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Chester Bross Construction Company and v. Anne L. Schneider

August 10, 2012

CHESTER BROSS CONSTRUCTION COMPANY AND CHARLES T. DOWELL, PLAINTIFFS,
v.
ANNE L. SCHNEIDER, SECRETARY OF ILLINOIS DEPARTMENT OF TRANSPORTATION; ELLEN SCHANZLE-HASKINS, CHIEF COUNSEL OF ILLINOIS DEPARTMENT OF TRANSPORTATION; THOMAS R. WETZLER, HEARING OFFICER OF ILLINOIS DEPARTMENT OF TRANSPORTATION; BILL GRUNLOH, CHIEF PROCUREMENT OFFICER OF ILLINOIS DEPARTMENT OF TRANSPORTATION; AND ILLINOIS DEPARTMENT OF TRANSPORTATION, DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Friday, 10 August, 2012 04:01:55 PM Clerk, U.S. District Court, ILCD

OPINION

This cause is before the Court on the Motion for Summary Judgment filed by Defendants Illinois Department of Transportation ("IDOT"); Anne L. Schneider, Secretary of IDOT; Ellen Schanzle- Haskins, Chief Counsel of IDOT; Thomas R. Wetzler, Hearing Officer of IDOT; and Bill Grunloh, Chief Procurement Officer of IDOT. See d/e 10. For the reasons described below, the Motion is GRANTED in part and DENIED in part. The Court does not reach the merits of the case.

First, the Court finds that all of Plaintiffs' claims against IDOT are barred by the Eleventh Amendment. Count IV of the complaint, a state-law claim, is barred by the Eleventh Amendment with respect to all Defendants. However, Plaintiffs' remaining claims against Schneider, Schanzle-Haskins, Wetzler, and Grunloh are not barred by the Eleventh Amendment because the Ex parte Young exception applies. See Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908).

Second, the Court finds that Younger abstention is appropriate with respect to the remaining claims. See Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971). Therefore, this Court abstains from exercising jurisdiction over this case. Plaintiffs' entire complaint is DISMISSED without prejudice. The remainder of Defendants' Motion for Summary Judgment is DENIED AS MOOT.

I. BACKGROUND

A. Facts

On summary judgment, this Court considers the facts in the light most favorable to the plaintiff. Valance v. Wisel, 110 F.3d 1269, 1276 (7th Cir. 1997). Accordingly, the facts, taken in the light most favorable to Plaintiffs, are as follows.

Plaintiff Chester Bross Construction Company ("Chester Bross") is a general construction contractor, with its principal place of business in Palmyra, Missouri, that bids on IDOT construction projects. Chester Bross employs individuals who live and primarily work out of an office in Missouri. Plaintiff Charles T. Dowell ("Dowell") is a citizen of Missouri and is a construction worker who has been employed by Chester Bross for several years.

Contractors that bid on IDOT construction projects are subject to Section 30-22 of the Illinois Procurement Code, commonly called the "Responsible Bidder" provision, which provides, among other things, that

(1) "The bidder and all bidder's subcontractors must participate in applicable apprenticeship and training programs approved and registered with the United States Department of Labor's Bureau of Apprenticeship and Training" (Section 30-22(6)); and (2) "The bidder must submit a signed affidavit stating that the bidder will maintain an Illinois office as the primary place of employment for persons employed in the construction authorized by the contract" (Section 30-22(8)). See 30 ILCS 500/30-22(6), (8).

In June 2010, after Chester Bross had submitted the lowest bid for an IDOT construction project, the Laborers' International Union of North America and the International Union of Operating Engineers filed bid protests with IDOT against Chester Bross, protesting Chester Bross' award eligibility. The bid protests contended that Chester Bross (1) used the trades of "Laborer" and "Operating Engineer" on its IDOT construction projects without participating in approved apprenticeship and training programs applicable to those trades, as required by the Illinois Procurement Code, Section 30-22(6). On July 2, 2010, Chester Bross submitted information to IDOT denying the allegations and representing that Chester Bross would not be using laborers on the protested projects and that Chester Bross had access to the appropriate apprenticeship and training programs. IDOT then denied the bid protests.

Thereafter, Defendant Schanzle-Haskins, IDOT's Chief Counsel, initiated an audit to verify Chester Bross' representations in response to the June 2010 bid protests. On May 17, 2011, the audit concluded that Chester Bross' certified records for the payroll date ending August 28, 2010 listed some employees as laborers that were paid the laborer's prevailing wage rate for work on an IDOT project.

On June 8, 2011, IDOT issued a Notice of Suspension and Interim Suspension to Chester Bross. The notice temporarily suspended Chester Bross from bidding on IDOT construction projects because, despite having been the lowest bidder on five IDOT projects, Chester Bross: (1) had failed to certify in its bid documents that it complied with the required apprenticeship programs; (2) had failed to disclose in its bid documents that it intended to use a laborer for the construction projects; (3) in its July 2, 2010 response to bid protests, had misrepresented that Chester Bross did not use any laborers on the construction projects; and (4) had used a laborer in certain construction projects. The notice stated that an immediate suspension was necessary to safeguard the public's interest in the responsible letting of construction projects. On August 2, 2011, an Amended Notice of Suspension was issued.

Between August 25, 2011 and October 14, 2011, IDOT held seven days of hearings regarding Chester Bross' suspension. After the hearings concluded, the parties filed post-hearing briefs, the last of which was submitted on January 30, 2012.

On January 25, 2012, Chester Bross served a motion to dismiss claims or to reopen the hearing. The motion was denied on February 14, 2012. On the same day, Chester Bross served a motion to reconsider, which was denied on June 15, 2012.

On June 15, 2012, Defendant Wetzler, the hearing officer presiding over Chester Bross' case, issued his "Findings and Recommendations to the Chief Procurement Officer." See Defs.' Mem. Supp. Summ. J. (Ex. A). Wetzler found, among other things, that Chester Bross (1) altered a document, (2) "knowingly and purposefully misclassified employees on state projects," (3) violated the Illinois Procurement Code's apprenticeship requirement (30 ILCS 500/30-22(6)), (4) made a material misrepresentation of fact to IDOT and perpetrated a fraud on IDOT by stating that it would not use the trade of laborer on particular projects when it did in fact use laborers, and (5) made material misrepresentations regarding whether it met the apprenticeship requirements of the Illinois Procurement Code. See Defs.' Mem. Supp. Summ. J. (Ex. A).

Wetzler recommended that Chester Bross be suspended from bidding on IDOT construction projects for five years, effective June 8, 2011. The recommendation was sent to IDOT's Chief Procurement Officer, Defendant Grunloh.

Chester Bross then requested and received leave to submit written exceptions to Wetzler's "Findings and Recommendations" by July 2, 2012. These exceptions are attached to Defendants' Reply. Defendants state in their Motion for Summary Judgment that a decision from Chief Procurement Officer Grunloh was expected to be issued by July 9, 2012.*fn1

The parties agree that the next IDOT letting for which Chester Bross would qualify is ...


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