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EMPIRE TRANSIT MIX, INC. v. GIULIANI

United States District Court, Southern District of New York


April 9, 1999

EMPIRE TRANSIT MIX, INC., PLAINTIFF,
v.
RUDOLPH W. GIULIANI, MAYOR OF THE CITY OF NEW YORK; HENRY J. STERN, COMMISSIONER, DEPARTMENT OF PARKS & RECREATION; LUIS M. TORMENTA, COMMISSIONER, DEPARTMENT OF DESIGN & CONSTRUCTION; AND THE CITY OF NEW YORK, DEFENDANTS.

The opinion of the court was delivered by: Kaplan, District Judge.

MEMORANDUM OPINION

Empire Transit Mix, Inc. ("Empire") brings this action for an injunction compelling the City of New York (the "City") to revoke its prohibition on allowing plaintiff to supply concrete to contractors working on City construction projects. The matter is before the Court on Empire's motion for a preliminary injunction and the defendants' motion to dismiss.

Facts

Empire is a New York corporation in the business of supplying transit-mix concrete to construction projects.*fn1 Approximately forty percent of its gross sales comes from contractors working under contract with the City on various City projects.*fn2 Of special pertinence to the present dispute are several City construction projects for the City's Departments of Parks & Recreation (the "DPR") and Design & Construction (the "DDC").*fn3

On or about October 3, 1997, Empire entered into an arrangement with Excel Group, Inc. ("Excel"), a subcontractor*fn4 on the DPR's Foley Square reconstruction project, to supply transit-mix concrete for installation. On January 20, 1999, it entered into an arrangement with Cobar Industries, Inc., also a subcontractor, to do the same on the DPR's City Hall Park project.*fn5 Empire alleges also that at the end of March it was supplying concrete to contractors on three DDC projects — a Fire Department building,*fn6 the reconstruction of McGuiness Boulevard,*fn7 and the construction of sanitary sewers on Parsons Boulevard.*fn8

Defendants allege that some time in March 1999, the City obtained "significant negative information" concerning Empire*fn9 through its Vendor Information Exchange System database ("VENDEX").*fn10 This information appears to have been the subject of an article that was being prepared by the New York Times regarding Empire's alleged affiliation with the Laquila Construction Company, a firm with a somewhat checkered past.*fn11

Plaintiff claims that on or about March 19, 1999 the DPR directed the prime contractor on the City Hall Park project to stop using Empire concrete and to submit two new concrete suppliers for DPR approval.*fn12 Three days later, the DPR allegedly gave the same message to the prime contractor on the Foley Square project.*fn13 At a March 23 meeting, the DPR informed Empire that the Mayor's Office had directed that Empire be removed as a concrete supplier on the City Hall and Foley Square projects because of the above mentioned New York Times article which appeared that day.*fn14

On March 24, Empire was notified by the DDC that it no longer would permit Empire concrete on its construction projects.*fn15 It allegedly directed the prime contractors on its contracts to cease using Empire as a supplier shortly thereafter.*fn16

On March 30, Empire sought a temporary restraining order from this Court enjoining the City from continuing the ban on Empire's participation in City projects, claiming that defendants' de facto debarment of Empire from supplying concrete on those projects without a pre-deprivation hearing violated its rights to due process and equal protection of the laws.*fn17 This Court denied a temporary restraining order and scheduled a hearing on the motion for a preliminary injunction for April 7.

Discussion

The Preliminary Injunction Standard

"In order to justify the award of a preliminary injunction, the moving party must first demonstrate that it is likely to suffer irreparable harm in the absence of the requested relief."*fn18 The threat of irreparable injury must be imminent or certain, not a matter of speculation.*fn19 Once the likelihood of irreparable harm has been demonstrated, a movant ordinarily is entitled to relief if it demonstrates "either (1) `a likelihood of success on the merits' or (2) `sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly' in the movant's favor."*fn20 Where, however, a movant seeks to enjoin "government action taken in the public interest pursuant to a statutory or regulatory scheme," it may succeed only by demonstrating a likelihood of success on the merits in addition to irreparable harm.*fn21

While it perhaps is arguable that Empire is subject to the heightened standard applicable where a litigant seeks to enjoin certain types of governmental action, the City does not so assert.*fn22 Rather, it assumes that the motion is governed by the usual two pronged standard applicable in this Circuit. The Court therefore proceeds on that basis.

Irreparable Injury

As the Court held in denying Empire's application for a temporary restraining order, it plainly has an adequate remedy at law with respect to the loss of sales on its existing arrangements. The contractors or subcontractors with whom it was dealing, given the City's action, will purchase concrete from other suppliers. The amount of sales thus diverted from Empire will be determinable to the last cubic yard. In consequence, the economic loss to Empire as a result of the City's action, should it ultimately be held unlawful, will be readily determinable. But the arrangements in respect of existing contracts are not the whole story.

The City's action probably will prevent contractors from considering Empire in sourcing their concrete requirements on future City contracts. As one could not determine the extent to which Empire would have obtained such supply contracts, absent the City's recent action, proof of a damage claim with respect to such lost business would be impossible. Moreover, in view of Empire's unrebutted claim that forty percent of its gross sales have been on City construction projects, the likelihood of such losses is sufficiently substantial to conclude that Empire is threatened with irreparable injury by the City's action.

The Procedural Due Process Claim

The State may not deprive an individual of property or liberty without due process of law. Plaintiff claims that defendants' debarring Empire from supplying concrete on City projects violated its right to procedural due process by depriving it of a property or liberty interest without notice and a hearing.

In order to prevail in such an action, a plaintiff must "first identify a property right, second show that the State has deprived him of that right, and third show that the deprivation was effected without due process."*fn23 Even where a plaintiff establishes that it was deprived of a property right without a pre-deprivation hearing, the existence of an adequate and meaningful state post-deprivation remedy may be sufficient to satisfy the procedural component of the Due Process Clause.*fn24

Alleged Existence of a Protectible Interest

Property Interest

In this case, plaintiff claims a property interest in its supply contracts with contractors and subcontractors on City projects. In order to have a property interest that is subject to due process protection, a plaintiff "must have more than a unilateral expectation of it. [The plaintiff] must, instead, have a legitimate claim of entitlement."*fn25 Protectible property interests "are created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law."*fn26

In Eastway Construction Corp. v. City of New York,*fn27 the Second Circuit held that "involvement in publicly-financed projects does not rise to the level of a property interest."*fn28 The circuit reiterated this view in S & D Maintenance Co., Inc. v. Goldin,*fn29 declining to "constitutionalize contractual interests that are not associated with any cognizable status of the claimant beyond its temporary role as a governmental contractor."*fn30

The disposition of Empire's claim follows a fortiori from Eastway and S & D Maintenance. Empire is not even in contractual privity with the City.*fn31 If a party to a City contract has no protectible property interest, surely Empire does not.

Empire's position is weakened further by the fact that the City contracts to which Empire's customers are parties are terminable at will by the City.*fn32 Where an administrative body maintains "significant discretion over the continued conferral of that benefit, it will be the rare case that the recipient will be able to establish an entitlement to that benefit."*fn33 That is the case when a contract is terminable at will, a situation in which the Second Circuit expressly has held no property right exists.*fn34 Accordingly, plaintiff has not demonstrated the existence of a property interest protected by the Due Process Clause.*fn35

Liberty Interest

Empire's due process claim also can be read as asserting a deprivation of a constitutionally protected liberty interest. While not entirely clear, the claim seems to be twofold: that it has a liberty interest to "do business and make a living and to supply concrete . . . to the City of New York"*fn36 and in its reputation, which allegedly has been affected by the City's action. Neither claim appears to have substantial merit.

In S & D Maintenance, the plaintiff argued that it was deprived of a constitutionally protected liberty interest because it had been "forced out of business, `tot[t]ering near bankruptcy, unable to get work,' as a direct result of the City's alleged breach of the contracts and withholding of payments."*fn37 The Second Circuit rejected this claim, holding that

  "even discharge from governmental employment will not
  by itself constitute a deprivation of liberty. . . .
  Though S & D claims that the City's actions leave it
  without sufficient capital to pursue any line of
  work, the remedy lies in an action for damages under
  the contract. The fact that consequential damages of
  the alleged breach may be severe cannot convert a
  contract claim into a deprivation of liberty."*fn38

Similarly, Empire cannot claim that the City's action in precluding Empire from supplying concrete to City projects deprives it of a liberty interest. The City is not responsible for providing Empire with a livelihood, even if a significant part of Empire's business has involved projects for the City.

Nor is Empire's second argument likely to prevail. Injury to reputation alone, even when inflicted by a state official, does not deprive an individual of a liberty interest.*fn39 S & D Maintenance summarized the applicable law:

  "A government employee's liberty interest is
  implicated where the government dismisses him based
  on charges `that might seriously damage his standing
  and associations in his community' or that might
  impose `on him a stigma or other disability that
  foreclose[s] his freedom to

  take advantage of other employment op
  portunities.'"*fn40

The termination of a state employee may violate the employee's liberty interest because "due process guarantees the employee an opportunity to defend [the employee's] `good name, reputation, honor or integrity.'"*fn41 However, a finding of a violation of an employee's liberty interest is appropriate only if the terminating agency's officials made derogatory statements about the terminated employee without affording the employee a hearing at which to rebut those charges.*fn42 The statements made about the employee, moreover, must be so damaging to his or her professional reputation that they seriously would hinder the employee in finding work in that field, thereby violating the employee's liberty interest in pursuing the occupation of his choosing.*fn43 And of course, no stigma can attach or damage be incurred unless the statements are publicized.*fn44 "Without publication, the Supreme Court has stated, an individual's liberty claim is `doomed.'"*fn45

Although S & D Maintenance and similar cases involved employment termination, the right not to be so defamed extends equally to defamation occurring in the course of "`termination of some other legal right o[r] status.'"*fn46 Even this status did not exist here because of the lack of privity of contract between Empire and the City. Nevertheless, the Court assumes, without deciding, that Empire would be deemed to have a liberty interest if the City's action were sufficiently stigmatizing to implicate such an interest were it in privity. But even such an assumption does not raise it over the hurdle.

Even viewed in the light most favorable to Empire, the City's actions were not sufficiently stigmatizing. Plaintiff has not shown that the banning of Empire from City contracts, in and of itself, forecloses it from engaging in the concrete business. The circuit, however, has said that a statement in connection with termination implicates a liberty interest only if it seriously hinders the subject's ability to find work in its field. The City's actions simply do not reach that threshold. In consequence, it is unlikely that the City's action so stigmatized Empire as to deprive it of a liberty interest.

Due Process

Even assuming arguendo the existence of a property or liberty interest, plaintiff would be unlikely to prevail on its procedural due process claim because it quite likely received all the process that was due.

Here, plaintiff could have obtained — and probably still can obtain — judicial review of defendants' actions in the state courts. Article 78 of the CPLR affords a summary proceeding by which one aggrieved by administrative action may obtain the relief previously available by the common law writs of certiorari, mandamus and prohibition and raise questions as to the legality of the administrative action.*fn47 Among the issues that may be raised is "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion . . ."*fn48 A stay of the administrative action sought to be reviewed is available, albeit as a matter of discretion rather than of right.*fn49

As noted previously, the Parratt-Hudson line of cases holds that the existence of an adequate state remedy precludes a procedural due process claim where the state post-deprivation procedure is all the process that is due. Moreover, the Second Circuit held in 1988 that the existence of New York's Article 78 proceeding precluded resort to Section 1983 in a procedural due process case even where the plaintiff had failed to bring a timely state proceeding.*fn50

  "In 1990, however, the Supreme Court held in
  Zinermon v. Burch*fn51 that `the existence of
  state remedies will not preclude procedural due
  process claims where (1) the risk of the deprivation
  complained of was foreseeable to the State, (2) the
  State might have reduced that risk either through
  additional pre-deprivation safeguards or by limiting
  the defendants' discretion in implementing
  established procedures, and (3) the defendants are
  authorized by the State to implement the requisite
  safeguards.'"*fn52

There is little question that the risk of an arbitrary deprivation in these circumstances might be reduced through additional pre-deprivation safeguards such as a hearing. The defendants certainly are authorized to implement added safeguards. The harder question is whether the risk of the allegedly arbitrary deprivation was foreseeable as opposed to a random and unauthorized act.

The Second Circuit addressed this precise question in Hellenic American Neighborhood Action Committee ("HANAC").*fn53 The plaintiff there claimed that the City's cancellation of its contracts constituted a de facto debarment without due process. The Circuit noted that HANAC "makes no claim that the due process violation was caused by an established state procedure, such as the City Charter or the [Procurement Policy Board] Rules. To the contrary, HANAC argues that state officials acted in flagrant violation of the City Charter and the PPB Rules."*fn54 It went on to hold that the deprivation there at issue was a random and arbitrary act and that HANAC's claims could survive "only if New York does not provide adequate postdeprivation procedures."*fn55

Empire's claim here is substantially identical. It alleges that its removal was "in violation of the Procurement Policy Board rules of the City of New York and the New York City Charter and constitute[d] a de facto debarment."*fn56 In consequence, Zinermon is inapplicable here, and the availability of Article 78 review is fatal to the procedural due process claim.

The Substantive Due Process Claim

At oral argument, plaintiff claimed also that defendants' action violated its substantive due process rights. Substantive due process protects those rights that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental."*fn57 Put another way, it "protects only those interests that are `implicit in the concept of ordered liberty.'"*fn58 Substantive due process extends also to "government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill-advised."*fn59 Traditionally, the types of interests recognized under substantive due process include rights of privacy, family and procreation — those rights that are so central to an individual's freedom that "neither liberty nor justice would exist if [they] were sacrificed."*fn60

Applying the foregoing principles in the context of a state labor contract, the Second Circuit wrote in Local 342 that "simple state-law contractual rights, without more, are [not] worthy of substantive due process protection."*fn61 That case involved a dispute over a collective bargaining agreement governed by a New York law which proscribed unilateral alteration of the terms of the agreement. The union alleged that the Town Board's unilateral termination of an insurance trust as the health benefits provider for its employees deprived union members of a legitimate claim of entitlement to payments by the Town to the trust and therefore violated their substantive due process rights. The Second Circuit held that this contract right should not be afforded substantive due process protection because the nature of the right at issue was not sufficiently important. Other courts also have held that substantive due process does not protect "run-of-the-mill contractually-based property interest[s]."*fn62

On the other hand, there undoubtedly are circumstances in which a breach of contract by a state actor would raise substantive due process concerns. While "simple state-law contractual rights, without more," do not do so, the question in each case is whether the breach affects interests sufficiently grave to trigger due process scrutiny. The Court must look to the effect of the breach on the claimant and determine whether the effect is so dramatic and the rights implicated so fundamental that the Constitution provides a remedy. For example, the unilateral revocation of leases in public housing, although certainly a breach of contract, could threaten to deprive needy residents of roofs over their heads in circumstances in which their financial situations would not permit them to find shelter in the private market and, in consequence, become an appropriate focus of substantive due process concern.*fn63

The interests affected by the City's de facto debarment of Empire from City projects are not trivial. A significant portion of plaintiff's revenue is derived from such projects, and it is possible that this action will affect Empire's remaining business. Nevertheless, the Supreme Court has cautioned against expansion of the substantive component of the Due Process Clause.*fn64 To the extent that substantive due process protection exists, it must be confined to the protection of interests central to individual freedom and autonomy. Without minimizing the significance of the plaintiffs' interests, the Court concludes that those interests simply are not sufficiently weighty to warrant their protection under the substantive due process rubric.

Equal Protection of the Laws

Plaintiff claims also that defendants' actions denied it equal protection of the laws. In order to state a claim under the Equal Protection Clause with respect to a facially neutral policy, as is the City's policy here, a plaintiff must allege, among other things, that he or she was treated differently from others similarly situated.*fn65 There is no such allegation in this complaint. Accordingly, the equal protection claim is unlikely to succeed.

Conclusion

For the foregoing reasons, the Court finds that plaintiff is not likely to succeed on the merits. In consequence, its motion for a preliminary injunction is denied. The foregoing constitutes the Court's findings of fact and conclusions of law.

As the case is before the undersigned as the Part I judge in the absence of the judge to whom it is assigned, and there is no emergent need for a decision on the motion to dismiss, the undersigned declines to rule on that motion.

SO ORDERED.


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