th Cir. 1991).
5
Bd. of Regents v. Roth, 408 U.S. 564, 569-70 (1972). The “root
requirement” of due process is “that an individual be given an
opportunity for a hearing before he is deprived of any significant
property interest.” McKesson Corp. v. Div. of Alcoholic Beverages
and Tobacco, Dept. of Bus. Regulation of Fla., 496 U.S. 18, 37
(1990) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985)). For example, a state court injunction available
before the deprivation “of any significant property interest”
constitutes an adequate pre-deprivation remedy. See id. at 36-37
(“[t]he State may choose to provide a form of ‘predeprivation
process,’ for example, by authorizing taxpayers to bring suit to
enjoin imposition of a tax prior to its payment”); see also Nat’l
Private Truck Council, Inc. v. Okla. Tax Comm’n, 515 U.S. 582, 587
(1995) (explaining McKesson); Harper v. Va. Dept. of Taxation, 509
U.S. 86, 101-02 (1993) (applying McKesson to Virginia’s tax laws);
Rex Realty Co. v. City of Cedar Rapids, 322 F.3d 526, 529 (8th Cir.
2003) (holding that notice of condemnation and availability of a
state court injunction, writ of mandamus, and writ of certiorari in
an eminent domain case satisfied due process); McKenzie v. City of
Chicago, 118 F.3d 552, 554-58 (7th Cir. 1997) (holding that a state
court injunction was an adequate pre-deprivation remedy in a
condemnation case, where the property owner received notice 30 days
before the demolition and could file an injunction that
6
automatically halted any demolition plans by the city).5
Here, the state provides unsuccessful bidders with adequate
notice and hearing. Specifically, the state provides adequate
notice when RTA announces a contract award, which puts losing
bidders on notice that they will be deprived of any alleged
property interest in the bid if they fail to take further action.
There is no showing here that the notice in this case was
inadequate. Furthermore, the state guarantees unsuccessful bidders
the right to a hearing through the Public Bid Law, which authorizes
any unsuccessful bidder to sue in Louisiana state court to enjoin
the public entity from awarding the contract. See La. R.S. §
38:2220(B). According to the Louisiana Supreme Court, “Louisiana
jurisprudence has long recognized that while a public body has some
discretion in awarding public contracts, subject to judicial
review, an unsuccessful bidder may sue to enjoin the public body
5
Because the Supreme Court has specifically stated that a
state court injunction may satisfy due process as an adequate pre-
deprivation remedy, see, e.g., McKesson, 496 U.S. at 36-37, there
is no merit to the dissent’s assertion that due process requires a
state entity to provide an administrative remedy. Nor are Systems
or Haughton controlling in this case; unlike the case before us,
Systems and Haughton were disqualification cases, that is,
disqualification from having a bid considered. See Systems, 148
F.3d at 573; Haughton, 367 So.2d at 1164. In that context, Systems
and Haughton addressed whether a state entity’s administrative
remedies satisfied due process requirements for exclusion of a
bidder from the bidding process. See Systems, 148 F.3d at 575-76;
Haughton, 367 So.2d at 1166. Here, however, we are not dealing
with a disqualification case. As far as the record shows, Marco’s
bid was accepted and considered as one of the six bids. Marco does
not argue that RTA has disqualified it from bidding on this
Contract or on any future RTA contract.
7
from executing the contract or to set aside the award of the
contract to another bidder when the public body acted arbitrarily
in selecting the successful bidder.” Airline Constr. Co., Inc. v.
Ascension Parish Sch. Bd., 568 So.2d 1029, 1032 (La. 1990)
(citation omitted). As the Louisiana Supreme Court noted in
Airline Construction, the Louisiana Legislature amended La. R.S. §
38:2220 in 1979 to recognize expressly the right to injunctive
relief when a public entity violates the Public Bid Law. Id. at
1032-33. Under the statute:
The district attorney in whose district a
violation of this Part [i.e., the Public Bid
Law] occurs, the attorney general, or any
interested party may bring suit in the
[Louisiana] district court through summary
proceeding to enjoin the award of a contract
or to seek other appropriate injunctive relief
to prevent the award of a contract which would
be in violation of this Part, or through
ordinary proceeding to seek appropriate remedy
to nullify a contract entered into in
violation of this Part.
La. R.S. § 38:2220(B). There are no prerequisites that an
aggrieved interested party must complete before bringing an
injunction in Louisiana district court.6
6
An interested party need not inform the Louisiana attorney
general prior to bringing suit, as generally required under La.
R.S. § 38:2220.3. La. R.S. § 38:2220.3 does not apply to actions
brought by the district attorney, the attorney general, or an
interested party under La. R.S. § 38:2220. See La. R.S. §
38:2220.1 (“It is the intent of the legislature in enacting R.S.
38:2220.1 through 2220.4 to authorize private citizens and other
entities to institute a civil action against public entities to
deter the construction of public works or the purchase of materials
and supplies in violation of the provisions of R.S. 38:2211 et seq.
The provisions of these Sections shall not be construed to
8
Because an unsuccessful bidder may seek an immediate
injunction through a summary proceeding, and because the injunction
may enjoin the execution of the contract, the injunction prevents
the deprivation “of any significant property interest” and is
therefore an adequate pre-deprivation remedy. See McKesson, 496
U.S. at 36-37.7 The summary proceeding, together with RTA’s
eliminate or reduce any causes of action or other forms of relief
provided by existing law, including but not limited to suits
authorized by R.S. 38:2220.”).
Nor, in bids for RTA projects, must an aggrieved bidder
exhaust RTA administrative remedies prior to bringing suit. The
RTA protest procedures state that “[a]ny person who is aggrieved in
connection with the solicitation or award of a contract may protest
to the Director of Procurement/TMSEL.” In Millette Enterprises,
Inc. v. State, 417 So.2d 6 (La. App. 1 Cir. 1982), the Louisiana
First Circuit Court of Appeals held that similar language in La.
R.S. § 39:1671 was permissive rather than mandatory, such that an
aggrieved party did not need to exhaust administrative remedies
before filing suit. Id. at 10.
7
To the extent Systems suggested that state court injunctive
relief is a post-deprivation remedy, see 148 F.3d at 576, the
Supreme Court has indicated otherwise, see McKesson, 496 U.S. at
36-37. Regardless, the Systems Court had already held that the
state entity provided an adequate pre-deprivation remedy through
prior notice and a separate hearing, see id. at 575-76, and given
that an adequate pre-deprivation remedy is sufficient by itself to
satisfy the requirements of due process, see Harper, 509 U.S. at
101, Systems’ discussion of injunctive relief is dicta.
Because the injunctive relief provides Marco with an adequate
pre-deprivation hearing, this case is clearly distinguishable from
Parratt and its progeny. In those cases, unlike the one before us,
the deprivation occurred without any prior hearing. See, e.g.,
Zinermon, 494 U.S. at 114-15, 120, 122 (complainant involuntarily
held in mental hospital for five months without prior hearing);
Hudson, 468 U.S. at 520 (complainant inmates’ property
intentionally destroyed by prison officer without prior hearing);
Logan, 455 U.S. at 426 (complainant discharged from employment
without prior hearing); Woodard, 419 F.3d at 350 (complainant
charged excessive fees by court clerk without prior hearing);
9
announcement of the contract award, satisfies the elements of the
due process prong of the Due Process Clause that are at issue in
this case.
III.
We thus conclude: We assume for the purposes of deciding this
appeal that the Public Bid Law applies to Marco’s bid and that
Marco has properly alleged a property interest in the right to
receive the Contract; nevertheless, we conclude that Marco’s
procedural due process claim fails. The Public Bid Law explicitly
authorizes Marco to seek state court injunctive relief to enjoin
RTA from awarding the contract to Clear Channel. For the reasons
given, we hold that Marco has failed to show that it has been
denied due process of law provided in the Fourteenth Amendment.
Accordingly, the judgment of the district court dismissing the case
for failure to state a federal claim is
AFFIRMED.
Caine, 943 F.2d at 1407-08 (complainant doctor’s clinical
privileges at hospital suspended without prior hearing).
10
WIENER, J., Circuit Judge, dissenting:
I respectfully dissent. I am convinced that the majority
opinion misapprehends the nature of, or glosses over, Marco’s
substantive due-process claim, grounded as it is in the RTA’s
knowing and deliberate disregard of Louisiana’s public bid law (and
its own announced procedure), despite such law having been
expressly incorporated by reference in the RTA’s enabling act.
I. ANALYSIS
The State’s bid law has long been recognized as creating a
constitutionally protected property interest in the entitlement of
the lowest —— or, as in this case, the highest —— responsible
bidder (hereafter, “best bidder”) to be awarded the advertised
contract.1 One obvious purpose of the bid law is to protect the
public fisc by ensuring that the people pay the lowest price
available for qualified work (or, as here, receive the most revenue
for the privilege granted)2; another is to protect the property
right of the best bidder to be awarded the advertised contract.
Thus, for a bidder successfully to assert a § 1983 due-process
claim, he must establish that the contract at issue is subject to
1
Haughton Elevator Div. v. Louisiana Ex Rel. Div. of Admin.,
367 So. 2d 1161, 1165 (La. 1979). The State’s bid laws can create
a property interest in either the lowest or highest responsible
bidder, depending on the nature of the contract at issue.
2
Smith v. Town of Vinton, 43 So. 2d 18, 21-22 (La. 1949)
(quoting Boxwell v. Dept. of Highways, 14 So. 2d 627, 631 (La.
1943).
the State’s public bid law, that he is the best bidder, and that he
has been wronged by the agency’s awarding of the contract to
another party. Marco’s establishing of these elements would
entitle it to pursue Fourteenth Amendment due-process claims under
§ 1983, both substantive and procedural. Even when, for today’s
purposes, I accept without granting that the panel majority has
gotten the procedural due process facet of Marco’s claim right,
that procedural placebo, viz., Marco’s pre- or post-deprivation
access to the State’s courts, falls far short of being a panacea
for Marco’s substantive due-process ills, much less the only
available cure.
Instead of forthrightly deciding the sole legal issue
addressed by the parties and by the district court, i.e., whether
Louisiana’s public bid law even applies to the RTA’s letting of the
instant contract (I believe that the bid law applies and would so
hold on appeal), the majority leaves that question unanswered and
merely assumes arguendo that these laws do apply and that Marco has
established that it is the best bidder and thus entitled to due
process protection.3 Having thus set up the procedural due process
strawman through such assumptions, though, the panel majority
proceeds to knock it down, in disregard of Marco’s substantive due
3
Marco’s objective allegations, if proved, leave no doubt
that its bid was easily the best of the six received by the RTA ——
at least before the RTA massaged Clear Channel’s bid to elevate it
above Marco’s and one other that also had topped Clear Channel’s
original bid.
12
process claim, by conclusionally declaring, without any discussion
of the facts or analysis of the law, that the “RTA’s decision to
award the Contract to Clear Channel instead of Marco is not so
arbitrary as to ‘shock the conscience.’” According to the panel
majority, then, solely because Marco had the option of resorting to
state court (don’t we all?), its entitlement to seek relief there
after being arbitrarily and capriciously denied its best-bidder’s
right to be awarded the contract somehow satisfies the pre-
deprivation administrative procedure that due process expressly
requires. For the majority, then, the RTA’s refusal to follow the
presumably applicable state bid law —— and its own announced
procedures —— which is designed to protect, inter alia, a best
bidder’s constitutional property right, is somehow not so
unconstitutionally egregious as to warrant access to, and the
attention of, the federal courts. In other words, just because we
say so, the RTA’s patent disregard of the substantive due process
rights guaranteed to Marco under the United States Constitution
cannot be rectified in federal court in a § 1983 action.
As I find the panel majority’s reasoning to be fatally flawed,
I too shall proceed (as does the panel majority) on the assumption
that Marco is entitled to both procedural and substantive due
process before it may be deprived of its conceded property right,
and shall illustrate how Marco’s constitutional right is violated.
Adverting to substantive due process solely in footnote 3 of
its opinion, the panel majority conclusionally declares that “Marco
13
does not have a viable substantive due process claim.” Yet, the
majority never tells us why not. It simply stands mute as to the
reasons for concluding that Marco has no substantive due-process
claim. To me, that alone would justify a dissent. I shall do
more, however, by explaining why I am convinced that Marco does
indeed have a viable substantive due-process claim, which it is
entitled to pursue in federal court § 1983.
As the majority explains, and I agree, “[s]ubstantive due
process ‘bars certain arbitrary, wrongful government actions....’”
Here, Marco’s substantive due process claim is supported by a
plethora of discrete allegations of how the RTA arbitrarily and
capriciously disregarded state law —— more accurately, how it
affirmatively rejected the state bid law as totally inapplicable ——
by knowingly thumbing its nose at Louisiana’s bid requirements and,
in an exercise of agency fiat, blatantly handing the contract to an
inferior bidder after colluding with that bidder to make its bid
the best. It is obvious to me that these shenanigans
unquestionably resulted in the deprivation of Marco’s
constitutionally-recognized and constitutionally-protected property
right, as the putative best qualified bidder, to have the contract
awarded to it. Lest there be any doubt about the RTA’s audacious
euchring of Marco out of the subject contract, I reiterate here the
RTA’s machinations as alleged by Marco (which must be credited at
this stage of the proceedings):
• The RTA’s Request For Proposals (“RFP”) for the
14
subject contract was not furnished to Marco despite its
previous requests for notice of the initiation of any
solicitation for transit advertising.
• Similarly, Marco was not informed of the RTA’s pre-
bid conference on the contract.
• Of six proposals received by the RTA, Marco’s was
patently the best from all standpoints (guaranteed
payments, percentage of revenues, contractor media,
bartered print and broadcast media, and marketing
analysis), and Clear Channel’s proposal was a distant
third.
• Post-bidding, RTA subjectively evaluated the
proposals with a previously-undisclosed, arbitrarily
weighted formula, baldly adding $1.5 million to Clear
Channel’s proposal for non-monetary benefits over ten
years (which one of the other contractors had also agreed
to do yet got no “bonus” for) and adding another bonus
($1.7 million) for non-monetary benefits proposed by
Clear Channel, which no other bidder was advised it could
submit. Even with this “artificially enhanced figure,”
Clear Channel’s score remained short of the 60 maximum
points that only Marco’s bid had achieved.
• Also post-bid, RTA assigned to Clear Channel a 10-
point bonus for compliance with Disadvantaged Business
Enterprises (“DBE”) despite having stated that no such
goals had been established for the subject project and
despite obvious non-compliance by Clear Channel.
• When all of the foregoing post-bid machinations
failed to move Clear Channel ahead of Marco, the RTA
allowed Clear Channel (and only Clear Channel) to revise
its bid by (1) increasing its guaranteed payment from
$10,186,000 to $13,386,000, (2) increasing its estimated
revenues by 40% above its original proposal, and (3)
artificially inflating its bid above those of Marco and
the original second-place bidders.
• After accomplishing the foregoing legerdemain, the
RTA declared Clear Channel the best bidder even though ——
despite those post-bidding unilateral changes —— Clear
Channel’s proposal guaranteed only $10,186,000, still
more than $3 million less than Marco’s guarantee.
Assuming, as we must, for purposes of the four-part test for
15
granting a TRO or preliminary injunction, that Marco could prove
these allegations, they are quintessentially arbitrary and
capricious, and more than sufficient to satisfy the element of
likelihood of success, entitling Marco to such a restraint.
Typically, the focus of substantive due-process claims in the
area of public bid laws is whether the awarding authority has
arbitrarily or capriciously designated an inferior contender as the
best responsible bidder. In almost every such case, the awarding
authority acknowledges (or is at least aware) that it is subject to
the bid law, but —— at least allegedly —— has failed to follow the
statutory or regulatory bid rules. Here, in contrast, the RTA has
denied from the outset that, in awarding this revenue-producing
contract, it is subject to the state bid law at all and, as such,
has insisted that its bidders have no constitutionally-protected
property rights. The RTA insists further that, for its own reasons
—— or for no reason —— it was also free to disregard its own bid
proposal guidelines with impunity, simply because of the revenue
nature of the contract it was awarding.
As noted, we are asked to decide whether Marco was arbitrarily
denied its status as the best responsible bidder, allegedly
accomplished by the RTA’s capricious favoring of an inferior bidder
to the exclusion of Marco, through its conceded disregard of the
bid law and the refusal to follow that law and its own announced
procedures by self-servingly labeling them as inapplicable.
Indeed, to this day, that is the totality of what the RTA relies
16
on, viz., its (erroneously) asserted right to award the instant
revenue contract without complying with the public bid law, which
is expressly made applicable to the RTA in its enabling statute,
and which incorporation by reference contains no limitations of
applicability to public works and purchases of materials or
supplies.
If, as I advocate, we were to remand, and the fact finder were
to determine that Marco somehow was not the best responsible
bidder, then Marco will have no protected property interest to
enforce in a § 1983 action. But the panel majority has conceded
for purposes of today’s decision, that Marco is the best
responsible bidder. As such, we must treat Marco as having a
protected property interest that may not be abrogated by the whim
(or worse) of the RTA —— at least not without violating Marco’s
substantive due-process rights. It smacks of Lewis Carroll to say
that the RTA did not act arbitrarily and capriciously despite (1)
self-servingly declaring itself free of the restrictions of the bid
laws, (2) conducting its bid process in knowing disregard of its
own announced procedures, (3) colluding with the third best of six
bidders to enhance that bidder’s proposal post-submission, i.e.,
after “going to school” on Marco’s bid, and (4) ultimately awarding
the contract to its favored bidder, regardless of its own pre-award
guidelines. I cannot see how this willful —— and thus arbitrary
and capricious —— behavior does not shock the majority’s
conscience: Even as jaded as I have become from living in New
17
Orleans and seeing almost daily media reports of this kind of
behavior by local agencies, the RTA has managed to shock my
conscience in this instance.
II. Conclusion
As I see it, the panel majority skirts the sole issue that
controlled this case in the district court and that the parties
have briefed and argued on appeal, viz., whether the enabling act
of the RTA, in incorporating the Louisiana public bid law, makes
that law applicable to the award of this particular RTA contract ——
a question that the majority labels “a difficult and unclear claim
under Louisiana law.” With respect, I do not find it that
difficult, because I stop with the plain wording of the RTA’s
enabling act and refrain from trying to divine unspoken legislative
intent in the face of clear and unambiguous statutory language. We
should not be “lawyering” the case as an advocate for one of the
parties. I acknowledge that it is generally preferable to avoid
reaching a difficult issue of law by resolving a case on a clear
and easy one —— and that may well be what the majority means to do
here. But, I cannot see that we have such a path available to us
today. Our only options are to hold that Louisiana’s bid law does
or does not apply here; and then, depending on our answer, either
(1) reverse and remand or (2) affirm. We should not tiptoe around
that issue by, sua sponte, going off on the nature of Marco’s
clearly established due process, property-right claim and latching
onto a procedural, state statutory standing provision as a means of
18
disposing of this appeal. It is for these reasons that I cannot
concur in the panel majority opinion, and instead must respectfully
dissent.
19