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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ASH GROVE TEXAS, L.P., Plaintiff, v. CITY OF DALLAS, CITY OF FORT WORTH, CITY OF ARLINGTON, CITY OF PLANO, DALLAS COUNTY SCHOOLS, and TARRANT COUNTY, Defendants. § § § § § § § § § § § §

CIVIL ACTION NO. 3:08-CV-02114-O

DEFENDANT DALLAS COUNTY SCHOOLS’ BRIEF IN SUPPORT OF ITS MOTION TO DISMISS
Dennis J. Eichelbaum Texas Bar No. 06491700 dje@edlaw.com Attorney-in-Charge Carol A. Simpson Texas State Bar No. 24061293 csimpson@edlaw.com

Schwartz & Eichelbaum
Wardell Mehl and Hansen, P.C. 7400 Gaylord Pkwy, Suite 200 Frisco, Texas 75034 (Tel.) 972-377-7900 (Fax) 972-377-7277 P. Michael Jung (Co-Counsel) Texas State Bar No. 11054600 Strasburger & Price, LLP 901 Main Street, Suite 4400 Dallas, TX 75202 (Tel.) 214-651-4300 (Fax) 214-659-4022 michael.jung@strasburger.com Attorneys for Defendant DCS

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TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................................. iii I. Summary of Case............................................................................................................ 1 II. Undisputed Material Facts (Facts as Alleged by Plaintiff) ........................................... 1 III. Standard of Review for a 12(b)(6) Motion .................................................................. 2 IV. Issues Presented ........................................................................................................... 3 V. Argument and Authorities............................................................................................. 3 A. B. C. D. E. F. G. H. I. J. K. 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................................ 4 Defendant DCS’s resolution states it “authorized” its superintendent, not that it required the superintendent, to specify dry kiln cement. ......................................... 12 The DCS Resolution does not violate the Texas competitive bidding statutes because schools may add additional relevant criteria to their bids.......................... 12 The DCS Resolution does not violate Texas’s preferential purchasing statute because any preference is capped at the statutory 105% limit................................. 15 The DCS Resolution is not preempted by state regulation because TCEQ encouraged the resolution. ....................................................................................... 15 The DCS Resolution is neither arbitrary nor capricious because it is rationally related to a substantial governmental concern. ........................................................ 16 The DCS Resolution is not unconstitutionally vague because it sets philosophy, not rules.......................................................................................................................... 18 The DCS Resolution is not an unconstitutional regulatory taking because the company is not deprived of reasonable investment-backed expectations. .............. 19 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................ 20 The Plaintiff should not receive damages under 42 U.S.C. § 1983. ........................ 21 The Plaintiff should not receive preliminary or permanent restraining orders........ 23

Conclusion ........................................................................................................................ 24 Certificate of Service ........................................................................................................ 25

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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
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Jones v. Geninger, 188 F.3d 322 (5th Cir. 1999) ............................................................... 2 Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987) ......................... 20 Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453 (5th Cir. 2005) ..................................... 9 Land v. Dollar, 330 U.S. 731 (1947) .................................................................................. 5 Lange v. City of Batesville, 160 Fed. Appx. 348 (5th Cir. 2005) ..................................... 10 LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2003).................................................................. 9 Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998).......................................... 19 McGowan v. Maryland, 366 U.S. 420 (1961)................................................................... 17 McInnis-Misenor v. Main Med. Ctr, 319 F.3d 63 (1st Cir. 2003) .................................. 7, 8 Miller v. Schoene, 276 U.S. 272 (1928)............................................................................ 20 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978)................................ 22 Montez v. Dep't of Navy, 392 F.3d 147 (5th Cir. 2004)...................................................... 5 New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 833 F.2d 583 (5th Cir. 1987) ............................................................................................................................... 9 New Orleans v. Dukes, 427 U.S. 297 (1976) .................................................................... 17 Parratt v. Taylor, 451 U.S. 527 (1981) ............................................................................ 21 Penn. Cent. Transp. Co. v. New York, 438 U.S. 104 (1978)............................................. 20 Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993) ...................................................... 8 Roark & Hardee LP v. City of Austin, 522 F.3d 533 (5th Cir. 2008) ........................... 9, 18 Robinson v. TCI/US West Comm’cns Inc., 117 F.3d 900 (5th Cir. 1997) .......................... 5 Romer v. Evans, 517 U.S. 620 (1996)............................................................................... 21 Scheuer v. Rhodes, 416 U.S. 232 (1974) ........................................................................ 2, 5 Shields v. Norton, 289 F.3d 832 (5th Cir. 2002)................................................................. 9 Simi Inv. Co. v. Harris County, Tex., 236 F.3d. 240 (5th Cir. 2000)................................ 10 Startzel v. City of Phila., 533 F.3d 183 (3d Cir. 2008) ..................................................... 22 Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725 (1997).......................................... 9 Tex. Highway Comm’n v. Tex. Assoc. of Steel Importers, Inc., 372 S.W.3d 525 (Tex. 1963) ............................................................................................................................. 14 Texas v. United States, 523 U.S. 296 (1998) ...................................................................... 9 Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568 (1985) ................................... 9 Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061 (5th Cir. 1994)..................................... 2 United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966) ........................................... 24 United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942 (7th Cir. 2003) ................ 5, 6 iv
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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

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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 determination by the defendants were beyond state and federal regulations. 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 state a claim on which relief may be granted. II. Undisputed Material Facts (Facts as Alleged by Plaintiff)1 1. 2. Plaintiff is a cement manufacturer that uses wet process kilns at its plant.2 On October 16, 2008, Defendant DCS adopted a resolution on Environmentally Preferable Purchasing.3 3. Defendant DCS’s resolution authorized the Superintendent to specify the purchase of dry kiln cement as the base bid” with “an alternative bid for the purchase of cement from an unspecified source and preferential purchasing for
1

Because this is a motion to dismiss the Court considers all well pleaded facts alleged by plaintiff to be correct. These are the facts that are pertinent only to Defendant DCS and this motion. 2 Complaint at 2, ¶ 3. 3 Complaint at 31, ¶ 65.

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bids from a cement kiln with emission rates of 1.7 pounds of NOx per ton of clinker or less.4 III. Standard of Review for a 12(b)(6) Motion 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 would entitle him to relief.”9 However, legal conclusions or opinions––even when couched as factual conclusions––are not given a presumption of truthfulness.10

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).

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IV. Issues Presented 1. 2. 3. 4. 5. 6. 7. 8. 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. The DCS Resolution does not violate the Texas competitive bidding statutes because schools may add additional relevant criteria to their bids. The DCS Resolution does not violate Texas’s preferential purchasing statute because any preference is capped at the statutory 105% limit. The DCS Resolution is not preempted by state regulation because TCEQ encouraged the resolution. The DCS Resolution is neither arbitrary nor capricious because it is rationally related to a substantial governmental concern. The DCS Resolution is not unconstitutionally vague because it sets philosophy, not rules. The DCS Resolution is not an unconstitutional regulatory taking because the company is not deprived of reasonable investment-backed expectations. 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. V. Argument and Authorities The plaintiff has alleged the following causes of action: 1. Plaintiff seeks a Declaratory Judgment based upon the following: • The Resolutions violate the Texas competitive bidding statutes11 • The Resolutions violate Texas’s preferential purchasing statute.12 • The Resolutions are preempted by state regulation.13 • The Resolutions are arbitrary and capricious.14 • The Resolutions are unconstitutionally vague.15 • The Resolutions are unconstitutional regulatory takings.16
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.

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• The Resolutions violate the equal protection clause.17 2. 3. The Plaintiff seeks damages under 42 U.S.C. § 1983. The Plaintiff seeks Preliminary and Permanent Restraining Orders. Each cause of action and affirmative defenses are addressed below: 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-yetunrealized 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 bids cannot substitute for jurisdictionally essential “concrete adverseness.”18 Plaintiff’s claims against DCS should be dismissed. 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 suffered an injury in fact which is concrete, particularized, and actual or imminent.19

16 17

Complaint at 45, ¶¶ 94-96. 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, 99100 (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.

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Defendant DCS has moved for dismissal of Plaintiff’s claims, pursuant to Rule 12(b)(1), which provides, in pertinent part, the following: (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 supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”24 In short, no presumptive truthfulness attaches to the plaintiff’s allegations, and the court can decide disputed issues of material

Fed. R. Civ. P. 12(b)(1). 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).
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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 at any stage of the litigation.”26 Plaintiff pleaded that DCS passed a Resolution expressing a preference for green cement. Specifically, DCS passed the following resolution: That the Superintendent is hereby authorized to specify the purchase of dry kiln cement as the base bid in Dallas County Schools bid packages, with an alternative bid for the purchase of cement from a [sic] unspecified source and preferential purchasing for bids from a cement kiln with emission rates of 1.7 pounds of NOx per ton of clinker or less. Other products and services that the Superintendent is hereby authorized to specify will include but not be limited to recycled, reusable or reground materials when specifying asphalt concrete, aggregate base or Portland cement concrete for construction projects. 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 It is undisputed that on October 16, 2008, DCS passed the Resolution.28 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 26

See Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). United Phosphorus, 322 F.3d at 946. 27 Complaint, Ex. 22 (emphasis added). 28 Complaint at 30, ¶ 65.

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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 Resolution that has harmed neither it nor anyone else. 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 inquiries overlap.”30 “Ripeness, however, can be thought of as focusing on the ‘when’ of

29 30

Complaint, Ex. 22. McInnis-Misenor v. Main Med. Ctr, 319 F.3d 63, 69 (1st Cir. 2003).

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litigation, as opposed to the ‘who.’”31 A plaintiff seeking to invoke the power of the federal court bears the burden of demonstrating standing and ripeness. Before a plaintiff may attack a local governmental decision in federal court, the governmental decision must be final.32 The federal court's jurisdiction is not to be 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 application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.”34 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

Id. 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.
32

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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 all.’”38 “The ripeness doctrine counsels against ‘premature’ adjudication by 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 the two adversaries.40 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 cannot be, properly framed for adjudication. As with all questions of subject matter jurisdiction except mootness, standing is determined as of the date of the filing of the complaint.41 Turning specifically to 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

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).

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and Williamson County Regional Planning Commission v. Hamilton Bank of Johnson 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 authorizing—not directing—him to consider more ecologically friendly cement.45 Of 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 affected Plaintiff’s business. Injury presupposes a legally protected interest. Plaintiff alleges substantive due 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 44

Williamson County Reg’l Planning Comm'n, 473 U.S. at 186. 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).

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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 been awarded, contains so many unmet variables that it is insufficiently ripe.50 Plaintiff’s claim of statutory violations is likewise unripe. Plaintiff points out what it believes is a violation of the Vendors that Meet or Exceed Air Quality Standards section of Texas Local Government Code § 271.907(c)(2).51 Plaintiff selectively cites to 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).

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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. B. Defendant DCS’s resolution states it “authorized” its superintendent, not that it required the superintendent, to specify dry kiln cement. 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 for purchasing cement. This is analogous to a school district authorizing the

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 receives corporal punishment, no court would have jurisdiction to determine if a violation 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. Plaintiff misidentifies the bidding statutes applicable to DCS. Plaintiff complains 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.

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Government Code purchasing regulations; purchase contracts for public schools are governed under Title II, Subchapter B of the Education Code.54 Public schools have multiple options besides competitive bidding to purchase materials in excess of $25,000 within a 12-month period, including an interlocal contract.55 Schools must consider, 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 purchasing, with the exception of historically underutilized businesses (a claim not 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 it relevant to demonstrate care of the environment by preferring green products, or it may 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 as the factor is clearly identified in the request for bids or proposals.

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.”

54

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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 United States agricultural products.62 The safety record of a bidder is an acceptable factor to use in evaluating bidder responsibility under Local Government Code § 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 cement producers is within this statutory authorization. The environmental preferences are just another instance where the legislature has elected to give local governments limited discretion to provide value in ways beyond mere dollars. 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 62

Tex. Highway Comm’n v. Tex. Ass’n of Steel Importers, Inc., 372 S.W.3d 525 (Tex. 1963). 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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evidence of the bidder’s responsibility.65 Plaintiff made no allegation it was denied an opportunity for a hearing by or with DCS. 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. E. The DCS Resolution is not preempted by state regulation because TCEQ encouraged the resolution. Plaintiff mistakenly asserts that DCS’s resolution is preempted by the TCEQ regulations. In fact, TCEQ itself suggested to DCS and the other defendants that this Resolution would be an appropriate methodology to contribute as part of the North Texas
65 66

Tex. Loc. Gov’t Code Ann. § 271.027 (Vernon 2005). Complaint at 8, n. 15.

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community to meeting the projected air quality targets.67 In responding to comments on 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 revision.”68 Following a synopsis of the green cement resolutions passed by the

defendants, TCEQ commented: “The commission considers this resolution to be a local 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 resolution preempted its statutory authority, it could have said so easily. Plaintiff tries to confuse the issue by citing to TCEQ’s opposition to a municipal 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 environmentally friendly products is permitted under state statute.73 F. The DCS Resolution is neither arbitrary nor capricious because it is rationally related to a substantial governmental concern. Only the most egregious official behavior may be considered arbitrary in a
67

Complaint, Ex. 2, Response to Comments Received Regarding the Dallas-Fort Worth (DFW) Eight-Hour Ozone Attainment Demonstration State Implementation Plan (SIP) Revision, pp. 18, 20 of 69. 68 Id. at p. 18 of 69. 69 Id. at p. 20 of 69. 70 Complaint, Ex. 22, at 1. (“[T]he Environmental Protection Agency allows the Texas Commission on Environmental Quality to take credit as part of the weight of evidence for those measures that can’t be easily quantified or regulated and could assist in lowering the levels to below 85 ppb.”) 71 See, e.g. id. at p. 21 of 69. TCEQ found proposed resolution #10 to be inappropriate without legislative authorization. 72 Complaint at ¶ 85, and Complaint, Ex. 25. 73 Tex. Loc. Gov’t Code Ann. § 271.907 (Vernon 2008).

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constitutional sense.74

Preserving the health of school children is not arbitrary or

capricious, and neither is environmentally aware purchasing as responsible citizens or as an example for students. Economic and social legislation typically receives only rational basis review unless the regulations intrude on fundamental rights or concern suspect classifications.75 TCEQ referenced increases in absences and asthma-related illnesses as a result of NOx, the primary pollutant at issue here.76 It identified wet process cement as “inherently more energy and emissions intensive.”77 Participating in a regional effort to meet or exceed EPA guidelines as early as possible is rationally related to a legitimate government purpose. DCS’s Resolution does not impact a protected right, and wet kiln cement manufacturers are not a suspect or protected classification, so the resolution is only subject to rational basis review. Plaintiff attacks DCS for using a 1.7 lb per ton of clinker standard, alleging the figure is an illegitimate use of the complete formula detailed in the Administrative Code.78 Nevertheless, TCEQ itself uses the shorthand reference to 1.7 lb. per ton of clinker throughout its own response to comments document, so it would naturally be a reference that DCS and other defendants would adopt.79 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

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). 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 . . . ).
75

74

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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 current quality control. G. The DCS Resolution is not unconstitutionally vague because it sets philosophy, not rules. To receive pre-enforcement vagueness review of government penalized conduct, the conduct must be actually proscribed or prohibited.81 When there is enforcement 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 is far too speculative to be the basis for judgment. The DCS Resolution is not a rule or law. It is a statement of aspiration. 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 81

Tex. Educ. Code Ann. § 44.034 (Vernon 2008). 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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H.

The DCS Resolution is not an unconstitutional regulatory taking because the company is not deprived of reasonable investment-backed expectations. The due process clause of the Fourteenth Amendment encompasses both

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 government deprives individuals of constitutional rights by an arbitrary use of its power.86 A procedural due process violation occurs when a government makes decisions without appropriate safeguards.87 Procedural due process requires an opportunity for a 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

U.S. Const. amend. XIV; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). 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).
86

85

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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 other than this litigation. 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 generate pollutants. “The Fourteenth Amendment's promise that no person shall be 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 generate should be found a rational manner of regulation. J. The Plaintiff should not receive damages under 42 U.S.C. § 1983. 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 protected right here, therefore Plaintiff’s § 1983 claim fails. 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 96

Romer v. Evans, 517 U.S. 620, 631 (1996). 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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rights at issue by policies that affirmatively commanded that it occur or by acquiescence in a long-standing practice or custom which constituted standard operating procedure of 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 rules and bid specs. The burden on a plaintiff seeking to establish municipal liability in a § 1983 claim 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 DCS was the “moving force” behind a constitutional violation.102

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). 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).
101

100

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K.

The Plaintiff should not receive preliminary or permanent restraining orders. To receive injunctive relief, Plaintiff must show it will suffer imminent,

irreparable harm for which there is no adequate remedy at law.103 Even if Plaintiff were damaged, arguendo, an adequate remedy exists if the complaint may be resolved by 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 environment through economic rather than regulatory means. As the Environmental Protection Agency explained, “A key reason for environmentally preferable purchasing is to protect the environment by reducing waste and pollution at the source with the

Fed. R. Civ. P. 65. 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.
104

103

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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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

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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 supplemental jurisdiction over the state claims.107 Respectfully submitted,

SCHWARTZ & EICHELBAUM
WARDELL MEHL AND HANSEN, P.C.

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 7400 Gaylord Pkwy, Suite 200 Frisco, Texas 75034 (Tel.) 972-377-7900 (Fax) 972-377-7277

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).

106

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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

Case 3:08-cv-02114-O

Document 21

Filed 01/06/2009

Page 30 of 30

P. Michael Jung (Co-Counsel) Texas State Bar No. 11054600 Strasburger & Price, LLP 901 Main Street, Suite 4400 Dallas, TX 75202 (Tel.) 214-651-4300 (Fax) 214-659-4022 michael.jung@strasburger.com Attorneys for Defendant DCS

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