Professional Documents
Culture Documents
Carol A. Simpson
Texas State Bar No. 24061293
csimpson@edlaw.com
TABLE OF CONTENTS
ii
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 3 of 30
TABLE OF AUTHORITIES
CASES
Andrus v. Allard, 444 U.S. 51 (1979) ............................................................................... 20
Austin Indep. Sch. Dist. v. City of Sunset Valley, 502 S.W.2d 670 (Tex. 1973)............... 19
Baker v. Carr, 369 U.S. 186 (1962).................................................................................... 4
Barrera-Montenegro v. United States, 74 F.3d 657 (5th Cir. 1996) .................................. 6
Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397 (1997)....................... 22
Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995)............................................... 2
Boyd v. Town of Ransom Canyon, Tex. 547 F. Supp. 2d 618 (N.D. Tex. 2008) .............. 21
Brown v. Nationsbank Corp., 188 F.3d 579 (5th Cir. 1999)............................................... 2
Campbell v. Wells Fargo Bank, 781 F.2d 440 (5th Cir. 1986) ........................................... 2
Camuglia v. The City of Albuquerque, 448 F.3d 1214 (10th Cir. 2006) .......................... 22
Cinel v. Connick, 15 F.3d 1338 (5th Cir. 1994).................................................................. 2
City of Carrollton v. Texas Comm’n on Envtl. Quality, 170 S.W.3d 204 (Tex. App.–
Austin 2005, no pet.)..................................................................................................... 18
City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex. 1970) .............................................. 18
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ............................................ 19
Coates v. Hall, 512 F. Supp. 2d 770 (W.D. Tex. 2007) ............................................. 10, 11
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496 (5th Cir. 2000).............................. 2
Conley v. Gibson, 355 U.S. 41 (1957) ................................................................................ 2
County of Sacramento v. Lewis, 523 U.S. 833 (1998)...................................................... 17
Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831 (5th Cir. 2004) .................. 23
DRT Mech. Corp. v. Collin County, 845 F. Supp. 1159 (E.D. Tex. 1994)....................... 11
Fernandez-Montes v. Allied Pilots Ass’n., 987 F.2d 278 (5th Cir. 1993)........................... 2
Flast v. Cohen, 392 U.S. 83 (1968) .................................................................................... 4
Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831 (Tex. 2000) ............ 19
Gen. Motors v. Tracy, 519 U.S. 278 (1997) ..................................................................... 17
Hall v. Thomas, 190 F.3d 693 (5th Cir. 1999).................................................................... 2
Hampton Co. Nat. Sur. LLC v. Tunica County, Miss., 543 F.3d 221 (5th Cir. 2008) ...... 19
Hodel v. Va. Surface Mining & Reclamation Ass’n., Inc., 452 U.S. 264 (1981)................ 8
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989) ....................................................... 22
Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 1984) ................................................... 10
iii
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 4 of 30
Urban Developers, L.L.C. v. City of Jackson, Miss., 468 F.3d 281 (5th Cir. 2006)..... 8, 20
Williamson County Reg’l Planning Comm'n v. Hamilton Bank of Johnson, 473 U.S. 172
(1985).................................................................................................................. 8, 10, 20
Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981) .......................................................... 5
Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565 (5th Cir. 2001) ....................................... 2
Zinermon v. Burch, 494 U.S. 113 (1990).......................................................................... 19
STATUTORY AUTHORITY
42 U.S.C. § 1983....................................................................................................... ii, 4, 21
Fed. R. Civ. P. 12(b)(1)................................................................................................1, 4, 5
Fed. R. Civ. P. 12(b)(6)....................................................................................................1, 2
Fed. R. Civ. P. 65...............................................................................................................22
Tex. Educ. Code Ann. § 44.031(a) (Vernon 2008)............................................................13
Tex. Educ. Code Ann. § 44.031(b) (Vernon 2008) ...........................................................13
Tex. Educ. Code Ann. § 44.031(d) (Vernon 2008) ...........................................................13
Tex. Educ. Code Ann. § 44.031(e) (Vernon 2008)............................................................13
Tex. Educ. Code Ann. § 44.034 (Vernon 2008) ................................................................18
Tex. Educ. Code Ann. § 44.042 (Vernon 2008) ................................................................14
Tex. Educ. Code Ann. §§ 44.031-.047 (Vernon 2008)......................................................13
Tex. Educ. Code. Ann. Tit. II, App. § 17.31 (Vernon 2008).............................................13
Tex. Loc. Gov’t Code Ann. § 271.027 (Vernon 2005)......................................................15
Tex. Loc. Gov’t Code Ann. § 271.0275 (Vernon 2005)....................................................14
Tex. Loc. Gov’t Code Ann. § 271.907 (Vernon 2008)..........................................11, 15, 16
Tex. Loc. Gov’t Code Ann. § 271.907(c) (Vernon 2008) .................................................11
Tex. Loc. Gov’t Code Ann. § 271.907(d) (Vernon 2008) .................................................11
U.S. Const. amend. XIV ....................................................................................................19
OTHER AUTHORITIES
Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (1969)
..........................................................................................................................................2
EPA, Final Guidance on EPP - Environmentally Preferable Purchasing,
http://www.epa.gov/epp/pubs/guidance/finalguidance.htm (1999)...............................23
v
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 6 of 30
Defendant Dallas County Schools (“DCS”) files its motion to dismiss Plaintiff’s
Original Complaint and Application for Injunctive Relief (“Complaint”) under Federal
Rules of Civil Procedure 12(b)(1) and (6), and for good cause shows as follows:
I. Summary of Case
The Defendants have been sued because they each passed resolutions that created
a preference or requirement that any and all cement purchases be for cement
manufactured using dry process kilns or that met a specific pollution limit. Plaintiff
manufactures cement using wet process kilns to make its product. Plaintiff claims
defendants passed such resolutions because they believed the standards in the resolutions
were more ecologically friendly (“green”), but that the standards used for making such
This brief in support of DCS’s motion to dismiss outlines the multiple grounds for
which dismissal is appropriate as the court has no jurisdiction and plaintiff has failed to
1. Plaintiff is a cement manufacturer that uses wet process kilns at its plant.2
Preferable Purchasing.3
purchase of dry kiln cement as the base bid” with “an alternative bid for the
bids from a cement kiln with emission rates of 1.7 pounds of NOx per ton of
clinker or less.4
In considering a motion for failure to state a claim upon which relief may be
granted, the Court is to take all facts as pleaded by the plaintiffs as true and liberally
construe the complaint in favor of the plaintiffs.5 Motions based on Federal Rules of
Civil Procedure 12(b)(6) “should not be granted unless ‘it appears beyond a doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.’”6 “The question therefore is whether, in the light most favorable to the plaintiff,
and with every doubt resolved in his behalf, the complaint states any valid claim for
relief.”7 In presenting this motion, defendant recognizes that this Court must presume all
factual allegations contained in the complaint to be true.8 “The court may dismiss a claim
when it is clear that the plaintiff can prove no set of facts in support of his claim that
4
Complaint at 31, ¶ 65. Explanations of the terms of art for NOx, clinker, etc. can be found throughout the
Complaint.
5
Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565, 573 (5th Cir. 2001) (citing Campbell v. Wells Fargo
Bank, 781 F.2d 440, 442 (5th Cir. 1986)).
6
Fed. R. Civ. P 12(b)(6); Hall v. Thomas, 190 F.3d 693, 696 (5th Cir. 1999) (quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1957)).
7
Brown v. Nationsbank Corp., 188 F.3d 579, 586 (5th Cir. 1999) (quoting 5 Charles Allen Wright &
Arthur R. Miller, Federal Practice and Procedure § 1357, at 601 (1969)), cert. denied sub nom, Brown v.
U.S., 530 U.S. 1274 (2000).
8
See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) rev’d on other grounds on remand by Krause v.
Rhodes, 570 F. 2d 563 (6th Cir. 1977); Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994), cert. denied,
513 U.S. 868 (1994).
9
Jones v. Geninger, 188 F.3d 322, 324 (5th Cir. 1999).
10
Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (citing Fernandez-Montes v. Allied
Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)(“conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss”)); see also, Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) and Tuchman v. DSC Commc’ns Corp., 14 F.3d
1061, 1067 (5th Cir. 1994).
2
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 8 of 30
1. The case is not ripe and plaintiff has no standing because Defendant DCS has not
sought bids or purchased cement since it passed its Resolution.
2. The DCS Resolution does not violate the Texas competitive bidding statutes
because schools may add additional relevant criteria to their bids.
3. The DCS Resolution does not violate Texas’s preferential purchasing statute
because any preference is capped at the statutory 105% limit.
8. The DCS Resolution does not violate the equal protection clause because Plaintiff
is not a suspect class and the regulation does not involve a protected right.
11
Complaint at 34, ¶¶ 70-73. The term “Resolutions” is listed in plural form because the plaintiff claims all
the defendants damage them; DCS will address its own Resolution only in this brief.
12
Complaint at 36, ¶¶ 74-76.
13
Complaint at 37, ¶¶ 77-86.
14
Complaint at 42, ¶¶ 87-89.
15
Complaint at 43, ¶¶ 90-93.
3
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 9 of 30
A. The case is not ripe and plaintiff has no standing because Defendant DCS has
not sought bids or purchased cement since it passed its Resolution.
Plaintiff has suffered no injury in fact and lacks standing to bring suit against
DCS. Plaintiff is suing DCS based upon its alleged presumption that DCS might word or
construe cement bid specifications ["specs"] at some point in the future that may result in
Plaintiff’s bid not being selected to supply cement. Plaintiff presumes itself to be the
future failed bidder in response to as-yet-undrafted bid specs, and sues now for its as-yet-
unrealized failure; it also presumes that DCS will seek bids on cement, something that
may or may not even happen. Plaintiff’s presumptions regarding the future of its cement
Fed. R. Civ. P. rule 12(b)(l) requires dismissal of a case when the dispute is not
ripe, when a case lacks justiciability, or when a plaintiff lacks standing because it has not
16
Complaint at 45, ¶¶ 94-96.
17
Complaint at 46, ¶¶ 97-100.
18
Pardon the pun. See Baker v. Carr, 369 U.S. 186, 201 (1962) (explaining that the question of standing is
whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions”); see also Flast v. Cohen, 392 U.S. 83, 99-
100 (1968) (“[W]hen standing is placed in issue in a case, the question is whether the person whose
standing is challenged is a proper party to request an adjudication of a particular issue and not whether the
issue itself is justiciable.”)
19
Id.
4
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 10 of 30
Defendant DCS has moved for dismissal of Plaintiff’s claims, pursuant to Rule 12(b)(1),
(b) How Presented. Every defense, in law or fact, to a claim for relief in
any pleading, whether a claim, counterclaim, cross-claim, or third-party
claim, shall be asserted in the responsive pleading thereto if one is
required, except that the following defenses may at the option of the
pleader be made by motion: ... (1) lack of jurisdiction over the subject
matter, ....20
If subject matter jurisdiction is not evident on the face of the complaint, a motion to
dismiss pursuant to Rule 12(b)(l) is analyzed as any other motion to dismiss, by assuming
for purposes of the motion that the allegations in the complaint are true.21 However, if the
complaint is formally sufficient but the defendant contends that there is “in fact no
subject matter jurisdiction, the movant may use affidavits and other material to support
the motion. The burden of proof on a 12(b)(l) issue is on the party asserting jurisdiction.
And the court is free to weigh the evidence to determine whether jurisdiction has been
established.”22 In deciding a motion to dismiss under Rule 12(b)(l), a court may consider
matters outside the pleadings.23 “A court may base its disposition of a motion to dismiss
for lack of subject matter jurisdiction on (1) the complaint alone; (2) the complaint
attaches to the plaintiff’s allegations, and the court can decide disputed issues of material
20
Fed. R. Civ. P. 12(b)(1).
21
Scheuer, 416 U.S. at 236.
22
United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003) (internal citations
omitted); see also Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981).
23
See Montez v. Dep't of Navy, 392 F.3d 147, 149 (5th Cir. 2004) ("In general, where subject matter
jurisdiction is being challenged, the trial court is free to weigh the evidence and resolve factual disputes in
order to satisfy itself that it has the power to hear the case). See Land v. Dollar, 330 U.S. 731, 735 & n. 4
(1947).
24
Robinson v. TCI/US West Comm’cns Inc., 117 F.3d 900, 904 (5th Cir. 1997).
5
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 11 of 30
fact in Defendant DCS’ Brief in Support of Motion to Dismiss pursuant to Rule 12(b)(1)
to determine whether the court has jurisdiction to hear the case.25 “Subject matter
jurisdiction is, as we know, an issue that should be resolved early but must be considered
Plaintiff pleaded that DCS passed a Resolution expressing a preference for green
That the Superintendent will report to the Dallas County Schools Board of
Trustees in August 2009 on the results of specifying purchase of dry kiln
cement, recycled, reusable or reground materials and preferential
purchasing of cement from cement kilns with emissions rates less that 1.7
pounds of NOx per ton of clinker or less.
That this resolution shall take effect immediately from and after its
Passage.27
Plaintiff has no current real dispute with DCS. Since the Resolution, there is no
claim by Plaintiff that DCS has sought bids for or directly purchased cement. Moreover,
DCS’s Resolution does not prohibit wet kiln cement (it permits the preferential purchase
of any cement from a “cement kiln with emission rates of 1.7 pounds of NOx per ton of
25
See Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).
26
United Phosphorus, 322 F.3d at 946.
27
Complaint, Ex. 22 (emphasis added).
28
Complaint at 30, ¶ 65.
6
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 12 of 30
clinker or less” but allows cement bids from an “unspecified source”).29 Finally, the
Resolution only authorizes the superintendent to make such specifications, it does not
mandate; nor does Plaintiff allege facts that the DCS Superintendent has actually issued
such specifications. Plaintiff’s Complaint and the mere existence of a Resolution that
authorizes an act that has yet to occur is not enough to enable Plaintiff to sue DCS.
Plaintiff has failed to allege it has any business or economic losses due to the
DCS Resolution, or even that the Plaintiff anticipates bidding for cement in the near or
distant future. The Resolution is not a request for bids; it is a statement of aspiration. It is
too early to know how the DCS Superintendent will construe the Resolution with
applicable Texas purchasing laws. It is also too early to know which companies will bid,
and whether Plaintiff is doomed to fail in any possible bid efforts it makes, as Plaintiff
seems to believe. Plaintiff seeks to have this Court issue an advisory opinion in the form
of an injunction setting out limitations on future DCS bid specs because Plaintiff
presumes that its product will not be within bid specifications that have yet to be
considered and may never come to pass. Plaintiff seeks to have this Court overturn a
Subject matter jurisdiction does not yet exist in this case because the claim is not
ripe. According to the Complaint, DCS has passed a Resolution but there is no claim
DCS has issued bid specs for any cement whatsoever. “In general, standing and ripeness
29
Complaint, Ex. 22.
30
McInnis-Misenor v. Main Med. Ctr, 319 F.3d 63, 69 (1st Cir. 2003).
7
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 13 of 30
litigation, as opposed to the ‘who.’”31 A plaintiff seeking to invoke the power of the
Before a plaintiff may attack a local governmental decision in federal court, the
invoked in a preemptive manner, before a conflict even solidifies. As noted by the U.S.
Supreme Court, “[w]e have noted that ripeness doctrine is drawn both from Article III
limitations on judicial power and from prudential reasons for refusing to exercise
jurisdiction.”33 The Court has made clear in several decisions that “a claim that the
until the government entity charged with implementing the regulations has reached a final
The Fifth Circuit has strictly construed the finality prong. For example, a property
owner alleging a takings claim must seek “variances or waivers, when potentially
available, before a court will hear their takings claims.”35 The Fifth Circuit has held that
“whenever the property owner has ignored or abandoned some relevant form of review or
relief, such that the takings decision cannot be said to be final, the takings claim should
be dismissed as unripe.”36 A court should dismiss a case for lack of ripeness “when the
31
Id.
32
Williamson County Reg’l Planning Comm'n v. Hamilton Bank of Johnson, 473 U.S. 172, 186 (1985).
33
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57, n. 18 (1993) (noting that the mere existence of an INS
"front-desking" policy whereby applications for change in immigration status could be rejected as ineligible
without filing was not sufficient to satisfy the need for ripeness of the dispute when Plaintiff had not
actually been front-desked).
34
Williamson County Reg’l Planning Comm'n, 473 U.S. at 186; and see e.g. Hodel v. Va. Surface Mining
& Reclamation Ass’n, Inc., 452 U.S. 264, 297 (1981).
35
Urban Developers, L.L.C. v. City of Jackson, Miss., 468 F.3d 281, 293 (5th Cir. 2006) (citing cases that
held takings claims unripe when the plaintiffs had not sought alternative avenues for their plans).
36
Id.
8
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 14 of 30
case is abstract or hypothetical.”37 “A claim is not ripe for adjudication if it rests upon
‘contingent future events that may not occur as anticipated, or indeed may not occur at
distinguishing matters that are ‘hypothetical’ or ‘speculative’ from those that are poised
for judicial review.”39 To be ripe, the claim must be sufficiently immediate and real as to
Plaintiff’s claims are entirely contingent upon the unwritten future bid specs. The
presence of actual, not merely theoretical, bid specs is essential before Plaintiff may bring
suit. Any future bid specs may or may not reflect the DCS Resolution in the manner
feared by Plaintiff; it is this future bid process itself that might impact Plaintiff, not the
Resolution. Without any bid specs reflecting the resolution actually adopted and bid
requests based on those specs published, the issues and claims are unripe and are not, and
Plaintiff’s causes of action asserting a federal right entitled to protection from this Court,
each asserted cause of action has ripeness or standing problems. Plaintiff alleges against
DCS a regulatory taking protected under the Takings Clause of the Fifth Amendment.
Citing to the Supreme Court's decisions in Suitum v. Tahoe Regional Planning Agency42
37
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 833 F.2d 583, 586 (5th Cir. 1987); see
also, Roark & Hardee LP v. City of Austin, 522 F.3d 533, 545 (5th Cir. 2008).
38
Texas v. United States, 523 U.S. 296, 300 (1998); see also Thomas v. Union Carbide Agric. Prods. Co.,
473 U.S. 568, 580-81 (1985).
39
LeClerc v. Webb, 419 F.3d 405, 413-414 (5th Cir. 2003).
40
See Shields v. Norton, 289 F.3d 832, 835 (5th Cir. 2002).
41
Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir. 2005).
42
Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733 (1997).
9
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 15 of 30
City43, the U.S. District Court for the Western District of Texas analyzed ripeness and the
prudential hurdles to a regulatory takings claim brought against a state entity in federal
court, holding: “a plaintiff must demonstrate that she has both received a ‘final decision
regarding the application of the [challenged] regulations to the property at issue’ and
sought ‘compensation through the procedures the State has provided for doing so.’”44
Plaintiff vaguely complains about the vagueness of all the Resolutions. To the
contrary, DCS’s Resolution is not vague – it gives great latitude to the superintendent by
course, any bid specs will be very specific, and only then will Plaintiff know if its product
will be excluded. DCS’s Resolution does not prohibit or mandate Plaintiff from making
cement in any fashion it chooses. It does not proscribe any conduct by Plaintiff. The Fifth
Circuit has held: “Before a penalty, whatever its nature, creates urgent need for notice,
that penalty must attach to conduct.”46 Plaintiff has neither been forced to take a specific
action, nor has it yet been penalized for any conduct it has taken to date. Plaintiff has not
shown that the DCS Resolution itself has resulted in anything done to date that has
process violations in its pleading. Such a challenge is subject to the same finality
requirement as its related takings claim.47 Plaintiff’s equal protection claim on behalf of
43
Williamson County Reg’l Planning Comm'n, 473 U.S. at 186.
44
Coates v. Hall, 512 F. Supp. 2d 770, 784 (W.D. Tex. 2007); see also Lange v. City of Batesville, 160
Fed. Appx. 348, 354 (5th Cir. 2005).
45
Complaint, Ex. 22, p. 2, sec. 1.
46
Jones v. City of Lubbock, 727 F.2d 364, 373 (5th Cir. 1984) .
47
Simi Inv. Co. v. Harris County, Tex., 236 F.3d. 240, 249 n. 13 (5th Cir. 2000).
10
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 16 of 30
wet kilns deserving equal protection to dry kilns48 nonetheless suffers the same fate. It is
unripe, and allowing it to proceed would result in nothing more than “premature,
piecemeal litigation of this case.”49 Unilateral expectation by Plaintiff that (1) DCS will
seek bids for cement and (2) such bids will have standards that Plaintiff cannot meet, and
(3) other companies will be capable of meeting the standards and (4) other companies
will actually bid and be awarded a bid that Plaintiff believes it would have otherwise
what it believes is a violation of the Vendors that Meet or Exceed Air Quality Standards
only subsection (c)(2), leaving out subsection (d), which notes that “preferences may be
given only if the cost to the governmental agency for the goods or services would not
exceed 105 percent of the cost of the goods or services provided by a vendor who does
not meet the standards.”52 Looking at the entire statute, now the Plaintiff asks the Court
to opine by assuming the following: (1) DCS will seek bids for cement, and (2) such bids
will have standards which Plaintiff cannot meet, and (3) other companies will be capable
of meeting the standards, and (4) other companies will actually bid, and (5) the top bid
will not exceed 105 percent of the cost of goods provided by Plaintiff, and (6) the other
48
Plaintiff’s equal protection claim is a bizarre claim in and of itself since Plaintiff does not object to wet
kilns having a less strict TCEQ environmental standard than dry kilns. Complaint, ¶ 22. Either Plaintiff is
arguing that air quality and life itself is not a rational basis for such a Resolution or that wet kiln cement is
in some sort of suspect or protected class (Plaintiff does not specify).
49
Coates, 512 F. Supp. 2d at 791.
50
See DRT Mech. Corp. v. Collin County, 845 F. Supp. 1159, 1161 (E.D. Tex. 1994). (holding that when a
county awarded a contract to the second lowest bidder, the lowest bidder had no property right protectable
under the Due Process clause of the 14th Amendment because "unilateral expectation" is not a legally
protected entitlement).
51
Complaint at 36-37; Tex. Loc. Gov’t Code Ann. § 271.907 (Vernon 2008).
52
Tex. Loc. Gov’t Code Ann. § 271.907(d) (Vernon 2008).
11
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 17 of 30
bidder will be awarded the bid. The 105 percent cost limit for a § 271.907 preference has
the possibility, if the not the probability, of overtaking DCS’s Resolution preference for
dry kilns or 1.7 pounds of NOx per ton of clinker produced; this is just another example
of why it is hasty to consider this case until it is actually ripe and a controversy exists.
Until such time as the superintendent actually decides to seek bids for cement, the
superintendent will not determine whether he wants to then implement a “green” practice
superintendent to permit corporal punishment in his schools, and a parent suing before
any corporal punishment even takes place. First the superintendent must decide if he
wants to put a practice into place with regard to his authority to use corporal punishment;
then the superintendent must create the appropriate guidelines; then a school must
actually use the corporal punishment. Until someone is imminently threatened with or
of law has taken place. Plaintiff seeks court intervention for specs that have not been born
nor has Plaintiff even bid for the sale; Plaintiff somehow has the temerity to ask the Court
to rule on cement sales that it has not lost, much less even bid on!
C. The DCS Resolution does not violate the Texas competitive bidding statutes
because schools may add additional relevant criteria to their bids.
that the DCS resolution violates Texas competitive bidding statutes by not requiring DCS
to accept the lowest bid.53 However, the DCS is not primarily governed by the Local
53
Complaint at 34-36, ¶¶ 70-73.
12
Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss
Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 18 of 30
Government Code purchasing regulations; purchase contracts for public schools are
governed under Title II, Subchapter B of the Education Code.54 Public schools have
under any of the purchasing options, multiple factors when deciding to which vendor to
award a contract.56 Significant among those factors is “any other relevant factor
specifically listed in the request for bids or proposals.”57 In addition, a district’s board of
trustees “may adopt rules and procedures for the acquisition of goods or services.”58
Finally, the Education Code preempts any provision of any other law relating to
asserted by Plaintiff).59 DCS may apply any relevant factor to its bid specifications,
including setting a green standard. As role models for students, the DCS board may find
prefer to select products that are less likely to have collateral health effects on students.60
Regardless, the DCS board is statutorily authorized to establish this requirement as long
54
Tex. Educ. Code Ann. §§ 44.031-.047 (Vernon 2008). As a county school district, DCS is governed
under the law that existed when most county school districts were abolished. Under Tex. Educ. Code. Ann.
Tit. II, App. § 17.31 (Vernon 2008), county trustees may exercise all functions conferred on trustees by
statute and may perform any other act consistent with law for the promotion of education in the county.
55
Tex. Educ. Code Ann. § 44.031(a) (Vernon 2008) (identifying nine methods by which schools may
procure goods).
56
Tex. Educ. Code Ann. § 44.031(b) (Vernon 2008).
57
Id. at (b)(8).
58
Tex. Educ. Code Ann. § 44.031(d) (Vernon 2008).
59
Tex. Educ. Code Ann. § 44.031(e) (Vernon 2008).
60
See, e.g. Complaint, Ex. 2, p. 6 of 69, “[T]he commission agrees that the unique anatomy, physiology,
and behavior of children may render them more sensitive to air pollutants such as ozone.”
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Plaintiff relies on a 1963 Texas Supreme Court case to support its conclusion that
DCS cannot use anything other than cost to make its determination of vendors.61
However, in the many years since that decision, the Texas Legislature has passed several
laws regarding preferential purchasing that allow limited preferences under various
theories. For example, schools must give preferential purchasing treatment to Texas and
271.0275 as long as the governmental entity has adopted a written definition of the
criteria used and the criteria are referenced in the bid specs.63 “Safety record” is
undefined in Subchapter B. The criterion for output of NOx, which is an ozone precursor
and a factor in respiratory disease, could be a factor that a school board would want to
consider in assessing the safety record of a potential bidder.64 The resolution authorizing
the DCS superintendent to insert bidding criteria specifying the safety record of the
are just another instance where the legislature has elected to give local governments
Finally, awards do not need to go to the lowest bidder. A school may choose any
bidder as long as unsuccessful bidders are given an opportunity for a hearing to present
61
Tex. Highway Comm’n v. Tex. Ass’n of Steel Importers, Inc., 372 S.W.3d 525 (Tex. 1963).
62
Tex. Educ. Code Ann. § 44.042 (Vernon 2008).
63
Tex. Loc. Gov’t Code Ann. § 271.0275 (Vernon 2005).
64
Complaint, Ex. 2, page 6 of 69. (“Any role of air pollution in respiratory disease reinforces the need to
minimize exposure to high ozone levels and to take steps to reduce the levels of chemicals that contribute
to ozone formation.”)
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D. The DCS Resolution does not violate Texas’s preferential purchasing statute
because any preference is capped at the statutory 105% limit.
The Resolution does not prevent Plaintiff from bidding according to the terms of
the Resolution. The Resolution offers all cement manufacturers an option to bid under
either the preferred option or the alternate option. Even if Texas Local Government Code
§ 271.907 applies to bids under this Resolution, the 105% price cap could make
Plaintiff’s product the most favorable bid if, as alleged, the green product costs more than
105% of the cost of Plaintiff’s product.66 Because no bid specifications have been
written since DCS passed its Resolution, it is unclear that Plaintiff would not receive the
preferential treatment offered those who meet appropriate standards. Subchapter B of the
Education Code (allowing a board to set any relevant factor specifically listed in the
request for bids or proposals) allows the DCS to establish standards above and beyond
those set by TCEQ, or to allow any kiln process that meets TCEQ or EPA standards.
Since bid specs have not been written, and the superintendent is only authorized, not
mandated, to use the Resolution in preparing bid specs, Plaintiff cannot reasonably
foresee the actual effect of the Resolution on any future bid specs.
regulations. In fact, TCEQ itself suggested to DCS and the other defendants that this
65
Tex. Loc. Gov’t Code Ann. § 271.027 (Vernon 2005).
66
Complaint at 8, n. 15.
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the new SIP plan, TCEQ responded to several of the North Texas Clean Air Steering
Committee (NTCASC) Resolutions: “Other resolutions are local initiatives that require
commitments from local governments to implement before they can be included in a SIP
government initiative.”69 In other words, the proposed resolution was a “local initiative”
that could be included in upcoming SIP revisions as evidence of local efforts and for
which the North Texas area would receive credit from the EPA.70 Here, TCEQ had
ample opportunity to reject this resolution, or to provide statutory authority for its
exclusion, as it did for several other proposed resolutions.71 If TCEQ believed this
ordinance regulating and setting fees for air-emitting facilities.72 The Resolution at issue
in this case requires neither fees nor permits, and establishing preferences for
an example for students. Economic and social legislation typically receives only rational
basis review unless the regulations intrude on fundamental rights or concern suspect
result of NOx, the primary pollutant at issue here.76 It identified wet process cement as
government purpose. DCS’s Resolution does not impact a protected right, and wet kiln
Plaintiff attacks DCS for using a 1.7 lb per ton of clinker standard, alleging the
Code.78 Nevertheless, TCEQ itself uses the shorthand reference to 1.7 lb. per ton of
Plaintiff argues basically that if a specification does not impact the quality (as
Plaintiff defines quality) of the product, it cannot be considered; that is simply not the
case. Schools can check criminal records for business entities, which may have no
74
County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).
75
See. e.g. Gen. Motors v. Tracy, 519 U.S. 278 (1997); New Orleans v. Dukes, 427 U.S. 297 (1976) ; and
McGowan v. Maryland, 366 U.S. 420 (1961).
76
Complaint, Ex. 2, p. 1-4.
77
Complaint, Ex. 2, p. 26 of 69.
78
Complaint at 10-11.
79
See. e.g., Complaint, p. 24 of 69 (“the source cap, 1.7 pounds per ton (lb/ton) of clinker produced for . . .
dry kilns and 3.4 lb/ton for long wet kilns . . . ).
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impact on the actual quality received from the business.80 DCS’s Resolution in no way
eliminates competition. Here the DCS’s Resolution does not create a single source, nor
does it prohibit Plaintiff from manufacturing its cement in a manner that can meet the bid
specs; Plaintiff basically wants this Court to change all future bid specs to meet Plaintiff’s
history of a regulation, a court may extrapolate how the regulation would apply to
others.82 But in this case, since each defendant has enacted a slightly different version of
the resolution and has applied theirs in different manners (if at all), extrapolating the
effect of one body’s interpretation of its unique resolution to that of other bodies and their
respective resolutions in the absence of specific bid specifications or actual bid histories
Statements of aspiration are general by nature.83 Texas courts have found that resolutions
are opinions, not rules, and may not be relied on as legislation.84 The bid specs will be
the rule against which the bidders’ bids will be compared. Until there are bid specs, there
is no rule at all.
80
Tex. Educ. Code Ann. § 44.034 (Vernon 2008).
81
Roark & Hardee LP, 522 F.3d at 547.
82
Id. (using prior enforcement of an ordinance to estimate the effect of the ordinance on pre-enforcement
review).
83
Johnson v. Transp. Agency, Santa Clara County, Cal. 480 U.S. 616, 654 (1987) (O’Connor J, dissenting)
(explaining that statements of aspiration are wholly without operational significance)
84
City of Carrollton v. Texas Comm’n on Envtl. Quality, 170 S.W.3d 204, 215 (Tex. App.–Austin 2005, no
pet.) (citing City of Hutchins v. Prasifka, 450 S.W.2d 829, 832 (Tex. 1970)).
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substantive and procedural due process.85 Plaintiff does not allege which of these it
contends DCS violated. A violation of substantive due process occurs when the
power.86 A procedural due process violation occurs when a government makes decisions
hearing appropriate to the nature of the case.88 Under either claim, Plaintiff must allege a
constitutionally protected property right. DCS has not deprived Plaintiff of any protected
right. Plaintiff may still bid on any project. It may qualify for selection under either the
preferred or alternate purchasing option, depending on how the bid spec is written at the
time the bid request is issued. But under due process, Plaintiff is not guaranteed a
winning bid no matter what, which appears to be its goal in this litigation.
Outside the context of formal takings through judicial process, the Texas Supreme
Court has recognized only two types of informal (“inverse condemnation”) takings:
“Takings can be classified as either physical or regulatory takings.”89 The alleged taking
in this case was not physical, and school districts in Texas have no regulatory power.90
All property in this country is held under the implied obligation that the owner's use of it
85
U.S. Const. amend. XIV; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).
86
Zinermon v. Burch, 494 U.S. 113, 125 (1990).
87
Hampton Co. Nat. Sur. LLC v. Tunica County, Miss., 543 F.3d 221, 224 (5th Cir. 2008) (explaining that
before a property interest is taken, the government owes the owner “some form of hearing”).
88
Id.
89
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998), cert. denied, 526 U.S. 1144 (1999).
90
See Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 843 (Tex. 2000) (school district
has no police powers); Austin Indep. Sch. Dist. v. City of Sunset Valley, 502 S.W.2d 670, 675 (Tex. 1973)
(Pope, J., concurring).
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shall not be injurious to the community, and the Takings Clause did not transform that
principle to one that requires compensation whenever the State asserts its power to
enforce the principle.91 The resolution at issue does not prevent Plaintiff from making a
profit from its company.92 At the most, we can speculate that if future bid specs were to
totally exclude Plaintiff, the specs might limit a portion of Plaintiff’s market. A claim
that the application of government regulations is a taking of property is not ripe until the
governmental entity charged with implementing the regulations has reached a final
decision with respect application of the regulation to the property at issue.93 A potential
plaintiff must seek available variances or waivers before a court may consider a takings
claim.94 Plaintiff has not alleged it has appealed the DCS Resolution to the DCS Board
of Trustees, nor has it made any other representation that it is aggrieved by this policy
I. The DCS Resolution does not violate the equal protection clause because
Plaintiff is not a suspect class and the regulation does not involve a protected
right.
There is no constitutional right to make, nor state obligation to buy, products that
denied the equal protection of the laws must coexist with the practical necessity that most
legislation classifies for one purpose or another, with resulting disadvantage to various
91
Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491-92 (1987); see also Miller v.
Schoene, 276 U.S. 272, 279-80 (1928) (noting that “where the public interest is involved[,] preferment of
that interest over the property interest of the individual, to the extent even of its destruction, is one of the
distinguishing characteristics of every exercise of the police power which affects property”).
92
Andrus v. Allard, 444 U.S. 51 (1979) (holding that statutes limiting sale of property but that did not
prohibit possession, transportation, donation, or exhibition of the property for profit were not
unconstitutional regulatory takings); and Penn. Cent. Transp. Co. v. New York, 438 U.S. 104 (1978)
(finding that when restrictions imposed are substantially related to general welfare, and the owner can
transfer rights to other property, the regulation may withstand a takings challenge).
93
Williamson County Reg’l Planning Comm’n, 473 U.S. at 186.
94
Urban Developers LLC, 468 F.3d at 293.
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groups or persons.”95 If a law neither burdens a fundamental right nor targets a suspect
class, courts will uphold the regulation’s classification so long as it bears a rational
relation to some legitimate end.96 Under state law, and under the DCS resolution,
Plaintiff may bid and DCS must consider Plaintiff’s bid, if and when DCS issues bid
specs for cement. Nevertheless, applying more stringent requirements to one class of
businesses is not an unconstitutional denial of equal protection. “[T]he law need not be
in every respect logically consistent with its aims to be constitutional. It is enough that
there is an evil at hand for correction, and that it might be thought that the particular
legislative measure was a rational way to correct it.”97 DCS expressed reasonable and
justified rationale in passing its resolution, and any regulations that the resolution may
Plaintiff should not receive damages because DCS has not harmed it. A claim
under § 1983 must allege two essential elements: (1) the conduct complained of was
committed by a person acting under color of state law, and (2) the conduct deprived a
person of a federally protected right.98 A plaintiff must assert the violation of a federal
right, not merely a violation of federal law.99 As discussed above, there is no federally
In order to determine whether actions of a school board gave rise to entity liability
under § 1983, a court had to determine if the board's decisions caused deprivation of the
95
Romer v. Evans, 517 U.S. 620, 631 (1996).
96
Id.
97
Williamson v. Lee Optical, 348 U.S. 483, 487-88 (1955) (holding that the state could impose potentially
inequitable regulations on businesses without violating equal protection).
98
Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474
U.S. 327, 328 (1986).
99
Boyd v. Town of Ransom Canyon, Tex. 547 F. Supp. 2d 618, 625 (N.D. Tex. 2008).
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the school.100 Under the Jett analysis, DCS has not commanded that anything occur; it
has only authorized the superintendent to issue bid specs if and when cement is needed.
Since the Resolution is new, there is no long-standing practice involved. Any harm
caused by DCS to Plaintiff is purely speculative until the superintendent has formulated
is quite high. As the Supreme Court stated in Board of County Commissioners of Bryan
County v. Brown:
[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate that, through
its deliberate conduct, the municipality was the ‘moving force’ behind the injury
alleged. That is, a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.101
In its pleadings, Plaintiff has not shown that DCS has deliberately caused it harm; no
harm has yet occurred, and no harm is imminent. Plaintiff can only speculate. Plaintiff’s
alleged facts do not establish a constitutional violation, therefore it cannot establish that
100
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).
101
Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997) (emphasis original); see
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).
102
See Startzel v. City of Phila., 533 F.3d 183, 204 (3d Cir. 2008); Camuglia v. The City of Albuquerque,
448 F.3d 1214 (10th Cir. 2006).
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irreparable harm for which there is no adequate remedy at law.103 Even if Plaintiff were
legally measurable damages.104 Since DCS has not asked for bids or written bid specs,
no harm is imminent. Since Plaintiff did not allege, nor can it allege, that DCS
anticipates seeking cement bids in the near future, Plaintiff cannot meet the burden of this
showing. Even once DCS does seek bids, Plaintiff must still show that the actual specs
have somehow eliminated Plaintiff before a Court can even speculate that Plaintiff could
lose business; Plaintiff seeks an injunction requiring DCS to include Plaintiff’s product in
any and all cement bids.105 Allowing Plaintiff to succeed on this application would
frustrate the Texas Legislature’s intent of allowing state organizations to improve the
to protect the environment by reducing waste and pollution at the source with the
103
Fed. R. Civ. P. 65.
104
Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 848 (5th Cir. 2004) (“For purposes of
injunctive relief, an adequate remedy at law exists when the situation sought to be enjoined is capable of
being remedied by legally measurable damages.”)
105
Plaintiff argues that “quality” is the only factor a government entity can ever consider. Complaint at 33,
¶ 68. Under Plaintiff’s theory, schools would be required to include crayons that contain lead, simply
because the crayons are of equal drawing and color quality.
Plaintiff’s Complaint often defies logic in its analysis. Raising concern about segregation of types
of cement, Plaintiff argues that the “customer will have to dedicate silos solely to cement made from each
process.” Id. This appears to raise empathy for the customer, yet Plaintiff then notes that the greater the
customer cost, the greater the likelihood that the customer will not purchase from Plaintiff, thereby giving
Plaintiff a cause of action. In other words, if a school wanted to use only natural gas run buses because
they run cleaner, then the school would probably need storage tanks for natural, diesel and standard
gasoline for the different types of gas it may use. Under Plaintiff’s theory, that may reduce the amount of
diesel the school might purchase, so the school should not be permitted to use natural gas run buses because
it will cost the school too much for the additional tanks.
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resulting benefit of reduced overall cost to the government and the public (taxpayers and
society as a whole).”106
Conclusion
This Court should dismiss Ash Grove’s claims against Dallas County Schools.
Plaintiff has failed its burden to show jurisdiction. The claim is not ripe, and there is no
imminent harm. Plaintiff has failed to state a claim for which relief may be granted. If
this Court dismisses the federal claims in this case, the court should decline to exercise its
Respectfully submitted,
By: _____________________________
Dennis J. Eichelbaum
Texas Bar No. 06491700
dje@edlaw.com
Attorney-in-Charge
Carol A. Simpson
Texas State Bar No. 24061293
csimpson@edlaw.com
106
EPA, Final Guidance on EPP - Environmentally Preferable Purchasing, http://www.epa.gov/epp/pubs/
guidance/finalguidance.htm (1999).
107
See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (federal court may decline to
exercise supplemental jurisdiction over a state law claim pendent to a federal claim, and it should do so
when the federal claim is resolved prior to trial).
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Certificate of Service
The undersigned certified that a true and correct copy of this pleading was mailed
via [x] United States mail, certified, return receipt requested, [ ] facsimile, [ ] hand
delivery, to all counsel of record in this matter this 6th day of January, 2009.
__________________________
Dennis J. Eichelbaum
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Ash Grove Texas, L.P. v. City of Dallas, et al.
Dallas County Schools’ Brief in Support of its Motion to Dismiss