Opinion
No. 93 CW 1948.
December 22, 1994.
APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE WILLIAM H. BROWN, J.
Lance R. Rydberg, New Orleans, Sheldon D. Beychok, Baton Rouge, for GC Services, Ltd. Partnership.
Mary E. Tharp, Baton Rouge, for Bd. of Sup'rs, LSU.
Kevin P. Torres, Baton Rouge, for Div. of Admin.
Before LOTTINGER, C.J., and WATKINS, SHORTESS, CARTER, CRAIN, LeBLANC, FOIL, GONZALES, WHIPPLE, FOGG, PITCHER and PARRO, JJ.
We granted certiorari in this matter to determine whether a bidder protesting the award of a state contract to a competitor is entitled to a trial de novo upon appeal to the district court under La.R.S. 39:1691, a provision of the Louisiana Procurement Code. Subsequently, this Court rendered an en banc decision in Pacificorp Capital, Inc. v. State of Louisiana, 92-1729 (La.App. 1st Cir. 8/11/94), pp. 4-5; 647 So.2d 1122, 1124-1125, writ denied, 94-2315 (La. 11/18/94); 646 So.2d 387, holding that the applicable standard of review in appeals to the district court of such agency decisions is that provided by the Administrative Procedure Act (La.R.S. 49:964 G). This standard of review was delineated as follows:
Although the contested bid in Pacificorp was made pursuant to the Louisiana Data Processing Procurement Code, La.R.S. 39:196, et seq., this Court noted that the provisions of the Louisiana Procurement Code, La.R.S. 39:1551, et seq., are also applicable to the procurement of data processing equipment, except where they conflict with the Data Processing Procurement Code. Therefore, this Court's determination of the applicable standard of review in Pacificorp was necessarily dependent upon its interpretation of La.R.S. 39:1691.
[T]he court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; (4) affected by error of law; (5) arbitrary, capricious, or an abuse of discretion; or (6) manifestly erroneous.
The manifest error test of La.R.S. 49:964G(6) is used in reviewing the facts as found by the administrative tribunal; the arbitrary and capricious test of La.R.S. 49:964G(5) is used in reviewing the administrative tribunal's conclusions and the exercise of discretion. A conclusion of a public body is capricious when the conclusion has no substantial evidence to support it, or the conclusion is contrary to substantiated competent evidence. The word "arbitrary" implies a disregard of evidence or of the proper weight thereof. One purpose of so limiting the scope of review is to prevent the reviewing court from asserting the power delegated to the agency by the legislature.
(citations omitted)
Under this standard of review, the appellant is not entitled to a trial de novo in district court. Pacificorp's holding impliedly overruled this Court's prior decision in Crochet Equipment v. Board of Sup'rs, 597 So.2d 562 (La.App. 1st Cir.), writ denied, 599 So.2d 304 (1992), holding that La.R.S. 39:1691 D provides a right to a trial de novo to a party appealing to the district court. In order to clarify this Court's en banc decision in Pacificorp, we now specifically overrule Crochet Equipment v. Board of Sup'rs, 597 So.2d 562 (La.App. 1st Cir. 1992). Therefore, we find the district court correctly granted the motion to strike plaintiff's request for a trial de novo. We hereby recall the writ of certiorari previously issued herein and remand this case to district court for further proceedings consistent with this opinion. Plaintiff is to bear all costs.
WRIT RECALLED; CASE REMANDED.
LOTTINGER, C.J., and Shortess, J., concur.
CRAIN, J., concurs in the result on the merits.
FOGG, J., dissents with reasons.
CARTER, J., dissents and assigns reasons.
Although I may agree with the majority opinion, if it set forth a proper legal rationale as justification for expressly overruling Crochet Equipment Company, Inc. v. Board of Supervisors of Louisiana State University, 597 So.2d 562 (La.App. 1st Cir.), writ denied, 599 So.2d 304 (La. 1992) and impliedly overruling Johnson Controls, Inc. v. Royden Lynch, Jr., 633 So.2d 212 (La.App. 1st Cir. 1993), I cannot agree with the majority opinion in its present form. The end does not always justify the means.
The standard of review was not an issue in Pacificorp Capital, Inc. v. State, Division of Administration, Office of State Purchasing, 620 So.2d 913 (La.App. 1st Cir. 1993) or in the en banc opinion in Pacificorp Capital, Inc. v. State, Division of Administration, Office of State Purchasing, 92-1729 (La.App. 1st Cir. 8/11/94); 647 So.2d 1122. If the standard of review had been an issue in Pacificorp, then I admit that the majority would be imminently correct. However, if Pacificorp impliedly overruled Crochet, as the majority reasons, the present opinion in this case would be redundant and unnecessary.
I submit that the decision in Pacificorp cannot be used to overrule Crochet or Johnson Controls. For these reasons, I respectfully dissent.
I respectfully dissent from the majority opinion.
The en banc opinion in Pacificorp Capital, Inc. v. State, Division of Administration, Office of State Purchasing, 92-1729 (La.App. 1st Cir. 8/11/94); 647 So.2d 1122, neither directly nor impliedly overrules Crochet Equipment Company, Inc. v. Board of Supervisors of Louisiana State University, 597 So.2d 562 (La.App. 1st Cir.), writ denied, 599 So.2d 304 (La. 1992).
The applicable standard of review was not an issue in Pacificorp Capital, Inc. v. State, Division of Administration, Office of State Purchasing, 620 So.2d 913 (La.App. 1st Cir. 1993), or in the subsequent en banc opinion in Pacificorp Capital, Inc. v. State, Division of Administration, Office of State Purchasing. Any statements regarding the applicable standard of review in these opinions are, at best, dicta and, at worst, an erroneous statement of law. The majority now compounds this error by using dicta in Pacificorp as the basis for overruling Crochet. I submit that it is improper to use dicta in Pacificorp as justification for overruling Crochet in the instant case.
In Crochet Equipment Company, Inc. v. Board of Supervisors of Louisiana State University, 597 So.2d at 562, and Johnson Controls, Inc. v. Royden Lynch, Jr., 633 So.2d 212 (La.App. 1st Cir. 1993), the issue of the applicable standard of review in procurement cases was squarely presented to two different panels of this court. In both cases, this court held that the applicable standard of review was set forth in the Louisiana Procurement Code, namely de novo review, and that the provisions of the Administrative Procedures Act (APA), namely manifest error review, were not applicable.
If this court now desires to hold that the general provisions of the APA establish the standard of review for procurement cases despite the contrary language in the Procurement Code, then such a determination should be based upon some interpretation of the statutory provisions in to Procurement Code, the APA, or some other statutory authority and both Crochet and Johnson Controls should be expressly overruled. To reverse prior opinions of this court, which were based upon interpretations of the applicable statutory provisions, through the use of dicta in an appellate court opinion is inappropriate and intellectually compromising.
In enacting the Procurement Code, the legislature could have stated that the APA applied. However, the legislature failed to make any specific reference to the APA and chose, instead, to set forth a procedure by which determinations made by the Division of Administration in procurement cases should be reviewed by a judicial body. As set forth in LSA-R.S. 39:1691D, "[i]n any judicial action under this Section, factual or legal determinations by employees, agents, or other persons appointed by the state shall have no finality and shall not be conclusive," subject to various exceptions. It is abundantly clear that the legislature did not intend to give the same credence to non-judicial decisions as is afforded those decisions which arise from a judicial determination. However, this court now seeks to give finality and conclusiveness to determinations by state appointees outside the realm of a judicial or quasi-judicial proceeding. Clearly, this is not the result contemplated by the Procurement Code.
The majority also appears, at least impliedly, to find comfort in the Louisiana Supreme Court's denial of an application for writs in Pacificorp. However, the supreme court also denied an application for writs in Crochet. Moreover, the supreme court has often reminded litigants, attorneys, trial courts, and appellate courts that "writs denial are not law."
In conclusion, as set forth in Crochet, the Procurement Code sets forth the applicable standard of review for those cases arising under the Procurement Code, which is de novo review, and the provisions of the APA are inapplicable. Therefore, the opinion of the majority in the instant case is in error in finding that the APA sets forth the applicable standard of review. I, therefore, respectfully dissent.