Chester Bross Construction Company et al v. Schneider et al

Filing 21

OPINION entered by Judge Sue E. Myerscough on 8/10/2012. The Defendants' Motion for Summary Judgment, d/e 10 is GRANTED in part and DENIED in part. Plaintiffs' complaint is DISMISSED in its entirety, without prejudice. The remainder of Defendants' Motion is DENIED AS MOOT. This case is CLOSED. (MAS, ilcd)

E-FILED

Friday, 10 August, 2012 04:01:55 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CHESTER BROSS
CONSTRUCTION COMPANY and
CHARLES T. DOWELL,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
ANNE L. SCHNEIDER, Secretary of )
Illinois Department of Transportation; )
ELLEN SCHANZLE-HASKINS,
)
Chief Counsel of Illinois Department )
of Transportation; THOMAS R.
)
WETZLER, Hearing Officer of Illinois )
Department of Transportation; BILL )
GRUNLOH, Chief Procurement
)
Officer of Illinois Department of
)
Transportation; and ILLINOIS
)
DEPARTMENT OF
)
TRANSPORTATION,
)
)
Defendants.
)

No. 12-3159

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on the Motion for Summary
Judgment filed by Defendants Illinois Department of Transportation
(“IDOT”); Anne L. Schneider, Secretary of IDOT; Ellen Schanzle-

Haskins, Chief Counsel of IDOT; Thomas R. Wetzler, Hearing Officer of
IDOT; and Bill Grunloh, Chief Procurement Officer of IDOT. See d/e
10. For the reasons described below, the Motion is GRANTED in part
and DENIED in part. The Court does not reach the merits of the case.
First, the Court finds that all of Plaintiffs’ claims against IDOT are
barred by the Eleventh Amendment. Count IV of the complaint, a statelaw claim, is barred by the Eleventh Amendment with respect to all
Defendants. However, Plaintiffs’ remaining claims against Schneider,
Schanzle-Haskins, Wetzler, and Grunloh are not barred by the Eleventh
Amendment because the Ex parte Young exception applies. See Ex parte
Young, 209 U.S. 123, 28 S. Ct. 441 (1908).
Second, the Court finds that Younger abstention is appropriate
with respect to the remaining claims. See Younger v. Harris, 401 U.S.
37, 91 S. Ct. 746 (1971). Therefore, this Court abstains from exercising
jurisdiction over this case. Plaintiffs’ entire complaint is DISMISSED
without prejudice. The remainder of Defendants’ Motion for Summary
Judgment is DENIED AS MOOT.

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I. BACKGROUND
A.

Facts
On summary judgment, this Court considers the facts in the light

most favorable to the plaintiff. Valance v. Wisel, 110 F.3d 1269, 1276
(7th Cir. 1997). Accordingly, the facts, taken in the light most favorable
to Plaintiffs, are as follows.
Plaintiff Chester Bross Construction Company (“Chester Bross”) is
a general construction contractor, with its principal place of business in
Palmyra, Missouri, that bids on IDOT construction projects. Chester
Bross employs individuals who live and primarily work out of an office in
Missouri. Plaintiff Charles T. Dowell (“Dowell”) is a citizen of Missouri
and is a construction worker who has been employed by Chester Bross
for several years.
Contractors that bid on IDOT construction projects are subject to
Section 30-22 of the Illinois Procurement Code, commonly called the
“Responsible Bidder” provision, which provides, among other things, that
(1) “The bidder and all bidder’s subcontractors must participate in

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applicable apprenticeship and training programs approved and registered
with the United States Department of Labor’s Bureau of Apprenticeship
and Training” (Section 30-22(6)); and (2) “The bidder must submit a
signed affidavit stating that the bidder will maintain an Illinois office as
the primary place of employment for persons employed in the
construction authorized by the contract” (Section 30-22(8)). See 30
ILCS 500/30-22(6), (8).
In June 2010, after Chester Bross had submitted the lowest bid for
an IDOT construction project, the Laborers’ International Union of
North America and the International Union of Operating Engineers filed
bid protests with IDOT against Chester Bross, protesting Chester Bross’
award eligibility. The bid protests contended that Chester Bross (1) used
the trades of “Laborer” and “Operating Engineer” on its IDOT
construction projects without participating in approved apprenticeship
and training programs applicable to those trades, as required by the
Illinois Procurement Code, Section 30-22(6). On July 2, 2010, Chester
Bross submitted information to IDOT denying the allegations and

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representing that Chester Bross would not be using laborers on the
protested projects and that Chester Bross had access to the appropriate
apprenticeship and training programs. IDOT then denied the bid
protests.
Thereafter, Defendant Schanzle-Haskins, IDOT’s Chief Counsel,
initiated an audit to verify Chester Bross’ representations in response to
the June 2010 bid protests. On May 17, 2011, the audit concluded that
Chester Bross’ certified records for the payroll date ending August 28,
2010 listed some employees as laborers that were paid the laborer’s
prevailing wage rate for work on an IDOT project.
On June 8, 2011, IDOT issued a Notice of Suspension and Interim
Suspension to Chester Bross. The notice temporarily suspended Chester
Bross from bidding on IDOT construction projects because, despite
having been the lowest bidder on five IDOT projects, Chester Bross: (1)
had failed to certify in its bid documents that it complied with the
required apprenticeship programs; (2) had failed to disclose in its bid
documents that it intended to use a laborer for the construction projects;

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(3) in its July 2, 2010 response to bid protests, had misrepresented that
Chester Bross did not use any laborers on the construction projects; and
(4) had used a laborer in certain construction projects. The notice stated
that an immediate suspension was necessary to safeguard the public’s
interest in the responsible letting of construction projects. On August 2,
2011, an Amended Notice of Suspension was issued.
Between August 25, 2011 and October 14, 2011, IDOT held seven
days of hearings regarding Chester Bross’ suspension. After the hearings
concluded, the parties filed post-hearing briefs, the last of which was
submitted on January 30, 2012.
On January 25, 2012, Chester Bross served a motion to dismiss
claims or to reopen the hearing. The motion was denied on February 14,
2012. On the same day, Chester Bross served a motion to reconsider,
which was denied on June 15, 2012.
On June 15, 2012, Defendant Wetzler, the hearing officer presiding
over Chester Bross’ case, issued his “Findings and Recommendations to
the Chief Procurement Officer.” See Defs.’ Mem. Supp. Summ. J. (Ex.

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A). Wetzler found, among other things, that Chester Bross (1) altered a
document, (2) “knowingly and purposefully misclassified employees on
state projects,” (3) violated the Illinois Procurement Code’s
apprenticeship requirement (30 ILCS 500/30-22(6)), (4) made a material
misrepresentation of fact to IDOT and perpetrated a fraud on IDOT by
stating that it would not use the trade of laborer on particular projects
when it did in fact use laborers, and (5) made material
misrepresentations regarding whether it met the apprenticeship
requirements of the Illinois Procurement Code. See Defs.’ Mem. Supp.
Summ. J. (Ex. A).
Wetzler recommended that Chester Bross be suspended from
bidding on IDOT construction projects for five years, effective June 8,
2011. The recommendation was sent to IDOT’s Chief Procurement
Officer, Defendant Grunloh.
Chester Bross then requested and received leave to submit written
exceptions to Wetzler’s “Findings and Recommendations” by July 2,
2012. These exceptions are attached to Defendants’ Reply. Defendants

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state in their Motion for Summary Judgment that a decision from Chief
Procurement Officer Grunloh was expected to be issued by July 9, 2012.1
The parties agree that the next IDOT letting for which Chester Bross
would qualify is scheduled for August 3, 2012.
B.

Procedural Background
On June 12, 2012, Chester Bross and its employee, Dowell, filed

this action. The four-count complaint seeks declaratory and injunctive
relief.2 In Count I, Plaintiffs claim that Section 30-22(6) of the Illinois
Procurement Code, 30 ILCS 500/30-22(6), which mandates that all
contractors and subcontractors maintain and participate in an
apprenticeship program approved by and registered with the United
States Department of Labor’s Bureau of Apprenticeship and Training, is
preempted by the Employee Retirement Income Security Act (ERISA),

1

The Parties have not informed the Court whether the Chief Procurement Officer’s
decision has been issued. However, the status and outcome of that decision has no effect on this
Court’s ruling on Defendants’ Motion for Summary Judgment.
2

Each count of the Complaint begins with a subheading stating “declaratory relief” and
makes no mention of injunctive relief. However, Plaintiffs request injunctive and declaratory
relief on pages 1-2 of the Complaint and in the “Prayers for Relief” section on page 15 of the
Complaint. This Court first describes the claims stated in each count and then describes the
injunctive relief and declaratory relief sought.

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29 U.S.C. § 1144(a). In Count II, Plaintiffs claim that IDOT’s
administrative rules governing the interim suspension and continuing
suspension proceedings against Chester Bross violate the Due Process
Clause of the Fourteenth Amendment to the United States Constitution
and/or the Illinois Constitution3 because (a) the interim suspension was
issued without a right to a hearing, (b) the rules do not provide assurance
that a post-suspension hearing will be concluded promptly, and (c) the
rules do not authorize the hearing officer to subpoena witnesses. In
Count III, Plaintiffs claim that Section 30-22(8) of the Illinois
Procurement Code violates the Privileges and Immunities Clause and
Commerce Clause of the United States Constitution because Section
30-22(8) unlawfully discriminates against individuals employed
out-of-state and against contractors that do not use individuals employed

3

Plaintiffs do not explicitly specify in Count II whether they claim a violation of federal
or state due process or both. However, Plaintiffs refer to both federal and state due process
elsewhere in the complaint. For example, on page 16 of the Complaint, Plaintiffs seek an order
declaring that IDOT’s interim suspension rules are in “violation of the Due Process Clause of the
United States Constitution and/or as a violation of the Illinois Constitution.” On page 3 of the
Complaint, Plaintiffs state that IDOT’s interim suspension against Chester Bross is a “violation
of the Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the
Constitution of Illinois.”

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in Illinois. Finally, in Count IV, Plaintiffs allege that because the Illinois
Procurement Code states that it does not apply to local governments,
IDOT lacks authority to enforce the apprenticeship and training
requirements of the Illinois Procurement Code in the county bid process.
Plaintiffs seek an order: (1) enjoining IDOT officials from enforcing
Sections 30-22(6) and (8) of the Illinois Procurement Code or
incorporating those requirements into the bid process for future public
projects; (2) enjoining IDOT officials from maintaining the interim
suspension of Chester Bross; (3) enjoining IDOT officials from
continuing suspension proceedings against Chester Bross; and (4)
ordering IDOT officials to re-bid the “Piper Lane Reconstruction
Project”4 (“Piper Project”) without applying the unlawful provisions of
the Illinois Procurement Code.
Additionally, Plaintiffs seek an order declaring the following:
(1) Sections 30-22(6) (apprenticeship requirement) of the Illinois

4

The Piper Lane Reconstruction Project is an IDOT project that was scheduled to open
for bidding beginning on June 12, 2012 at 2:00 p.m. Plaintiffs filed the Complaint in this case on
June 12, 2012 at 12:27 p.m.

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Procurement Code is preempted by ERISA and is therefore invalid; (2)
Sections 30-22(8) (residency requirement) of the Illinois Procurement
Code is unconstitutional as a violation of the Privileges and Immunities
Clause and Commerce Clause of the United States Constitution and/or
the Illinois Constitution; (3) IDOT’s amended suspension and interim
suspension of Chester Bross are unlawful; (4) IDOT’s rules governing
interim suspension are unconstitutional as a violation of the Due Process
Clause of the United States Constitution and/or the Illinois Constitution;
and (5) IDOT exceeded its authority by requiring local units of
government to comply with the apprenticeship requirement of the Illinois
Procurement Code.
On June 13, 2012, Chester Bross and Dowell filed a Motion for
Temporary Restraining Order (“TRO motion”). See d/e 3. On June 20,
2012, Defendants filed “objections” to the TRO motion, arguing that no
emergency existed, that this Court lacks subject-matter jurisdiction, and
that Plaintiffs have no likelihood of success on the merits. On June 21,
2012, Plaintiffs requested that the hearing on the TRO motion be

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converted to a telephone conference to set a briefing schedule.
At the June 21, 2012 telephone conference, the parties agreed that,
prior to the Court’s consideration of Plaintiffs’ TRO Motion, Defendant
would file a motion to dismiss and Plaintiffs would file a response, on an
expedited schedule. On June 25, 2012, Defendants filed their Motion for
Summary Judgment.5 Plaintiffs filed a Response to Defendants’ Motion
on June 28, 2012. See d/e 13. Defendants filed a Reply on July 3, 2012.
See d/e 15.
In the Motion, Defendants argue that summary judgment should
be granted on Count I because the Illinois Procurement Code’s
apprenticeship requirement is not preempted by ERISA. Additionally,
Defendants argue the entire complaint should be dismissed for the

5

In the Motion for Summary Judgment, Defendants explain that although Defendants
anticipated filing a motion to dismiss, Defendants filed their motion as a Motion for Summary
Judgment because the motion references matters outside of the pleadings. Under Federal Rule of
Civil Procedure 12(d), a motion to dismiss referencing matters outside the pleadings “must be
treated as one for summary judgment under Rule 56.” See Fed. R. Civ. P. 12(d). Defendants’
Motion includes the following attachments: an affidavit of Wetzler; a document entitled
“Findings and Recommendations to the Chief Procurement Officer” prepared by Wetzler; an
affidavit of Grunloh; a June 18, 2012 letter from Grunloh to Plaintiffs’ attorney; a copy of
IDOT’s 2012-13 Letting Schedule; a copy of Graves v. State of Ill. Dept. of Children & Family
Servs., 2011 WL 719076 (N.D. Ill. Feb. 22, 2011).

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following reasons: (1) the entire action is barred by the Eleventh
Amendment; (2) the Court should abstain from hearing the entire action
based on Younger abstention; (3) Plaintiffs have failed to exhaust
administrative remedies; (4) Plaintiffs have failed to state a claim against
any of the state officials; and (5) Plaintiffs lack standing to pursue Count
III; (6) Plaintiffs lack standing to pursue Count IV because they are not a
local government entity.
On June 29, 2012, this Court held a hearing on Defendants’
Motion for Summary Judgment and took the Motion under advisement.
The Court also granted Plaintiffs’ oral motion to convert the TRO
motion to a Motion for Preliminary Injunction. See Minute Entry of
June 29, 2012.
II. JURISDICTION AND VENUE
This Court has subject-matter jurisdiction in this case because
Plaintiffs’ claims in Counts I, II, and III are based on federal law. See 28
U.S.C. § 1331 (“The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United

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States.”). The Court has federal question jurisdiction over Count I
because Count I presents a federal preemption claim. See Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S. Ct. 2890 (1983) (“A
plaintiff who seeks injunctive relief from state regulation, on the ground
that such regulation is preempted by a federal statute which, by virtue of
the Supremacy Clause, must prevail, thus presents a federal question
which the federal courts have jurisdiction under 28 U.S.C. § 1331 to
resolve.”); see also Associated Builders & Contractors Saginaw Valley
Area Chapter v. Perry, 115 F.3d 386, 388-89 (6th Cir. 1997) (holding
that even though the plaintiff was not an ERISA entity, the court had
subject-matter jurisdiction to consider ERISA preemption issue because
plaintiff was seeking “injunctive and declaratory relief from state
regulation based on federal question jurisdiction”). Count II presents a
federal question because it seeks relief based on the Due Process Clause
of the Fourteenth Amendment. Count III also presents a federal
question because it seeks relief based on the Privileges and Immunities
Clause and the Commerce Clause of the United States Constitution.

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This Court has jurisdiction to hear Plaintiffs’ remaining state law
claims based on supplemental jurisdiction. See 28 U.S.C. § 1367.
Venue is proper because Defendants reside in Sangamon County,
Illinois. See 28 U.S.C. § 1391(b)(1) (providing that a civil action may be
brought in a judicial district where any defendant resides, if all
defendants reside in the State in which the district is located).
III. LEGAL STANDARD
Summary judgment is appropriate when “‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law.’” See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.
Ct. 2548, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(c)). The
moving party must show that no reasonable fact finder could return a
verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252-54, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986);
Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1139 (7th Cir. 1997). A

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court must view the facts and draw all reasonable inferences in the light
most favorable to the nonmoving party. See Trentadue v. Redmon, 619
F.3d 648, 652 (7th Cir. 2010). “In order to successfully oppose a motion
for summary judgment, the nonmoving party . . . must do more than
raise a metaphysical doubt as to the material facts. Rather, she must
come forward with specific facts showing that there is a genuine issue for
trial.” Gleason, 118 F.3d at 1139 (citing Matsushita Electric Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356
(1986)) (citations and internal quotation marks omitted).
IV. ANALYSIS
A.

Plaintiffs’ Claims Against IDOT Are Barred by the Eleventh
Amendment, but Plaintiffs’ Claims Against IDOT Officials Survive
Under Ex Parte Young
Initially, this Court addresses Defendants’ argument that Plaintiffs’

entire complaint is barred by the Eleventh Amendment.6

6

This Court notes that the Seventh Circuit has indicated that sovereign immunity
pursuant to the Eleventh Amendment is not “strictly” an issue of subject-matter jurisdiction. See
Ind. Prot. & Advocacy Servs., 603 F.3d at 370 (“The Eleventh Amendment is unusual in that it
does not strictly involve subject[-]matter jurisdiction and is thus waivable.”). Nevertheless, this
Court will address Eleventh Amendment immunity before proceeding to the question of whether
the Court should abstain from exercising jurisdiction pursuant to Younger abstention.

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The Eleventh Amendment “bars actions in federal court against a
state, state agencies, or state officials acting in their official capacities.”
Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603
F.3d 365, 370 (7th Cir. 2010) (citing Edelman v. Jordan, 415 U.S. 651,
662-63, 94 S. Ct. 1347, 1355-56, 39 L. Ed. 2d 662 (1974)). However, a
state, state agency, or state official may be subject to suit in federal court
where one of the following three exceptions apply: “(1) where Congress,
acting under its constitutional authority conveyed by amendments passed
after the Eleventh Amendment (the most common being the Fourteenth
Amendment), abrogates a state’s immunity from suit; (2) where the state
itself consents to being sued in federal court; and (3) under the doctrine
articulated by the Supreme Court in Ex parte Young, 209 U.S. 123, 28 S.
Ct. 441, 52 L. Ed. 714 (1908).” Council 31 of the Am. Fed’n of State,
Cnty. and Mun. Emps., AFL-CIO v. Quinn, 680 F.3d 875, 882 (7th Cir.
2012) (citing Ind. Prot. & Advocacy Servs., 603 F.3d at 371).
Here, Plaintiffs’ suit against IDOT, an agency of the State of
Illinois, is barred by the Eleventh Amendment. IDOT has not consented

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to suit, and Congress has not abrogated IDOT’s immunity from suit.
Consequently, all claims against IDOT are dismissed.
Plaintiffs have also sued four IDOT officials in their official
capacities7: (1) Schneider, Secretary of IDOT; (2) Schanzle-Haskins,
Chief Counsel of IDOT; (3) Wetzler, Hearing Officer of IDOT; and (4)
Grunloh, Chief Procurement Officer of IDOT. Because these defendants
are officials of the State of Illinois, the Eleventh Amendment bars suit
against them unless (1) Congress has abrogated immunity, (2) the State
has consented to suit, or (3) the Ex parte Young doctrine applies. See
Council 31, 680 F.3d at 882.
Under the Ex parte Young doctrine, “a private party may sue
individual state officials in federal court to obtain prospective relief for an
ongoing violation of federal law.” MCI Telecomms. Corp. v. Ill. Bell Tel.

7

While Plaintiffs have not explicitly stated that the IDOT officials are sued in their
official capacities, it is clear from the pleadings that these are official-capacity suits. Plaintiffs
have alleged that the IDOT officials are engaged in (a) enforcing state law provisions that are
preempted by ERISA or are unconstitutional and (b) implementing IDOT’s interim suspension
rules, which Plaintiffs allege violate due process. Plaintiffs have not named any of the IDOT
officials in their individual capacities. Plaintiffs have not alleged any specific, individual actions
of the state officials other than those actions related to enforcing or applying allegedly unlawful
state law provisions and administrative procedures.

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Co., 222 F.3d 323, 345 (7th Cir. 2000) (citing Ex parte Young, 209 U.S.
at 159-60, 28 S. Ct. at 453-54); see also Alden v. Maine, 527 U.S. 706,
747, 119 S. Ct. 2240, 2263, 144 L. Ed. 2d 636 (1999); Seminole Tribe
of Fla. v. Florida, 517 U.S. 44, 73-74, 116 S. Ct. 1114, 1132 (1996);
Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 425-26, 88 L. Ed.
2d 371 (1985); Edelman, 415 U.S. at 663-68, 94 S. Ct. at 1355-56.8
“Ex parte Young applies to suits to enforce federal statutes as well as the
federal Constitution.” Ind. Prot. & Advocacy Servs., 603 F.3d at 371.
In such cases, “sovereign immunity does not apply because an
official who acts unconstitutionally is ‘stripped of his official or
representative character.’” Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 104, 104 S. Ct. 900, 910, 79 L. Ed. 2d 67 (1984) (quoting
Ex parte Young, 209 U.S. at 160, 28 S. Ct. at 454). “[T]he Young
doctrine has been accepted as necessary to permit the federal courts to
vindicate federal rights and hold state officials responsible to ‘the
supreme authority of the United States.’” Id. at 105 (quoting Ex parte

8

The Supreme Court recently clarified that a State or state agency may also sue under the
Ex parte Young exception. See Va. Office for Prot. & Advocacy, 131 S. Ct. 1632 (2011).

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Young, 209 U.S. at 160, 28 S. Ct. at 454). However, this principle does
not extend to suits seeking retroactive relief from state officials, because
“to do so would effectively eliminate the constitutional immunity of the
States.” Pennhurst, 465 U.S. at 105, 104 S. Ct. at 910.
In order to determine whether the Ex parte Young exception allows
Plaintiffs’ suit against the IDOT officials, this Court must determine
“‘whether [the] complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.’” Ind. Prot. &
Advocacy Servs., 603 F.3d at 371 (quoting Verizon Md., Inc. v. Pub.
Serv. Comm’n of Md., 535 U.S. 635, 645, 122 S. Ct. 1753, 1760, 152 L.
Ed. 2d 871 (2002)).
Here, Counts I, II, and III of the complaint allege ongoing
violations of federal law. Plaintiffs allege that the IDOT officials are
engaged in enforcing a state statute, Section 30-22(6) of the Illinois
Procurement Code (see 30 ILCS 500/30-22(6)), that is contrary to
federal law because it is preempted by ERISA, 29 U.S.C. § 1144(a), a
federal statute. Plaintiffs also allege that IDOT officials enforce a state

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statute, Section 30-22(8) of the Illinois Procurement Code (see 30 ILCS
500/30-22(8)), that violates the Privileges and Immunities Clause and
Commerce Clause of the United States Constitution. Finally, Plaintiffs
also allege that the IDOT officials implement interim suspension
proceedings that violate federal due process. An allegation that a state
official enforces a law in contravention of controlling federal law is
sufficient to allege an ongoing violation of federal law for the purposes of
Ex parte Young. See Verizon Md., Inc., 535 U.S. at 645, 122 S. Ct. at
1760 (finding that a suit for injunctive relief seeking that state officials
be restrained from enforcing an order in contravention of controlling
federal law “clearly satisfie[d]” the Ex parte Young inquiry); Muscogee
(Creek) Nation v. Pruitt, 669 F.3d 1159, 1168 (10 Cir. 2012) (finding
that the plaintiff’s claims that federal law preempted state statutes and
that the statutes infringed on the plaintiff’s tribal sovereignty were
allegations of ongoing violations of federal law sufficient to allow suit
against state officials under Ex parte Young).
Count IV, however, is a state law claim that does not allege an

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ongoing violation of federal law. The Supreme Court has held that the
Ex parte Young exception does not apply to a suit against a state official
that is based on a violation of state law. Pennhurst, 465 U.S. at 104-06,
104 S. Ct. 900, 910-11 (explaining that “when a plaintiff alleges that a
state official has violated state law . . . the entire basis for the doctrine of
Young and Edelman disappears). Accordingly, Count IV is dismissed as
barred by the Eleventh Amendment.
As to the remaining claims, the Court also finds that Plaintiffs seek
relief that is “properly characterized as prospective.” Verizon Md., Inc.,
535 U.S. at 645, 122 S. Ct. at 1760. Plaintiffs seek an injunction (1)
enjoining the IDOT officials from enforcing specific provisions of the
Illinois Procurement Code and from implementing certain administrative
rules regulating IDOT’s suspension proceedings, and (2) prohibiting
IDOT officials from maintaining Chester Bross’ interim suspension and
continuing suspension proceedings against Chester Bross. Plaintiffs also
seek prospective declaratory relief. Plaintiffs seek an order declaring: (1)
Section 30-22(6) of the Illinois Procurement Code is preempted by

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ERISA; (2) Section 30-22(8) of the Illinois Procurement Code violates
the Privileges and Immunities Clause and Commerce Clause of the
United States Constitution and the Illinois Constitution; (3) IDOT’s
amended suspension and interim suspension of Chester Bross are
unlawful; (4) IDOT’s rules governing interim suspension are
unconstitutional as a violation of the Due Process Clause of the United
States Constitution and/or the Illinois Constitution; and (5) IDOT
exceeded its authority by requiring local units of government to comply
with the apprenticeship requirement of the Illinois Procurement Code.
Such injunctive and declaratory relief is prospective and permitted under
Ex parte Young.
However, Plaintiffs’ request that this Court order IDOT to re-bid
the Piper Project seeks retroactive relief, as the bidding on the Piper
Project has already happened. Such retroactive relief is not permitted
under the Ex parte Young exception and is barred by the Eleventh
Amendment. See Va. Office for Prot. & Advocacy, 131 S. Ct. at 1646
(“[T]he fiction of Ex parte Young does not extend to suits where the

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plaintiff seeks retroactive relief.” (citing Edelman, 415 U.S. at 678, 94 S.
Ct. at 1363)).
Defendants argue that Plaintiffs’ suit against the IDOT officials
does not fall within the Ex parte Young exception and is barred by the
Eleventh Amendment. Defendants assert that while the Ex parte Young
doctrine allows a plaintiff to seek an injunction compelling a state official
to refrain from violating federal law, “the doctrine does not apply ‘when
the state is the real, substantial party in interest.’” Defs.’ Mem. Supp.
Summ. J. 8 (quoting Va. Office for Prot. & Advocacy, 131 S. Ct. at 1638
(2011)). In the present case, Defendants contend, the State is the real
party in interest and, therefore, the Ex parte Young exception does not
apply.
This Court disagrees with Defendants’ reading of Virginia Office for
Protection and Advocacy. In that case, the Supreme Court explained
that the Ex parte Young doctrine serves as “an important limit on the
sovereign-immunity principle” and “rests on the premise . . . that when a
federal court commands a state official to do nothing more than refrain

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from violating federal law, he is not the State for sovereign-immunity
purposes.” 131 S. Ct. at 1638. The Court then noted: “The doctrine is
limited to that precise situation, and does not apply ‘when the state is the
real, substantial party in interest.’” Id. (quoting Pennhurst, 465 U.S. at
101, 104 S. Ct. at 908) (internal quotation marks omitted).
The Supreme Court’s discussion of Ex parte Young in Virginia
Office for Protection and Advocacy, quoted above, rests on its earlier
decision in Pennhurst, in which the Court stated the general principle
that the Eleventh Amendment “bars a suit against state officials when
‘the state is the real, substantial party in interest.’” 465 U.S. at 101, 104
S. Ct. at 908 (quoting Ford Motor Co. v. Dep’t of Treasury, 323 U.S.
459, 464, 65 S. Ct. 347, 350, 89 L. Ed. 389 (1945)). However, the
Court then stated that the Ex parte Young doctrine provided an
exception to that general rule:
The Court has recognized an important exception to this general
rule: a suit challenging the constitutionality of a state official’s
action is not one against the State. This was the holding in Ex parte
Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 2d 714 (1908), in
which a federal court enjoined the Attorney General of the State of
Minnesota from bringing suit to enforce a state statute that
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allegedly violated the Fourteenth Amendment. This Court held
that the Eleventh Amendment did not prohibit issuance of this
injunction. The theory of the case was that an unconstitutional
enactment is “void” and therefore does not “impart to [the officer]
any immunity from responsibility to the supreme authority of the
United States.” Id., at 160, 28 S. Ct., at 454. Since the State
could not authorize the action, the officer was “stripped of his
official or representative character and [was] subjected to the
consequences of his official conduct.” Ibid.
Pennhurst, 465 U.S. at 102, 104 S. Ct. at 909. Both Pennhurst and
Virginia Office for Protection and Advocacy make clear the wellestablished principle that the Ex parte Young doctrine provides an
exception to the general rule that a state, state agency, or state official
may not be sued “when the state is the real, substantial party in interest,”
and that exception is based on the “fiction” that a state official is not the
State for sovereign immunity purposes when the state official is violating
federal law. See Pennhurst, 465 U.S. at 100, 105, 104 S. Ct. at 908,
910.
Accordingly, this Court finds that the Eleventh Amendment does
not bar Counts I, II, and III of Plaintiffs’ suit against Defendants
Schneider, Schanzle-Haskins, Wetzler, and Grunloh because the claims

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may be brought pursuant to the Ex parte Young exception to the
Eleventh Amendment.9
B.

This Court Abstains from Exercising Jurisdiction over this Case
Based on Younger Abstention
As to the remaining claims against the IDOT officials, this Court

finds that abstention pursuant to Younger v. Harris, 401 U.S. 37, 91 S.
Ct. 746 (1971), is appropriate. Under the Younger abstention doctrine,
a federal court is required to abstain from enjoining ongoing state
proceedings that are: “(1) judicial in nature, (2) implicate important state
interests, and (3) offer an adequate opportunity for review of
constitutional claims, (4) so long as no extraordinary circumstances—like
bias or harassment—exist which auger against abstention.” Majors v.
Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998) (citing Middlesex Cnty.
Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 429, 102 S. Ct.
9

At the June 29, 2012 hearing on Defendants’ Motion for Summary Judgment,
Defendants briefly asserted that Wetzler and Grunloh are entitled to absolute immunity because
their only involvement in the facts of this case was in a judicial capacity. Defendants did not
provide further argument or authority to support this contention at the hearing, and Defendants
have not raised the absolute immunity defense in their Motion or Reply. In any event, this Court
need not address whether Wetzler and Grunloh are entitled to quasi-judicial immunity because
this Court finds that Younger abstention is appropriate with respect to Plaintiffs’ remaining
claims, as discussed below.

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2515, 73 L. Ed. 2d 116 (1982)). The Younger doctrine “espouses a
strong federal policy against federal court interference with pending state
judicial proceedings absent extraordinary circumstances.” Middlesex,
457 U.S. at 431, 102 S. Ct. at 2521. “The Younger principles of
abstention apply both to claims based on constitutional challenges, as
well as to those based on federal preemption challenges.” FreeEats.com,
Inc. v. Indiana, 502 F.3d 590, 595 (7th Cir. 2007) (citing New Orleans
Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 365,
109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989)).
As to the first prong, Plaintiffs do not dispute that the pending
administrative proceedings before IDOT, in which the State has alleged
that Chester Bross violated state law, are “judicial in nature.” See
Majors, 149 F.3d at 712 (“For the purposes of Younger abstention,
administrative proceedings are ‘judicial in nature’ when they are
coercive—i.e. state enforcement proceedings, as opposed to remedial or
legislative.” (citations omitted)); Alleghany Corp. v. Haase, 896 F.2d
1046, 1053 (7 Cir. 1990), vacated on other grounds, 499 U.S. 933

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(1991) (“Whether the state proceeds against malefactors administratively
or judicially is a distinction irrelevant to the policy behind Younger.”).
The state proceedings are also ongoing. To this Court’s knowledge,
the suspension proceedings before IDOT are still pending, and the Chief
Procurement Officer has not yet issued a decision regarding the Hearing
Officer’s recommended decision.
Further, the state proceedings would be considered ongoing even if
IDOT’s Chief Procurement Officer were to issue a decision on Chester
Bross’ suspension before this Court’s Opinion is entered, because
Plaintiffs may seek review in state court. The Seventh Circuit has held
that an administrative proceeding and a subsequent state-court review
proceeding are to be considered a single ongoing proceeding for the
purposes of Younger abstention. See Majors, 149 F.3d at 713.
In Majors, the Seventh Circuit addressed the issue of whether state
proceedings were “ongoing” where the plaintiff filed a federal suit
challenging a pending administrative proceeding, but, by the time the
case was under consideration by the district court, the administrative

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proceeding was over, and the plaintiff had not yet filed a review petition
in state court. 149 F.3d at 713. The court found that state proceedings
were ongoing. Id. The court noted that, “[s]ince Huffman v. Pursue,
Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975), separate
state trial and appellate review procedures are viewed as single ongoing
proceedings” for purposes of Younger abstention, because “allowing what
in effect would be a federal alternative to state appellate process would,
besides disrupting and duplicating an ongoing proceeding, cast doubt on
the ability of state appellate courts to oversee their trial courts.” Majors,
149 F.3d at 713 (citing Huffman, 420 U.S. at 598, 95 S. Ct. at 1200
(holding that state proceedings were ongoing where the plaintiff, after
losing in state court, filed an action in federal court instead of seeking
review in state appellate court)). Applying Huffman, the court in Majors
concluded that separate administrative and state-court review
proceedings must also be viewed as single ongoing proceedings because
the distinction between administrative and judicial proceedings is “a
distinction without a difference.” Majors, 149 F.3d at 713 (citing Ohio

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State Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619,
627, 106 S. Ct. 2718, 91 L. Ed. 2d 512 (1986)).10 The court found that
the state proceedings were ongoing, even though the administrative
proceeding was over and even though no state-court review had been
initiated at the time the case was decided by the district court. Majors,
149 F.3d at 713.
Here, Plaintiffs may seek state-court judicial review after the Chief
Procurement Officer’s decision is issued. Therefore, this Court finds that
the state proceeding is ongoing, whether or not a final administrative
decision has been issued at this time.
10

The First, Third, and Eighth circuits have also held that an administrative proceeding
and subsequent state-court review are considered a single ongoing proceeding for the purposes
of Younger. See, e.g., Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 35 (1st Cir. 2004)
(“Younger now has to be read as treating the state process [the administrative proceeding and the
possibility for state-court review] . . . as a continuum from start to finish.”); O’Neill v. City of
Philadelphia, 32 F.3d 785, 790-91 (3d Cir.1994) (“We have been given no reason why a litigant
in a state administrative proceeding should be permitted to forego state-court judicial review of
the agency’s decision in order to apply for relief in federal court.”); Hudson v. Campbell, 663
F.3d 985, 988 (8th Cir. 2011) (citing Alleghany Corp. v. McCartney, 896 F.2d 1138, 1144 (8th
Cir. 1990)) (finding the state proceedings were ongoing where the administrative proceeding was
over but the plaintiff had not sought available state appellate remedies). This Court notes that the
Fifth and Sixth Circuits have adopted the opposite view. See Thomas v. Tex. State Bd. of Med.
Exam’rs, 807 F.2d 453, 456 (5th Cir.1987) (“The mere availability of state judicial review of
state administrative proceedings does not amount to the pendency of state judicial proceedings
within the meaning of Huffman.”); Norfolk & W. Ry. Co. v. Pub. Utils. Comm’n, 926 F.2d 567,
572 (6th Cir.1991) (“[A] state administrative enforcement proceeding is no longer pending when
the agency proceeding has been completed, notwithstanding the availability of state appellate
review.”).

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Second, Plaintiffs do not dispute that the state proceedings in this
case implicate important state interests, which include the State’s and the
public’s interest in the responsible letting of construction projects.
Plaintiffs argue that the third prong—whether the state proceedings
offer an adequate opportunity for review of the federal claims—is not
met. Plaintiffs contend that the IDOT proceedings do not provide
adequate opportunity to raise their federal constitutional claims. This
Court disagrees. For the purposes of Younger abstention, the
opportunity for subsequent state-court review of an administrative
proceeding is considered an adequate opportunity for review of federal
claims. See Majors, 149 F.3d at 713 (finding that “[s]ubsequent judicial
review is a sufficient opportunity” for review of federal claims); Ohio
Civil Rights Comm’n, 477 U.S. at 629, 106 S. Ct. at 2724 (“[I]t is
sufficient . . . that constitutional claims may be raised in state-court
judicial review of the administrative proceeding.”). Subsequent statecourt review is also considered an adequate opportunity for review of
federal preemption claims. See FreeEats.com, Inc., 502 F.3d at 600-01

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(finding that Indiana courts offered adequate opportunity for review of
the plaintiff’s federal preemption and constitutional claims for the
purposes of Younger abstention). Therefore, under Younger, the fact
that Plaintiffs may have a federal claim or defense does not permit
Plaintiffs to seek a federal-court alternative to an ongoing state
enforcement proceeding: “‘[I]f a person is believed to have violated a
state law, the state has instituted a criminal disciplinary or other
enforcement proceeding against him, and he has a federal defense, he
cannot scurry to federal court and plead that defense as a basis for
enjoining the state proceeding.’” Forty One News, Inc., 491 F.3d at 665
(quoting Nader v. Keith, 385 F.3d 729, 732 (7th Cir. 2004)). Here, the
state proceedings offer Plaintiffs an adequate opportunity to pursue their
federal claims because Plaintiffs may seek judicial review in state court.
Plaintiffs contend that the opportunity for review in state court is
not adequate in this case because the only opportunity for review is
through a petition for common law writ of certiorari, which is a form of
limited review. Plaintiffs cite Grandco Corp. v. Rochford, 536 F.2d 197

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(7th Cir. 1976) in support, but that case is distinguishable.
In Grandco, three operators of movie theaters brought a Section
1983 suit in federal court, alleging First Amendment violations, after the
City of Chicago denied them municipal public place of amusement
licenses and then initiated city proceedings against them for operating
without a license. Id. at 200. One of the plaintiffs, Festival Theatre
Corporation (“Festival Theatre”), was denied a license but actually
operated theaters under a license issued to a third party. Id. at 201. The
City had initiated proceedings to revoke the license under which Festival
Theatre operated, but the proceeding was against the third party and not
Festival Theatre. Id. In the federal suit, all three plaintiffs challenged a
municipal ordinance providing that the mayor could grant licenses to
persons upon a showing that they are “fit and proper persons.” Id. at
201. The defendants argued for dismissal based on Younger abstention.
Id.
The Seventh Circuit held that Younger abstention was appropriate
as to the first two plaintiffs but not as to Festival Theatre, because “the

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nature of the administrative proceedings and the limitations on judicial
review of those proceedings militate[d] against” abstention. Id. at 206.
Specifically, the court noted that the state proceedings governing the
issuance of licenses, wherein the mayor made a determination following a
hearing before his appointee, “[we]re not before a court or any
established adjudicatory body.” Id. Further, the court considered that
state-court review of the mayor’s decision was available only by commonlaw certiorari, “a limited review on the record.” Id. Finally, the court
noted that Festival Theatre, unlike the other plaintiffs, was not operating
in violation of the challenged ordinance and was not a party to the
proceeding to revoke the license under which it operated since that
license was held by a third party. Id. at 206. Therefore, granting Festival
Theatre’s request for federal relief would not disrupt pending state
enforcement proceedings in which its constitutional claims could be
raised or vindicated, and Younger abstention was not proper. Id. at 207.
The present case differs from Grandco because Chester Bross,
unlike Festival Theatre in Grandco, is the target of a challenged state

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enforcement proceeding. Additionally, the proceedings before IDOT,
unlike the proceeding in Grandco, are before an “established adjudicatory
body.” Id. at 206.
Further, the Seventh Circuit has held that the opportunity for statecourt judicial review, even where that review is discretionary, provides
sufficient opportunity to raise federal claims for the purposes of Younger.
See Majors, 149 F.3d at 713 (finding that review of constitutional claims
by way of a petition to the state court constituted “subsequent judicial
review” and was sufficient opportunity to raise federal claims for the
purposes of Younger); see also Canatella v. California, 404 F.3d 1106,
1111 (9th Cir. 2005) (finding the plaintiff had adequate opportunity for
review of federal claims even where such judicial review was “wholly
discretionary”); Fieger v. Thomas, 74 F.3d 740, 746-49 (6th Cir. 1996)
(applying Younger abstention where the plaintiff could raise
constitutional issues in the administrative proceeding and, by filing a
petition for discretionary review, in state supreme court).
As to the fourth and final requirement, Plaintiffs have not alleged

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any extraordinary circumstances, such as bias or harassment, that would
make abstention inappropriate in this case. See Majors, 149 F.3d at 711.
Accordingly, this Court finds that all of the requirements for
Younger abstention are satisfied. The Court finds that abstention is
appropriate to address the principles of equity, comity, and federalism.
See Ohio Civil Rights Comm’n, 477 U.S. at 627, 106 S. Ct. at 2722;
Mitchum v. Foster, 407 U.S. 225, 243, 92 S. Ct. 2151, 2162, 32 L. Ed.
2d 705 (1972) (“[T]he principles of equity, comity, and federalism . . .
must restrain a federal court when asked to enjoin a state court
proceeding.”).
Because this Court finds that Younger abstention is appropriate on
all counts of the complaint, the remaining arguments stated in
Defendants’ Motion are denied as moot.
V. CONCLUSION
For the reasons stated, Defendants’ Motion for Summary Judgment
(d/e 10) is GRANTED in part and DENIED in part. Plaintiffs’
complaint is DISMISSED in its entirety, without prejudice. The

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remainder of Defendants’ Motion is DENIED AS MOOT. This case is
CLOSED.
IT IS SO ORDERED.
ENTER: August 10, 2012
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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