508 U.S. 656 (1993), Northeastern Florida Chapter, Associated General Contractors

• Citation: 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586, 61 U.S.L.W. 4626
• Party Name: Northeastern Florida Chapter, Associated General Contractors
• Case Date: June 14, 1993
• Court: U.S. Supreme Court

Page 656

508 U.S. 656 (1993)

113 S.Ct. 2297, 124 L.Ed.2d 586, 61 U.S.L.W. 4626

Northeastern Florida Chapter, Associated General Contractors

United States Supreme Court

June 14, 1993

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Syllabus

Respondent city enacted an ordinance requiring that 10% of the amount spent on city contracts be set aside each fiscal year for so-called "Minority Business Enterprises" (MBE's). Petitioner construction contractors' association, most of whose members did not qualify as MBE's, filed suit in the District Court against the city and respondent Mayor, alleging that many of its members regularly bid on, and performed, construction work for the city, and "would have . . . bid on . . . designated set aside contracts but for the restrictions imposed" by the ordinance in violation of the Fourteenth Amendment's Equal Protection Clause. Ultimately the court entered summary judgment for petitioner, but the Court of Appeals vacated the judgment, ruling that petitioner lacked standing to challenge the ordinance because it had "not demonstrated that, but for the program, any . . . member would have bid successfully for any of [the] contracts." After certiorari was granted, the city repealed its MBE ordinance, replacing it with another ordinance which, although different from the repealed ordinance, still set aside certain contracts for certified black- and female-owned businesses. Subsequently, this Court denied respondents' motion to dismiss the case as moot.

Held:

1. The case is not moot. It is well settled that the voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the practice's legality, because a defendant is not precluded from reinstating the practice. Here, there is more than a mere risk that the city will repeat its allegedly wrongful conduct; it has already done so. Insofar as the city's new ordinance accords preferential treatment in the award of city contracts, it disadvantages petitioner's members in the same way that the repealed ordinance did. Pp. 661-663.

2. Petitioner has standing to sue the city. Pp. 663-669.

Page 657

(a) When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. See, e.g., Regents of University of California v. Bakke, 438 U.S. 265. The "injury in fact" element of standing in such an equal protection case is the denial of equal treatment resulting from the imposition of the barrier -- here, the inability to compete on an equal footing in the bidding process -- not the ultimate inability to obtain the benefit. To establish standing, therefore, petitioner need only demonstrate that its members are able and ready to bid on contracts and that a discriminatory policy prevents them from doing so on an equal basis. Pp. 663-666.

(b) Respondents' reliance on Warth v. Seldin, 422 U.S. 490 -- in which a construction association was denied standing to challenge a town's zoning ordinance -- is misplaced. Unlike petitioner, the association in Warth claimed that its members could not obtain variances and permits, not that they could not apply for the variances and permits on an equal basis, and did not allege that any members had applied for a permit or variance for a current project. Pp. 666-668.

(c) Petitioner's allegations that its members regularly bid on city contracts and would have bid on the contracts set aside [113 S.Ct. 2299] under the ordinance were unchallenged, and are assumed to be true. Pp. 668-669.

951 F.2d 1217 (CA11 1992), reversed and remanded.

THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, SCALIA, KENNEDY, and SOUTER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 669.

Page 658

THOMAS, J., lead opinion

JUSTICE THOMAS delivered the opinion of the Court.

A Jacksonville, Florida, ordinance accords preferential treatment to certain minority-owned businesses in the award of city contracts. In this case, we decide whether, in order to have standing to challenge the ordinance, an association of contractors is required to show that one of its members would have received a contract absent the ordinance. We hold that it is not.

I

A

In 1984, respondent Jacksonville, Florida, enacted an ordinance entitled "Minority Business Enterprise Participation," which required that 10% of the amount spent on city contracts be set aside each fiscal year for so-called "Minority Business Enterprises" (MBE's). City of Jacksonville Purchasing Code §§ 126.604(a), 126.605(a) (1988). An MBE was defined as a business whose ownership was at least 51% "minority" or female, § 126.603(a), and a "minority" was in turn defined as a person who is or considers himself to be black, Spanish-speaking, Oriental, Indian, Eskimo, Aleut, or handicapped, § 126.603(b). Once project were earmarked for MBE bidding by the city's chief purchasing officer, they were "deemed reserved for minority business enterprises only." §§ 126.604(c), 126.605(c). Under the ordinance, "[m]athematical certainty [was] not required in determining the amount of the set aside," but the chief purchasing officer was required to "make every attempt to come as close as possible to

Page 659

the ten percent figure." §§ 126.604(a)(4), 126.605(a)(4). The ordinance also provided for waiver or reduction of the 10% set-aside under certain circumstances. § 126.608.

Petitioner, the Northeastern Florida Chapter of the Associated General Contractors of America (AGC), is an association of individuals and firms in the construction industry. Petitioner's members do business in Jacksonville, and most of them do not qualify as MBE's under the city's ordinance. On April 4, 1989, petitioner filed an action, pursuant to 42 U.S.C. § 1983, against the city and its Mayor (also a respondent here) in the United States District Court for the Middle District of Florida. Claiming that Jacksonville's ordinance violated the Equal Protection Clause of the Fourteenth Amendment (both on its face and as applied), petitioner sought declaratory and injunctive relief. In its complaint, petitioner alleged that many of its members "regularly bid on and perform construction work for the City of Jacksonville," Complaint 9, and that they "would have . . . bid on . . . designated set aside contracts but for the restrictions imposed" by the ordinance, id. ¶ 46.

On April 6, 1989, the District Court entered a temporary restraining order prohibiting the city from implementing the MBE ordinance, and, on April 20, it issued a preliminary injunction. Respondents appealed. Concluding that petitioner had not demonstrated irreparable injury, the Court of Appeals reversed the issuance of the preliminary injunction, and remanded the case for an expedited disposition on the merits. 896 F.2d 1283 (1990). Chief Judge Tjoflat concurred in the judgment. In his view, the suit should have been dismissed for [113 S.Ct. 2300] lack of standing, because petitioner's complaint did not "refer to any specific contract or subcontract that would have been awarded to a nonminority bidder but for the set-aside ordinance." Id. at 1287.

Page 660

In the meantime, both petitioner and respondents had moved for summary judgment.^[1] On May 31, 1990, the District Court entered summary judgment for petitioner, concluding that the MBE ordinance was inconsistent with the equal protection criteria established by this Court in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). Once again respondents appealed, and once again they obtained a favorable ruling. 951 F.2d 1217 (1992). Rather than addressing the merits of petitioner's equal protection claim, the Court of Appeals held that petitioner "lacks standing to challenge the ordinance establishing the set-aside program," id. at 1218, because it "has not demonstrated that, but for the program, any AGC member would have bid successfully for any of these contracts," id. at 1219. The Court of Appeals accordingly vacated the District Court's judgment, and remanded the case with instructions to dismiss petitioner's complaint without prejudice.

Because the Eleventh Circuit's decision conflicts with decisions of the District of Columbia Circuit and the Ninth Circuit, see O'Donnell Constr. Co. v. District of Columbia, 295 U.S.App.D.C. 317, 320, 963 F.2d 420, 423 (1992); Coral Constr. Co. v. King County, 941 F.2d 910, 930 (CA9 1991), cert. denied, 502 U.S. 1033 (1992), we granted certiorari. 506 U.S. 813 (1992).

B

On October 27, 1992, 22 days after our grant of certiorari, the city repealed its MBE ordinance and replaced it with an ordinance entitled "African-American and Women's Business Enterprise Participation," which became effective the next day. This ordinance differs from the repealed ordinance in three principal respects. First, unlike the prior ordinance,

Page 661

which applied to women and members of seven different minority groups, the new ordinance applies only to women and blacks. Jacksonville Purchasing Code § 126.601(b) (1992). Second, rather than a 10% "set aside," the new ordinance has established "participation goals" ranging from 5 to 16,% depending upon the type of contract, the ownership of the contractor, and the fiscal year in which the contract is awarded. § 126.604. Third, the new ordinance provides not one but five alternative methods for achieving the "participation goals." §§ 126.605, 126.618. Which of these methods the city will use is decided on a "project by project basis," § 126.605, but one of them, the "Sheltered Market Plan," is (apart from the percentages) virtually identical to the prior ordinance's "set aside." Under this plan, certain...