discouragement from participating in city-mandated bidding process for government contract combined with firm intentions to participate in bidding process satisfies “immediate and threatened” harm for associational standing requirement
How later courts described this case
- discouragement from participating in city-mandated bidding process for government contract combined with firm intentions to participate in bidding process satisfies “immediate and threatened” harm for associational standing requirement
- plaintiff must do more than merely allege imminent 9 harm, he must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive 10 relief
- “A plaintiff must do more than 9 merely allege imminent harm . . . , he or she must demonstrate immediate threatened injury as a 10 prerequisite to preliminary injunctive relief.”
- no need to limit redress to specific individuals who have been identified as victims of discrimination
Written by the judges who cited it.
The opinion
O’SCANNLAIN, Circuit Judge,
specially concurring:
While I agree with my colleagues that the district court properly denied AGCC’s request for preliminary injunctive relief, I cannot concur in their analytical approach.
I
I am unable to accept the assertion that AGCC has not demonstrated probable success on the charter amendment issue. As the opinion acknowledges, ante at 1411, California law is clear. A vote of the people, as provided in the California Constitution, is the sole and exclusive means of amending a city charter. Uhl v. Collins, 217 Cal. 1 , 17 P.2d 99 (1932). The California courts jealously guard the people’s right of initiative as enumerated in the constitution; the California Supreme Court has stated that it is “required to resolve any reasonable doubts in favor of the exercise of this precious right. ” Brosnahan v. Brown, 32 Cal.3d 236 , 186 Cal.Rptr. 30, 32 , 651 P.2d 274, 276 (1982). See also Amador Valley Joint Union High School Dist. v. State Bd. of Equalization, 22 Cal.3d 208 , 149 Cal.Rptr. 239, 259-60 , 583 P.2d 1281, 1302 (1978).
The majority can point to no instance in which the constitutional requirement has not been rigidly applied. Policy arguments against its imposition in this circumstance, see ante at 1411, cannot overcome the “clear dictate of California law,” ante at 1411. I am persuaded that AGCC has dem *1419 onstrated a substantial likelihood of success on this issue.
Accordingly, I must go on to reach the question of whether AGCC has shown a possibility of irreparable harm justifying the issuance of a preliminary injunction. I conclude that it has not. AGCC’s members will be harmed by the allegedly invalid charter amendment only if they are denied contracts valued at over $50,000 but less than $10,000,000 due to the bid preferences for MBEs and WBEs. The sole evidence of injury to AGCC members in the record is the declaration of Paul Hodgson. Although Mr. Hodgson declares that his firm has been discouraged from bidding on city contracts by the 1989 Ordinance, he does not mention the size of the contracts his firm would otherwise have sought. Thus, there is no evidence in the record that any AGCC member has lost a bid due to the charter amendment, or has even been discouraged from bidding by that amendment. I must therefore conclude that AGCC has not met its burden of “demonstrating] immediate threatened injury” rather than simply alleging speculative harm. 1 Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668 , 674 (9th Cir.1988). See also Big Country Foods, Inc. v. Board of Educ., 868 F.2d 1085 , 1088 (9th Cir.1989) (upholding denial of preliminary injunction where record “barren of evidence of lost profits”).
II
Although I agree with the majority that AGCC has not shown a likelihood of success on the merits of its equal protection claim, I write separately to emphasize the limited nature of appellate review of the grant or denial of a preliminary injunction. Detailed consideration of the merits of AGCC’s constitutional claim is neither necessary nor appropriate in this context. The issue is not the constitutionality of the 1989 Ordinance, but simply whether AGCC has shown a sufficient probability of success on the merits to justify preliminary relief.
Although I do not necessarily disagree with it, the detailed discussion of the statistical evidence presented to the district court, see ante at 1414-15, as well as much of the discussion of whether the 1989 Ordinance meets the requirements of Croson, is inappropriate. Because the Ordinance reasonably appears to comply with Croson, the district court did not abuse its discretion in refusing to grant a preliminary injunction. This court need not say more. Our decision on this narrow issue today should not be regarded as determinative of the ultimate resolution of the dispute. See Big Country Foods, 868 F.2d at 1087.
. Because I find that AGCC has not shown a sufficient possibility of any injury due to the charter amendment, I need not determine if allegations of loss of profits due not to the city’s refusal to award the contract to a low bidder but rather to failure to bid at all would justify preliminary injunctive relief.