                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0305n.06
                             Filed: May 29, 2008

                                            No. 07-4089

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


NORTHERN OHIO CHAPTER OF ASSOCIATED                        )
B UILD E RS & C O N T R A C T ORS, INC.,                   )
INDUSTRIAL ENERGY SYSTEMS, INC., TOWN                      )
CENTER CONSTRUCTION, LLC, MICHAEL                          )
DRAGICS, and THE BLACK CONTRACTORS                         )
GROUP,                                                     )
                                                           )        ON APPEAL FROM THE
       Plaintiffs-Appellants,                              )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE NORTHERN
               v.                                          )        DISTRICT OF OHIO
                                                           )
METROHEALTH SYSTEM, et al.                                 )
                                                           )
      Defendants-Appellees.                                )
__________________________________________                 )



BEFORE: KENNEDY, BATCHELDER, and GRIFFIN, Circuit Judges.

       PER CURIAM.

       This case regards challenges to labor agreements involving several local government

construction projects in Cuyahoga County, Ohio. Plaintiffs argue that the labor agreements are

illegally broad and are preempted by federal law. The district court ruled that the projects had either

been completed, or that the contract terms had been amended to unambiguously conform with federal

law. Accordingly, the district court dismissed plaintiffs’ claims for lack of an active case or

controversy. We affirm for the reasons stated below.

                                                  I.
No. 07-4089
No. Ohio Chap. of Assoc. Builders & Contractors, Inc. v. MetroHealth System, Inc.


        Plaintiffs challenge the legality of three construction projects in Cleveland, Ohio. Two of

these projects (the “South Campus” project and the “Hamann” project) involve MetroHealth, a

public teaching hospital, and the third involves the county jail. Plaintiffs object to the “project labor

agreements” (“PLAs”) associated with these projects. The PLAs require that “all work be performed

by Employers who are or become bound by a collective bargaining agreement with the appropriate

craft union signatory to this Agreement.” Thus, any contractor, whether unionized or not, could

submit a bid. But if the bidder was not a union contractor, it would need to become one for the

duration of the project. Plaintiffs argue that the PLAs in this case are open-ended, but concede that

project-specific PLAs are permissible as described by the Supreme Court in Building & Constr.

Trades Council of the Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S.

218 (1993). According to plaintiffs, once an employer assents to one of these PLAs, the employer

has effectively become a union shop for the duration of the project and for all future projects.

        The district court dismissed the case for lack of jurisdiction. It noted that the South Campus

project had been completed, and thus it could not grant relief to plaintiffs. Regarding the Hamann

project, the district court noted that the MetroHealth Board of Trustees explicitly limited the scope

of the PLA to the duration of the project – thus removing any ambiguity about its project-specific

duration. The district court also dismissed the claim against the Board of County Commissioners

(“BOCC”) regarding the jail project after the BOCC notified the district court that the jail project

did not have a PLA associated with it and that there were no county construction projects containing

such a PLA. Plaintiffs timely appealed.


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No. Ohio Chap. of Assoc. Builders & Contractors, Inc. v. MetroHealth System, Inc.


                                                  II.

                                             MetroHealth

        Plaintiffs argue that because MetroHealth had used the allegedly invalid PLAs in the past,

and because an invalid PLA was still in effect during the ongoing construction for the South Project,

MetroHealth had a history of illegal conduct, and MetroHealth’s recent conduct is merely a voluntary

cessation of the previous illegal conduct in an attempt to moot the case. This argument lacks merit.

MetroHealth has clearly indicated its desire to comply with exactly what plaintiffs are seeking in this

case; MetroHealth has passed a new resolution requiring future PLAs to mandate that the underlying

collective bargaining agreements be project-specific.

        While it is true that MetroHealth could always pass another resolution and return to its

purportedly illegal ways, that is not a reason to consider this a live case. In Deja Vu of Cincinnati,

L.L.C. v. Union Township Bd. of Trustees et al., 411 F.3d 777, 782 (6th Cir. 2005) (en banc), the

municipality did not modify its conduct until after the appeal was filed: “While the appeal and cross-

appeal were pending [in our Court], Union Township enacted Resolution No. 00-22 to amend and

replace Resolution No. 99-15, thereby eliminating those provisions that the district court had

[already] determined were likely to be held unconstitutional.” The plaintiffs in that case asserted that

the claims regarding the original provisions should still be adjudicated because the defendants had

merely voluntarily ceased their illegal activity. 411 F.3d at 795. However, we disagreed, stating that

“[t]his [situation] is in contrast to the more typical situation . . . in which the municipality amended

its ordinance only after certain provisions were voided by the district court, and where the


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No. Ohio Chap. of Assoc. Builders & Contractors, Inc. v. MetroHealth System, Inc.


municipality repeatedly expressed its intention to reenact those portions of the Ordinance judged

unconstitutional at the earliest opportunity.” Id. (quotation marks and ellipsis omitted).

       Deja Vu’s holding is consistent with Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637 (6th

Cir. 1997). In that case, Kentucky had enacted various campaign finance laws to combat widespread

corruption of public officials. Terry, 108 F.3d at 639. The law was then challenged as violative of

the First Amendment. Id. After the suit was filed, and most likely “in direct response to plaintiffs’

suit,” the Kentucky legislature amended the statute to remove the language and terms plaintiffs had

challenged. Id. at 643 & n.14. Kentucky therefore argued that most of plaintiffs’ claims had been

mooted, while plaintiffs asserted that their claims were not moot because “the Kentucky General

Assembly remains free to reenact the prior statutory scheme.” Id. at 644. On appeal, we ruled in

favor of the state, holding that the voluntary cessation exception to mootness “properly applies only

when a recalcitrant legislature clearly intends to reenact the challenged regulation.” Id. at 645. We

did not believe this standard was met because “[t]he record before us [wa]s devoid of any expressed

intention by the Kentucky General Assembly to reenact the prior legislative scheme.” Id.

       The narrowness of the voluntary cessation exception was also expressed in Brandywine, Inc.

v. City of Richmond, KY, 359 F.3d 830 (6th Cir. 2004). Less than one month after plaintiffs filed suit

challenging a city ordinance, the city modified the ordinance and removed much of what plaintiffs

had challenged. Brandywine, 359 F.3d at 833-34. We stated that, “[p]laintiffs ask this court to

declare unconstitutional the zoning scheme as it existed when their license was revoked and to enjoin

Richmond from enforcing that scheme.” Id. at 836. We then ruled that a court “can neither declare


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No. Ohio Chap. of Assoc. Builders & Contractors, Inc. v. MetroHealth System, Inc.


unconstitutional nor enjoin the enforcement of a provision that is no longer in effect.” Id. We did

not find the voluntary cessation exception to be present because there was “[n]o such threat” to

reenact the offending legislation and passage of the alterations were taken as “sufficient assurance

that the [offending legislation] will not be re-enacted.” Id.

        These holdings make clear that plaintiffs have no claim against MetroHealth. MetroHealth

has enacted a new policy that specifically states it will do exactly what plaintiffs sought in this suit,

namely require that the unions agree to provide a project-specific collective bargaining agreement

to the contractors. Plaintiffs’ claims against MetroHealth, therefore, are moot.

                                                  III.

                             Cuyahoga County Board of Commissioners

        Plaintiffs argue that the voluntary cessation exception to mootness should apply in their case

against the BOCC because the BOCC had an established practice of using allegedly illegal PLAs.

As evidence of this established practice, plaintiffs point to the BOCC’s general resolution

establishing the objected-to terms, as well as to the BOCC’s inclusion of an allegedly illegal PLA

in the bidding documents for the Jail Project.

        The district court erred in ruling against plaintiffs on this argument. At the time of the

district court’s ruling, Resolution 050501 was still in effect. The resolution established that the

allegedly non-project-specific PLAs were presumptively appropriate for construction projects

exceeding $250,000. After the district court’s decision, however, the BOCC rescinded the

resolution. While the district court was incorrect at the time because the general resolution was still


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No. Ohio Chap. of Assoc. Builders & Contractors, Inc. v. MetroHealth System, Inc.


in effect, the resolution has now been repealed, and we can acknowledge and consider that fact when

we consider mootness on appeal. See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 316-17 (1974).

       Given the facts at the time of this appeal, plaintiffs’ arguments against mootness fail. As

detailed in the cases analyzed with respect to MetroHealth, the voluntary cessation exception is

exceedingly narrow. The BOCC asserts, without proof to the contrary, that a PLA was in fact never

used on any project to date. Additionally, the BOCC has, after the district court’s decision, rescinded

the general resolution to which plaintiffs objected. The BOCC has never expressed an intention to

at any point return to using the allegedly illegal PLAs. The voluntary cessation exception to

mootness, therefore, does not apply in this case.

                                                 IV.

                           Other Arguments Regarding Both Defendants

       The only other potential argument for plaintiffs to withstand mootness is a request for

damages. See, e.g., Ashcroft v. Mattis, 431 U.S. 171, 171-72 (1977). Plaintiffs would then only have

to prove a past instance of allegedly illegal conduct that injured them, rather than an ongoing

purportedly illegal practice. Damages are a request for retrospective relief, and past instances of

allegedly illegal conduct would suffice to establish a live case or controversy. Plaintiffs assert in

their brief that they would like an “award [of] damages.” Plaintiffs further assert that even if they

do not have actual damages, nominal damages should still be awarded.

       Plaintiffs, however, cannot rely on this argument. In their complaint, plaintiffs only request

“injunctive and declaratory relief.” In the section entitled “Requests for Relief,” plaintiffs only ask


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No. Ohio Chap. of Assoc. Builders & Contractors, Inc. v. MetroHealth System, Inc.


for declaratory judgment, as well as different sorts of injunctions. The only request for money is a

request for “attorneys’ fees and costs,” which does not constitute a request for damages. See Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107-08 (1998).

                                                V.

       We are not persuaded by plaintiffs’ arguments that exceptions to the mootness doctrine apply.

For these reasons, we conclude that there is no active case or controversy, and we affirm the

judgment of the district court.




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