NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA v. CITY OF JACKSONVILLE, FLORIDA
In 1984, the Minority Business Enterprise Participation ordinance was passed in Jacksonville, Florida which set aside 10 percent of the budget for city contracts to hire minority-owned businesses. On April 4, 1989, the Northeastern Florida Chapter of the Associated General Contractors of America, an association of individuals and companies that worked in construction in Jacksonville, filed an action against the city and its mayor in the United States District Court for the Middle District of Florida, claiming that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment. The District Court ruled in favor of the association, but when the city appealed, the United States Court of Appeals for the Eleventh Circuit reversed. The appellate court held that the association lacked standing to file the action because it did not demonstrate that one or more of its members would have received a reserved city contract but for the ordinance.
In order to have standing to challenge the Jacksonville, Florida ordinance favoring minority-owned businesses, must an association of contractors demonstrate that at least one of its members would have received a city contract in the absence of the ordinance?
Legal provision: Article 3, Section 2, Paragraph 1: Case or Controversy Requirement
No. In a majority opinion authored by Justice Clarence Thomas, the Court noted that, in order to file an action, the petitioner must have demonstrated that, as a result of the challenged ordinance, its members suffered injury or that injury was imminent, and that a favorable ruling could have been expected to rectify the injury. The majority determined that the association members' possible lack of fair opportunity as a consequence of the ordinance would have constituted injury. Since the association members would have competed for the reserved city contracts in the absence of the ordinance, the Court found that they did have standing and reversed the judgment of the Court of Appeals.
Argument of Deborah A. Ausburn
Chief Justice Rehnquist: We'll hear argument now in Number 91-1721, Northeastern Florida Chapter of the Associated General Contractors of America v. the City of Jacksonville, Florida.
Ms Ausburn: Mr. Chief Justice and may it please the Court:
4 years ago my clients filed an equal protection challenge to an ordinance passed by the City of Jacksonville, Florida.
Today, the question is before this Court of whether nonminority contractors who do business with the City of Jacksonville have standing to challenge an ordinance that excludes nonminority contractors who do business with the City of Jacksonville from consideration for certain city contracts.
There are before this Court three--
Unknown Speaker: Ms. Ausburn, do we also have to decide whether the case is moot?
Ms Ausburn: --Yes, Your Honor, that issue has been presented to this Court.
The... as we discussed in our briefs, the city has repealed the ordinance that was originally challenged.
However, it did not simply repeal that ordinance, it repealed it and replaced it with another ordinance that for purposes of standing is identical.
Unknown Speaker: Well, is it?
The new ordinance is rather different, is it not?
Ms Ausburn: Your Honor, the city claims that it is different in the fact that it is supported by evidence that was presented to the city council before the ordinance was enacted.
That, however, is not in the record, and frankly we will not know until someone has standing to challenge that ordinance and obtain court review.
Unknown Speaker: Well, in structure it's different as well, is it not?
Ms Ausburn: Yes, Your Honor.
Rather than being a simple set-aside which the original ordinance was, this new ordinance has five different ways of granting preferences along racial lines.
There are set-asides, there are bid preferences, there are direct negotiations, there are subcontracting requirements.
Unknown Speaker: Is it possible that the standing analysis would be different under the new ordinance?
Ms Ausburn: --Your Honor, it might be that in some instances there would be a question of subcontracting requirements of whether there were contractors who would have standing to challenge the subcontracting requirements, which is not an issue under the old ordinance.
However, for purposes of the fact that nonminority contractors come into the bidding process with a distinct disadvantage for a certain percentage of city contracts, that standing analysis would be the same under--
Unknown Speaker: Has your complaint been amended anywhere down the line to address the new ordinance?
Ms Ausburn: --No, Your Honor, the case has been dismissed because of the standing issue.
Unknown Speaker: So as it comes to us, anyway, it was based on an ordinance that's now repealed.
Ms Ausburn: Yes, Your Honor, although I would use the word, replaced with another substantially similar and, for purposes of standing, identical ordinance.
Unknown Speaker: Ms. Ausburn, our judgments don't address legal issues.
I mean, I agree with you the legal issue that you raise will continue to be there under the new ordinance, maybe in somewhat different form, but courts don't address legal issues, they issue judgments, and you're essentially asking us to strike down a... or to disallow the implementation of a statute which no longer exists.
You're asking us to do something that's a useless act, aren't you?
Ms Ausburn: Not necessarily, Your Honor.
It is far from clear in this case that the injunction which the district court entered in this case originally almost 3 years ago... it is far from clear whether that permanent injunction does not cover the new ordinance.
The court's injunction stated that the city was free to reenact constitutional ordinance that met this court's guidelines in City of Richmond v. Croson.
It is no more than an assertion on the part of the City of Jacksonville that this new ordinance meets the city of... the guidelines of Croson and therefore meets the terms of the original injunction.
If it were not for the standing issue, Your Honor, either party could go back to the court under the original injunction and ask the court to review this new ordinance under the same standards and under the same legal issues that were presented 4 years ago.
Unknown Speaker: I see.
Ms Ausburn: However, no one can do this until someone has standing.
Unknown Speaker: All you're asking this Court to do is to reverse the Eleventh Circuit on the standing question.
You're not asking us to decide anything on the merits, are you?
Ms Ausburn: No, Your Honor.
There is nothing on the merits that has been preserved in this case through... from the district court through the Eleventh Circuit.
The Eleventh Circuit did not decide the merits of the old ordinance, and the merits of the new ordinance have never been challenged.
Unknown Speaker: And, of course, the Eleventh Circuit didn't decide any questions on the adequacy of the pleadings, and there was no question about your ability to amend your complaint because they invoked the standing rule to dismiss the action.
Ms Ausburn: Yes, Your Honor.
They invoked the standing rule, ordered it dismissed on the basis that our pleadings did not allege sufficient facts that they believed to be required for standing in this case.
Unknown Speaker: Was the ordinance repealed, and then a new one enacted, or was it just amended?
Ms Ausburn: It was repealed and replaced.
The beginning of the ordinance... I believe, Your Honor, at the very beginning it said that they repealed section 6 of the City of Jacksonville Purchasing Code and replaced it with this following section 6, so the... a new part section 6 is added to the code, I believe is the exact language.
So the new ordinance is in exactly the same place that the old one was.
It is part of the code.
It uses the same statutory citations and for that purpose we've argued that the case is not moot on those grounds.
The question upon which this Court granted certiorari, which is standing and whether a group of nonminority contractors have standing based on the pleadings that were present in this record, there have been three particular standards that have been identified to this Court for determining that standing issue.
The first one is the rule adopted by the Eleventh Circuit Court of Appeals, which apparently no party before this Court is defending any longer, and that is that the contractors must identify a specific bid and a specific contract that was lost due to the enactment of the ordinance.
The second rule that was presented is the City of Jacksonville's latest proposal, which is that the contractors need not show that we actually lost a contract, we need only show that we specifically bid for an ordinance.
And then the third standard is that submitted by petitioners in this case, which is that the statute creates a racial preference that disadvantages certain parties and that we are within that category of people who are disadvantaged.
We believe, Your Honors, that it is this last rule is the only one that is consistent with this Court's precedent in both standing and equal protection law.
As we explained in our brief, the categorical rule which petitioners would ask this Court to adopt stems from a number of cases, such as Baker v. Carr, Quinn v. Millsap and others, which is that the Equal Protection Clause protects access, it does not protect what the Eleventh Circuit asks the injury to be.
It does not protect actually getting a contract, it does not protect actually being able to perform the contract, the Equal Protection Clause protects access to the system, and that when a party does not have complete and fair access to the system, and that access is conditioned on an unconstitutional barrier, that is the injury, and that is sufficient injury for the Equal Protection Clause.
Now, the second rule, which is the latest version, has... sounds more perfectly reasonable that you have to identify a bid.
However, it is an unnecessary addition to the law of equal protection, or the law of standing, and it is not consistent with this Court's rulings in prior cases such as--
Unknown Speaker: I'm sorry, may I just interrupt you for a minute?
Is the difference between the first and the second essentially kind of an empirical difference in the sense that you're claiming that by identifying the contractors and the association as contractors who customarily bid on a range of contracts, that you therefore in effect have identified them as probably harmed, whereas the second category is asking simply for a more specific demonstration, or a more, maybe a heightened probability of harm?
Is that the difference between the two?
Ms Ausburn: --It could be looked at as that difference, Your Honor.
We would argue that our allegations in this case show sufficient probability.
We have alleged that we are contractors who regularly bid on and perform contracts for the City of Jacksonville, that we do business with the City of Jacksonville on a regular basis, that there are contracts that we would have bid for but we were not eligible for--
Unknown Speaker: --in your complaint specifically says that many of your members would have bid.
Ms Ausburn: --Yes, Your Honor, I believe that is in... it is in paragraph 46 of our complaint, which is in the Joint Appendix... Joint Appendix page 18,
"Numerous nonminority members of AGC have been eligible and would have bid on contracts but for the set-aside program. "
We also allege that there... as long as the set-aside program is in effect, that we are shut out from these.
The requirement of a specific bid arguably would heighten the probability, but it is the sort of mechanical requirement that becomes simply a pleading requirement, and--
Unknown Speaker: Well, being shut out, you don't really say that being shut out is enough.
I mean, I assume that contractors in Seattle, Washington are shut out, too.
You think an individual contractor in Seattle, Washington, could come and bring this suit?
Ms Ausburn: --Only if he proved that he does business with the City of Jacksonville and would like to do business with the City of Jacksonville.
Unknown Speaker: So being shut out alone is not enough.
Ms Ausburn: No, Your Honor.
There is some requirement that you be within the group of people affected by the ordinance, and the ordinance only affects those people who do business with the City of Jacksonville.
Unknown Speaker: But the city identifies in advance the reserved... at least under the old ordinance they identified in advance the bids that were reserved.
Ms Ausburn: Yes, Your Honor, under both the old ordinance, and I believe under the new ordinance, the set-aside, or the contracts that are reserved are... it is included within the bid specifications that these contracts would be let only to minority bidders.
Unknown Speaker: And that's... and nonminority contractors are shut out from bidding on those--
Ms Ausburn: Yes.
Unknown Speaker: --Particularly identified contracts.
Ms Ausburn: Yes, Your Honor.
I suppose in a technical sense we could bid for the contracts.
we simply would not be considered, and that is, of course, one of the problems with the City of Jacksonville's standard, is that they are asking our contractors to bid for contracts that on its face our contractors are not eligible for.
They are requiring a futile act in order to prove standing, which this Court has held in many cases, including criminal law standards, that... to analogize to criminal law, that a person need not submit themselves to a threat of prosecution in order to have challenge... in order to have standing to challenge a law that criminalizes some behavior unconstitutionally.
This Court has also held in many cases that an impending injury is enough, and that if there is evidence in this case or in our case allegations in the complaint of an impending injury, in our case the contractors who would have bid on these contracts and who would like to bid on these contracts, that is precisely the sort of pleading that this Court found adequate in Clemments v. Fashing, which was a statute that required politicians in Texas to resign from a current office in order to run from another office.
This Court did not require those people to actually go and run for office or apply to be a candidate for the office.
The Court simply held that the allegations, which were that they would like to run and would run if it weren't for the fact that they had to resign from their current office, was sufficient to give them standing to challenge that resign-to-run provision.
Unknown Speaker: If you were representing just one client rather than... one contractor rather than association, and the contractor was new in the business, had never bid on anything whatsoever, would you think it was sufficient for you simply to acclaim that your client would have bid but for the set-aside?
Ms Ausburn: Your Honor, there might be a... with the individual contractor there might be a heightened element of evidence in order to prove that he would have bid, and that would come down to the difference between allegations and evidence submitted at summary judgment in order to prove that.
Unknown Speaker: --allegation.
Ms Ausburn: I would believe, Your Honor, that would be sufficient to establish standing and to get the case... to get the case into court so that those allegations could be tested.
There would be all sorts of evidence required that this person was competent to perform contracts for the City of Jacksonville, that he was otherwise eligible; there would be many issues, but those would be evidentiary proof issues rather than pleadings issues for allegations.
The question of what... whether a person would have to submit a bid, that second test that has been presented to this Court is not one that is necessary to protect the principles that are at issue in standing cases.
This Court has stated that the issue in standing cases is whether you have the proper plaintiff before the Court, a plaintiff who is likely to be injured, a plaintiff who is concerned about what is happening in this case.
We would submit that, on the basis of our allegations, that we do business with the City of Jacksonville, that we would like to continue to do business with the City of Jacksonville, that you have the proper plaintiffs before this Court.
After all, the ordinance is directed towards contractors who do business with the City of Jacksonville, and if we can prove we are within that category, then there is no one else that is going to be able to challenge the ordinance, other than people within that category.
The third rule is the one that this Court originally granted cert on, which is the Eleventh Circuit rule requiring proof of an actual contract.
We believe that the Eleventh Circuit confused the standards for standing in equal protection cases with the standards at issue for a bid protest or your standard civil suit where damages are sought, and for all the reasons contained in our brief we believe that injunctive relief, and particularly injunctive relief under the Equal Protection Clause, does not require proof of a specific lost contract but simply being allowed to... or, excuse me, not being considered or not being able to compete on an equal basis is sufficient.
The finally issue that has arisen in the briefs is the level of evidence that is required.
The posture of this case is that everything about standing has been decided on the pleadings.
There is no evidence in the record that our clients submitted a bid and were refused, or that they would have gotten a contract.
The reason we believe that this Court should focus on the allegations and determine whether the allegations are sufficient for standing is because in many cases, this... or in most cases where the Court has focused on the... considered standing, they have focused on the allegations in the complaint unless, if standing came up as an issue in the lower courts, in the issue of summary judgment or in other standards, then this Court has considered that the nonmoving party or the party plaintiff who has proved standing has had adequate notice.
Celotex is an example where this Court made a point that the plaintiff in that case had not presented sufficient evidence to sustain her pleadings, but that she had sufficient notice, and all of these cases... many of these cases that the Court has considered have used language that if it is contested at trial, if the question is brought up... in Lujan, the language was, in response to a motion for summary judgment evidence is needed.
There was no such motion, there was no such notice for the petitioners in this case.
The question never came up until... as I believe the briefs adequately show, the question never came up until 6 months before this case came up on appeal when the Eleventh Circuit adopted its new rule and then applied it in this case.
This Court has never dismissed pleadings or never decided a case on standing for lack of evidence unless there was notice in the lower courts that this has come up.
In this case, the City of Jacksonville never raised the issue.
In fact, at a hearing on the preliminary injunction when the judge asked them if they were claiming that we had no standing, they said no.
The issue of bids and being denied for a bid went to irreparable injury for a preliminary injunction, which was the issue at that time 4 years ago, when we sought preliminary injunction.
The issue of injury and requiring a bid has never been an issue in this case until the Eleventh Circuit's... the Eleventh Circuit decided its decision.
Unknown Speaker: What do you do about our language in Warth v Seldin, where we denied standing to the homebuilders saying,
"The complaint refers to no specific project of any of its members that is currently precluded by the ordinance? "
Remember, this was an ordinance that--
Ms Ausburn: Yes.
Your Honor, the--
Unknown Speaker: "There is no averment that any member has applied to respondents for a building permit. "
Ms Ausburn: --Yes.
Unknown Speaker: Were we just... why were we saying that?
Ms Ausburn: Well, because in Warth v. Seldin, that was the only injury that those homeowners... that those homebuilders could allege, was economic injury.
They were not the targets, or they were not suffering any discrimination as a result of that zoning ordinance.
The injury that the homebuilders were alleging was indirect injury, injury to them resulting from the violation of someone else's rights.
It was the rights of the people to live in that community, the other rights.
They had no equal protection rights for discrimination, and it's that distance, there, that economic injury was all that they could claim, and therefore this Court rightly went back to the standard for damages in the case.
Unknown Speaker: Your clients don't have any separate equal protection rights here, apart from the contracts.
They're not complaining of some violation of equal protection rights in the abstract, they're complaining about denial of particular contracts.
Ms Ausburn: Yes, Your Honor, but the statute has created racial classifications and has put our clients within those racial classifications.
In Warth v. Seldin the homeowners... excuse me, the homebuilders association, none of their clients were classified and directly affected--
Unknown Speaker: Well, that's very true, but I don't see how that has anything to do with the standing question.
Ms Ausburn: --Your Honor, the... again, I would go back to the injury that they were claiming--
Unknown Speaker: Right.
Ms Ausburn: --In Warth was not related to the Equal Protection Clause.
The injury to those particular plaintiffs was purely economic.
In our case, we are alleging more than economic injury.
Unknown Speaker: You are.
What is the injury you are alleging?
Ms Ausburn: The... the... being excluded from the process.
Unknown Speaker: Being excluded from the process?
Ms Ausburn: --Yes, Your Honor, being excluded from consideration.
Unknown Speaker: I don't understand that.
I thought you were complaining about not being able to get contracts with the city.
Ms Ausburn: We're not even considered for contracts.
It is true that what we're looking at is economic, that it is the contracts, but I believe there is a difference between the contracts and saying that it is all economic injury.
I'm not denying that there is economic injury in this case and that if it is only economic injury then you must quantify it to the extent of damages.
Unknown Speaker: Well, is there any difference between your case and Croson in the sense of the kind of injury you're talking about?
Ms Ausburn: Your Honor, the injury that this Court identified in Croson was the injury of not being considered... or being lumped in a category because of racial preferences and not being allowed.
We would put ourselves in the Croson category as opposed to the Warth v. Seldin category, because we are directly affected by the statute and it is our directly Equal Protection rights that are being affected.
Unknown Speaker: You say it's more... more proximate in your case than it was in Warth, then.
Ms Ausburn: Your Honor, we're saying that the injury, the Equal Protection injury is more proximate to us than it was in Warth.
They had no Equal Protection injury in Warth v. Seldin.
All that they had was economic injury.
Unknown Speaker: It seems to me the question is not so much the kind of injury but the likelihood of its occurrence, and in Warth v. Seldin we found there was just no likelihood shown that the injury would ever occur, and it seems to me that that should be the distinction, not the constitutional basis that underlies the cause of action for asserting the injury.
Ms Ausburn: That is true, Your Honor, there is a difference in Warth between the proximity.
We look to the Equal Protection Clause not to determine proximity, we simply look to the Equal Protection Clause to determine the injury that is acceptable, and that is the main area of disagreement that we have with the Eleventh Circuit's argument.
They looked at the only injury that is acceptable is economic injury.
Unknown Speaker: Well, I... I guess that's a different answer... I mean, if you said that language in Warth may go too far, but the proximity is different, that language aside... but that language seemed to say not just, it isn't proximate enough, but that it can't be proximate enough unless you will identify a particular contract.
Ms Ausburn: Yes, Your Honor, and if Warth requires people who suffer Equal Protection injury to prove a bid or to show that they had submitted themselves to the process, then Warth is not consistent with this court's prior holdings in standing and equal protection, because there are many cases where... the voters in Baker v. Carr did not have to show that they had actually voted.
The plaintiffs in Gilmore, where they were excluded from the parks, they didn't have to show that they had gone out and tried to enter the parks.
All they had to show is that the ordinance said only these people are allowed in the parks, and you are not one of these people.
And Warth v. Seldin, we believe that the only way to reconcile it with the other cases is to make the difference between the rights that are asserted and the proximity in this case.
Unknown Speaker: But when you say that your members would have bid on these contracts, are you telling us that we should read that allegation to mean, in effect, that they would have bid and that, given the large number of them and the fact that they customarily seek contracts for this kind of work, that there is a reasonable probability that one of them would have gotten at least some of these set-aside contracts?
Are you telling us that's the way we should read that allegation?
Ms Ausburn: Certainly you can read that, Your Honor.
We do not believe that it's necessary for there to be at the end of any chain of reasoning a decision that someone would have gotten a contract.
Unknown Speaker: So then you really are saying, I guess, that you're not complaining of economic injury, you are simply complaining of kind of an abstract exclusion from a bidding process, and it seems to me that that is weaker than read your allegations to be.
Ms Ausburn: We--
Unknown Speaker: You're not complaining of... at least, I didn't think you were complaining of a mere abstract classification which excludes you from a bidding process.
I thought you were complaining of an exclusion in the course of which some of your members would obtain contracts.
Ms Ausburn: --Yes, Your Honor, I believe that that is true and that it can be read that way.
Unknown Speaker: So ultimately you are complaining of an economic injury, and the debate seems to be how specific must you articulate your allegations to raise a probability, or a claim of probability of actual economic injury.
That's fair to say, isn't it?
Ms Ausburn: Your Honor, it is true that in this case our clients would not be bidding for contracts if they didn't think they could get them.
They are in business, and they would like to perform contracts and be paid for performing those contracts.
However, it's simply a question of whether performing the contracts, receiving the contracts, is a necessity, and we believe that there is certainly--
Unknown Speaker: Well, you mean whether obtaining a particular contract is a necessity.
Ms Ausburn: --Is a necessity for standing.
Unknown Speaker: Yes.
Ms Ausburn: Yes.
Yes, Your Honor, and we believe that the Court can find from our pleadings that certainly someone within the Association of General Contractors is going to be performing, or is going to receive and perform adequately a contract for the City of Jacksonville.
Unknown Speaker: Of course, the court below insisted that you prove not only that you would have bid for the contract, but that you would have gotten it.
Ms Ausburn: Yes.
Yes, Your Honor, but for... again, it was a simple damages type of analysis that they applied to this case, and given all those reasons, we believe that the only standard that is consistent with this Court's precedent, and consistent with this Court's precedents in both the Equal Protection Clause and standing, is the standard that our allegations meet, which is that the City of Jacksonville passed an ordinance that affects contractors who do business with the City of Jacksonville, and we do business with that city.
Unknown Speaker: Thank you, Ms. Ausburn.
Am I pronouncing your name correctly?
Argument of Leonard S. Magid
Mr. Magid: Magid.
Unknown Speaker: Magid.
Mr. Magid, we'll hear from you.
Mr. Magid: Mr. Chief Justice, and may it please the Court:
The Eleventh Circuit decision on standing should be affirmed, and we are here to defend that decision, because it correctly held the AGC to the economic injury stated in its complaint.
Even if the injury is found to be noneconomic, the AGC failed to allege such injury or any other injury, economic or noneconomic, with any particularity in accordance with the Warth case and others of this Court.
Unknown Speaker: Are you talking about some sort of a pleading rule that would require alleging with particularity economic injury, or are you talking about a substantive rule as to what sort of a showing you would have to make to win your lawsuit?
Mr. Magid: Initially, Your Honor, it would be a pleading rule.
It's a pleading rule in the sense that from the complaint it must appear that standing is present.
Without standing being present, the court has no jurisdiction to proceed further.
That is why we're here today, because the allegations in the AGC complaint are not very clear, and the court... at least, it took an appellate court to realize that the case should not have proceeded on the pleadings alone, and of course, as you go through the different stages of the case, and you get to the summary judgment stage of the case, that rule would be heightened and you would need more evidence, and we were at that stage in this case.
Unknown Speaker: The district court granted summary judgment--
Mr. Magid: Against the city.
Unknown Speaker: --Against the city, and issued a preliminary injunction.
Mr. Magid: And a permanent injunction.
Unknown Speaker: And a permanent injunction, and so the Eleventh... there were no more proceedings to be had in the district court, then.
Mr. Magid: No, Your Honor.
Unknown Speaker: And the Eleventh Circuit reversed because of no showing of standing, in its view.
So why are we talking about a pleading rule if the case went on summary judgment and there were no further proceedings to be had in the district court?
It went beyond... it had gotten beyond the pleading stage in this case.
Mr. Magid: We agree with you wholeheartedly, Judge... Your Honor... Chief... Mr. Chief Justice.
Sorry... I got it.
Even if the pleadings are found to be sufficient, we're not at that stage in this case.
The AGC failed to support the general allegations of its complaint at the summary judgment stage with any evidence, and again, like Your... Mr. Chief Justice, you said, the case had already gone to judgment.
It seems a little late to say well, we can show you we should have been here in the first place.
Unknown Speaker: Did you challenge standing at that stage?
Mr. Magid: Your Honor, we never challenged standing until the appeal.
Unknown Speaker: Until the appeal, so... and now you complain that they didn't put in more evidence of standing, when you never challenged... surely, at least in those circumstances the standard we should apply is the pleading standard, they come in and plead something that would show enough standing.
Mr. Magid: Your Honor, we assumed that standing was present.
We assumed that if a group of nonminority contractors were challenging a minority program, that you basically had standing.
Unknown Speaker: But you've changed your mind now.
Mr. Magid: Correct.
The Eleventh Circuit... the Eleventh Circuit, which has an obligation, and every court... and it's really between... almost between the plaintiff and the court.
Unknown Speaker: I don't deny their obligation, but I'm just... it doesn't seem to me to apply to them a higher standard than would be necessary to pass a judgment on the pleadings, when you have never at any point, until they're in the court of appeals, challenged the standing, and then you want us to apply the test that ought to be applied either at summary judgment or later still, at trial.
That doesn't seem to me very fair.
Mr. Magid: They had notice, like any other litigant, that standing is an essential element of their case.
They moved for summary judgment.
When they moved for summary judgment, they represented to the court that the court should grant that judgment as a matter of law, and here's all our evidence that we need.
Again, they had notice that standing is an essential element of the case, but they did not submit any evidence establishing that standing for the court to rule, for the court and the Eleventh Circuit to render a ruling and to exercise its lawful authority in this case.
Unknown Speaker: But the Eleventh Circuit orders the action to be dismissed, it doesn't remand so that the pleadings can be amended.
Mr. Magid: The effect, Your Honor, is the same.
The case was dismissed without prejudice.
If they do... in fact they're able to show an actual case in controversy, they can be back at our doorstep and sue us tomorrow.
Unknown Speaker: Is it without... if you dismiss someone for no standing, that's without prejudice?
You can come back in the next day and say oh, I really do have standing, I just didn't allege enough facts.
You can't do that.
Mr. Magid: Your Honor, I think the decision is worded that it's without prejudice, and it should be anyway because it has no res judicata effect.
Unknown Speaker: A decision on standing has no res judicata effect.
Mr. Magid: As to showing later on that there is an injury.
If your allegations are insufficient and you lack evidence, tomorrow you may have an actual case in controversy.
The problem in this case, Your Honor--
Unknown Speaker: Well, if you get... if this further... I mean, if there was a further event, but not if you simply want to come back in with allegations that you could have made in the first instance.
You can't do that.
Mr. Magid: --Then, Your Honor, the only thing I can refer to is the decision in this case.
It is without prejudice.
Unknown Speaker: Well, Mr. Magid, the question presented in the petition for certiorari is whether an association challenging a racially exclusive Government ordinance may establish standing by showing its members are precluded from bidding on certain municipal contracts, or whether the association must show that its members actually would have received one or more of those contracts.
That is a question of substantive standing law, not pleading law, and you know, you're entitled to urge affirmance on any other ground of the court of appeals, but I suggest that you do discuss somewhere in your 30 minutes the standing question.
Mr. Magid: We believe, Your Honor, that in this case the Eleventh Circuit has not established a new rule of standing... has not changed anything substantively on the basis of constitutional standing.
The Eleventh Circuit does not require litigants challenging an affirmative action program or reverse discrimination to show a denial of a benefit or a lost contract.
In this case, it merely required the plaintiff, who was the AGC, to prove specifically... or to allege, first specifically, and then to establish by evidentiary... by evidence that standing was present.
Unknown Speaker: They said that in order to do that they had to show that they would have successfully bid on contracts, didn't they?
Mr. Magid: Correct, and the reason the Eleventh Circuit did that is because the complaint itself states the injury as being economic, and I refer you to paragraphs 48, 49, and 52.
It says, we were harmed.
How were we harmed?
We were harmed because we lost economically.
What did you lose economically?
We lost... lost contracts.
So the Eleventh Circuit thereupon said, show us an actual case in controversy, show us an actual concrete case in this matter where that happened.
Where is a particular project that you lost, and they didn't plead one, they didn't submit one in evidence on summary judgment, and therefore the Eleventh Circuit ruled against them, and it was no new rule of the Eleventh Circuit.
Unknown Speaker: Mr. Magid, suppose... suppose Alaska, having a budget surplus from the sale of the State's oil, decides, instead of dividing it up among all our citizens we're going to have a lottery.
This will be much more exciting and will... but we won't give everybody in the State a lottery ticket.
We'll just give a ticket to minorities in the State.
Or, I mean, better yet, we'll only give tickets to the majority in the State.
We will not give tickets to minorities.
Now, do you think that those minorities have not been deprived of any economic benefit because they cannot prove that they will win in the drawing?
Those tickets will sell for a certain amount of money, won't they?
The tickets will be worth something.
I mean, that--
Mr. Magid: Right.
Unknown Speaker: --That's why lottery tickets are sold.
Mr. Magid: Your Honor, in your example, race is an absolute barrier to their participation.
Unknown Speaker: I'm talking about whether there's any economic value to a chance of getting something.
Mr. Magid: The injury in that case, in your example, is not an opportunity, it's very--
Unknown Speaker: I'm not complaining about my race being demeaned, I'm complaining about the fact that I don't have a lottery ticket, which is worth something, isn't it, even though I don't know for sure that it's going to win?
Mr. Magid: --Even a losing lottery ticket.
Unknown Speaker: Well, I don't... if I know it's a losing lottery ticket, it's worth nothing.
But at the outset I don't know whether it's a winner or loser, just as here.
In submitting a bid you don't know whether you're going to be a winner or loser, but it's worth something to be able to submit a bid, is it not?
Mr. Magid: I would submit to you that the injury that you're stating in your complaint, your hypothetical complaint, is an injury more of a racial stigma, of a personal indignity, saying I'm not allowed to have that lottery ticket based upon my race.
Unknown Speaker: Nonsense.
Assume it wasn't upon my race, it was upon the letter of the alphabet that my name begins with.
I'd still be mad, because these other people got lottery tickets and I didn't.
I've been deprived of economic value, and hasn't... haven't these people been deprived of economic value?
They have a chance of getting the contracts.
Mr. Magid: They've been deprived of economic value, but again, they state in their complaint that their injury is economic, and their injury is economic because, again, if read paragraphs 48, 49, and 52, their injury is that we lost business.
Not that we lost the right to participate in the system, but that we lost a contract.
That's why they're here.
They're here because they claim that they have not... they are unable to win certain contracts let by the city, but we don't know which ones.
Unknown Speaker: Well, how could these members possibly expect to win a contract for a project that's listed as reserved for minorities?
How can the... they just wouldn't even consider the bid.
Mr. Magid: This relates... your question, Your Honor, relates to the imminence of the injury.
In order to warrant a--
Unknown Speaker: Well, didn't the city set aside certain contracts that would be awarded only to minorities?
Mr. Magid: --Yes, but it is--
Unknown Speaker: And so what should somebody do, go perform a futile act, a nonminority... you go bid, and certainly how could you ever prove that you would have gotten the contract when they're reserved for minorities?
Mr. Magid: --Well, facially on the record, Your Honor, and the ordinance is the only thing we have in the record, we don't have any bid specifications, and if you look at the ordinance, the ordinance specifically has a waiver provision.
The ordinance is not a quota.
It's not an absolute bar.
It does not state that 10 percent of the City of Jacksonville contracts will be let to a certain class of people.
It says, that is the city's goal.
In fact, an application much... as a matter of fact, there also is a gender classification in the ordinance that is not challenged by the AGC, and the ordinance can let all the contracts under the ordinance to women-owned businesses.
Unknown Speaker: Mr. Magid, may I just interrupt you with a question?
Isn't it also an allegation in the case, which we are taking as true at this point, that the city manager, whoever it was, identified particular contracts as subject to the set-aside, and that the only claim that these people are making is that as to those contracts they were excluded from bidding, and if that is true, then the fact that there may be a waiver provision is irrelevant to our issue, isn't it?
Mr. Magid: Well, Your Honor--
Unknown Speaker: Because there was no waiver as to those identified contracts.
Mr. Magid: --But again, the complaint does not identify the particular contracts that the city might set aside in the future.
Unknown Speaker: No, I... that, I assume, is the case but you were placing some emphasis on the fact that the city can waive the set-aside requirement.
My only point is, as I understand it, the pleadings here include a claim that there have been specific contracts as identified as being subject only to minority bids, and those are the only contracts which we have before us, and if that is so, the fact that there could have been a waiver is irrelevant, isn't it?
Mr. Magid: I would submit to you, Your Honor, that provision has to be... that allegation should be read in context with the evidence, which is the ordinance, and the ordinance--
Unknown Speaker: Well, I'm willing to do that, and I still don't see what difference it makes, and why we should consider the possibility of a waiver when the subject matter of this litigation goes to contracts which have... or to bids as to which there has been no waiver of the ordinance.
Mr. Magid: --Well, Your Honor, again, that is the problem with this case, is that, like the Warth case, there is no particular project.
We don't know from the complaint--
Unknown Speaker: Well, let me ask you just a question about allegations.
Is it true, or is it not true... maybe I'm wrong on this... that the allegation is that as to specifically identified contracts, i.e., those which are set aside by the city manager as being subject to the set-aside, the members of this association are excluded from bidding, is that correct?
Mr. Magid: --It is uncertain from the pleading in that no particular contract is identified--
Unknown Speaker: No specific contract, i.e., the contract to pave, you know, West Rollins Street, is not identified, but the class of contracts is identified, and that class of contracts is described as those which are set aside by the city which are identified by the city manager as subject to the set-aside, isn't that true?
Mr. Magid: --But it's unclear that--
Unknown Speaker: Well, isn't that true?
Mr. Magid: --Your Honor, no, because it is unclear from the ordinance itself whether--
Unknown Speaker: But I'm asking about the pleadings.
Isn't that what they've pleaded?
Mr. Magid: --They have alleged... correct, Your Honor.
They have alleged generally that they have been precluded in the past from certain business.
Unknown Speaker: Okay.
Mr. Magid: However, the ordinance itself does not state whether the particular projects that they might be interested in have ever been set aside or will be set aside in the future.
It doesn't say, construction contracts, or within the area of construction contracts, electrical contracts, plumbing contracts, whatever contracts--
Unknown Speaker: Right, I understand that, yes.
Mr. Magid: --So there's no matching, so there's no... we don't know if--
Unknown Speaker: Well, it says it.
It just doesn't say it specifically.
It says, some of those set aside we would have bid on, doesn't it?
Mr. Magid: --That's correct, Your Honor.
Unknown Speaker: Well, when you say there's no matching, you mean there's no matching between this contractor and this contract.
Mr. Magid: Correct, Your Honor.
Unknown Speaker: Okay.
Mr. Magid: And also... and I would submit to you that there is a contradiction facially with the ordinance.
The ordinance allows the waiver provision, and allows them to bid.
It doesn't preclude them from bidding, and again that 10 percent is no absolute bar.
The problem in this case is the fact that they sued as an association, and as an association they may sue as a representative of its members, but the associational standing does not negate the requirement that you have actual case in controversy.
A representative standing case or an association can't hide behind its associational standing.
The general allegations of the complaint that our members are suffering under this ordinance are unsupported even in the complaint, in the complaint and later on in summary judgment, with any specific instance, and like any other litigant an association should have to come forward and show a specific instance of actual case in controversy so the court... a court doesn't find itself in a situation where we are today.
Unknown Speaker: Well, certainly... certainly it very likely... it should at some stage of the litigation, if you say you can't show that there was any contract you were excluded from, they should have to show that their allegation in their complaint that the city had set aside certain ones was true, but I don't think you can focus just on the complaint in that inquiry.
There are all sorts of ways in litigation to bring out specific answers to questions that may have to be asked at trial.
Mr. Magid: The only thing I would refer you to, Your Honor, is that of course, as you get through the stages of the litigation like the Lujan case specifically talked about, you have a higher threshold of evidence to show the court that you fulfilled the obligation, and you can assure the court that there was an actual case in controversy.
However, there's a case... Bender v. Williamsport... where the court talks in language of any doubt that that actual case in controversy is present should be resolved in favor of not allowing a case to proceed, or the presumption is that... the presumption is that actual case in controversy is not present.
Based upon those very... the law is exacting when it comes to standing.
Based upon those opinions, we would submit to you that you should put it in your pleadings and specifically allege, and put the court on alert, that you have standing.
If you continually... if litigants continually to allege... continue... associations continue to allege our members are hurt generally, a court can't be satisfied that standing is present.
Unknown Speaker: Well, the test is whether that allegation is sufficient to show standing.
You wouldn't insist that in a separate paragraph of the complaint the plaintiff would say the plaintiff had standing, would you?
Mr. Magid: No.
That would be a general conclusory allegation and of course would be insufficient, but something to say here is our actual case, here is the elements of our... here is a particular... like Warth suggested, here is a particular project.
We are injured because in this particular project company A was minimally eligible to bid, the city was going to set aside that project, we bid, we didn't get it.
Unknown Speaker: Well, rule 8(a) says the complaint should set aside, what, a short, simple statement of the claim.
Are you saying there must be a different rule for complaints where there might be any challenge to standing?
Mr. Magid: I would suggest to you, Your Honor... Mr. Chief Justice, sorry... that when it comes to standing, standing is such a critical doctrine that goes to the separation of powers, of... and the lawful exercise of the court's authority, that when it comes to that doctrine, that standing should be evident from the face of the pleadings, and conclusory allegations alone put us in a situation where we are here, where a case actually went to judgment and there is no record evidence that at least one AGC member in one instance has ever been injured by the ordinance.
Unknown Speaker: But isn't that attributable to the fact that standing was never raised until it got to the Eleventh Circuit?
Mr. Magid: Partly, Your Honor.
Unknown Speaker: Well--
Mr. Magid: I mean... well, wholly, but the idea is that if there was a pleading rule, that it should be from the face of the pleadings that it should appear, and I think there is some language in Bender v. Williamsport that it should appear from the pleadings that presumptively... the presumption is that it doesn't exist, so you must... when you have to overcome a presumption, there's something more you would have to do than just do... cite conclusory allegations.
And I know there's a conflict with the Federal Rules of Civil Procedure when it comes to Rule 8, but standing is so important, and there's a presumption that a court... at the minimum, a court at the pleading stage would dismiss the case and say, you know... not dismiss the case, dismiss the pleading, and allow you to replead.
But again, in this case we have gone to the summary judgment stage, and when you're at the summary judgment stage, and you move for summary judgment, you're on notice that that standing element is present.
Unknown Speaker: --May I ask another question?
We've talked mostly about the set-aside of 10 percent that your opponents say they were entirely excluded from getting contracts.
Did they not also allege that even as to the contracts they got they had an obligation under the ordinance to have subcontracted 10 percent of that work, and that that had caused them extra expense, and is that the subject of a different analysis?
Mr. Magid: Your Honor, I'm aware of the allegation that you're reading.
The ordinance does not suggest... actually, the allegation of the complaint is that all city contracts require 10 percent subcontracts.
The ordinance itself does not require all contracts be... have 10 percent participation of minorities.
There's no place in the ordinance that requires--
Unknown Speaker: But does it require some contracts given to nonminority contractors to have 10 percent for minority contractors?
Mr. Magid: --Yes, but it doesn't say 10 percent.
It leaves it open as to what the percentage might be.
The provision that you're referring to--
Unknown Speaker: But in any event, they did allege that that provision of the ordinance caused them to make subcontracts that were less advantageous than if they'd not had to do that.
Mr. Magid: --Right, Your Honor, but that allegation, again there is... on its face, and I think the Eleventh Circuit has stated this previously, that an allegation that it costs you more to hire somebody else, you're just going to pass it on in your bid, anyway.
I mean, everybody has the same equal playing field.
As a general contractor you're trying to meet your subcontracting requirements and therefore it's not going to cost anybody anybody... anything extra, so there is no economic injury for that alone.
In this case, Your Honor, the litigants and lawyers and courts need to be reminded that sometimes... that they are blinded by the ultimate ends a lawsuit might bring, and in this case the litigant's zealousness to stop a Government program that they did not like, did not wait for the time when an actual case had arisen.
The fact that the issue was raised by the court only... or the appellate court in this case, only underscores the importance of the standing doctrine to the court's lawful exercise of its authority.
The AGC in this case rushed to court after the Croson decision attempting to halt the city's program, and successfully did, without ever showing that an actual case, an actual instance where one AGC member was injured during the 5 years of the existence of the program, and they were able to get an opinion that now stands as an advisory opinion because there's no record of evidence in that record, even though the case had gone to judgment, that there is an actual case in controversy.
In conclusion, conclusory allegations of injury are not sufficient to establish constitutional standing.
Without allegations of specific injury, a court cannot be assured that standing is present and that it should resolve a dispute between the parties.
Relaxing standing doctrine would only upset the delicate balance of power among the branches of Government, expand judicial power unnecessarily, and sanction advisory opinions.
The court in this case, the appellate court in this case provided a check, and if that check is not fulfilled, the legitimacy of the court can ultimately be undermined.
Unknown Speaker: Thank you, Mr. Magid.
Ms. Ausburn, you have 3 minutes remaining.
Rebuttal of Deborah A. Ausburn
Ms Ausburn: Thank you, Your Honor.
The standard that the City of Jacksonville would have this Court use is one that imposes evidentiary standards on pleading requirements.
We believe that our allegations are sufficient to show that we were excluded from contracts because of an ordinance that was adjudicated to be unconstitutional, and that we will continue to be excluded from those contracts.
If this Court believes that more evidence is necessary, we are prepared, certainly, to present that.
We would simply ask that this Court decide what it is that we must show in the lower court, whether we must show a specific contract, or whether we must show the matching contracts that the City of Jacksonville is asking for.
In the final analysis, however, we believe that in order to be consistent with prior precedent, that the correct rule in this case is the one that we have already met, which is that the City of Jacksonville has an ordinance that excludes contractors from consideration if they fit within the category, and that we, as nonminority contractors who do business with the City of Jacksonville, are within that category.
Chief Justice Rehnquist: Thank you, Ms. Ausburn.
The case is submitted.