     Case: 12-30736         Document: 00512301401          Page: 1    Date Filed: 07/09/2013




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                               FILED
                                                                               July 9, 2013

                                         No. 12-30736                        Lyle W. Cayce
                                                                                  Clerk

CANTU SERVICES, INCORPORATED,

                                                     Plaintiff - Appellee

v.

RENEE ELLENDER ROBERIE; CURT EYSINK;
KEVIN MONK; JOSEPH BURTON;
JANELL BOSARGE; MARK S. MARTIN,

                                                     Defendants - Appellants


                      Appeal from the United States District Court
                         for the Western District of Louisiana
                                USDC No. 2:12-CV-1292


Before JONES and CLEMENT, Circuit Judges, and KAZEN*, District Judge.
EDITH H. JONES, Circuit Judge:**
       This case arises from allegations by Cantu Services, Inc. (“Cantu”) that
Renee Roberie, Curt Eysink, Kevin Monk, Joseph Burton, Janell Bosarge, and
Mark Martin (collectively, the “State Officials”); the Louisiana Workforce
Commission (the “Commission”); and Melvin Lee Frazier violated Cantu’s rights


       *
           District Judge of the Southern District of Texas, sitting by designation.
       **
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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regarding a contract renewal under the Randolph-Sheppard Act, 20 U.S.C.
§§ 107–107(e) (2006) (“Randolph-Sheppard”). Cantu argues that the State
Officials, acting in their official capacities, violated its constitutional rights to
due process and equal protection. The State Officials filed a motion to dismiss
claiming immunity under the Eleventh Amendment, the district court denied
their motion, and the State Officials appealed. For the following reasons, we
REVERSE and REMAND with instructions to dismiss the official-capacity
claims of the State Officials without prejudice under Rule 12(b)(1).
                                BACKGROUND
      This case concerns the award of a food service contract at Fort Polk in
Leesville, Louisiana under Randolph-Sheppard.            Randolph-Sheppard was
created by Congress to provide employment and broader economic opportunities
for blind individuals by directing the United States Department of Education to
designate a State Licensing Agency (“SLA”) in each state. The SLAs issue
licenses to blind individuals for the operation of vending facilities on federal
property. Blind individuals are given priority in vendor selection, and a food
service company frequently serves as a “teaming partner” to assist the licensed
blind vendor for large, complex contracts such as that for Fort Polk.             In
Louisiana, the SLA is the Commission.
      Cantu served as teaming partner for blind vendor Eugene Breaud for the
Fort Polk food service contract from 2001 until Breaud’s death in early 2011.
Cantu fulfilled the contractual obligations on the behalf of the Commission, first
without a blind vendor and later with a temporary licensed blind vendor. In
anticipation of a new, full contract, the Commission issued a bid announcement
stating that it would assist the new licensed blind vendor in interviewing and
selecting the teaming partner for the new contract. The Commission selected
Frazier as the new licensed blind vendor in August 2011. The Commission
invited three potential teaming partners, including Cantu and its competitor

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Blackstone Consulting, Inc. (“Blackstone”), to give presentations to Frazier and
the Commission.
       Cantu alleges that Frazier indicated he had selected it as his teaming
partner.1 The parties agree that the choice of teaming partner was ultimately
Frazier’s to make, but the State Officials insist that Frazier did not have the
authority to select a teaming partner without the Commission’s assistance and
approval. Frazier ultimately selected Blackstone. Cantu sued and successfully
sought a temporary restraining order. Frazier and the State Officials were not
allowed to proceed with the contract until the district court dissolved its TRO
and denied Cantu’s motion for a preliminary injunction.
       The United States Government has since entered into the long-term food
service contract with Frazier, using Blackstone as the teaming partner. Cantu
has appealed.
               JURISDICTION AND STANDARD OF REVIEW
       This court has jurisdiction to consider an interlocutory appeal from denial
of a motion to dismiss on the basis of Eleventh Amendment immunity. Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142,
113 S. Ct. 684, 687 (1993); Earles v. State Bd. of Certified Pub. Accountants,
139 F.3d 1033, 1036 (5th Cir. 1998). We review a district court’s ruling on a
motion to dismiss de novo. Jackson v. City of Beaumont Police Dep’t, 958 F.2d
616, 618 (5th Cir. 1992) (citation omitted). We view “the facts as pled in the
light most favorable to the nonmovant.” Jebaco, Inc. v. Harrah’s Operating Co.,
587 F.3d 314, 318 (5th Cir. 2009) (citation omitted). A complaint must provide
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). The
complaint must allege “more than labels and conclusions.” Id. at 555.

       1
        This allegation is central to Cantu’s breach of contract claims against Frazier, which
are not before us on this appeal.

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      Cantu asks this court to declare the bidding process unfair and void for
violating its equal protection and due process rights, to enjoin the enforcement
of the new contract, and thus to require the Commission to hold a new bidding
process.
                                 DISCUSSION
      The Eleventh Amendment “generally precludes actions against state
officers in their official capacities.” McCarthy ex rel. Travis v. Hawkins, 381 F.3d
407, 412 (5th Cir. 2004). The Supreme Court’s decision in Ex parte Young
created an exception for claims for prospective relief. 209 U.S. 123, 28 S. Ct. 441
(1908). The Ex parte Young doctrine “ensures that state officials do not employ
the Eleventh Amendment as a means of avoiding compliance with federal law.”
Puerto Rico Aqueduct, 113 S. Ct. at 688. For Ex parte Young to apply, the “suit
must be brought against individual persons in their official capacities as agents
of the state and the relief sought must be declaratory or injunctive in nature and
prospective in effect.” Saltz v. Tenn. Dep’t of Emp’t Sec., 976 F.2d 966, 968 (5th
Cir. 1992).
      [Ex parte] Young has been focused on cases in which a violation of
      federal law by a state official is ongoing as opposed to cases in which
      federal law has been violated at one time or over a period of time in
      the past, as well as on cases in which the relief against the state
      official directly ends the violation of federal law as opposed to cases
      in which that relief is intended indirectly to encourage compliance
      with federal law through deterrence or directly to meet third-party
      interests such as compensation. As we have noted: “Remedies
      designed to end a continuing violation of federal law are necessary
      to vindicate the federal interest in assuring the supremacy of that
      law. But compensatory or deterrence interests are insufficient to
      overcome the dictates of the Eleventh Amendment.”

      Relief that in essence serves to compensate a party injured in the
      past by an action of a state official in his official capacity that was
      illegal under federal law is barred even when the state official is the
      named defendant. This is true if the relief is expressly denominated


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      as damages. It is also true if the relief is tantamount to an award
      of damages for a past violation of federal law, even though styled as
      something else. On the other hand, relief that serves directly to
      bring an end to a present violation of federal law is not barred by
      the Eleventh Amendment even though accompanied by a
      substantial ancillary effect on the state treasury.

Papasan v. Allain, 478 U.S. 265, 277–78, 106 S. Ct. 2932, 2941 (1986).
      The Supreme Court recently explained more succinctly that to avoid an
Eleventh Amendment bar by means of Ex parte Young, “a court need only
conduct a straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as
prospective.” Va. Office for Prot. & Advocacy v. Stewart, ___ U.S. ___, 131 S. Ct.
1632, 1639 (2011) (quoting Verizon Md. Inc. v. Pub. Svc. Comm’n., 535 U.S. 635,
645, 122 S. Ct. 1753, 1760 (2002) (internal citation and quotation marks
omitted)).
      Cantu’s amended complaint seeks a judgment “providing injunctive and
other equitable relief against [the State Officials], including but not limited to
an injunction prohibiting Defendants’ preparation for any contract changes and
prohibiting Defendants from proceeding with future food service contract[s]
without Cantu as the teaming partner.” Cantu’s complaint, on its face, seeks
prospective relief as required under Ex parte Young. See In re Tejas Testing
Tech. One, No. 96-50830, 1998 WL 414018, at *4 (5th Cir. June 26, 1998)
(unpublished) (holding claims “at least on their face” were for prospective relief
even where “whether [the] claims [were] truly for prospective declaratory or
injunctive relief [was] uncertain”).
      Despite its facial pleading, the question remains whether Cantu alleged
an ongoing federal law violation.       Cantu must establish that it has a
constitutionally protected interest that was continuing to be infringed by the
State officials. A vendor would not normally have a liberty or property interest


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in the renewal of its contract. See Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 573-78, 92 S. Ct. 2701, 2707-10 (1972) (holding untenured
professor had no liberty or property interest in renewal of his employment
contract). But rather than argue that its contract was improperly terminated,
or that it was improperly not allowed to bid, Cantu argues that it had a
constitutionally protected interest in a fair bidding process for the new contract.
The process was unfair, according to Cantu, because the State Officials
interfered with its agreement with Frazier and forced Blackstone on Frazier
when Blackstone surreptitiously offered a sweet deal to the Commission. We
may assume arguendo that this constitutes a sufficient pleading of a federal law
violation.
      Cantu is also required to show, however, that the allegedly
unconstitutional bidding process was not a “one-time, past event” but an ongoing
violation. S & M Brands, Inc. v. Cooper, 527 F.3d 500, 510 (6th Cir. 2008).
Cantu relies on this court’s decision in Nelson v. University of Texas at Dallas,
535 F.3d 318, 323 (5th Cir. 2008), and contends that the harm was ongoing for
the purposes of Ex parte Young. In Nelson we noted the validity of arguments
that employment termination is a discrete, not ongoing, act but felt bound by our
decision in Warnock v. Pecos County, Texas holding that a request for
reinstatement of employment was cognizable under Ex parte Young. Nelson,
535 F.3d at 323–24 (citing Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343 (5th
Cir. 1996)). The special considerations surrounding public employment, and the
holding in Warnock, are not binding in this case concerning the different
situation of an award process for a public contract.         The award process
terminated with the issuance of a new contract. Moreover, the “right” to be a
teaming partner did not confer on Cantu the right to enter into the Fort Polk
contract. Consequently, there is no ongoing violation of law remediable by
prospective relief under Ex parte Young. Cantu is unable to point to any

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“disappointed bidder” cases extending the holding of Nelson. We will not so
extend Ex parte Young here.
                                      CONCLUSION
       For these reasons, we REVERSE and REMAND with instructions for the
district court to dismiss the official-capacity2 claims without prejudice under
Federal Rules of Civil Procedure 12(b)(1).3




       2
           Because the district court has not yet ruled on Cantu’s claims against the State
Officials in their personal capacities, those individual-capacity claims are not before us in this
appeal.
       3
          Generally, this court has treated dismissals based on state sovereign immunity as
jurisdictional under Fed. Rule Civ. Proc. 12(b)(1) See, e.g. Warnock, 88 F.3d at 343. Like the
Supreme Court itself, however, we recognize the uniquely ambiguous character of Eleventh
Amendment immunity. See Union Pac. R.Co. v. La. Pub. Svc. Comm., 662 F.3d 336,340 (5th
Cir. 2011)(noting that “Eleventh Amendment immunity operates like a jurisdictional bar,” but
“may be waived by the state”); see also 13 C. WRIGHT & A. MILLER, Fed. Prac. & Proc. § 3524.1
(3d ed.).

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