Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, FL Brief Amici Curiae

    No. 91-1721

In the Supreme Court
OF THE

United States
October Term, 1992

Northeastern Florida Chapter of the Associated 
General Contractors of America, 

Petitioner. 
vs.

C ity of J acksonville, Florida, et al. 
Respondents.

On W rit of Certiorari to the United States Court 
of Appeals For the Eleventh Circuit

BRIEF OF EQUAL RIGHTS ADVOCATES, 
MEXICAN AMERICAN LEGAL DEFENSE AND 

EDUCATIONAL FUND,
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF 

THE SAN FRANCISCO BAY AREA, AND 
THE EMPLOYMENT LAW CENTER AS AMICI CURIAE 

IN SUPPORT OF PETITIONER

Counsel for Amici Curiae 
Curtis Ej \ .  Karnow*
Stephen P. Van Liere

Landels, Ripley & Diamond t
350 Steuart Street

San Francisco, California 94105-1250 
(415) 788-5000

Judith Kurtz 
Equal Rights Advocates 

San Francisco, California 
Eva Jefferson Paterson 
Theodore Hsien Wang 
Lawyers’ Committee for 

Civil Rights of the 
San Francisco Bay Area 

San Francisco, California

November 19, 1992 * Counsel of Record
■O W N C  or SA N  FR A N C IS C O . INC . •  1 5 0  N IN T H  S T . •  S .F . .  C A M I Q 3  •  ( 4 1 5 )  M 4 - 1 3 0 0

Of Counsel:
Birgit Siefert 
Kevin Baker 
Antonia Hernandez 
Mexican American Legal 

Defense and 
Educational Fund 

Los Angeles, California 
William C. McNeill, 111 
Employment Law Center 
San Francisco, California



TABLE OF CONTENTS
Page

Interest of A m ici............................................................................  1

Summary of A rgum ent...............................................................  3

Argument.........................................................................................  4

I

Article III Standing is Demonstrated by the Particularized 
Injury Claimed By P etitioner................................................. 4

II

These Alleged Victims of Unequal Treatment Have Standing 
to Challenge That T rea tm en t................................................  7

Conclusion....................................................................................... 9



TABLE OF AUTHORITIES 

Cases

El!£
Asarco v. Kadish, 490 U.S. 605 (1989) ..................................  5
Associated General Contractors Inc. v. City and County of

San Francisco, 813 F.2d 922 (9th Cir. 1987)...................... 2
Associated General Contractors, Inc. v. Coalition for Eco­

nomic Equity, 950 F.2d 1401 (9th Cir. 1991) .................... 2
Baker v. C an, 369 U.S. 186 (1962) .........................................  5
CC Distributors, Inc. v. United States, 883 F.2d 146 (D C 

Cir. 1989) ...................................................................................  8
City of Richmond v. J.A. Croson Co., 488 U.S.

^ 9  (1989) ........................................................................  2, 6, 7-8
Cone Corp. v. Florida Dept, of Transportation, 921 F.2d 1190

(11th Cir.), cert, denied, 111 S.Ct. 2238 (1 9 9 1 )................ 9
Contractors Ass’n. of Eastern Pennsylvania, Inc. v. City of

Philadelphia, 945 F.2d 1260 (3rd Cir. 1991) ...................... 8
DeFunis v. Odegaard, 416 U.S. 312 (1 9 7 4 )............................  8
Fullilove v. Klutznick, 448 U.S. 448 (1980)............................  2
Glacier Park Foundation v. Watt, 663 F.2d 882 (9th Cir 

1 9 8 1 )............................................................................................  8
Heckler v. Mathews, 465 U.S. 728 (1 9 8 4 ).................................. 7
Hunt v. Washington State Apple Advertising Commission 

432 U.S. 333 (1 9 7 7 ) ..................................................................4.5
International Bro. of Teamsters v. United States, 431 U S  

324 (1977) ............................................................................... .' 8
Johnson v. Transportation Agency, Santa Clara County 480 

U.S. 616 (1 9 8 7 )..................................................................  2
Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992) ___  5
Lujan v. National Wildlife Federation, 110 S.Ct. 3177 (1990) 7
Massachusetts v. Mellon (Frothingham), 262 U S  447 

(1923) ..........................................................................................  6
National Ass’n. of Neighborhood Health Centers, Inc. v. 

Mathews, 551 F.2d 321 (D.C. Cir. 1976).............................. 8

ii 111

Table of Authorities

Cases

P»ge

Northeastern Florida Chapter of Associated General Contrac­
tors v. Jacksonville, 951 F.2d 1217 (11th Cir.), cert, 
granted, 61 U.S.L.W. 3256 (1992) ........................... ’.........4.5

Orange Park Florida T.V., Inc. v. F.C.C., 811 F.2d 664 (D C 
Cir. 1 9 8 7 )..................................................................................  8

On- v. OrT, 440 U.S. 268 (1979) .............................................. 7, 9
Regents of University of California v. Bakke, 438 U.S. 265 

(1 9 7 8 ) .................................................................................... 7, 8, 9
Village of Arlington Heights Development Corp. v. Metropol­

itan Housing Corp., 429 U.S. 252 (1977)........................... 7, 9
Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) 2

Other Authorities
Antonin Scalia, “The Doctrine of Standing As An Essential 

Element of the Separation of Powers,” 17 Suffolk U L 
Rev. 881 (1 9 8 3 )........................................................................ 5



‘tf.

|I
4
-a

No. 91-1721

In the Supreme Court
OF THE

United States
October Term, 1992

Northeastern Florida Chapter of the Associated 
General Contractors of America, 

Petitioner,

C ity of Jacksonville, Florida, et al. 
Respondents.

On Writ of Certiorari to the United States Court 
of Appeals For the Eleventh Circuit

BRIEF OF EQUAL RIGHTS ADVOCATES, 
MEXICAN AMERICAN LEGAL DEFENSE AND 

EDUCATIONAL FUND,
LAWYERS’ COMMITTEE 

FOR CIVIL RIGHTS OF 
THE SAN FRANCISCO BAY AREA, AND 

THE EMPLOYMENT LAW CENTER AS AM IC I CURIAE 
IN SUPPORT OF PETITIONER

Interest of Amici

Amici, the Employment Law Center of the Legal Aid Society 
of San Francisco, Equal Rights Advocates, Lawyers’ Committee 
for Civil Rights of the San Francisco Bay Area, and the Mexican 
American Legal Defense and Educational Fund (“MALDEF") 
are public interest law firms founded to secure and protect the 
civil and constitutional rights of minorities, women and low 
income persons. Amici believe that business opportunities for 
minority and women owned businesses are essential to the eco-



2

nomic development of our communities and that these opportuni­
ties should be promoted through the development by state and 
local governments of constitutionally valid minority and women 
owned business programs.

Amici are counsel for the Coalition for Economic Equity, a 
coalition of minority and women owned business associations and 
companies in San Francisco. Am ici represented the Coalition as 
defendant intervenors in the cases brought by the Associated 
General Contractors of California challenging San Francisco’s 
minority business enterprise program. Associated General Con­
tractors Inc. v. City and County o f  San Francisco, 813 F.2d 922 
(9th Cir. 1987) and Associated General Contractors. Inc. v. 
Coalition fo r  Economic Equity, 950 F.2d 1401 (9th Cir. 1991). In 
addition, these amici served as counsel for the Coalition as 
amicus before this Court in City o f  R ichmond  v. J A . Croson Co., 
488 U.S. 469 (1989).

Amici have also submitted amicus briefs to this Court in 
challenges to minority business enterprise programs and other 
cases involving race and gender conscious relief, including Fulli- 
love v. Klulznick, 448 U.S. 448 (1980); Johnson v. Transporta­
tion Agency. Santa Clara County, 480 U.S. 616 (1987); and 
Wygant v. Jackson Board o f  Education, 476 U.S. 267 (1986).

The Employment Law Center, the principal project of the 
Legal Aid Society of San Francisco, is nationally recognized for 
its expertise concerning issues surrounding employment. It has 
been a pioneer in the employment law field for over a decade. It 
focuses on the legal problems of disadvantaged people as they 
seek to secure, retain, and provide employment opportunities, and 
it represents those who find these opportunities denied them for 
reasons other than their ability to do the job.

For eighteen years, Equal Rights Advocates has been dedicated 
to working to secure the rights of women through the legal 
system. Representing the interests of women in lawsuits which 
have a significant impact on large numbers of women, combined 
with its public education program, the organization is recognized 
as having the expertise to advocate effectively for the rights of 
women who would otherwise not be represented.

3

The Lawyers’ Committee for Civil Rights of the San Francisco 
Bay Area is the northern California affiliate of the Lawyers’ 
Committee for Civil Rights Under Law. For the past twenty-five 
years, the Lawyers’ Committee has been working to eliminate the 
effects of employment discrimination in the northern California 
area through litigation, legislation, and advocacy.

The Mexican American Legal Defense and Educational Fund, 
Inc. (“M A LD EF’) is a national non-profit civil rights organiza­
tion established in 1967. Its principal objective is to secure the 
civil rights of Hispanics living in the United States through 
litigation and education.

In the three years since Croson was decided, amici have 
provided legal guidance to several state and local governments 
and minority and women owned business associations across the 
country regarding the adoption of constitutional minority and 
women owned business programs. Because of their support for 
constitutionally valid programs, amici are opposed to Petitioner’s 
effort to dismantle the minority business enterprise participation 
program in Jacksonville. But amici have an interest in ensuring 
that all businesses which are denied an opportunity to compete be 
entitled to their day in court, including the minority and women 
owned business enterprises represented by amici. As organiza­
tions concerned with securing full equality in employment and 
contracting opportunities, amici have a strong interest in this case, 
and therefore respectfully submit this brief.

The written consents of the parties to the submission of this 
brief have been lodged with the Clerk pursuant to Rule 37.2.

Summary of Argument

A fair reading of the Complaint filed below reveals that a group 
of white contractors in the City of Jacksonville were overtly 
discriminated against on the basis of their race, and the Court of 
Appeals ruled that they had no standing to sue.

This remarkable result follows because the white contractors of 
the AGC did not point to a “specific” city contract they would 
have secured but for the minority business enterprise participation



4

program. But the white contractors did not sue for money lost as a 
result of losing any specific contracts; they sued for declaratory 
relief, to enjoin the operation of the ordinance and thus secure the 
opportunity to compete on an equal footing with minorities for all 
contracts let by the City.

Under the Eleventh Circuit’s opinion, one may not challenge 
the denial of the opportunity to compete on an equal footing. In 
the Eleventh Circuit, governmental obstacles created on the basis 
of race or gender seemingly are immune, as long as they do not 
literally take away a benefit such as a municipal contract, but only 
bar one from applying for it.

The judgement below should be reversed because it is inconsis­
tent with standing law developed by this Court which expressly 
recognizes that one may sue for the denial of an equal opportunity 
to compete for a benefit. The Eleventh Circuit's rule is wrong 
because it equates the requirement of “specific injury" in classic 
standing caselaw with a specifically identified economic injury. 
But that is not what “ specific" means in the standing context. 
“Specific" injury includes a specific handicap illegitimately im­
posed; AGC alleged that specific, personal injury.

This Court's recent opinions emphasizing the constitutional 
separation of powers rationale behind standing requirements sup­
port reversal of the judgment below.

Argument

I

ARTICLE in STANDING IS DEM ONSTRATED BY
TH E PARTICULARIZED INJURY CLAIM ED BY
PETITIONER

Only one of the three classic elements of standing is before this 
Court. The court below addressed only the “ injury in fact” 
requirement, holding that AGC had failed to show a specific 
injury to itself. Northeastern Florida Chapter o f  Associated

‘The Court of Appeals properly assumed that the association, the 
AGC, would have standing if any member did. Hunt v. Washington

5

General Contractors v. Jacksonville, 951 F.2d 1217, 1219-20 
(11th Cir.), cert, granted, 61 U.S.L.W. 3256 (1992). Not at issue 
here are the two other elements, relating to the causal connection 
between the injury and the conduct complained of, and whether it 
is likely that a favorable decision would redress the injury. See 
generally, Lujan v. Defenders o f  Wildlife, 112 S.Ct. 2130, 2136 
(1992).

The requirement of a specific injury is a function of the nature 
of judicial review: The Constitution’s Article III cases or contro­
versies requirement ensures, among other things, that courts will 
not interfere with other branches of government unless an individ­
ual asserts that he has been directly wronged. The point is to test 
whether “the plaintiff's alleged injury [is] a particularized one, 
which sets him apart from the citizenry at large.” Antonin Scalia, 
“The Doctrine of Standing As An Essential Element of the 
Separation of Powers,” 17 Suffolk U. L. Rev. 881, 881-82 (1983).

The constitutional contrast is between (i) a specific injury that 
sets a plaintiff apart from the general population, and (ii) an 
abstract injury to general rights suffered, if at all, by every citizen. 
Lujan, 112 S.Ct. at 2143. The term “specific" in this context is 
defined in juxtaposition with the “general" vindication of the 
public interest, id. at 2145; the same contrast is meant by the 
juxtaposition of “abstract” harm and the “concrete injury” al­
leged by a plaintiff with standing. Id. at 2146 (Kennedy, J., with 
Souter, J., concurring). The “specific” injury test is no more and 
no less than the requirement that plaintiff's have a “personal stake 
in the outcome” as opposed to a stake shared with the rest of the 
population. Baker v. Carr, 369 U.S. 186, 204 (1962), quoted at 
Lujan, 112 S.Ct. at 2148 (Stevens, J., concurring in the judge­
ment). See Asarco v. Kadish, 490 U.S. 605, 635-636 (1989) 
(Rehnquist, C.J., concurring and dissenting) (no Article III 
standing for “generalized grievance” about governmental action).

But the test used by the Court of Appeals was not designed to, 
and does not, distinguish between would-be plaintiffs in this way.

State Apple Advertising Commission, 432 U.S. 333, 343 (1977). The 
standing issue in this case devolves to the standing of the AGC’s white 
contractors barred from bidding on certain municipal contracts.



6

It bears no relation to the Article III interests discussed by this 
Court. The “specific contract” test of the Eleventh Circuit does 
not eliminate the plaintiff that pleaded “merely that he suffers in 
some indefinite way in common with people generally.” Massa­
chusetts v. Mellon (Frothingham), 262 U.S. 447, 488 (1923). 
Crucially, the AGC pleaded injury, specific to it and its members, 
and not shared generally with any other group nor the population 
at large. Plaintiff is not composed of whites generally, or even 
white business owners generally, rather, the AGC includes con­
tractors who “regularly bid on and perform construction work for 
the City of Jacksonville . . .  [who would have been] eligible to, 
and would have bid on [the set aside contracts] but for the 
restrictions imposed on such contracts by the Defendants." Com­
plaint HU 9, 46. These members of the AGC specifically alleged 
that they had been precluded from bidding on those set aside 
contracts. Id. fl 49.

These members of the AGC do not seek to vindicate a 
generalized right, nor the various rights of the general public. 
They make no generalized grievance. Unlike the rest of the 
population, the AGC members were eligible to bid on the set 
aside contracts themselves, and would have done so; but for the 
assertedly illegal action of the City. This is specific enough for 
Article III.

Minority set aside programs — like racial or gender based 
discrimination in general — are not the sort of executive or 
legislative action that this Court insulates from judicial review. 
See e g.. City o f  Richmond v. J j K. Croson Co., 488 U.S. 469 
(1989) (announcing guidelines for race conscious business set 
aside programs).2 In the context of Article I l l ’s enforcement of

' Nor are related principles of federalism implicated by federal judi­
cial review. This Court expressly made that point in disposing of one of 
appellants’ arguments in the Croson case: “The mere recitation of a 
benign or compensatory purpose for the use of a racial classification 
would essentially entitle the States to exercise the full power of Congress 
under § 5 of the Fourteenth Amendment and insulate any racial classifi­
cation from judicial scrutiny under § 1. We believe that such a result 
would be contrary to the intentions of the Framers of the Fourteenth

7

the separation of powers, it is important to note that judicial 
review here will not interfere in areas reserved to administrative or 
legislative discretion. Compare Lujan v. National Wildlife Feder­
ation, 110 S.Cti 3177, 3191 (1990). There is nothing inappropri­
ate in resolving, through the courts, the validity of the race 
conscious system of public contracting described in the complaint 
filed below.

II

THESE ALLEGED VICTIMS OF UNEQUAL TREATMENT 
HAVE STANDING TO CHALLENGE THAT 
TREATMENT

Below, the AGC alerted the Court of Appeals to the line of 
cases including Village o f  Arlington Heights Development Corp. 
v. Metropolitan Housing Corp., 429 U.S. 252, 261-62 (1977); 
Regents o f University o f  California v. Bakke, 438 U.S. 265 
(1978); Orrv. Orr, 440 U.S. 268, 273 (1979), through to Heckler 
v. Mathews, 465 U.S. 728, 739 (1984), all of which noted that 
“discrimination itself," the imposition of unequal treatment alone, 
is an injury upon which the victim can sue. Heckler, 465 U.S. at 
739 (emphasis supplied).

Under the teachings of this Court, no one is more directly 
affected, has more at stake, or is most accurately termed “an 
object of the action (or foregone action) at issue,” Lujan, 112 
S .C t at 2137, than the person who is treated differently by reason 
of his race or ethnicity. It is not possible to read the opinions in 
this Court’s chief case in the substantive area of discrimination 
law without understanding that the victims of racially unequal 
treatment, as such, have suffered injury to their “personal rights.” 
Croson, 488 U.S. at 492-493 (O ’Connor, Rehnquist, White & 
Kennedy, JJ.) (emphasis supplied). Justice Stevens expressed his 
opinion that in public contracting, race ought generally to have no 
relevance to one’s “access to the market,” 488 U.S.‘ at 512 
(Stevens, J., concurring), and Justice Scalia quoted Justice

Amendment, who desired to place clear limits on the States’ use of race 
as a criterion for legislative action, and to have the federal courts enforce 
those limitations.” Croson, 488 U.S. at 490 (emphasis supplied).



8

Douglas’ DeFunis dissent: “Whatever his race, he had a constitu­
tional right to have his application considered on its individual 
merits in a racially neutral manner." 488 U.S. at 527 (Scalia, J., 
concurring) (emphasis supplied), quoting DeFunis v. Odegaard, 
416 U.S. 312, 337 (1974) (Douglas, J., dissenting).

The inability to compete, obstacles in securing access to mar­
kets, and double standards have always been treated by the Court 
as real, specific injuries, and persons on whom those inequalities 
are imposed have been granted standing. Neither the existence of 
the alleged injury, nor the specific identity of the victim, is 
eviscerated when the scheme under attack makes it difficult or 
impossible to specify an ultimate benefit lost. This has been true 
in the race discrimination context, such as in Bakke and Interna­
tional Bro. o f  Teamsters v. United States, 431 U.S. 324 (1977) 
(Title VII litigation):

When a person’s desire for a job is not translated into a 
formal application solely because of his unwillingness to 
engage in a futile gesture he is as much a victim of discrimi­
nation as is he who goes through the motions of submitting 
an application.

431 U.S. at 365-366. This has been true in other areas of the law 
as well.3 These cases all recognize that valid particularized com­
plaints may be presented by those who, regardless of whether they

3 Courts routinely grant standing to those who allege unequal opportu­
nity to compete. See e.g., CC Distributors, Inc. v. United States, 883 F.2d 
146, 149-150 (D.C. Cir. 1989) (loss of opportunity to compete for Air 
Force engineering supply contracts): Glacier Park Foundation v. Watt, 
663 F.2d 882, 885 (9th Cir. 1981) (loss of opportunity to compete for 
national park concessions contract); Contractors Ass'n. o f Eastern 
Pennsylvania. Inc. v. City o f Philadelphia, 945 F.2d 1260, 1264 ( 3rd Cir. 
1991) (contractors’ loss of opportunity to compete for city construction 
contracts); Orange Park Florida T.V., Inc. v. F.C.C., 811 F.2d 664, 672 
(D.C. Cir. 1987) (television station operator had standing to use for loss 
of opportunity to reapply for FCC license, despite not actually having 
reapplied). See also. National Ass'n. o f Neighborhood Health Centers. 
Inc. v. Mathews, 551 F.2d 321 (D.C. Cir. 1976) (standing for health 
care provider which had been told it could not apply for funding).

9

would or would not assuredly secure an ultimate benefit, cry foul 
at the process which awards the benefit to another.

Despite the import of opinions such as Bakke, Village o f  
Arlington Heights and Orr, all of which were cited to the court 
below, the Court of Appeals never mentioned them. Instead of 
following this Court’s guidance, the Court of Appeals looked to its 
own precedent. Cone Corp. v. Florida Dept, o f  Transportation, 
921 F.2d 1190 (11th Cir.), cert, denied, 111 S.Ct. 2238 (1991). 
But Cone too elides the teachings of this Court: Cone never 
considered the proposition that an unfair handicap, or having 
one’s “access” to bids barred, might itself be an “injury." And 
beyond Cone, nothing else supports the ruling below.

Conclusion

The test for standing imposed by the Court of Appeals abides 
outside traditional standing law, adrift from the rationale of 
Article III, and discredited by the precedent of this Court. The 
judgment of the Court of Appeals should be reversed.

Respectfully submitted,

Curtis E.A. Karnow 
Landels, Rjpley & Diamond 
350 Steuart Street
San Francisco, California 94105-1250 
(415) 788-5000

November 19, 1992