dallas county schools motion to dismiss ash grove suit

8/14/2019 Dallas County Schools Motion to Dismiss Ash Grove Suit

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IN THE DISTRICT COURT OF THE UNITED STATESFOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ASH GROVE TEXAS, L.P.,

Plaintiff,

v. CIVIL ACTION NO.

CITY OF DALLAS, CITY OF FORT 3:08-CV-02114-OWORTH, CITY OF ARLINGTON, CITY OF PLANO, DALLAS COUNTY SCHOOLS, and TARRANT COUNTY,

Defendants.

DEFENDANT DALLAS COUNTY SCHOOLS

BRIEF IN SUPPORT OF ITS MOTION TO DISMISS

Dennis J. EichelbaumTexas Bar No. [email protected]

Carol A. SimpsonTexas State Bar No. 24061293

[email protected]

Schwartz & EichelbaumWardell Mehl and Hansen, P.C.7400 Gaylord Pkwy, Suite 200Frisco, Texas 75034(Tel.) 972-377-7900(Fax) 972-377-7277

P. Michael Jung (Co-Counsel)Texas State Bar No. 11054600

Strasburger & Price, LLP901 Main Street, Suite 4400Dallas, TX 75202(Tel.) 214-651-4300(Fax) [email protected]

Attorneys for Defendant DCS

Case 3:08-cv-02114-O Document 21 Filed 01/06/2009 Page 1 of 30


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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

ii

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. The case is not ripe and plaintiff has no standing because Defendant DCS has notsought bids or purchased cement since it passed its Resolution................................ 4

B. Defendant DCSs resolution states it authorized its superintendent, not that itrequired the superintendent, to specify dry kiln cement.......................................... 12

C. The DCS Resolution does not violate the Texas competitive bidding statutesbecause schools may add additional relevant criteria to their bids. ......................... 12

D. The DCS Resolution does not violate Texass preferential purchasing statutebecause any preference is capped at the statutory 105% limit................................. 15

E. The DCS Resolution is not preempted by state regulation because TCEQencouraged the resolution. ....................................................................................... 15

F. The DCS Resolution is neither arbitrary nor capricious because it is rationallyrelated to a substantial governmental concern. ........................................................ 16

G. The DCS Resolution is not unconstitutionally vague because it sets philosophy, not

rules.......................................................................................................................... 18H. The DCS Resolution is not an unconstitutional regulatory taking because the

company is not deprived of reasonable investment-backed expectations. .............. 19

I. The DCS Resolution does not violate the equal protection clause because Plaintiff isnot a suspect class and the regulation does not involve a protected right................ 20

J. The Plaintiff should not receive damages under 42 U.S.C. 1983. ........................ 21

K. The Plaintiff should not receive preliminary or permanent restraining orders. ....... 23

Conclusion ........................................................................................................................ 24

Certificate of Service ........................................................................................................ 25



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iii

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 Commrs 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) .......................... 22Cinel v. Connick, 15 F.3d 1338 (5th Cir. 1994).................................................................. 2

City of Carrollton v. Texas Commn 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) ................................................................................ 2County 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 Assn., 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 Assn., 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



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iv

Jones v. Geninger, 188 F.3d 322 (5th Cir. 1999) ............................................................... 2

Keystone Bituminous Coal Assn 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, 330U.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 Dept 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 Commcns 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 Regl Planning Agency, 520 U.S. 725 (1997).......................................... 9

Tex. Highway Commn 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 Commcns 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



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v

Urban Developers, L.L.C. v.City of Jackson, Miss., 468F.3d 281 (5th Cir. 2006)..... 8, 20

Williamson County Regl 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. Govt Code Ann. 271.027 (Vernon 2005)......................................................15Tex. Loc. Govt Code Ann. 271.0275 (Vernon 2005)....................................................14

Tex. Loc. Govt Code Ann. 271.907 (Vernon 2008)..........................................11, 15, 16

Tex. Loc. Govt Code Ann. 271.907(c) (Vernon 2008) .................................................11

Tex. Loc. Govt 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 Plaintiffs

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 DCSs 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. Plaintiff is a cement manufacturer that uses wet process kilns at its plant.2

2. On October 16, 2008, Defendant DCS adopted a resolution on Environmentally

Preferable Purchasing.3

3. Defendant DCSs 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 becorrect. 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

factualallegations 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 opinionseven when

couched as factual conclusionsare not given a presumption of truthfulness.10

4 Complaint at 31, 65. Explanations of the terms of art for NOx, clinker, etc. can be found throughout theComplaint.5Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565, 573 (5th Cir. 2001) (citing Campbell v. Wells FargoBank, 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).8See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) revd 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).9Jones 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. AlliedPilots Assn, 987 F.2d 278, 284 (5th Cir. 1993)(conclusory allegations or legal conclusions masqueradingas factual conclusions will not suffice to prevent a motion to dismiss)); see also, Collins v. MorganStanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) andTuchman v. DSC Commcns Corp., 14 F.3d1061, 1067 (5th Cir. 1994).



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IV. Issues Presented

1. The case is not ripe and plaintiff has no standing because Defendant DCS has notsought bids or purchased cement since it passed its Resolution.

2. The DCS Resolution does not violate the Texas competitive bidding statutesbecause schools may add additional relevant criteria to their bids.

3. The DCS Resolution does not violate Texass preferential purchasing statutebecause any preference is capped at the statutory 105% limit.

4. The DCS Resolution is not preempted by state regulation because TCEQencouraged the resolution.

5. The DCS Resolution is neither arbitrary nor capricious because it is rationallyrelated to a substantial governmental concern.

6. The DCS Resolution is not unconstitutionally vague because it sets philosophy,not rules.

7. The DCS Resolution is not an unconstitutional regulatory taking because thecompany is not deprived of reasonable investment-backed expectations.

8. The DCS Resolution does not violate the equal protection clause because Plaintiffis 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 statutes11The Resolutions violate Texass preferential purchasing statute.12The Resolutions are preempted by state regulation.13The Resolutions are arbitrary and capricious.14The Resolutions are unconstitutionally vague.15The Resolutions are unconstitutional regulatory takings.16

11 Complaint at 34, 70-73. The term Resolutions is listed in plural form because the plaintiff claims allthe 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.172. The Plaintiff seeks damages under 42 U.S.C. 1983.

3. 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 hasnot 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

Plaintiffs 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. Plaintiffs presumptions regarding the future of its cement

bids cannot substitute for jurisdictionally essential concrete adverseness.18

Plaintiffs

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 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 iswhether the party seeking relief has alleged such a personal stake in the outcome of the controversy as toassure that concrete adverseness which sharpens the presentation of issues upon which the court so largelydepends 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 whosestanding is challenged is a proper party to request an adjudication of a particular issue and not whether theissue itself is justiciable.)19Id.



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Defendant DCS has moved for dismissal of Plaintiffs 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-partyclaim, shall be asserted in the responsive pleading thereto if one isrequired, except that the following defenses may at the option of thepleader be made by motion: ... (1) lack of jurisdiction over the subjectmatter, ....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 plaintiffs allegations, and the court can decide disputed issues of material

20 Fed. R. Civ. P. 12(b)(1).21Scheuer, 416 U.S. at 236.22 United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003) (internal citationsomitted); see alsoWilliamson 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 matterjurisdiction is being challenged, the trial court is free to weigh the evidence and resolve factual disputes inorder to satisfy itself that it has the power to hear the case). SeeLand v.Dollar, 330U.S. 731, 735 & n. 4(1947).24Robinson v. TCI/US West Commcns 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 ofdry kiln cement as the base bid in Dallas County Schools bid packages,with an alternative bid for the purchase of cement from a [sic] unspecifiedsource 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 authorizedto specify will include but not be limited to recycled, reusable or regroundmaterials when specifying asphalt concrete, aggregate base or Portlandcement concrete for construction projects.

That the Superintendent will report to the Dallas County Schools Board ofTrustees in August 2009 on the results of specifying purchase of dry kilncement, recycled, reusable or reground materials and preferentialpurchasing of cement from cement kilns with emissions rates less that 1.7pounds of NOx per ton of clinker or less.

That this resolution shall take effect immediately from and after itsPassage.

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,

DCSs 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

25See Barrera-Montenegro v.United States, 74 F.3d 657, 659 (5th Cir. 1996).26United 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. Plaintiffs 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 Complaint, Ex. 22.30McInnis-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

31Id.32Williamson County Regl Planning Comm'n v.Hamilton Bank of Johnson, 473 U.S. 172, 186 (1985).33Reno 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 ineligiblewithout filing was not sufficient to satisfy the need for ripeness of the dispute when Plaintiff had notactually been front-desked).34Williamson County Regl Planning Comm'n, 473 U.S. at 186; and see e.g.Hodel v. Va. Surface Mining& Reclamation Assn, Inc., 452 U.S. 264, 297 (1981).35Urban Developers, L.L.C. v.City of Jackson, Miss., 468F.3d 281, 293 (5th Cir. 2006) (citing cases thatheld takings claims unripe when the plaintiffs had not sought alternative avenues for their plans).36Id.



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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

Plaintiffs 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

Plaintiffs 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

37New Orleans Pub. Serv., Inc. v.Council of City of New Orleans, 833 F.2d 583, 586 (5th Cir. 1987); seealso,Roark & Hardee LP v. City of Austin, 522 F.3d 533, 545 (5th Cir. 2008).38Texas v.United States, 523 U.S. 296, 300 (1998); see alsoThomas v. Union Carbide Agric. Prods. Co.,473 U.S. 568, 580-81 (1985).39LeClerc v.Webb, 419 F.3d 405, 413-414 (5th Cir. 2003).40See Shields v.Norton, 289 F.3d 832, 835 (5th Cir. 2002).41Kitty Hawk Aircargo, Inc. v.Chao, 418 F.3d 453, 460 (5th Cir. 2005).42Suitum v.Tahoe Regl 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, DCSs Resolution is not vague it gives great latitude to the superintendent by

authorizingnot directinghim 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. DCSs 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 Plaintiffs 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 Plaintiffs equal protection claim on behalf of

43Williamson County Regl Planning Comm'n, 473 U.S. at 186.44Coates v.Hall, 512 F. Supp. 2d 770, 784 (W.D. Tex. 2007); see alsoLange v. City of Batesville, 160Fed. Appx. 348, 354 (5th Cir. 2005).45 Complaint, Ex. 22, p. 2, sec. 1.46Jones v. City of Lubbock, 727 F.2d 364, 373 (5th Cir. 1984).47Simi 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

Plaintiffs 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 Plaintiffs equal protection claim is a bizarre claim in and of itself since Plaintiff does not object to wetkilns 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 isin some sort of suspect or protected class (Plaintiff does not specify).49Coates, 512 F. Supp. 2d at 791.50See DRT Mech. Corp. v. Collin County, 845 F. Supp. 1159, 1161 (E.D. Tex. 1994). (holding that when acounty awarded a contract to the second lowest bidder, the lowest bidder had no property right protectableunder the Due Process clause of the 14th Amendment because "unilateral expectation" is not a legallyprotected entitlement).51 Complaint at 36-37; Tex. Loc. Govt Code Ann. 271.907 (Vernon 2008).52 Tex. Loc. Govt 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 DCSs 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 DCSs 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 statutesbecause 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 districts 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.

54 Tex. Educ. Code Ann. 44.031-.047 (Vernon 2008). As a county school district, DCS is governedunder 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 mayprocure goods).56 Tex. Educ. Code Ann. 44.031(b) (Vernon 2008).57Id. at (b)(8).58 Tex. Educ. Code Ann. 44.031(d) (Vernon 2008).59 Tex. Educ. Code Ann. 44.031(e) (Vernon 2008).60See, 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

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

61Tex. Highway Commn v. Tex. Assn of Steel Importers, Inc., 372 S.W.3d 525 (Tex. 1963).62 Tex. Educ. Code Ann. 44.042 (Vernon 2008).63 Tex. Loc. Govt 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 tominimize exposure to high ozone levels and to take steps to reduce the levels of chemicals that contributeto ozone formation.)



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evidence of the bidders 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 Texass preferential purchasing statutebecause 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

Plaintiffs product the most favorable bid if, as alleged, the green product costs more than

105% of the cost of Plaintiffs 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 TCEQencouraged the resolution.

Plaintiff mistakenly asserts that DCSs 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 Tex. Loc. Govt Code Ann. 271.027 (Vernon 2005).66 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 TCEQs 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 isrationally 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-HourOzone Attainment Demonstration State Implementation Plan (SIP) Revision, pp. 18, 20 of 69.68Id. at p. 18 of 69.69Id. at p. 20 of 69.70 Complaint, Ex. 22, at 1. ([T]he Environmental Protection Agency allows the Texas Commission onEnvironmental Quality to take credit as part of the weight of evidence for those measures that cant beeasily quantified or regulated and could assist in lowering the levels to below 85 ppb.)71See, e.g. id. at p. 21 of 69. TCEQ found proposed resolution #10 to be inappropriate without legislativeauthorization.72 Complaint at 85, andComplaint, Ex. 25.73 Tex. Loc. Govt 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. DCSs 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

74County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).75See. e.g.Gen. Motors v. Tracy, 519 U.S. 278 (1997);New Orleans v. Dukes, 427 U.S. 297 (1976); andMcGowan 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 10-11.79See. 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 DCSs Resolution in no way

eliminates competition. Here the DCSs 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 Plaintiffs

current quality control.

G. The DCS Resolution is not unconstitutionally vague because it setsphilosophy, 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 bodys 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 Tex. Educ. Code Ann. 44.034 (Vernon 2008).81Roark & Hardee LP, 522 F.3d at 547.82Id. (using prior enforcement of an ordinance to estimate the effect of the ordinance on pre-enforcementreview).83Johnson v. Transp. Agency, Santa Clara County, Cal. 480 U.S. 616, 654 (1987) (OConnor J, dissenting)(explaining that statements of aspiration are wholly without operational significance)84City of Carrollton v. Texas Commn on Envtl. Quality, 170 S.W.3d 204, 215 (Tex. App.Austin 2005, nopet.) (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 thecompany 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

85 U.S. Const. amend. XIV; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).86Zinermon v. Burch, 494 U.S. 113, 125 (1990).87Hampton Co. Nat. Sur. LLC v. Tunica County, Miss., 543 F.3d 221, 224 (5th Cir. 2008) (explaining thatbefore a property interest is taken, the government owes the owner some form of hearing).88Id.89Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998), cert. denied, 526 U.S. 1144 (1999).90See Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 843 (Tex. 2000) (school districthas 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 Plaintiffs 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 becausePlaintiff 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 Assn 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 thedistinguishing 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 notprohibit possession, transportation, donation, or exhibition of the property for profit were notunconstitutional 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 cantransfer rights to other property, the regulation may withstand a takings challenge).93Williamson County Regl Planning Commn, 473 U.S. at 186.94Urban 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 regulations 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 Plaintiffs 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 Plaintiffs 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

95Romer v. Evans, 517 U.S. 620, 631 (1996).96Id.97Williamson v. Lee Optical, 348 U.S. 483, 487-88 (1955) (holding that the state could impose potentiallyinequitable regulations on businesses without violating equal protection).98Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds byDaniels v. Williams, 474U.S. 327, 328 (1986).99Boyd 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 Jettanalysis, 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 inBoard of County Commissioners of Bryan

County v. Brown:

[I]t is not enough for a 1983 plaintiff merely to identify conduct properlyattributable to the municipality. The plaintiff must also demonstrate that, throughits deliberate conduct, the municipality was the moving force behind the injuryalleged. That is, a plaintiff must show that the municipal action was taken with therequisite degree of culpability and must demonstrate a direct causal link betweenthe 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. Plaintiffs

alleged facts do not establish a constitutional violation, therefore it cannot establish that

DCS was the moving force behind a constitutional violation.102

100Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).101Bd. of County Commrs of Bryan County v. Brown, 520 U.S. 397, 404 (1997) (emphasis original); seeMonell v. New York City Dept of Soc. Servs., 436 U.S. 658, 691 (1978).102See 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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K. The Plaintiff should not receive preliminary or permanent restrainingorders.

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 Plaintiffs product in

any and all cement bids.105

Allowing Plaintiff to succeed on this application would

frustrate the Texas Legislatures 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

103 Fed. R. Civ. P. 65.104 Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 848 (5th Cir. 2004) (For purposes ofinjunctive relief, an adequate remedy at law exists when the situation sought to be enjoined is capable ofbeing 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 Plaintiffs theory, schools would be required to include crayons that contain lead, simplybecause the crayons are of equal drawing and color quality.

Plaintiffs Complaint often defies logic in its analysis. Raising concern about segregation of typesof cement, Plaintiff argues that the customer will have to dedicate silos solely to cement made from eachprocess. Id. This appears to raise empathy for the customer, yet Plaintiff then notes that the greater thecustomer cost, the greater the likelihood that the customer will not purchase from Plaintiff, thereby givingPlaintiff a cause of action. In other words, if a school wanted to use only natural gas run buses becausethey run cleaner, then the school would probably need storage tanks for natural, diesel and standardgasoline for the different types of gas it may use. Under Plaintiffs theory, that may reduce the amount ofdiesel the school might purchase, so the school should not be permitted to use natural gas run buses becauseit 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 Groves 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 &EICHELBAUMWARDELL MEHL AND HANSEN,P.C.

By: _____________________________Dennis J. EichelbaumTexas Bar No. [email protected]

Attorney-in-Charge

Carol A. SimpsonTexas State Bar No. [email protected]

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

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 toexercise supplemental jurisdiction over a state law claim pendent to a federal claim, and it should do sowhen the federal claim is resolved prior to trial).



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P. Michael Jung (Co-Counsel)Texas State Bar No. 11054600Strasburger & Price, LLP901 Main Street, Suite 4400Dallas, TX 75202

(Tel.) 214-651-4300(Fax) [email protected]

Attorneys for Defendant DCS

Certificate of Service

The undersigned certified that a true and correct copy of this pleading was mailedvia [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


dallas county schools motion to dismiss ash grove suit

Documents