Minnesota Chapter of Associated Builders v. Nicole Blissenbach

United States Court of Appeals
For the Eighth Circuit
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No. 25-1480
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Minnesota Chapter of Associated Builders and Contractors, Inc.; Builders
Association of Minnesota; J & M Consulting, LLC
Plaintiffs - Appellants
v.
Nicole Blissenbach, in her official capacity as the Commissioner of the Minnesota
Department of Labor; Keith M. Ellison, in his official capacity as the Attorney
General of Minnesota
Defendants - Appellees
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Building Industry Association of the Red River Valley; National Federation of
Independent Business Small Business Legal Center
Amici on Behalf of Appellant(s)
North America’s Building Trades Unions
Amicus on Behalf of Appellee(s)
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Appeal from United States District Court
for the District of Minnesota
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Submitted: September 16, 2025
Filed: October 24, 2025
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Before BENTON, GRASZ, and KOBES, Circuit Judges.
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BENTON, Circuit Judge.
In 2024, the Minnesota legislature changed the test for classifying
independent contractors. See Minn. Stat. § 181.723. Minnesota Chapter of
Associated Builders, Builders Association of Minnesota, and J&M Consulting
(collectively, the “Contractors”) claim the Act is unconstitutionally vague and
violates the Excessive Fines Clause of the Eighth Amendment. The district court1
declined to enter a preliminary injunction. The Contractors appeal. Having
jurisdiction under 28 U.S.C. §1292(a)(1), this court affirms.
I.
The Act replaces a 9-part test with a 14-part test for classifying independent
contractors in the construction industry. Four parts are at issue. To be an
independent contractor, the person
(9) is operating under a written contract to provide or perform the
specific services for the person that:
(i) is signed and dated by both an authorized representative of the
business entity and of the person for whom the services are
being provided or performed;
(ii) is fully executed no later than 30 days after the date work
commences;
(iii) identifies the specific services to be provided or performed
under the contract;
(iv) provides for compensation from the person for the services
provided or performed under the contract on a commission or
per-job or competitive bid basis and not on any other basis; and
(v) the requirements of item (ii) shall not apply to change orders;
1 The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

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(10) submits invoices and receives payments for completion of the
specific services provided or performed under the written proposal,
contract, or change order in the name of the business entity. Payments
made in cash do not meet this requirement;
(12) incurs the main expenses and costs related to providing or
performing the specific services under the written proposal, contract, or
change order;
(14) may realize additional profit or suffer a loss, if costs and expenses
to provide or perform the specific services under the written proposal,
contract, or change order are less than or greater than the compensation
provided under the written proposal, contract, or change order.
Minn. Stat. § 181.723, subd. 4(a) (9), (10), (12), (14).
The Act also authorizes:
(2) a penalty of up to $10,000 for each individual the person failed to
classify, represent, or treat as an employee pursuant to this section;
(3) a penalty of up to $10,000 for each violation of this subdivision; and
(4) a penalty of $1,000 for any person who delays, obstructs, or
otherwise fails to cooperate with the commissioner’s investigation.
Each day of delay, obstruction, or failure to cooperate constitutes a
separate violation.
subd. 7(g)(2)–(4) (emphasis added). Because these penalties are discretionary, an
enforcing agency must consider: the willfulness and gravity of the violation, any
history of past violations, the number of violations, any economic benefit gained by
the person committing the violation, and any other factors that justice may require.
§ 14.045, subd. 3(a)(1)–(6).
The Minnesota Department of Labor and Industry (the “DLI”) and the
Attorney General have authority to enforce the Act. §§ 181.723, subd. 7(h);
181.1721; 8.31. The DLI may issue compliance, administrative, stop-work, and

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licensing orders. §§ 177.27, subd. 4; 326B.082, subd. 7, 10, 11. An employer may
contest a DLI action administratively. §§ 177.27, subd. 4; 326B.082, subd. 8, 10(g),
12(c). In addition to civil penalties and orders, “a person who violates [the Act] is
guilty of a misdemeanor.” § 326B.082, subd. 16.
The district court declined to preliminarily enjoin the Act. The Contractors
appeal, arguing (1) the Act is unconstitutionally vague facially and as applied, and
(2) its civil penalties violate the Excessive Fines Clause of the Eighth Amendment.
This court reviews a district court’s ultimate ruling on a preliminary injunction for
abuse of discretion, viewing legal conclusions de novo and factual findings for clear
error. Schmitt v. Rebertus, 148 F.4th 958, 966 (8th Cir. 2025).
II.
The threshold issue is whether the Contractors have standing. This court has
“an independent obligation to examine standing even if it was not discussed by the
district court.” Cross v. Fox, 23 F.4th 797, 800 (8th Cir. 2022).
For Article III standing, a plaintiff must show (1) an injury in fact, (2) a
sufficient causal connection between the injury and the alleged conduct, and (3) a
likelihood that the injury will be redressed by a favorable decision. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The parties do not dispute the
second and third elements. “This case concerns the injury-in-fact requirement,
which helps to ensure that the plaintiff has a personal stake in the outcome of the
controversy.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)
(citation and internal quotation marks omitted).
An allegation of future injury requires that the threatened injury is “certainly
impending” or there is a “substantial risk” that harm will occur. Id. See Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409 (2013); Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 153–55 (2010). “When government action is challenged by a
party who is a target or object of that action, there is ordinarily little question that

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the action has caused him injury.” Monson v. DEA, 589 F.3d 952, 958 (8th Cir.
2009) (cleaned up). In St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d
481, 485 (8th Cir. 2006), plaintiffs feared the state would prosecute them for political
expenditures. This court found they suffered a sufficient injury because the law
prohibited the political expenditures on its face and defendants had not disavowed
enforcing it. Gaertner, 439 F.3d at 485.
The Act here targets the Minnesota construction industry with civil and
criminal penalties. J&M Consulting, a general contractor, provides commercial
construction services in Minnesota. Minnesota Chapter of Associated Builders, a
statewide trade association, represents construction firms in Minnesota, including
J&M. See Iowa League of Cities v. EPA, 711 F.3d 844, 869 (8th Cir. 2013) (holding
that a trade association has standing if at least one of its members has standing).
Builders Association of Minnesota, also a statewide trade association, represents
builders and construction firms in Minnesota, including J&M. See id.
The Contractors allege several practices that they would like to continue,
which the Act arguably proscribes. For example, the Contractors often do not secure
written contracts with subcontractors within 30 days of beginning work. And, they
regularly pay subcontractors without receiving an invoice. These practices may
violate subdivisions 4(a)(9) and 4(a)(10) of the Act. Because the Contractors allege
specific conduct that the Act targets, and because state officials have not disavowed
enforcing it, the Contractors have standing.
III.
In reviewing a denial of a preliminary injunction, this court considers four
factors: (1) the threat of irreparable harm, (2) the balance between the harm and the
injury that granting the injunction will inflict on the other parties, (3) the probability
of success on the merits, and (4) the public interest. Dataphase Sys., Inc. v. CL Sys.,
Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc).

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A.
“Probability of success” is the most significant factor. Home Instead, Inc. v.
Florance, 721 F.3d 494, 497 (8th Cir. 2013). See also Wildhawk Inv., LLC v. Brava
I.P., LLC, 27 F.4th 587, 593 (8th Cir. 2022) (“Likelihood of success on the merits
is the most important factor.”). To preliminarily enjoin a state act, the movant must
demonstrate they are “likely to prevail on the merits”—which is a higher bar than
the (typical) “fair chance” of success. Rodgers v. Bryant, 942 F.3d 451, 455 (8th
Cir. 2019); Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864,
870 (8th Cir. 2012) (en banc). The bar is higher because legislation “developed
through presumptively reasoned democratic processes [is] entitled to a higher degree
of deference and should not be enjoined lightly.” Planned Parenthood Minn., N.D.,
S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc) (citation and internal
quotation marks omitted).
1.
The Contractors are not likely to succeed on the merits of their vagueness
challenge.
“A state statute is unconstitutionally vague if it ‘fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it
prohibits’ or it ‘encourages arbitrary and discriminatory enforcement.’” Duhe v.
City of Little Rock, 902 F.3d 858, 863 (8th Cir. 2018), quoting Hill v. Colorado, 530
U.S. 703, 732 (2000). To sustain a vagueness challenge outside the First
Amendment context, “the complainant must prove that the enactment is vague not
in the sense that it requires a person to conform his conduct to an imprecise but
comprehensible normative standard, but rather in the sense that no standard of
conduct is specified at all.” Village of Hoffman Estates v. Flipside, 455 U.S. 489,
495 n.7 (1982) (citation and internal quotation marks omitted).

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“Greater specificity is required of laws imposing criminal penalties.” Garner
v. White, 726 F.2d 1274, 1278 (8th Cir. 1984). See also D.C. v. City of St. Louis,
795 F.2d 652, 654 (8th Cir. 1986) (“When violations carry criminal penalties, a strict
test of specificity is applied in reviewing the vagueness of a statute.”). But
“[e]conomic regulation is subject to a less strict vagueness test because its subject
matter is often more narrow, and because businesses, which face economic demands
to plan behavior carefully, can be expected to consult relevant legislation in advance
of action.” Flipside, 455 U.S. at 498. Businesses may also “clarify the meaning of
the regulation by [their] own inquiry, or by resort to an administrative process.” Id.
Attacking the Act both facially and as applied, the Contractors argue that five
specific words and phrases in subdivision 4(a) are unconstitutionally vague:
• “identifies the specific services to be provided or performed under
the contract”
• “commission or per-job or competitive bid basis and not on any
other basis”
• “invoice”
• “main expenses and costs”
• “realize additional profit or suffer a loss”
The Contractors also complain that the Act fails to identify how long an individual
remains an “employee” after a classification determination. See Minn. Stat.
§ 181.723, subd. 3, 4.
This court assumes, without deciding, that heightened scrutiny applies. Even
then, people of ordinary intelligence have a reasonable opportunity to understand the
meaning of these words and phrases. See Duhe, 902 F.3d at 863. First, many are
commonly used and understood. See Weed v. Jenkins, 873 F.3d 1023, 1030 (8th
Cir. 2017) (holding that certain “words of common understanding” are not
unconstitutionally vague). And second, the Contractors may clarify the meaning of
the Act by their own inquiry of DLI. See Flipside, 455 U.S. at 498.

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The Contractors may have questions about the Act, but the possibility of
questions does not doom it. Thorburn v. Austin, 231 F.3d 1114, 1121 (8th Cir.
2000) (“Perhaps the [law] could have been more exact, but the fact that questions
may arise . . . does not automatically lead to the conclusion that it is void for
vagueness.”). “[M]eticulous specificity” is not required. See Grayned v. City of
Rockford, 408 U.S. 104, 110 (1972). The Act is clear enough to be an “imprecise
but comprehensible normative standard.” See Flipside, 455 U.S. at 495 n.7.
The Contractors do not carry their heavy burden to show that the Act
encourages arbitrary or discriminatory enforcement. See Garner, 726 F.2d at 1278
(the prospect of discriminatory enforcement is especially speculative in a pre-
enforcement challenge of a law regulating business behavior). “[I]nability to agree
on the exact scope of prohibited conduct or the definition of words” does not mean
that the Act is subject to arbitrary enforcement. See Rowles v. Curators of Univ. of
Mo., 983 F.3d 345, 356 (8th Cir. 2020). And the Act’s limited penalties and
administrative appeals potential are deterrents to arbitrary enforcement. See
Sanimax USA, LLC v. City of S. St. Paul, 95 F.4th 551, 572 (8th Cir. 2024) (holding
that an enforcement mechanism that “plainly demarcates the range of penalties”
suggests a law is not prone to arbitrary enforcement); Metropolitan Omaha Prop.
Owners Assoc’n v. City of Omaha, 991 F.3d 880, 887 (8th Cir. 2021) (noting that
an administrative appeals process “acts as a check” on arbitrary or discriminatory
enforcement).
The Contractors cannot show that the Act is likely unconstitutionally vague
either facially or as applied to them. See United States v. KT Burgee, 988 F.3d
1054, 1060 (8th Cir. 2021) (holding that a statute was not vague facially or as applied
where it was sufficiently clear under the challenger’s specific set of facts). The
district court did not abuse its discretion by ruling that the Contractors were not
likely to succeed on the merits of their pre-enforcement vagueness claim.

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2.
The Contractors are also unlikely to succeed on the merits of their excessive
fines claim.
The Excessive Fines Clause of the Eighth Amendment “limits the
government’s power to extract payments, whether in cash or in kind, as punishment
for some offense.” Grant ex rel. U.S. v. Zorn, 107 F.4th 782, 797 (8th Cir. 2024),
citing United States v. Bajakajian, 524 U.S. 321, 329 (1998) (internal quotation
marks omitted). “A penalty violates the Excessive Fines Clause if it is ‘grossly
disproportional’ to the gravity of the offense.” Qwest Corp. v. Minnesota Public
Utilities Com’n, 427 F.3d 1061, 1069 (8th Cir. 2005), quoting Bajakajian, 524 U.S.
at 334.
The Contractors facially attack only the possibility of future penalties under
the Act. Facial challenges are disfavored because they “often rest on speculation.”
Washington State Grange v. Washington State Republican Party, 552 U.S. 442,
450 (2008). Speculation increases the risk of premature interpretation, contrary to
the fundamental principle of judicial restraint. Id.
True, penalties trigger Eighth Amendment protection if they are only
“partially punitive.” See Timbs v. Indiana, 586 U.S. 146, 155 (2019). But no
penalties have issued under the Act. Without either an offense or penalty to
compare, this court cannot conduct a proportionality test. The Contractors identify
no authority to the contrary. Even if they did, the district court correctly noted that
Minnesota law requires enforcement authorities to conduct a proportionality analysis
when imposing penalties under the Act. See Minn. Stat. § 14.045, subd. 3(a)(1)–
(6).
Based on the wholly speculative claim of future penalties, this court observes
a “high[] degree of deference” to the legislature. See Rounds, 530 F.3d at 732. The

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district court did not abuse its discretion by ruling that the Contractors were not
likely to succeed on the merits of their pre-enforcement excessive fines claim.
B.
“When a plaintiff seeks an injunction against the enforcement of a state
statute, the plaintiff’s failure to carry his burden on the likelihood-of-success factor
is fatal to his case.” Eggers v. Evnen, 48 F.4th 561, 566 (8th Cir. 2022). This court
need not address the other Dataphase factors.
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The judgment is affirmed.
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