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Mabey Bridge & Shore, Inc v. Barry J. Schoch

January 24, 2012

MABEY BRIDGE & SHORE, INC., APPELLANT
v.
BARRY J. SCHOCH, SECRETARY OF TRANSPORTATION OF THE COMMONWEALTH OF PENNSYLVANIA*FN1



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 10-cv-01474) District Judge: Honorable Sylvia H. Rambo

The opinion of the court was delivered by: Barry, Circuit Judge

PRECEDENTIAL

Argued: December 6, 2011

Before: HARDIMAN, BARRY and VAN ANTWERPEN, Circuit Judges

OPINION OF THE COURT

This case presents the question of whether the Pennsylvania Steel Products Procurement Act ("Steel Act"), 73 Pa. Cons. Stat. §§ 1881-1887, is unconstitutional insofar as it prohibits the use of temporary bridges made out of foreign steel on public works projects. Appellant Mabey Bridge & Shore, Inc. ("Mabey") appeals the District Court's grant of summary judgment on its claim that the Steel Act (and the Department of Transportation's interpretation thereof) is preempted by the Buy America Act, 23 U.S.C. § 313, as well as on its claims that the Steel Act violates the Commerce Clause, Contract Clause, and Equal Protection Clause of the United States Constitution. We will affirm.

I.

In 1978, the Commonwealth of Pennsylvania enacted the Steel Act, which requires that steel products used or supplied in the performance of a public works contract must be made in the United States. In particular, the Act provides:

Every public agency shall require that every contract document for the construction, reconstruction, alteration, repair, improvement or maintenance of public works contain a provision that, if any steel products are to be used or supplied in the performance of the contract, only steel products as herein defined shall be used or supplied in the performance of the contract or any subcontracts thereunder.

73 Pa. Cons. Stat. § 1884(a). The Act defines the term "steel products" as "[p]roducts rolled, formed, shaped, drawn, extruded, forged, cast, fabricated or otherwise similarly processed . . . from steel made in the United States." Id. § 1886 (emphasis supplied). "Public works" is defined, in relevant part, as "[a]ny structure, . . . bridge, . . . or other betterment, work or improvement whether of a permanent or temporary nature and whether for governmental or proprietary use." Id.

The only statutory exception to the Act's requirement of steel made in the United States is where the "head of the public agency, in writing, determines that steel products as herein defined are not produced in the United States in sufficient quantities to meet the requirements of the contract." Id. § 1884(b). A Pennsylvania Department of Transportation ("PennDOT") publication provides an additional exception in situations where the "steel products are used as a construction tool and will not serve a permanent functional use in the project." Pennsylvania Department of Transportation -- Specifications, Publication 408/2007-6 at § 106.01 (Change No. 6, Effective April 2, 2010).

Appellant Mabey is a Delaware corporation engaged in the business of supplying temporary steel bridges for construction projects.*fn2 These bridges are designed to handle traffic and pedestrians while a construction project is underway. Mabey's bridges are made of steel from the United Kingdom.

Mabey has supplied temporary bridges to contractors for use in public works projects, including PennDOT projects, for more than 20 years. Over that time, Mabey estimates that it has provided temporary bridges for use on approximately fifty PennDOT projects. Mabey asserts that its bridges have always performed to specification, and it provided documentation showing PennDOT considered it an "approved temporary bridge fabricator." Not until 2010, however, did PennDOT raise the issue of whether Mabey's bridges were prohibited under the Steel Act.

In December 2009, Mabey provided a quote for a temporary bridge to a contractor for purposes of a bid on a PennDOT project. The contractor's bid was accepted and it subcontracted with Mabey to provide the bridge. The bridge specifications were submitted to a PennDOT engineer, and the engineer approved the bridge for use on the project.

On April 29, 2010, however, PennDOT notified the contractor that the Steel Act precluded the use of Mabey's temporary bridge on the project because the bridge is made of foreign steel. The following month, PennDOT's Chief Bridge Engineer sent an e-mail to all district engineers notifying them that foreign steel is not to be used for the construction of temporary bridges, and instructing them to review all projects that specify the use of a temporary bridge and incorporate a "special provision" codifying this requirement. Likewise, on June 16, 2010, PennDOT sent a letter to the contractor concluding that a temporary bridge (1) is itself a "public work" within the meaning of the Steel Act and thus its steel components must be manufactured in the United States; and

(2) does not qualify for the exception for products used as a construction tool that will not serve a permanent functional use in the project. The letter concluded that "[t]he use of the Mabey Bridge, to the extent it does not contain steel that is of domestic manufacture, seems ruled out by the Act." Because of these actions, Mabey claims it has been forced to cancel four contracts for temporary bridges on PennDOT projects, and prevented from giving quotes to contractors for bids on future projects.

On July 16, 2010, Mabey filed suit in the United States District Court for the Middle District of Pennsylvania against Allen Biehler, Secretary of Transportation for the Commonwealth of Pennsylvania. Mabey sought a declaration that the Steel Act, as interpreted and enforced by PennDOT, is unconstitutional. Mabey also requested a preliminary and permanent injunction enjoining PennDOT from prohibiting the use of Mabey's temporary bridges on its projects. The District Court granted the Secretary's motion for summary judgment on all of Mabey's claims. This appeal followed.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court's grant of summary judgment, Monroe v. Beard, 536 F.3d 198, 206 (3d Cir. 2008), and will affirm only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," Fed. R. Civ. P. 56(a). We exercise de novo review over the preemption question, Farina v. Nokia Inc., 625 F.3d 97, 115 n.20 (3d Cir. 2010), as well as over a district court's ...


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