Virginia Lawyers Weekly VA Lawyers Weekly
Where a man sued the Maryland governor and attorney general over an executive order that he interpreted as prohibiting him from bidding on state procurement contracts due to his personal boycotts of Israel-tied products, but the executive order only prohibited a business from engaging in anti-Israel national origin discrimination in the process of preparing a bid for a state procurement contract, his suit was properly dismissed.
Background
Saqib Ali seeks to pursue § 1983 proceedings against Maryland’s governor and attorney general, challenging as unconstitutional an executive order that prohibits boycotts of Israel by business entities that bid on the state’s procurement contracts. The district court dismissed with prejudice Ali’s lawsuit for want of Article III standing to sue.
Analysis
Ali’s primary argument that he has sustained a direct injury is predicated on his own interpretation and understanding of the executive order, a construction that prohibits him from bidding due to his personal boycotts of Israel-tied products. The court cannot agree, however, with Ali’s interpretation of the executive order.
As the district court recognized, “Section C, which contains the language Mr. Ali would have to sign to submit a bid, does require that bidders affirm that they would not take ‘other actions intended to limit commercial relations’ with ‘a person or entity on the basis of Israeli national origin.’” But as the court further observed, that language “is limited by [two] ‘prefatory clauses’ — ‘[i]n preparing its bid on this project’ and ‘in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier.’”
Accordingly, the court determined that the key passage of Section C should be read as follows: “In preparing its bid on this project, the bidder . . . has not, in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier, . . . taken other actions intended to limit commercial relations, with a person or entity on the basis of Israeli national origin.” The court then explained that, read in that manner, the certification required by “Section C is effectively limited to an affirmation that the bidder has not discriminated in the bid formation process.” The court agrees with the district court’s well-reasoned distillation of the plain text of the executive order.
If a business entity has engaged in anti-Israel national origin discrimination in the process of preparing a bid for a state procurement contract, the executive order would bar that entity from being awarded the contract. If, by contrast, the entity has engaged in a boycott of Israel entirely unrelated to the bid formation process, the executive order is of no moment.
The amended complaint alleges that Ali boycotts Israel in his personal capacity only, by “refus[ing] to purchase Sabra hummus or SodaStream products, which have ties to Israel and its occupation of Palestine.” Those limited factual allegations are problematic for Ali, in that the amended complaint “does not allege that he boycotts Israel in his business capacity,” much less in the context of preparing a bid for a state procurement contract. As such, the court rejects Ali’s related theory that he possesses standing to sue premised on a direct injury.
Ali relies on recent district court decisions that involve similar procurement provisions of other states; in them, the courts ruled that plaintiffs sustained direct injuries that conferred Article III standing to sue. In two of these cases, however, “[a]s a result of their refusal to sign, the plaintiffs . . . either lost a contract that otherwise would have been theirs, or were refused payment on a contract under which they had already rendered performance.” By contrast, Ali has not submitted a bid for any state procurement contract, much less been offered or accepted one.
As an additional source of direct injury, Ali argues on appeal that section C constitutes an unconstitutionally vague loyalty oath. The court is satisfied, however, that Ali’s characterization of the executive order as an unconstitutional loyalty oath does not create a direct injury that confers Article III standing to sue. The executive order requires a business entity to refrain from discriminating on the basis of Israeli national origin only in forming a bid. It does not require the entity to, for example, pledge any loyalty to Israel or profess any other beliefs.
Finally, although the court is satisfied that Ali has not alleged facts adequate to establish Article III standing to sue, the dismissal of his amended complaint should be without prejudice.
Affirmed as modified.
Ali v. Hogan, Case No. 20-2266, Feb. 18, 2022. 4th Cir. (King), from DMD at Baltimore (Blake). Gadeir Ibrahim Abbas for Appellant. Adam Dean Snyder for Appellees. VLW 022-2-043. 23 pp.
