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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Arizona State Building and Construction 

Trades Council, 

Plaintiff, 

v. 

Mark Brnovich, in his official capacity as 

Attorney General of Arizona, 

Defendant. 

No. CV-17-04446-PHX-ROS

ORDER 

 Plaintiff Arizona State Building and Construction Trades Council believes a 

statutory provision Arizona enacted in 2011 as well as a statutory provision enacted in 2015 

are preempted by federal law. In their current form, the statutory provisions prohibit 

political subdivisions of the state from requiring bidders for public contracts to enter into 

certain labor agreements or participate in apprenticeship programs. Plaintiff believes these 

provisions are preempted by, among other federal laws, the National Labor Relations Act. 

Plaintiff also alleges the way the provisions were passed violated other state laws. 

Defendant Mark Brnovich, sued in his capacity as the Attorney General of Arizona, seeks 

dismissal of the complaint, arguing Plaintiff lacks standing, the claims are not ripe, and the 

claims are barred by sovereign immunity. The motion to dismiss will be granted and the 

Court will provide Plaintiff with limited leave to amend. 

BACKGROUND 

 Plaintiff describes itself as “an association of Arizona construction trade unions . . . 

with a mission to provide and continue to grow an exceptional labor force.” (Doc. 16 at 
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2). While not explicitly alleged or explained, Plaintiff apparently lobbies public entities 

regarding the type of labor agreements those entities should use in completing publicly 

funded projects such as public transportation facilities. As part of its lobbying efforts, 

Plaintiff believes public entities should enter into “project labor agreements.” A “project 

labor agreement” or “PLA” “is a type of collective bargaining relationship involving 

multiple employers and unions that agree to abide by a uniform labor agreement in their 

bids on public works projects.” Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 885 

(9th Cir. 2018). In other words, a PLA “systemize[s] labor relations at a construction site” 

by ensuring the “wages, hours, and other terms of employment [are] coordinated or 

standardized . . . across the many different unions and companies working on the project.” 

Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 30 (D.C. Cir. 2002). 

 In connection with its lobbying efforts, “[i]n late 2010 and early 2011,” Plaintiff 

lobbied the Arizona Corporation Commission to “encourage” the use of PLAs. (Doc. 16 

at 4). The Corporation Commission was close to imposing PLA-type requirements for 

certain work when, in direct response to Plaintiff’s efforts, Arizona added a provision to 

A.R.S. § 34-321. The new provision precluded state agencies or political subdivisions 

from requiring PLAs in connection with contracts for public works. The new statutory 

provision stated, in relevant part, 

Agencies and political subdivisions of this state shall not 

require in any public works contracts that a contractor, 

subcontractor, material supplier, or carrier engaged in the 

construction, maintenance, repair or improvement of public works, negotiate, execute or otherwise become a party to any project labor agreement or other agreement with employees, 

employees’ representatives or any labor organization as a 

condition of or a factor in bidding, negotiating, being awarded or performing work on a public works contract. 

EMPLOYEES AND PUBLIC WORKS, 2011 Ariz. Legis. Serv. Ch. 23 (S.B. 1403). 

 If Arizona had not enacted this “anti-PLA provision,” Plaintiff’s “efforts to have 

political subdivisions use PLAs would have remained active and ongoing.” (Doc. 16 at 5). 

Passage of the provision, however, allegedly prevents Plaintiff from continuing its efforts. 

Plaintiff alleges it wishes to “advocate for, propose, testify, and enter into negotiations with 
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political subdivisions to adopt PLAs” but it cannot do so at present because of the existing 

statute. (Doc. 16 at 5). 

 After the change in Arizona law regarding PLAs, Plaintiff “began working with 

municipalities to encourage the use of highly skilled labor on publicly funded construction 

projects.” (Doc. 16 at 6). As part of those efforts, Plaintiff recommended “Arizona charter 

cities,1

 including Phoenix, Tempe and Tucson, adopt a Responsible Contractor Ordinance 

that would require any contractors performing work that is funded with the city’s tax 

dollars participate in a Department of Labor approved apprenticeship program.” (Doc. 16 

at 6). In response to Plaintiff’s actions, the state legislature passed another statute aimed 

at frustrating Plaintiff’s work. That statute restructured A.R.S. § 34-321 and added a new 

prohibition on state agencies or political subdivisions from requiring bidders for public 

works contracts “[p]articipate or contribute to an apprenticeship program that is registered 

with the United States department of labor.” PUBLIC WORKS—EMPLOYEES, 2015 

Ariz. Legis. Serv. Ch. 144 (S.B. 1090). 

 Once this 2015 statute went into effect, Plaintiff stopped its lobbying efforts 

regarding apprenticeship programs. Plaintiff alleges it is not presently engaged in efforts 

to “advocate for, propose, testify, and enter into negotiations with political subdivisions” 

regarding apprenticeship programs but Plaintiff would like to do so. (Doc. 16 at 7). 

 Plaintiff’s failure to engage in lobbying efforts regarding PLAs and apprenticeship 

programs is allegedly because of a statute Arizona enacted in 2016. That statute allows for 

any member of the legislature to direct the Attorney General to investigate an “ordinance, 

regulation, order or other official action adopted or taken by the governing body of a 

county, city or town that the member alleges violates state law or the Constitution of 

Arizona.” A.R.S. § 41-194.01. If the Attorney General determines the “county, city or 

town” has taken action contrary to state law, the Attorney General must notify the State 

 

1

 “Charter cities have certain rights and privileges in local matters to legislate free from interference by the legislature. When the subject of legislation is a matter of statewide concern the Legislature has the power to bind all throughout the state including charter cities.” City of Scottsdale v. Scottsdale Associated Merchants, Inc., 583 P.2d 891, 892 

(Ariz. 1978). 
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Treasurer and the State Treasurer must then withhold state funds the county, city, or town 

otherwise would receive. If there is some question whether the local action violates state 

law, the Attorney General is required to file a special action in the Supreme Court of 

Arizona to resolve the issue. The Attorney General has filed at least one special action 

against a local entity after concluding there was a substantial question about the legality of 

a local ordinance. See State ex rel. Brnovich v. City of Tucson, 399 P.3d 663, 672 (Ariz. 

2017) (addressing City of Tucson’s ordinance regarding disposition of firearms). 

According to Plaintiffs, this statute is so draconian that no county, city, or town is willing 

to “pass[] an ordinance to challenge the unconstitutional state law, including for the 

purpose of bringing a lawsuit.” (Doc. 16 at 7). 

 On November 30, 2017, Plaintiff filed the present suit. The original complaint, 

brought solely against the State of Arizona, alleged the provisions of A.R.S. § 34-321 

regarding PLAs and apprenticeship programs were preempted by federal law. The original 

complaint asserted two claims based on federal preemption theories. The original 

complaint also asserted two claims under Arizona law. Those claims alleged the relevant 

provisions of § 34-321 were enacted contrary to the requirements of other state laws. The 

State of Arizona moved to dismiss, arguing sovereign immunity barred all of Plaintiff’s 

claims. 

 Instead of responding to the first motion to dismiss, Plaintiff amended its complaint 

to name the Attorney General as the sole defendant. (Doc. 16). The Amended Complaint 

contains the same four claims. That is, two federal claims and two state-law claims. 

Plaintiff seeks only injunctive and declaratory relief in the form of an order finding federal 

law preempts the relevant portions of § 34-321. The Attorney General now seeks dismissal 

of all four claims, arguing Plaintiff lacks standing, the claims are not ripe, and the claims 

are barred by sovereign immunity. 

ANALYSIS 

I. State-Law Claims Barred by Eleventh Amendment 

 The Amended Complaint contains two state-law claims for relief. First, Plaintiff 
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alleges the 2011 and 2015 amendments to § 34-321 violated Arizona’s Voter Protection 

Act because the amendments had the effect of amending citizen initiatives passed in 2006 

and 2016. Pursuant to Arizona law, any amendments to citizen initiatives must be passed 

by at least “three-fourths of the members of each house of the legislature.” Ariz. Const. 

art. IV, Pt. 1 § 1(6)(C). Second, Plaintiff alleges the amendments to § 34-321 violated a 

provision in the Arizona constitution allegedly granting cities the authority to set wages 

and salaries within the cities’ boundaries. Ariz. Const. art. XIII, § 2. The Court need not 

reach the merits of these two arguments because the Eleventh Amendment forbids a federal 

court from entering an injunction requiring a state official comply with state law. 

 In general, the Eleventh Amendment bars suits in federal court against states and 

state officials. See Lacano Investments, LLC v. Balash, 765 F.3d 1068, 1072 (9th Cir. 

2014). Plaintiff attempts to avoid that bar by invoking the exception recognized in Ex parte 

Young, 209 U.S. 123 (1908). The Ex parte Young exception allows a federal court to 

“enjoin a state officer to conform his future behavior to federal law.” Suever v. Connell, 

439 F.3d 1142, 1148 (9th Cir. 2006). But the Ex parte Young “exception does not apply 

when a suit seeks relief under state law, even if the plaintiff names an individual state 

official rather than a state instrumentality as the defendant.” Doe v. Regents of the Univ. 

of California, 891 F.3d 1147, 1153 (9th Cir. 2018). See also Suever, 439 F.3d at 1148 

(noting relief “premised solely on the State’s compliance with state law” is “clearly barred 

by the Eleventh Amendment”). Here, there is no dispute that Plaintiff’s state-law claims 

are brought against the Attorney General in his official capacity and seek relief solely 

because of alleged violations of state law. Therefore, the Eleventh Amendment bars the 

Court from reaching the merits of the state-law claims. 

 Plaintiff’s response to the motion to dismiss regarding his state-law claims presents 

two unsupported arguments. Plaintiff first argues the Eleventh Amendment bar applies 

when a plaintiff is seeking a mandatory injunction but not, as here, when a plaintiff is 

seeking only a prohibitory injunction. Cf. Marlyn Nutraceuticals, Inc. v. Mucos Pharma 

GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009) (comparing prohibitory and mandatory 
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injunctions). Plaintiff does not cite any authority for this argument and there does not 

appear to be any. See Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of Higher 

Educ., 616 F.3d 963, 967 (9th Cir. 2010) (noting that if Eleventh Amendment applies it 

“bars suits . . . for all types of relief”). 

 Plaintiff’s second argument is that, if the Court concludes the Eleventh Amendment 

bars consideration of its state-law claims, the Court “should follow the US Supreme 

Court’s preference for certification of such questions to the highest court of the state.” 

(Doc. 26 at 14). This argument appears to misunderstand certification and the Eleventh 

Amendment bar. Certification of state-law questions is appropriate when a federal court 

has jurisdiction to resolve a particular claim but that claim presents “novel or unsettled 

questions of state law.” Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997). 

Certification is not appropriate, however, when a court lacks jurisdiction to hear the claim 

at issue. When a court lacks jurisdiction to hear a claim, the only possible outcome is 

dismissal of that claim. See Morongo Band of Mission Indians v. California State Bd. of 

Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988) (“If jurisdiction is lacking at the outset, 

the district court has no power to do anything with the case except dismiss.”). Because the 

Eleventh Amendment means the Court lacks jurisdiction over Plaintiff’s state-law claims, 

the only possible outcome is dismissal of those claims. And even if the Court were not 

obligated to dismiss the state-law claims at this point, certifying the issues to the Arizona 

Supreme Court would be futile. Assuming the Court were to certify the issues, and then 

receive answers from the Arizona Supreme Court, this Court would still have no power to 

do anything. Plaintiff’s state-law claims must be dismissed. 

II. Plaintiff Lacks Standing Regarding Its Federal Claims 

 Plaintiff has presented two federal claims: “Preemption Under the National Labor 

Relations Act” and “Preemption Under ERISA and the Fitzgerald Act.” In general, 

Plaintiff believes the cited federal laws preempt Arizona’s attempt to limit local entities’ 

ability to require PLAs and require participation in apprenticeship programs. Defendant’s 

primary argument for dismissal of these claims is that Plaintiff lacks standing. Plaintiff 
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has not identified any concrete injury it has suffered or is about to suffer, meaning Plaintiff 

lacks standing. 

 To have standing “[t]o seek injunctive relief, a plaintiff must show that he is under 

threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be 

actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the 

challenged action of the defendant; and it must be likely that a favorable judicial decision 

will prevent or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 

(2009). Defendant argues Plaintiff cannot meet any of these requirements. Plaintiff’s 

opposition only addresses some of the requirements leaving the impression that Plaintiff 

itself recognizes it cannot establish standing. In an abundance of caution, however, the 

Court will briefly explore some of the requirements and why Plaintiff falls short. 

 To begin, it is not entirely clear what injury Plaintiff believes it is under a threat of 

suffering. Plaintiff alleges that, prior to the statutory changes, it was engaged in “efforts 

to have political subdivisions use PLAs” as well as “efforts to have political subdivisions” 

participate in apprenticeship programs. (Doc. 16 at 5, 7). The statutory changes allegedly 

prompted Plaintiff to abandon those efforts. This suit, however, does not appear to be 

based on events that occurred at the time of the statutory changes. That is, Plaintiff’s injury 

is not the frustration of agreements Plaintiff was negotiating or had already secured at the 

time of the statutory changes. Rather, Plaintiff’s injury appears to be that Plaintiff would 

like to “advocate for, propose, testify, and enter into negotiations with political 

subdivisions” regarding PLAs and apprenticeship programs but the statutory changes 

prevent it from doing so. The Amended Complaint, however, does not explain how the 

statutory changes themselves are preventing or have prevented Plaintiff from engaging in 

its lobbying efforts. 

 The Amended Complaint does not contain any factual allegations regarding 

restrictions on Plaintiff’s ability to lobby local governments regarding PLAs and 

apprenticeship programs. Based on the Amended Complaint, it appears Plaintiff remains 

entirely free to engage in its lobbying efforts and attempts to change lawmakers’ beliefs 
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about PLAs and apprenticeship program. Thus, Plaintiff has not suffered any “concrete 

and particularized” injury to its ability to lobby. 

 Although not clearly articulated, it is possible that Plaintiff’s theory of injury is that 

its planned lobbying efforts would be futile considering the statutory changes. In support 

of this potential theory, the Amended Complaint alleges the statute allowing for the 

removal of a local entities’ funding has a “chilling effect” such that no local entity will ever 

undertake the official action Plaintiff desires. (Doc. 16 at 13). But even assuming this is 

Plaintiff’s theory of injury, Plaintiff has not alleged any facts to support it. For example, 

Plaintiff has not alleged facts that any local entity desires or hopes to require PLAs or 

require participation in apprenticeship programs but is prohibited from doing so by the 

statutory changes. 

 Plaintiff apparently believes local entities have been “chilled” from pursuing PLAs 

or apprenticeship programs but Plaintiff has not included any factual allegations supporting 

this. At present, it is entirely possible that no local entity has any desire to pursue PLAs or 

apprenticeship programs, regardless of the statutory changes. If that is true, the statutory 

changes have not resulted in any injury to anyone. This means that, as of now, Plaintiff’s 

only identifiable injury is an obscure impact to its lobbying interests. Plaintiff remains free 

to engage in lobbying but, viewed in the light most favorable to Plaintiff, it is no longer 

able to successfully lobby counties, cities, or towns. In addition to the lack of factual 

support, Plaintiff has not cited any authority that this type of potential threatened injury 

confers standing. Accordingly, Plaintiff’s failure to identify a “concrete and 

particularized” injury it will suffer means Plaintiff lacks standing to pursue it claims. 

 The lack of an identifiable injury is not Plaintiff’s only standing problem. The 

further requirements that the feared injury be “imminent” and not merely “conjectural or 

hypothetical” also appear fatal to Plaintiff’s ability to pursue its claims. To satisfy these 

requirements, Plaintiff must show its alleged injury “is not too speculative for Article III 

purposes.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). As “repeatedly 

reiterated” by the Supreme Court, this means a “threatened injury must be certainly 
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impending to constitute injury in fact [and] allegations of possible future injury are not 

sufficient.” Id. 

 Here, as best as the Court can determine, Plaintiff’s alleged harm is that its lobbying 

efforts will be futile solely because of the existence of the statutory changes. But again 

Plaintiff has not alleged any facts that the statutes are what is preventing local entities from 

requiring PLAs or participation in apprenticeship programs and, without the statutes, 

Plaintiff’s lobbying efforts would be imminently successful. Indeed, there are many 

reasons why local entities might not wish to adopt Plaintiff’s recommendations, including 

a basic disagreement with Plaintiff regarding what is best as a matter of policy. Absent 

factual allegations establishing a county, city, or town would like to enact Plaintiff’s 

preferred policies, but is not doing so solely because of the state statutes, Plaintiff has only 

identified a possible injury, not a “certainly impending” one. Id. 

In opposing the motion to dismiss, Plaintiff does not meaningfully engage with this 

analysis. Instead, Plaintiff cites repeatedly to a decision by the District of Idaho where a 

plaintiff sought to challenge a similar state law regarding PLAs. In that case, the district 

court concluded an “unincorporated associations of local unions” had standing to challenge 

an Idaho law forbidding political subdivisions from requiring use of PLAs. Idaho Bldg. & 

Const. Trades Council, AFL-CIO v. Wasden, 836 F. Supp. 2d 1146, 1154 (D. Idaho 2011). 

The district court believed the plaintiffs had “a legally protected interest in both negotiating 

and enforcing a [PLA].” Id. at 1159. And the district court concluded the plaintiffs had 

standing because the state law was imposing an “obstacle” to the plaintiffs’ “right to seek 

[PLAs].” Id. at 1160. 

 On appeal, the Ninth Circuit first issued a “partial remand” for the plaintiffs to 

supplement the record regarding their standing to pursue this claim. The plaintiffs did not 

submit additional evidence and the Ninth Circuit subsequently ruled the plaintiffs lacked 

standing because they had not offered “information suggesting any near-term likelihood 

that [plaintiffs] would seek a PLA” with an Idaho state or local government entity. Idaho 

Bldg. & Const. Trades Council, AFL-CIO v. Inland Pac. Chapter of Associated Builders 
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& Contractors, Inc., 616 F. App’x 319, 320 (9th Cir. 2015). 

 In light of the actual history of the Idaho case, Plaintiff has not explained why the 

Court should look to the Idaho district court’s reasoning instead of the Ninth Circuit’s 

rejection of that reasoning. And Plaintiff appears to be in the same position as the plaintiffs 

in the Idaho case in that Plaintiff has not offered any allegations showing a “near-term 

likelihood” that Plaintiff would seek or obtain a PLA with local entity. Thus, under the 

Ninth Circuit’s persuasive view of standing, the Idaho case supports Defendant’s position, 

not Plaintiff’s. 

 Finally, standing requires the feared injury be fairly traceable to the defendant and 

that a favorable decision would prevent or redress the injury. Assuming Plaintiff had 

satisfied the other elements, this final element would present a difficult issue. See, e.g., 

Jordahl v. Brnovich, 336 F. Supp. 3d 1016, 1036 (D. Ariz. 2018) (noting Arizona Attorney 

General was appropriate defendant because there was a “clear and plausible causal chain” 

involving the Attorney General leading to the alleged injuries). The Attorney General does 

not have any direct enforcement authority under the statutory changes and whether a suit 

against him would provide redress is not at all clear. Plaintiff’s failure to identify an 

imminent and non-conjectural injury means the Court need not address traceability and 

redressability. 

III. Leave to Amend 

 Plaintiff will be given one final opportunity to amend its complaint regarding its 

federal claims. Should Plaintiff choose to amend, it must include “further particularized 

allegations of fact deemed supportive of [Plaintiff’s] standing.” Warth v. Seldin, 422 U.S. 

490, 501 (1975). In particular, Plaintiff must identify the concrete injury it is likely to 

suffer and include allegations showing that injury is not conjectural. Plaintiff will not be 

granted leave to amend the state-law claims as those claims are barred by the Eleventh 

Amendment and any amendment would be futile. 

 Accordingly, 

IT IS ORDERED the Motion to Dismiss (Doc. 23) is GRANTED WITH 
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LIMITED LEAVE TO AMEND. No later than March 29, 2019, Plaintiff may file an 

amended complaint containing additional facts regarding its federal claims. The Clerk of 

Court is directed to enter a judgment of dismissal without prejudice in the event no 

amended complaint is filed by that date. 

 Dated this 11th day of March, 2019. 

Honorable Roslyn O. Silver

Senior United States District Judge