J. Jack Bras, Individually and Doing Business as J. Jack Bras & Associates v. California Public Utilities Commission

PREGERSON, Circuit Judge,

dissenting:

As a plaintiff who seeks injunctive or declaratory relief, Jack Bras “must show ‘a very significant possibility’ of future harm in order to have standing to bring suit.” Coral Construction Co. v. King County, 941 F.2d 910, 929 (9th Cir.1991) (quoting Nelsen v. King County, 895 F.2d 1248, 1250 (9th Cir.1990)), ce rt. denied, 502 U.S. 1033 , 112 S.Ct. 875 , 116 L.Ed.2d 780 (1992). Because Bras cannot demonstrate future harm caused by the actions of the California Public Utilities Commission (“Commission”), I dissent.

The majority relies on Northeastern Fla. Gen. Contractors v. Jacksonville, — U.S. -, -, 113 S.Ct. 2297, 2303 , 124 L.Ed.2d 586 (1993), for its contention that Bras, who settled with Pacific Bell, has standing in his lawsuit against the Commission to challenge provisions — General Order 156 (“Order”) and Cal.Pub.Util.Code § 8283 (“Code”) — that require contractors to establish goals for women and minority participation in California public contracting. The original Jacksonville ordinance at issue in Northeastern, — U.S. at -, 113 S.Ct. at 2303 , provided that 10 percent of the amount spent each year on city contracts be set aside for minority or women businesses. After the Supreme Court granted certiorari, Jacksonville repealed the ordinance and replaced it. The new ordinance set goals for minority and women contractor participation and specified five methods for achieving those goals. The city decided which method it would use on a contract by contract basis. One of the methods, the “Sheltered Market Plan,” was a “ ‘set-aside’ by another name,” which allowed the city to reserve contracts for the exclusive competition of minority and women businesses. Id. at -, 113 S.Ct. at 2301 . The Court held that “when the government erects a barrier” that gives one group an advantage in obtaining a benefit, someone not in that group seeking to challenge that barrier does not need to allege that he or she would have obtained the benefit but for the barrier. The Court reasoned that the “injury in fact” in that type of an equal protection ease is the denial of equal treatment, not the ultimate inability to obtain the benefit. Id. at -, 113 S.Ct. at 2303 .

Northeastern does not support the majority’s position that Bras has standing in this action against the Commission. First, Bras cannot prove an “injury in fact.” He cannot show a “very significant” possibility of future injury because any possibility of injury is too speculative to warrant judicial scrutiny. Further, because the Code and Order do not “erect[ ] a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group,” id., the provisions do not disadvantage Bras. Second, Bras cannot fulfill another requirement of standing, the necessary causal nexus between his alleged injury and the defendant’s conduct.

I.

Bras’s future injury is too “hypothetical” to warrant judicial review. United Public Workers of America v. Mitchell, 330 U.S. 75, 90 , 67 S.Ct. 556, 564 , 91 L.Ed. 754 (1947). First, and most important, there are no current Pacific Bell projects on which Bras can bid. The majority notes that Pacific Bell has already entered into three-year contracts with several architects. The first time Bras will have a chance even to apply to be a candidate for an “improved business relationship” is at the end of Pacific Bell’s three year cycle.

In contrast, the regular bidding process in Northeastern meant that the contractors would bid, and therefore be injured, again in the very near future. In Northeastern, the Supreme Court found that “[i]n its complaint, petitioner alleged that its members regularly bid on construction contracts in Jacksonville, and that they would have bid on contracts set aside pursuant to the city’s ordinance were they so able.” Northeastern, — U.S. at -, 113 S.Ct. at 2304 . In fact, the Court distinguished an earlier Supreme Court ease, Warth v. Seldin, 422 U.S. 490, 516 , 95 S.Ct. 2197, 2214 , 45 L.Ed.2d 343 (1975), on this basis. The Court explained, that unlike the *877 contractors in Northeastern, the plaintiffs in Warth did not have standing because they did not allege that any contractor “ha[d] applied ... for a building permit or a variance with respect to any current project.” Northeastern, — U.S. at -, 113 S.Ct. at 2304 (emphasis added) (quoting Warth, 422 U.S. at 516 , 95 S.Ct. at 2214 ). The Court concluded that, unlike the petitioner in Warth , the contractors in Northeastern alleged an injury of “sufficient immediacy” to warrant standing. Id. (quoting Warth, 422 U.S. at 516 , 95 S.Ct. at 2214 ).

Here no Pacific Bell project is “currently proposed,” and Bras cannot show an injury of “sufficient immediacy.” Id. (quoting Warth, 422 U.S. at 516 , 95 S.Ct. at 2214 ). A delay of three years makes Bras’s alleged injury unreasonably abstract. And because Bras did not allege that he planned to work with any other utility, his relationship with Pacific Bell is all we can evaluate. In short, Bras’s alleged injury is not “actual or imminent,” as it must be to form the basis for standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 , 112 S.Ct. 2130, 2136 , 119 L.Ed.2d 351 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 , 110 S.Ct. 1717, 1723 , 109 L.Ed.2d 135 (1990)).

Moreover, Bras’s future intentions are unclear. As the district court noted, Bras made no statement in his complaint that he intends to bid for future contracts from any public utility. His only statement to that effect came after he settled with Pacific Bell. In his declaration in support of his motion for summary judgment, Bras stated that he “earnestly desire[s]” to reinstate his long term business relationship with Pacific Bell and is “ready” and “able” to provide architectural services if he is given “the opportunity to do so.” [E.R. 57] But Bras does not say that he will apply for another long term contract with Pacific Bell, and he does not specify when he will apply. In the context of an ongoing bidding-process, contractors need only allege that they are “ready” and “able” to bid, because their regular conduct is sufficient evidence of their future intentions. Northeastern, — U.S. at -, 113 S.Ct. at 2303 . Without such a process, however, these words are insufficient. Plaintiffs, like Bras, must allege “concrete” plans and specify when they will expose themselves to injury again. Lujan, 504 U.S. at 564 , 112 S.Ct. at 2138 (holding that plaintiffs who had no “current” or “concrete” plans to visit site where injury to them would occur did not have standing).

Last, Bras has failed to present any evidence to suggest that Pacific Bell would consider hiring him again after settling his claims. The majority refers to a letter Bras received from Pacific Bell, indicating that it would “maintain [his] information on file,” [E.R. 119], but the opinion fails to note that Pacific Bell sent that letter before the parties reached a settlement. Thus, Bras has not shown an injury of “sufficient immediacy and ripeness to warrant judicial intervention.” Northeastern, — U.S. at -, 113 S.Ct. at 2304 (quoting Warth, 422 U.S. at 516 , 95 S.Ct. at 2214 ).

II.

Even if Bras could demonstrate that he would be in a position in the future to be injured by the Code and Order, he would not be able to prove “a very significant possibility” of future harm, Coral Construction, 941 F.2d at 929 (quoting Nelsen, 895 F.2d at 1250 ), because the challenged Code and Order -in the instant case have not “erect[ed] a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group.” Northeastern, — U.S. at -, 113 S.Ct. at 2303 .

The challenged measures are different in critical ways from Jacksonville’s program in Northeastern. The Supreme Court based its holding in Northeastern expressly on the fact that the Jacksonville ordinance contained a set-aside program. The Court noted that “in the context of a challenge to a set-aside program, the ‘injury-in-fact’ is the inability to compete on an equal footing in the bidding process____” Id. Therefore, the Court concluded, “a party challenging a set-aside program like Jacksonville’s need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.” Id. (emphasis added). The Code and Order do not foreclose competition on an “equal *878 footing,” and they do not constitute a “discriminatory policy.” The provisions themselves only require that utilities set goals, and “[a] goal is neither a requirement nor a quota.” Cal.Pub.Util.Code § 1.3.13. Therefore, Bras cannot show that the Code or Order will injure him.

The majority’s contention, that the measures at issue are similar to the program in Northeastern because both “authorize” the use of set-asides but do not require them, is specious. First, in Northeastern, the set-aside program was an explicit option which the defendant, the city itself, could employ at any given time. In contrast, the defendant here, the Commission, does not operate any procurement programs whatsoever, discriminatory or otherwise. Second, nothing in the language of the Code or Order alludes to any type of set-aside scheme. The Supreme Court in Northeastern, — U.S. at -, 113 S.Ct. at 2303 , based its conclusion on the fact that set-asides were an explicit option under the city ordinance. The contested measures here involve no preferences or quotas. They do not dictate the use of any particular programs and do not themselves constitute a program. They do not deny Bras, or anyone, equal treatment. In the instant case, unlike in Northeastern, the “government” has not “ereet[ed] a barrier.” Id.

Attempting to draw a further parallel to Northeastern, the majority states that “[wjhile the Code and Order do not expressly state that public utilities must adopt any particular programs such as bidding preferences or set-asides, they clearly have the practical effect of requiring them to do so.” The majority cites no evidence to support this conclusion, nor could it, as none exists in the record. Utilities are not “required” to adopt any particular scheme, only goals. Neither the Code nor the Order specify how those goals should be met nor even dictate that they be met. Utilities are free to adopt completely gender and race-neutral schemes. For example, a program that aided inexperienced contractors with the bidding process might have the effect of achieving the Code and Order goal of increasing women and minority participation in procurement while treating all inexperienced contractors, white and minority, men and women, exactly alike. Moreover, the criteria for successful bidders remain unchanged and are entirely race and gender neutral. If Bras were to participate under such a program, he would suffer no equal protection harm.

If Bras wanted to challenge a particular race or gender-conscious program, one that might “make it more difficult for members of one group to obtain a benefit than it is for members of another group,” id,., he could bring an action against the utility that developed the program. But no utility is a defendant in this action; Bras settled all his claims with Pacific Bell and has not questioned any other utility’s contracting policy. Bras’s suit against the Commission only challenges the Order and the Code, measures that mandate goals alone.

III.

In addition to lacking a constitutionally adequate “injury in fact,” Bras cannot prove a sufficient causal nexus between the contested measures and his injury. In other words, an injury must be “fairly ... trace[able] to the challenged action of the defendant....” Lujan, 504 U.S. at 560 , 112 S.Ct. at 2136 .

The majority attempts to gloss over this issue by stating that “[bjecause the Code and Order effectively encourage, if not compel, Pacific Bell to adopt discriminatory programs, there is a sufficient nexus between Bras’s injury and the Commission’s actions in enforcing the Code and implementing the Order.” This conclusion is unsupportable. The Code and the Order do nothing more than to require utilities to set goals for hiring women and minority contractors. The provisions do not imply or suggest, and certainly do not compel utilities to use discriminatory programs.

The majority theorizes that because some utilities may have had nondiscriminatory outreach programs in place before the Code and Order were adopted, the “clear message” the Code and Order “may have sent” is that those programs were insufficient. The majority offers no legislative history, case law, affidavits nor any other evidence to support the majority’s conjecture. Just as plausible *879 an explanation is that the legislature wanted the utilities to direct their already sufficient efforts toward specific goals.

Bras is challenging the actions of the Commission. The Commission’s actions are not discriminatory, and there is not a sufficient nexus between the state’s provisions and any future injury that Bras may incur from a utility’s specific program. Just as in Allen v. Wright, 468 U.S. 737, 759 , 104 S.Ct. 3315, 3329 , 82 L.Ed.2d 556 (1984), in which minority parents challenged the IRS’s failure to deny tax-exempt status to discriminatory schools, here also the “links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak for the chain as a whole to sustain ... standing.” In Allen , the Court noted that the minority children’s inability to receive an integrated education was related only by way of intermediary parties, the private discriminatory schools, and speculative reasoning as to the effect of the prevailing decisions. Id. at 758-59 , 104 S.Ct. at 3328 . The same is true here. Bras’s future injury, if any, would be traceable to the contracting process of a utility, which very well may not be a product of the provisions he now challenges, and would not necessarily be changed if the Code and Order were struck down. See also Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 42-43 , 96 S.Ct. 1917, 1926 , 48 L.Ed.2d 450 (1976) (hospitals’ denial of care to indigent patients not fairly traceable to IRS ruling regarding hospitals’ charitable corporation tax status).

IV.

The likelihood of future injury in the instant ease is far too remote to meet established constitutional standards. Standing is founded “in concern about the proper — and properly limited — role of the courts in a democratic society.” Warth, 422 U.S. at 498 , 95 S.Ct. at 2205 . When an individual seeks to avail himself of the federal courts to determine the validity of a legislative action, he must show that he “is immediately in danger of sustaining a direct injury.” Ex parte Levitt, 302 U.S. 633, 634 , 58 S.Ct. 1 , 1, 82 L.Ed. 493 (1937). This requirement is necessary to ensure that “federal courts reserve their judicial power for ‘concrete legal issues, presented in actual cases, not abstractions.’” Associated General Contractors of California v. Coalition for Economic Equity, 950 F.2d 1401 , 1406 (9th Cir.1991) (quoting United Public Workers, 330 U.S. at 89 , 67 S.Ct. at 564 ), cert. denied, 503 U.S. 985 , 112 S.Ct. 1670 , 118 L.Ed.2d 390 (1992). Bras offers us a hypothetical injury, abstract in nature. We should not exceed our judicial authority by holding that he has standing.