Rocks v. City of Philadelphia, No. 88-1616

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore HIGGINBOTHAM, COWEN and ALDISERT; ALDISERT
Citation868 F.2d 644
PartiesM. Joseph ROCKS, Frank A. Salvatore, Christopher R. Wogan, Joan L. Krajewski and John L. Kelly, Appellants, v. CITY OF PHILADELPHIA, W. Wilson Goode, Curtis Jones, Jr., Minority Business Enterprise Council, Benjamin F. Ellis and Angela Dowd-Burton, Appellees.
Docket NumberNo. 88-1616
Decision Date01 March 1989

Page 644

868 F.2d 644
M. Joseph ROCKS, Frank A. Salvatore, Christopher R. Wogan,
Joan L. Krajewski and John L. Kelly, Appellants,
v.
CITY OF PHILADELPHIA, W. Wilson Goode, Curtis Jones, Jr.,
Minority Business Enterprise Council, Benjamin F.
Ellis and Angela Dowd-Burton, Appellees.
No. 88-1616.
United States Court of Appeals,
Third Circuit.
Argued Jan. 11, 1989.
Decided March 1, 1989.

Page 645

Hugh J. Bracken (argued), Richard A. Sprague, Randi J. Vladimer, Sprague, Higgins & Creamer, Philadelphia, Pa., for appellants.

Seymour Kurland (argued), Carl Oxholm, III, Office of the City Solicitor, Philadelphia, Pa., for appellees.

Before HIGGINBOTHAM, COWEN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The appellants are five Philadelphia residents and taxpayers. They are not now, nor will they in the future be, involved in the construction business. They have appealed from a district court judgment dismissing their complaint against the city and its officials for lack of standing. The complaint asserted an equal protection violation resulting from the application of minority business enterprise participation requirements ("MBE") to a city construction project. The question for decision is whether, as contended, the appellants have standing to assert this equal protection claim based upon their status as residents and taxpayers. They rely on the teachings of Bowen v. Kendrick, --- U.S. ----, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) and Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). We agree with the district court and will affirm.

Jurisdiction was proper in the trial court based on 28 U.S.C. Sec. 1331. Jurisdiction on appeal is proper based on 28 U.S.C. Sec. 1291. Appeal was timely filed under Rule 4(a), F.R.App.P.

The court is reviewing the dismissal of the complaint for failure to state a claim on which relief can be granted. Rule 12(b)(6), Fed.R.Civ.P. The applicable standard of review requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir.1985); Rogin v. Bensalem Twp., 616 F.2d 680, 685 (3d Cir.1980), cert. denied sub nom., Mark-Garner Assocs., Inc. v. Bensalem Twp., 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

I.

In February of 1988, the City of Philadelphia issued invitations to bid on a portion of the construction of the Criminal Justice Center. The bid specifications required

Page 646

15% minority owned business enterprise participation and 10% female owned business enterprise participation. App. at 52. On March 4, 1988, the Department of Public Property issued Addendum No. 1, giving notice to all prospective bidders that, for this project, the required minority business enterprise participation was increased to 35%, and "at least 45% of the employment hours for the work performed on-site for this bid package shall be performed by qualified minority and female workers, made up of 35% minority and 10% female." App. at 53; see Philadelphia Code, ch. 17-500 to 504 (giving the City of Philadelphia discretion to set minority business enterprise participation requirements).

Addendum No. 1 was circulated to potential contractors. There is no evidence in the record that any objections were raised by the appellants or by any potential contractor at any time prior to bid opening. Three bids were submitted and the city announced the project would be awarded to Cornell/Coastal Steel. It was at this time that appellants filed a complaint in the Philadelphia County Court of Common Pleas. The case was then removed to the federal district court for the Eastern District of Pennsylvania.

In the complaint, Rocks, and the other plaintiffs claimed that: (1) the increased minority participation requirements were violative of the equal protection clause of the fourteenth amendment of the constitution; (2) the increased requirements violated the constitutional guarantee of substantive due process; (3) as a matter of state law, the mayor and the city agencies lacked the power to increase the minority business enterprise participation requirements; and (4) the agency proceeding to increase minority participation did not comply with the procedural requirements of state law.

The district court held that the plaintiffs did not have standing to challenge the MBEs on equal protection grounds. The court acknowledged that Rocks and the other plaintiffs possessed what has been described as article III or "pure" standing. App. at 125. However, the court found that the nonconstitutional, prudential limitations on standing had not been satisfied. App. at 126; see Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-82, 98 S.Ct. 2620, 2630-35, 57 L.Ed.2d 595 (1978); Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976); Warth v. Seldin, 422 U.S. 490, 495, 95 S.Ct. 2197, 2203, 45 L.Ed.2d 343 (1975). The court stated that the appellants were "attempt[ing] to raise the equal protection rights of non-minority businessowners and workers with whom they have no special relationship." App. at 126.

The district court also found that appellants failed to state a claim for violation of substantive due process. App. at 131-33. Relying on Pace Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023 (3d Cir.) cert. denied, 482 U.S. 906, 107 S.Ct. 2482, 96 L.Ed.2d 375 (1987), the court held that plaintiffs had not met the pleading requirements necessary to pursue such a claim. See Rogin, 616 F.2d at 689 (quoting Williamson v. Lee Optical, 348 U.S. 483, 487-88, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955)). The court said that the complaint raised conclusory allegations only, and that without more, the complaint did not qualify as a substantive due process attack. App. at 132. Appellants have not challenged this ruling before us. Having disposed of the federal issues, the district court then remanded the proceeding to the state court. Rocks and the other plaintiffs appealed the district court's decision denying them standing.

II.

Before addressing appellants' main contentions, based on Flast v. Cohen and Bowen v. Kendrick, it is necessary to consider satellite contentions that have been raised, but not strenuously pressed by the parties.

A.

In their brief appellees suggested that this case may be moot. Yet at the beginning

Page 647

of oral argument, the City Solicitor candidly explained to the court:

I think I should address myself to the mootness issue quickly. The principle involves the one of capable of repetition, yet evading review.

And we raised that point to the Court so that you would have all the facts in front of you.

It is my basic position, however, that on the narrow test, on that extreme requirement, that this case probably is not moot, Your Honor.

Tr. of Oral Argument at 17. This proposition is supported by the case law. See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1108 (3rd Cir.1985), cert. denied, 475 U.S. 1013, 106 S.Ct....

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