     Case: 12-30675       Document: 00512157649         Page: 1     Date Filed: 02/27/2013




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

                                                                            FILED
                                                                         February 27, 2013

                                     No. 12-30675                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



NOBLES CONSTRUCTION, L.L.C.,

                                                  Plaintiff–Appellant
v.

WASHINGTON PARISH; RICHARD N. THOMAS, JR., Individually and as
President of Washington Parish; LEO LUCCHESI, Individually and as
Director of Public Works for Washington Parish; CHARLES E. MIZELL,
Individually and as Mayor of City of Bogalusa; LANDWORKS,
INCORPORATED; BOGALUSA CITY,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:11-CV-2616


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Nobles Construction, Inc. (“Nobles”) appeals the
dismissal of its due process challenge for failure to state a claim. Because




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Louisiana law provides adequate process and because the state officials’ alleged
actions were not so arbitrary as to shock the conscience, we AFFIRM.
                             I. BACKGROUND
      The Choctaw Road Landfill (the “Landfill”) is a Type II solid waste
disposal facility located in Franklinton, Louisiana. In 1995, Washington Parish
and the City of Bogalusa entered into a joint venture to acquire, operate, and
maintain the Landfill. They granted Landworks, Inc. the exclusive right to
operate the Landfill, and Landworks was to retain this right until its contract
expired on June 1, 2011. The Parish and the City also established the Choctaw
Road Landfill Joint Venture Solid Waste Committee (the “Committee”) to
oversee the Landfill operations and the administration of Landworks’ contract.
Louis Michael Creel, Landworks’ owner, served on the Committee.
      In March 2011, with Landworks’ contract soon to expire, the Parish and
the City sent out a Request for Proposals regarding the future operation of the
Landfill. Five companies responded, and a Review Panel was appointed to
evaluate the proposals. The Review Panel consisted of four members appointed
by Richard Thomas, the Parish’s president, and three members appointed by
Charles Mizell, the City’s mayor.
      Of the five companies, Nobles submitted the lowest bid.         Under its
proposal, operation of the Landfill would cost $49,860 per month. Landworks’
bid was the second lowest, with a price of $69,674 per month. The Review Panel,
however, awarded Landworks a higher evaluation score, which was based on
ratings the Panel members gave each proposal in eight individual categories.
The Review Panel also contacted Creel and requested that he lower Landworks’
bid to $62,500 per month, which Creel agreed to do. Based on this revised
proposal and the evaluation scores, the Review Panel voted to recommend
awarding the contract to Landworks.



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       The Review Panel’s decision was covered in a May 17 article in the
Bogalusa Daily News. After seeing the article, Nobles contacted Leo Lucchesi,
the Parish’s Public Works Director, to discuss Nobles’s low evaluation score as
well as the Review Panel’s decision to award the contract to Landworks despite
Nobles’s lower bid. Lucchesi declined to discuss the matter. On May 23, the
Parish Council introduced an ordinance to accept the recommendation to award
the contract to Landworks. After a public hearing, the Council voted to approve
the Review Panel’s recommendation and granted authority to execute the
contract with Landworks on June 7, 2011.
       Four months later, Nobles sued the Parish, Richard Thomas, Leo Lucchesi,
the City, Charles Mizell, and Landworks. Nobles argued that Louisiana’s Public
Bid Law, La. Rev. Stat. Ann. §§ 38:2211–38:2227, governed the proposal process
and required the Parish and the City to accept the lowest bid. Because they did
not, Nobles requested a writ of mandamus to either reopen the proposal process
or award the contract to Nobles. Nobles also sought damages under § 1983,
alleging that its due process rights had been violated in the bidding process.
Specifically, Nobles argued that it had obtained a property interest in the
contract by submitting the lowest bid and that the Parish and the City deprived
it of that property interest without due process.1
       Defendants moved to dismiss Nobles’s § 1983 claims under Federal Rule
of Civil Procedure 12(b)(6), and the district court granted the motions. The court
found that even if the Public Bid Law applied and Nobles had a property interest
in the contract, the legal process available to Nobles was sufficient.
Additionally, the court determined that the Parish’s and the City’s alleged
behavior was not so egregious as to constitute a violation of substantive due


       1
        Louisiana courts have interpreted the Public Bid Law to create “a right in the lowest
responsible bidder to receive the advertised contract.” Haughton Elevator Div. v. La. Div. of
Admin., 367 So. 2d 1161, 1165 (La. 1979).

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process. As a result, the court found that Nobles had failed to state a valid
§ 1983 claim and dismissed the case, declining to exercise supplemental
jurisdiction over of the remaining state law issues. Nobles timely appealed.
                                II. DISCUSSION
      Nobles argues that the district court incorrectly dismissed both its
procedural due process claim and its substantive due process claim. We address
each in turn.
A.    Standard of Review
      We review a district court’s grant of a motion to dismiss de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiff.” Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th
Cir. 2010). Those facts, however, must “state a claim that is plausible on its
face.” Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir.
2011). A complaint is insufficient if it offers only “labels and conclusions,” or a
“formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
B.    Procedural Due Process
      We have previously considered a procedural due process challenge
involving Louisiana’s Public Bid Law. In Marco Outdoor Advertising, Inc. v.
Regional Transit Authority, the Regional Transit Authority (“RTA”) sought to
generate revenue by placing advertisements on its vehicles. 489 F.3d 669, 672
(5th Cir. 2007).      It requested proposals from advertising contractors and
reviewed six bids, including one from Marco Outdoor Advertising, Inc. and one
from Clear Channel. Id. Two days before the contract was to be executed, RTA
informed Marco that Clear Channel would receive the contract. Id. Believing
it had submitted a superior bid, Marco sued RTA under § 1983. Id. Marco
claimed it was deprived of the property interest it obtained in the contract by
submitting the best bid and that this deprivation occurred without due process

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of law. Id. The district court disagreed, concluding that Marco had no property
interest in the contract because Louisiana’s Public Bid Law did not apply. Id.
      We affirmed on different grounds. Rather than analyze the applicability
of Louisiana’s Public Bid Law, we assumed for purposes of appeal that it applied
and that Marco had a property interest in the contract. Id. Thus, the only
question remaining was whether “the state ha[d] failed to provide Marco some
legal process to challenge RTA’s action.” Id. at 673. No such failure was shown.
Instead, we held that “the state provides adequate notice when RTA announces
a contract award, which puts losing bidders on notice that they will be deprived
of any alleged property interest in the bid if they fail to take further action.” Id.
at 674. Additionally, “the state guarantees unsuccessful bidders the right to a
hearing through the Public Bid Law, which authorizes any unsuccessful bidder
to sue in Louisiana state court to enjoin the public entity from awarding the
contract.” Id. Thus, “[b]ecause an unsuccessful bidder may seek an immediate
injunction through a summary proceeding, and because the injunction may
enjoin the execution of the contract, the injunction prevents the deprivation ‘of
any significant property interest’ and is therefore an adequate pre-deprivation
remedy.” Id. at 675. The availability of this summary proceeding, coupled with
the notice provided by the announcement of the award, “satisfie[d] the elements
of the due process prong of the Due Process Clause.” Id.
      Faced with this contrary authority, Nobles has failed to show how its case
is distinguishable. Even if we assume as the court did in Marco that Louisiana’s
Public Bid Law applies and that Nobles has a property interest in the contract,
the same procedures that were found to be adequate and available to Marco are
also adequate and available to Nobles. Nobles attempts to argue that it should
have received notice of any alleged deficiencies in its proposal and been given an
opportunity to challenge those deficiencies. But as we noted in Marco, the
announcement of the contract award itself is sufficient to notify losing bidders

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of the potential deprivation of any alleged property interest. Nobles could have
immediately challenged the validity of that award in the summary proceeding
provided for under Louisiana’s Public Bid Law and protected its property
interest by seeking to enjoin the contract’s execution.2 The availability of these
options ensured that Nobles was provided with some legal process to challenge
the Parish’s and the City’s actions.
       Nobles disputes the adequacy of this legal process by arguing that Marco
was incorrectly decided. Whatever the merits of its challenges to Marco, we lack
the authority to overrule the decision of another panel. See CRG Partners Grp.,
LLC v. Neary (In re Pilgrim’s Pride Corp.), 690 F.3d 650, 663 (5th Cir. 2012) (“[A]
panel of three judges may not unilaterally overrule or disregard the precedent
that has been established by our previous decisions.”).3 As a result, Nobles’s
procedural due process claim must fail.
C.     Substantive Due Process
       We discussed the nature of a substantive due process claim in Marco as
well: “Substantive due process bars certain arbitrary, wrongful government
actions regardless of the fairness of the procedures used to implement them.”
489 F.3d at 672 n.3 (internal quotation marks omitted).                      Thus, a viable

       2
         The provision of the Public Bid Law authorizing the summary proceeding to enjoin
the contract award provides as follows:
       [A]ny interested party may bring suit in the district court through summary
       proceeding to enjoin the award of a contract or to seek other appropriate
       injunctive relief to prevent the award of a contract which would be in violation
       of this Part, or through ordinary proceeding to seek appropriate remedy to
       nullify a contract entered into in violation of this Part.
La. Rev. Stat. Ann. § 38:2220(B).
       3
        Nobles further contends that Bowlby v. City of Aberdeen, 681 F.3d 215 (5th Cir. 2012),
calls Marco’s holding into question. We reject this argument. Bowlby concluded that the state
law right to appeal the revocation of a business license after the revocation took place did not
constitute adequate pre-deprivation process. 681 F.3d at 222. By contrast, Marco held that
the Louisiana procedure at issue here gives sufficient pre-deprivation process because it allows
an unsuccessful bidder to enjoin a public entity from awarding a contract in the first place.
489 F.3d at 674.

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substantive due process claim requires a showing that the state official “acted
with culpability beyond mere negligence.” Id. The official’s abuse of power must
be such that it “shocks the conscience.” McClendon v. City of Columbia, 305 F.3d
314, 326 (5th Cir. 2002). As a result, “only the most egregious official conduct
can be said to be arbitrary in the constitutional sense.” Marco, 489 F.3d at 672
n.3.
        Nobles contends that its allegations would support such a showing.
Specifically, Nobles alleges that the Parish and the City acted arbitrarily in the
bidding process (1) by refusing to meet or discuss the bidding process with
Nobles, (2) by not requiring Landworks to comply with all proposal
specifications, (3) by overlooking material omissions in Landworks’ proposal, and
(4) by giving Landworks preferential treatment in allowing it to revise its bid.
Nobles also alleges improper conduct related to Creel, Landworks’ owner.
Nobles argues that Creel was wrongly allowed to serve on the Solid Waste
Committee and that he also took Charles Mizell, the City’s mayor, on a golf trip
to Alabama during the proposal process. Nobles believes that these allegations
taken together are sufficient to state a plausible substantive due process claim.
        But much of the behavior Nobles alleges was also present in Marco.
Though the majority opinion did not discuss the factual background of the
government’s actions in that case, Judge Wiener’s dissent provided a summary
of Marco’s allegations. For example, Marco had alleged (1) that it submitted the
best overall bid while Clear Channel’s was a distant third, (2) that “RTA
subjectively evaluated the proposals with a previously-undisclosed, arbitrarily
weighted formula,” (3) that RTA provided Clear Channel with bonus points that
Clear Channel had not earned and that were not awarded to any other bidders,
and (4) that RTA allowed Clear Channel, and Clear Channel alone, to revise its
bid before awarding Clear Channel the contract. Marco, 489 F.3d at 677
(Wiener, J., dissenting). Despite these actions, we held that there was “no merit

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to Marco’s claim of substantive due process” because “RTA’s decision to award
the Contract to Clear Channel instead of Marco [was] not so arbitrary so as to
shock the conscience.” Id. at 672 n.3 (internal quotation marks omitted).
      The result must be the same for Nobles. Nobles attempts to distinguish
its allegations from those in Marco by challenging Creel’s influence in the
decision-making process. But that does little to help Nobles’s claim, as those
allegations are only tangentially related to the contract award. Nobles argues
that Creel’s presence on the Solid Waste Committee was improper, but the only
influence Nobles identifies is that Creel was allowed to assist in setting the
specifications for the requested proposals—specifications that it does not
challenge. Additionally, the only potential relevance of Nobles’s allegation
regarding Creel’s golf trip with Mizell is that Mizell appointed three of the
members of the Review Panel. These allegations do not elevate Nobles’s claim
into a category different from the claim rejected in Marco. The underlying basis
for both is the same: the arbitrary award of a public contract to an inferior
bidder in contravention of Louisiana law. That basis was insufficient to state a
valid substantive due process claim in Marco, and the addition of circumstantial
allegations will not change that result here.
                               III. CONCLUSION
      The district court properly relied on Marco in dismissing Nobles’s § 1983
claim. Nobles does not challenge the district court’s decision to decline to
exercise jurisdiction over the remaining state law claims, and we find nothing
to indicate that the district court abused its discretion in declining to do so. See
Batiste v. Island Records Inc., 179 F.3d 217, 226 (5th Cir. 1999) (“We review a
district court’s decision to decline jurisdiction over pendent state-law claims for
an abuse of discretion.”). The judgment of the district court is AFFIRMED.




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