                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-2002

AP Boyd Inc v. Newark Pub Sch
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4250




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                         NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                           No. 01-4250


         A.P. BOYD, INC. AND THE MECHANICAL CONTRACTORS
                ASSOCIATION OF NEW JERSEY, INC.

                                 v.

                      NEWARK PUBLIC SCHOOLS

                 (District Court No. 00-cv-00100)


           NORTHERN NEW JERSEY CHAPTER, INC. NATIONAL
               ELECTRICAL CONTRACTORS ASSOCIATION

                                v.

                    THE NEWARK PUBLIC SCHOOLS

                 (District Court No. 00-cv-00101)


                               AP-Boyd, Inc.; The Mechanical Contractors
                               Association of New Jersey, Inc.,
                                                        Appellants



        On Appeal from the United States District Court
                 for the District of New Jersey
             (D.C. Nos. 00-cv-00100 & 00-cv-00101)
         District Judge: Honorable Joseph A. Greenaway



           Submitted under Third Circuit LAR 34.1(a)
                         July 19, 2002

     Before:   McKEE, FUENTES and ALDISERT, Circuit Judges.

                      (Filed August 7, 2002)




                       OPINION OF THE COURT


ALDISERT, Circuit Judge.
     We decide today that Appellants A.P. Boyd, Inc. and the Mechanical Contractors
Association of New Jersey, Inc. are not entitled to attorneys’ fees for seeking declaratory
and injunctive relief against the Newark Public School District. We will affirm the
judgment of the district court.
     Appellants filed suit against the Newark Public School District for maintaining a
"set-aside" program for electrical and plumbing contracts for the Malcolm X. Shabazz
High School (the "Shabazz Project"), as well as for Appellee’s policy of race-based
contracting. Appellants argued that the Court’s decision in City of Richmond v. J.A.
Croson Co., 488 U.S. 469 (1989), rendered Appellee’s actions unconstitutional because
the set-aside program, purportedly instituted according to Article 15 of the Public School
Contracts Law ("PSCL"), N.J. Stat. Ann. 18A:18A-51 through 59, impermissibly
discriminated according to race, in violation of Article 1 5 of the New Jersey
Constitution, 42 U.S.C. 1983, 1988(b) and (c) and section 1 of the Fourteenth
Amendment to the United States Constitution. The set-aside program refers to the
practice of excluding non-minority contractors from bidding on particular projects, in
which they otherwise would be eligible, in order to assist minority contractors in getting
work. Appellants sought both declaratory and injunctive relief, attempting to have the
contract awards enjoined or nullified, and the set-aside program declared unconstitutional.
     The district court consolidated Appellants’ case at trial with a similar action
brought by the National Electrical Contractors Association ("NECA"). The School
District and NECA entered into a Consent Order which provided that the District would
conduct a study to determine whether a set-aside program was warranted. The Order
further provided that the District would not reinstate a set-aside program until such time as
the study had been completed and found to warrant such a program. Appellants refused to
join in the Consent Order.
           Meanwhile, the electrical and plumbing work on the Shabbazz Project had been
awarded and, for all intents and purposes, had been substantially completed. Because
Appellants sought only to vacate the contracts and enjoin the work, the court determined
that their action was now moot. Appellants then sought attorneys’ fees under the "catalyst
theory" as articulated by this court in Baumgartner v. Harrisburg Hous. Auth., 21 F.3d 541
(3d Cir. 1994). Appellants relied ostensibly on the theory that, although they did not
receive a judgment in their favor, the Consent Order was germinated by Appellants’
lawsuit, and that their lawsuit was the catalyst that brought about the reforms. This
contention is argued vigorously even though Appellants refused to join in the Consent
Order. That aside, the Court has rejected the catalyst theory in Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598 (2001). Appellants
then sought to amend their complaint to request nominal damages. Their goal was to
thereby qualify as a prevailing party under the prevailing party theory, and thus be entitled
to fees. The district court denied the request and this appeal followed.
     Appellants present three issues. They argue that the district court was inconsistent in
its application of the teachings of Buckhannon with respect to nominal damages, while
determining that their equitable arguments were moot; that they were prevailing parties by
virtue of the Consent Order and alternatively, that the district court erred in applying the
teachings of Buckhannon. Because we are writing for parties who are familiar with the
facts and procedural history in the district court, we will discuss only the legal issues
presented before us and the material facts relating thereto.
                               I.
     Reducing Appellants’ first argument to a logical syllogism, their major premise is
that when a case is moot, the court is prohibited from considering any other motion; this
case is moot; therefore the court may not consider the nominal damages issue. So stated, it
becomes obvious that this contention takes the form of the classic material fallacy of non
sequitur. It was Appellants who argued that because their equitable contentions were
determined as moot, the court should have considered an implied demand for compensatory
damages in the form of nominal damages. Their request having been denied, they now
argue before us that the court’s action was inconsistent.
                               A.
     Appellants are not entitled to nominal damages because, to revert to a common law
analysis that still persists on the question of whether one is entitled to a jury trial, their
complaint sounds in equity and not law. It sought injunctive and declaratory relief, not
compensatory damages, nominal or otherwise. We apply the teachings of Fox v. Bd. of
Trustees of the State Univ. of N.Y., 42 F.3d 135 (2d Cir. 1994), where students brought an
action against SUNY seeking declaratory and injunctive relief on First Amendment
grounds. Because the plaintiffs were no longer students during the litigation, they argued,
as do Appellants here, that they implicitly pled nominal damages when requesting "such
other relief as the court deemed just and proper." The court responded by stating: "there is
absolutely no specific mention in [the Complaint] of nominal damages. Nor can a request
for such damages be inferred from the language of [the Complaint]." Fox, 42 F.3d at 141;
see also Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997) ("a claim for
nominal damages, extracted late in the day from [plaintiff’s] general prayer for relief and
asserted solely to avoid otherwise certain mootness, [bears] close inspection").
     It would have been preferable if Appellants’ Brief contained a Summary of
Argument, as required by Rule 28(a)(8), Federal Rules of Appellate Procedure, to make
more clear how this argument relates to their attack on mootness on the theory that a claim
for nominal damages could be inferred from the averment "such other relief as the court
may award." Their contention here flies in the face of their argument in support of a
preliminary injunction where their counsel argued: "If the project is awarded to somebody
else, my client loses that project, he has no right of action to collect any monetary
damages." Appellants’ App. at 90. At the very least, the nominal damages argument is
foreclosed by dictates of Judicial Estoppel. See New Hampshire v. Maine, 532 U.S. 742,
749 (2001) ("[W]here a party assumes a certain position in a legal proceeding, and
succeeds in maintaining that position, he may not thereafter, simply because his interests
have changed, assume a contrary position, especially if it be to the prejudice of the party
who has acquiesced in the position formerly taken by him . . . This rule, known as judicial
estoppel, generally prevents a party from prevailing in one phase of a case on an argument
and then relying on a contradictory argument to prevail in another phase.") (internal
citations omitted).
                               B.
     Subsumed in this "inconsistency" argument is Appellants’ contention that the matter
was not moot. We now turn to this contention. A case is moot when it has lost its character
as a present, live controversy of the kind that must exist to avoid advisory opinions on
abstract opinions of law. Diffenderfer v. Cent. Baptist Church of Miami, Florida, Inc., 404
U.S. 412, 414 (1972) (per curiam).
    The mootness doctrine is centrally concerned with the court’s ability to grant
    effective relief. ’If developments occur during the course of adjudication that
    eliminate a plaintiff’s personal stake in the outcome of a suit or prevent a
    court from being able to grant the requested relief, the case must be dismissed
    as moot.’

County of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001) (quoting
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-699 (3d Cir. 1996). Appellants’
lawsuit is moot because they sought only injunctive or declaratory relief by voiding the
contracts. The work is substantially finished, a new study of minority participation is being
conducted, and no MBE set-aside contracts will be awarded in the meantime.
     In N.J. Tpk. Auth. v. Jersey Cent. Power and Light, 772 F.2d 25 (3d Cir. 1985), we
held that the plaintiff’s action to enjoin the shipping of hazardous materials on the New
Jersey Turnpike was moot because there was no reasonable expectation that the wrong
would be repeated.
     Similarly, in Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50
(2d Cir. 1992), plaintiff contractors brought a 1983 claim against the State of New York
alleging constitutional violations stemming from the state’s minority set-aside program.
The court held that because New York State had instituted emergency regulations for
suspending enforcement of the set-aside program pending a post Croson study, plaintiff’s
claims were moot. It reasoned that although "ordinarily the voluntary cessation of allegedly
illegal conduct does not deprive a federal court of jurisdiction, such action does bear on
whether the court should, in the exercise of its discretion, dismiss the case as moot." Id. a
59. It noted that "[s]ome deference must be accorded to a state’s representations that
certain conduct has been discontinued." Id.
     Finally, in Maryland Highways Contractors Assn., Inc. v. State of Md., 933 F.2d
1246 (4th Cir. 1991), a case with facts almost identical to those present here, the
contractors had alleged that the state’s minority set-aside program violated their equal
protection rights. Because Maryland commissioned a post Croson study during the
pendency of the appeal, the court held that plaintiff’s claims became moot. We are
persuaded by the reasoning of these cases.
     Moreover, we believe that declaratory relief is also moot when the challenged acts
have already "irretrievably occurred." Accordingly, we apply the teachings of N.J. Tpk.
Auth., that the claim for injunctive relief had become "academic by reason of these changed
circumstances . . . ." Id. at 27. Here, as in N.J. Tpk. Auth., the challenged action awardin
the contracts has already occurred, and the work required by them has already been
performed. There is no longer a "’subject matter upon which the judgment of the court can
operate’ to make a substantive determination on the merits." Id. at 30 (quoting Ex Parte
Baez, 177 U.S. 378, 390 (1900)); see also Jersey Cent. Power and Light Co. v. State of
N.J., 772 F.2d 35, 36 (3d Cir. 1985) (holding that injunctive claim was rendered
"meaningless since the State action sought to be enjoined has irretrievably occurred").
                               II.
     For Appellants to be prevailing parties and thus entitled to attorneys’ fees under 42
U.S.C. 1988(b), they must have either obtained a judgment on the merits or be a party to a
settlement agreement that is expressly enforced by the court through a consent decree.
Neither has occurred here. First, as previously discussed, they have not prevailed on the
merits because their claims were dismissed as moot. They were not a party to a court
enforced consent decree because they deliberately refused to be a party to the Consent
Order. There has been no "judicially sanctioned change in the legal relationship" between
Appellants and the District. Buckhannon, 532 U.S. at 605. Appellants’ application for
attorneys’ fees therefore rests entirely on the catalyst theory.
                              III.
            We reject the alternative argument that the catalyst theory is alive and well in t
judicial circuit. Indeed, it is moribund. Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 164
n.3 (3d Cir. 2002) ("In Buckhannon, the Supreme Court rejected the "catalyst theory,"
holding that where a party has failed to secure a judgment on the merits or a court-ordered
consent decree, but has nonetheless achieved the desired result because the lawsuit brought
about a voluntary change in the defendant’s conduct, the plaintiff is not a "prevailing
party.").
                            * * * * *
            We have considered all contentions presented by the parties and conclude that no
further discussion is necessary.
            The judgment of the district court will be affirmed.

TO THE CLERK:
                              Please file the foregoing opinion.


                              /s/ Ruggero J. Aldisert
                              Circuit Judge

DATED:   August 7, 200
