# Motion — Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 656

## Text

No. 91-1721 [| OFF: oF The creey

“.
oe —-
—$—— —

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
comeccenel)
NORTHEASTERN FLORIDA CHAPTER OF THE
ASSOCIATED GENERAL CONTRACTORS

OF AMERICA,
Petitioner,

V.

CITY OF JACKSONVILLE, FLORIDA and
ED AUSTIN, in his official
capacity as Mayor of
the City of Jacksonville,

Respondents.
cme |
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
euswenpen Dann
PETITIONER’S RESPONSE TO

RESPONDENTS’ MOTION TO DISMISS AS MOOT
¢

G. Stephen Parker*
Deborah A. Ausburn
Joshua R. Kenyon
Southeastern Legal Foundation, Inc.
2900 Chamblee-Tucker Rd., Bldg. 4
Atlanta, Georgia 30341
(404) 458-8313

Attorneys for Petitioner
November 30, 1992 * Counsel of Record

No. 91-1721

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
+
NORTHEASTERN FLORIDA CHAPTER OF THE
ASSOCIATED GENERAL CONTRACTORS
OF AMERICA,

Petitioner,
v.

CITY OF JACKSONVILLE, FLORIDA and
ED AUSTIN, in his official
capacity as Mayor of
the City of Jacksonville,
Respondents.
¢
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
¢

1 ec TITIONER’S RESPONSE TO

RESPONDENTS’ MOTION TO DISMISS AS MOOT
¢

G. Stephen Parker*
Deborah A. Ausburn
Joshua R. Kenyon
Southeastern Legal Foundation, Inc.
2900 Chamblee-Tucker Rd. , Bldg. 4
Atlanta, Georgia 30341
(404) 458-8313

Attorneys for Petitioner
November 30, 1992 * Counsel of Record

TABLE OF CONTENTS

TABLE OF CONTENTS ....... 2... 2.6666 e eee i
TABLE OF AUTHORITIES .............00545:. ii
STATEMENT OF FACTS ..... 2.0... 066 ee eee l
SUMMARY OF ARGUMENT ................4. 5
DT ceeeSeeccecocecoeseccsocccsere 5

I. The Revised Ordinance Is No Different from
the Original in Regard to AGC’s Standing to
DEE See¢en 06 ee ce eeeeeese 6

Il. The City’s Voluntary Revision of the
Original Statute Does Not Render This
Controversy Moot. .........0550065 12

lil. The Issue of Standing to Challenge
Preferences in Government Contracts Will
Remain Alive Between the City and AGC. . 14

DUES cc ccccececccccensesecceoees 20

TABLE OF AUTHORITIES

Cases

Associated General Contractors of California, Inc.

v. Coalition for Economic Equity, 950 F.2d

1401 (9th Cir. 1991), cert. denied, U.S.

_, 112 $.Ct. 1670 (1992)... .. ee eee Oe 10

Associated General Contractors of Connecticut, Inc. y.
City of New Haven, 130 F.R.D. 4 (D.Conn. 1990)... ... 10

Baker v. Carr, 369 U.S. 186 (1962)

Board of Education of Oklahoma City Public
Schools v. Dowell, --:*U.S. _,
SES BGR, GRD GIIUED occ ccccccccces 17

Burlington Northern Railroad Co. v. Brotherhood
of Maintenance of Way Employees,
Ge WS, GID GID nc cccccccccccccees 6, 15, 16

California Coastal Comm'n v. Granite Rock Co.
480 U.S. 572 (1987)

Church of Scientology v. U.S., __ $.Ct.
(Nov. 16, 1992) (No. 91-946) ................ 17

City of Mesquite v. Aladdin's Castle, Inc.,
455 U.S. 283 (1982) ....- ee ee eee eee 12

City of Richmond v. J.A. Croson, Inc.,
488 U.S. 469 (1989) ... 2... ee eee es 10

Cone Corp. v. Florida D.O.T., 921 F.2d 1190
(11th Cir.), cert. denied, __ U-S. __.,
111 S.Ct. 2238 (1991) . 2... ee eee ees 9, 16

Contractors Ass'n of Eastern Pennsylvania, Inc.

v. City of Philadelphia, 735 F.Supp. 1274

(E.D. Pa., 1990), aff'd in relevant part,

945 F.2d 1260 (3d Cir. 1991)... 2 6 ee eee ee es 9

Coral Construction Co. v. King County,
941 F.2d 910 (9th Cir. 1991), cert.
denied, _ U.S. _, 112 S.Ct. 875 a 8, 10, 19

County of Los Angeles v. Davis,
440 U.S. 625 (1979) 2.2 ee eee eee 13

Daley's Dump Truck Service, Inc. v. Kiewit Pacific Co.,
759 F.Supp. 1498 (W.D. Wash., 1991)... 6 6 ee ee eee 9

DeFunis v. Odegaard, 416 U.S. 312 (1974) .....-++-- 15

Diffenderfer v. Central Baptist Church of Miami, Fla.,
Inc., 404 U.S. 412 (1972)... 6 ee ee ee ees 18

First National Bank of Boston v. Bellotti,
es UE ove uu abe Gan cinks cu vaca 15, 16

Honig v. Doe, 484 U.S. 305 (1988) ............. 15, 19

Keyishian v. Board of Regents of Univ.

of State of New York, 385 U.S. 589 (1967) ........... 7
Kremens v. Bartley, 431 U.S. 119 (1977) ............ 7
Lewis v. Continental Bank Corp.,

TU ie ee a 14, 18
Maryland Highways Contractors Ass'n,

Inc. v. Maryland, 933 F.2d 1246

(4th Cir.), cert denied, US. ___,

I a ed oe bas Ae cleo ak aoe 9, 18
Michigan Road Builders Ass'n, Inc. y. Blanchard,

761 F.Supp. 1303 (W.D. Mich., 1991) .............. 9
Murphy v. Hunt, 455 U.S. 478 (1982) ............. 14
National Independent Coal Operators’

Ass'n v. Kleppe, 423 U.S. 388 (1976) ............. 10
Nebraska Press Ass'n v. Stuart,

i She we coer ee ea 6

iV

Northeastern Florida Chapter v. City of Jacksonville,
951 F.2d 1217 (11th Cir.), cert. granted, 113 S.Ct.

GO (1992) oc ccc cece ere renesesesseeees 1, 2, 16
O'Donnell Const. Co. v. District of Columbia,
963 F.2d 420 (D.C. Cir. 1992)... 2. ee ee ee ee es 7,9
Press-Enterprise Co. v. Superior Court of California
for Riverside County, 478 U.S. 1 (1986) ........--- 6, 16
Regents of University of California v. Bakke,
498 U.S. BES CIDTE) on ccc crc cer vcerccescccves 7
Roe v. Wade, 410 U.S. 113 (1973) «2... ee ee ee ees 14
S. J. Groves & Sons Co. v. Fulton County,
920 F.2d 752 (11th Cir.), cert. denied,
__ U.S. __, 111 S.Ct. 2274 (1991) 2. ee ee eee es 9
Sosna v. lowa, 419 U.S. 393 (1975)... 6 ee ee ee ee ee 14
Super Tire Engineering Co. v. McCorkle,
416 U.S. 11S CIDTA) on ccc ccc cccccveveces 7, 11, 15
Swann v. Charlotte-Mecklenburg Bd. of Ed.,
403 U.S. 1 CIDTE) 0c ccc creer vececcecsscess 17
U.S. Brewers Ass'n, Inc. v. Rodriguez,
7

465 U.S. 1093 (1984) «ww ees

U.S. v. Oregon State Medical Soc.,
ee
U.S. v. W. T. Grant Co.,

345 U.S. 629 (1953) .............
Underground Contractors Ass'n y.
Metropolitan Water Reclamation
District of Greater Chicago,
No. 90-C-3586 (N.D. Ill. 1991) ......
United Fence & Guard Rail v. Cuomo,
No. 88CV-306 (N.D. N.Y. Oct. 6, 1991)

Vitek v. Jones, 445 U.S. 480 ( 1980)

Yee v. City of Escondido, Cal., _ U.S.
112 S.Ct. 1522 (1992)

_ Jacksonville Purchasing Code §126.601,
et seq. (1988)

Jacksonville Purchasing Code §126.601,
et seq. (1992)

vi

STATEMENT OF FACTS

Petitioner, Northeastern Florida Chapter of the Associated
General Contractors of America [hereinafter "AGC"], is an
association of persons and firms in the construction industry doing
business in Jacksonville and Duval County, Florida. Petitioner
brought this suit on April 4, 1989, pursuant to 42 U.S.C. § 1983,
challenging, both facially and as applied, the Minority Business
Enterprise Programs administered by the City of Jacksonville
{hereinafter "the City")'. Complaint, Record Vol. 1, Doc. | ["R-
1-1"], 44 1, 50-51; Joint Appendix at JA-8, 19.

The ordinance set aside 10% of all city contracts for
minority business enterprises. Jacksonville Purchasing Code
["City Code"] § 126.604 (1988) (capital improvements contracts),
§ 126.605 (other contracts); R-1-5, Exh. A; Petition Appendix at
App. 15-21. The district court found the ordinance to be
unconstitutional, R-3-69, Appendix to the Petition for Writ of
Certiorari ["Petition Appendix"] at App. 7-13, and the City
appealed. R-3-78.

The Eleventh Circuit Court of Appeals did not reach the
merits of the City’s program, but ordered the case dismissed
without prejudice for lack of standing. Northeastern Florida
Chapter v. City of Jacksonville, 951 F.2d 1217 (11th Cir.), cert.
granted, 113 S.Ct. 50 (1992); R-4-81; Petition Appendix at App.
6. The court held that AGC lacked standing because it had not

‘AGC also named as defendants the Duval County School Board
and its Chairman. After the district court enjoined enforcement of the
programs, the school board suspended its programs and has not been a
party to any of the subsequent proceedings.

shown “that, but for the [MBE] program, any AGC member would
have bid successfully for any of [the City’s] contracts." Jd., 951
F.2d at 1219; Petition Appendix at App. 5.

AGC filed a Petition for Writ of Certiorari, and this Court
granted certiorari on October 5, 1992. The question presented to
this Court in Petitioner’s brief on the merits is whether

an association challenging a racially exclusive

government ordinance may establish standing by

showing that its members are treated unequally in

the bidding process for certain municipal contracts,

or whether the association must show that its

members actually would have received one or more

of those contracts absent the ordinance?

Brief of Petitioner, p. i.

On October 28, 1992, little more than three weeks after this
Court granted certiorari, the City of Jacksonville revised its
ordinance. The new version of the MBE program is not
substantially different from the old. First, the City has narrowed
the program to include only African-Americans and women. City
Code §126.601 (1992), Appendix to Respondents’ Motion to

Dismiss as Moot ["Motion to Dismiss"], p. A-7. The City also
adjusted the original ordinance’s requirement that 10% of city
contracts go to minority businesses. City Code § 126.603, §
126.605 (1988), R-1-5, Exh. A, Petition Appendix at App.15 &
18. The revised version slightly reduces the percentage of
minority preferences to 5% and 8% of all capital improvement
contracts, City Code §126.604 (a)(1) (1992), Motion to Dismiss,
p. A-15, 9% of contractual supplies and services contracts, id.
§126.604(a)(2), and 6% to 7% of all professional services
contracts. /d., §126.604(a)(3). For fiscal year 1992 the

percentages are the same, except that the goal for capital
improvements is 16% and 9%. Id., §126.604(b)(1).

The original ordinance was straightforward, simply setting
aside city contracts for minorities. City Code § 126.603, §
126.605 (1988), R-1-5, Exh. A, Petition Appendix at App.15 &
18. | The new version of the City’s preference program retains
the set-aside feature and adds four other ways that the City can
reach its goals of minority participation. City Code § 126.605
(1992), Motion to Dismiss, pp. A-20-30. The methods from
which the City can choose are: (1) the Participation Percentage
Plan, id., § 126.605(a); (2) the Sheltered Market Plan, id., §
126.605(b); (3) the Direct Negotiation Plan, id., § 126.605(c); (4)
the Bid Preference Plan, id., § 126.605(d); and (5) the Impact
Plan, id., § 126.618, Motion to Dismiss, pp. A-63-75.

The Participation Percentage allows the City to require
minority subcontracting participation for particular projects. Id.,
§ 126.605(a), Motion to Dismiss, p. A-21. African-American and
women-owned firms retain an advantage over other contractors
because a minority firm “may meet the set participation
percentages for the respective classifications by applying its dollar
value excluding noncertified [non-minority] Business Enterprise
subcontractors under the award." /d., Motion to Dismiss, p. A-
22.

The Sheltered Market Plan is another name for set-asides.
This plan allows the City to designate certain projects “for the
exclusive competition of certified African-American and Women’s
Business Enterprises." Jd., § 126.605(b). Motion to Dismiss, p.
A-26.

When the City utilizes the Direct Negotiation Plan, it need
not even submit the project for bids. Rather, the City commences

“direct negotiations with certified African-American or Women’s
Business Enterprises." Jd., § 126.605(c), Motion to Dismiss, p.
A-27. The City may avoid the bidding process only for
professional service contracts less than $50,000.00. Id.

When the City uses the Bid Preference Plan, it specifies
preferences of “up to five percent (5%) and not more than Five
Thousand Dollars ($5,000)" for minority firms. Id., § 126.605(d),
Motion to Dismiss, p. A-28. For these contracts, the City must
award the contract “to the lowest responsible bidder or to the
[minority] enterprise whose bid is within the percentage or dollar
amount of the lowest responsible bid." Id.

The Impact Plan grants unspecified point values to bidders
who are minority firms or assist minorities in specified ways. Jd..,
§ 126.618(1), Motion to Dismiss, pp. A-64-65. These values are
factored into the bid price to obtain a “value cost" for each bid.
Id., § 126.618(2), Motion to Dismiss, p. A-66. A City
Committee will then evaluate the bids and recommend the "lowest
and best responsive and responsible evaluated bid." J/d., §
126.618(5) Motion to Dismiss, p. A-68. The plan grants a
maximum bid preference of 15% above the “total price of the
lowest responsive, responsible bid or proposal." /d., § 126.618
(6).

This revised version of the City’s preferences in municipal
contracts is the subject of Respondents’ Motion to Dismiss as
Moot. Petitioner submits this response in accordance with Rule 21
of the Rules of the Supreme Court of the United States.

SUMMARY OF ARGUMENT

The City’s revision of its minority participation ordinance
does not affect the question upon which this Court granted
certiorari -- whether AGC has standing to challenge the City’s
system of minority preferences. The latest version of the
ordinance does not remove the unequal burdens placed on non-
minority contractors and does not change the allegations upon
which AGC bases its standing to challenge those unequal burdens.
Furthermore, the fact that the City has voluntarily changed its
unconstitutional behavior does not make AGC’s challenge to its
program moot. Finally, the issue of standing to contest
preferences in government contracts will recur, involving these
same two parties, and prevents the current case from becoming
moot.

ARGUMENT

Although in many situations the amendment of a statute will
render a case moot, this is not such a case. A legislature cannot
avoid judicial review by making technical changes in a statutory
scheme, particularly where, as in this case, the legislature makes
its changes three weeks after this Court granted certiorari. So long
as the same issues remain in controversy between the same parties,
this Court will not allow one party to unilaterally avoid resolution
of those issues.

I, The Revised Ordinance Is No Different from the
Original in Regard to AGC’s Standing to Challenge It.

The revisions in the City’s system of minority preferences
do not affect the issue on which this Court granted certiorari -- the
standing of contractors to challenge unequal treatment in
government contracting. As explained in the Brief of Petitioner,
the issue before this Court is how federal courts define “injury-in-
fact" when determining standing in equal protection cases. The
City defends the Eleventh Circuit’s rule that defines injury only as
a specific type of economic harm -- loss of a specific contract.
AGC, however, has urged this Court to follow its long-standing
precedent in equal protection cases and define injury as unequal
treatment in bidding for government contracts. That issue remains
alive in this case; the October, 1992 revision does nothing to
resolve or neutralize it.

The City misconstrues the mootness analysis as whether
AGC will be subjected again to the old ordinance. The correct
question, however, is not which version of its preferences the City
will apply, but whether “these same parties are likely to find
themselves again in dispute over the issues raised in this petition."
Burlington Northern Railroad Co. v. Brotherhood of Maintenance
of Way Employees, 481 U.S. 429, 436 n.4 (1987) (emphasis
added). See also, Press-Enterprise Co. v. Superior Court of
California for Riverside County, 478 U.S. 1, 6 (1986) (challenge
to already-expired court order was not moot where it was likely
that newspaper would be subjected to similar order in the future);
Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546-47 (1976).

The issue in this petition is whether AGC has standing,
absent evidence of a specific lost contract, to challenge the City’s
preferences in government contracting. That issue remains a live
controversy between these parties so long as the City grants such
preferences.

The City has not completely replaced its statutory scheme
for granting preferences to certain contractors. Cf., U.S. Brewers
Ass'n, Inc. v. Rodriguez, 465 U.S. 1093 (1984); Kremens v.
Bartley, 431 U.S. 119 (1977). It has only modified certain aspects
of its minority business policy. Although the percentages have
changed slightly, it is still clear that for some contracts the City
will treat non-minority businesses differently than minority firms.
"The substance of the statutory and regulatory complex remains,"
Keyishian v. Board of Regents of Univ. of State of New York, 385
U.S. 589, 596 (1967), as a “continuing and brooding presence
[that] casts what may well be a substantial adverse effect on the
interests of the petitioning parties.” Super Tire Engineering Co.
v. McCorkle, 416 U.S. 115, 122 (1974).

The fact that the City now phrases its objectives as "goals"
is not a substantive change in the law. A “semantic distinction is
beside the point . . . Whether this limitation is described as a
quota or a goal, it is a line drawn on the basis of race and ethnic
status." Regents of University of California v. Bakke, 438 U.S.
265, 289 (1978). Furthermore, these “goals” are “far more than
merely a hope, a wish or an aspiration.” O’Donnell Construction
Co. v. District of Columbia, 963 F.2d 420, 423 (D.C. Cir. 1992).
The City has no more discretion under the October, 1992 revision
to ignore its “goals” than it did with the original program. See,
e.g., City Code § 126.618(4) (1992), Motion to Dismiss at p. A-
67-68. (“In the event the Impact Plan is not achieving the

Participation Goals, then the Chief may adjust the relative
weighted point values for each of the impact criteria"). The City
still must award a certain amount of contracts according to racial
and gender classifications.

The City also has retained methods of meeting its goals that
treat contractors differently according to their race. All five of
the City’s alternative plans mandate the same sort of unequal
treatment that AGC _ challenged originally. The City
disingenuously claims that “all bidders are permitted to compete
for City contracting.” Motion to Dismiss, p. 11. Certainly AGC
members can bid® They simply will not be considered for certain
contracts. City Code §126.605(a) (1992), Motion to Dismiss at A-
21 (under Participation Percentage Plan, contract awarded to bid
that “meets the set participation percentages” or to low bidder who
has made good faith efforts to meet percentages); -605(b), Motion
to Dismiss at A-26 (Sheltered Market Plan; certain contracts “for
exclusive competition of” minority firms); -605(c), Motion to
Dismiss at A-27 (Direct Negotiation Plan; City commences “direct
negotiations” with minority firms without accepting bids); -605(d),
Motion to Dismiss at A-28 (Bid Preference Plan; contract awarded
to bid “within the percentage or dollar amount of the lowest
responsible bid").

Insofar as standing is concerned, then, the two ordinances
do not differ. AGC non-minority members still will be unable to
compete equally for those contracts designated for preferential
treatment. It is an “objectively unequal bidding process” that
injures non-minority firms every time they place a bid. Coral
Construction Co. v. King County, 941 F.2d 910, 930 (9th Cir.
1991), cert. denied, _ U.S. __, 112 S.Ct. 875 (1992). Standing
remains a live controversy between AGC and the City of

Jacksonville under either the old ordinance or its latest incarnation.

The fact that standing remains an issue under whatever
statute the City prefers is illustrated by the treatment of this
question in various federal courts. The Eleventh Circuit, for
example, has applied its “specific lost contract" rule to cases
involving both set-asides and subcontractor participation goals.
Cone Corp. v. Florida D.O.T., 921 F.2d 1190, 1196 (11th Cir.)
(set-aside and subcontractor participation goals), cert. denied, _
U.S. __, 111 S.Ct. 2238 (1991); S. J. Groves & Sons Co. v.
Fulton County, 920 F.2d 752, 756 (11th Cir.) (subcontractor
participation goals), cert. denied, __:;U.S. ___, 111 S$.Ct. 2274
(1991). Similarly, the other courts that have adopted the “specific
contract" rule have not distinguished between set-asides and other
types of MBE programs. Maryland Highways Contractors Ass'n,
Inc. v. Maryland, 933 F.2d 1246, 1248-49 (4th Cir.)
(subcontractor participation goals), cert denied, __U.S.__, 112
S.Ct. 373 (1991); Contractors Ass'n of Eastern Pennsylvania, Inc.
v. City of Philadelphia, 735 F.Supp. 1274, 1278-79 (E.D. Pa.,
1990) (sheltered market and subcontractor participation goals),
aff'd in relevant part, 945 F.2d 1260 (3d Cir. 1991); Daley's
Dump Truck Service, Inc. v. Kiewit Pacific Co., 759 F.Supp.
1498, 1499 (W.D. Wash., 1991) (subcontractor set-asides);
Michigan Road Builders Ass'n, Inc. v. Blanchard, 761 F.Supp.
1303, 1305 (W.D. Mich., 1991) (set-aside program); Underground
Contractors Ass'n v. Metropolitan Water Reclamation District of
Greater Chicago, No. 90-C-3586 (N.D. Ill. 1991) (subcontractor
participation goals).

The courts that have found sufficient injury in unequal
consideration for government contracts also have applied the same
criteria to different types of minority preference programs.

O'Donnell Construction Co. , 963 F.2d at 422 (sheltered market for
contractors and subcontractors); Associated General Contractors
of California, Inc. v. Coalition for Economic Equity, 950 F.2d
1401, 1403-04 (9th Cir. 1991) (set-asides and bid preferences),
cert. denied, _ U.S. _, 112 S.Ct. 1670, (1992); Coral
Construction Co., 941 F.2d at 914 (bid preferences and
subcontractor set-asides); United Fence & Guard Rail v. Cuomo,
No. 88CV-306 (N.D. N.Y. Oct. 6, 1991) (subcontractor
participation goals); Associated General Contractors of
Connecticut, Inc. v. City of New Haven, 130 F.R.D. 4, 6
(D.Conn. 1990) (set-asides). The specifics of a minority
preference program, then, do not change the criteria for standing
to challenge such a program. Whether the City enforces its
original ordinance or the October, 1992 version, the issue on
which this Court granted certiorari remains the same. Cy,
National Independent Coal Operators’ Ass'n v. Kleppe, 423 U.S.
388, 393 n. 4 (1976) (case not moot because “there are
assessments under the contested regulations awaiting enforcement
and because the new regulations also do not provide a hearing
unless one is requested”).

The fact that the City, in an attempt to comply with City of
Richmond v. J.A. Croson, Inc., 488 U.S. 469 (1989), conducted
a Study before enacting the 1992 version of the ordinance does not
make it a different statute insofar as this petition is concerned.
The issue currently before this Court is not the merits of the
original ordinance, but AGC’s standing to challenge it. Any new
or amended complaint that AGC would file to challenge the
October, 1992 changes would contain the same allegations as its
earlier complaint: (1) that AGC members “regularly bid on and
perform construction work for the City of Jacksonville,”

10

Complaint { 9, R-1-1, Joint Appendix at JA-10; (2) that the City
has “set aside construction and procurement contracts and [has]
restricted bidding on and awarding of such contracts to only
[minority business enterprises]," id., { 45, R-1-1, Joint Appendix
at JA-18; (3) that the City does not “have an adequate factual
basis” for the program, id., { 32, R-1-1, Joint Appendix at JA-15;
(4) that the percentage determined by the City “is not narrowly
tailored to the elimination of any continuing effect of any prior
discrimination,” id., { 42, R-1-1, Joint Appendix at JA-17; and (5)
that the minority set-asides and preferences deprive “numerous
non-minority members of Plaintiff AGC of equal protection of the
law in violation of the Fourteenth Amendment to the United States
Constitution by . . . discriminating against them on the basis of
race." Id., { 50, R-1-1, Joint Appendix at JA-19. These
allegations squarely present the issue of standing to this Court, no
matter which version of preferences the City decides to use.

The City continues to place burdens on some contractors
that it does not place on others. AGC’s standing to challenge
those burdens remains the same question under the original
ordinance or the latest version. AGC has shown to this Court “an
immediate and definite governmental action or policy that has
adversely affected and continues to affect a present interest" in
equal consideration for government contracts. McCorkle, 416
U.S. at 125-26. That policy has not changed, nor has the question
to be decided by this Court.

Il. The City’s Voluntary Revision of the Original Statute
Does Not Render This Controversy Moot.

The City’s argument that AGC’s petition is moot because
the City revised its program confuses the merits of the ordinance
with the issue of standing. The City in essence is claiming that
because it has replaced its unconstitutional program with a
constitutional one, AGC lacks standing to challenge either. The
fact that the City claims to have changed its unconstitutional
behavior, however, does not render moot the question of AGC’s
standing to challenge that behavior. The simple fact that a
government voluntarily repeals a statute after a court challenge
does not prevent a federal court from reviewing issues presented
on appeal.

One example of this doctrine is City of Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283 (1982). The plaintiff
challenged a city ordinance that allowed the Chief of Police to
deny licenses to applicants who had “connections with criminal
elements.” Jd., 455 U.S. at 285. The district court held that the
phrase, even as defined in amended statutes, was unconstitutionally
vague. Id., 455 U.S. at 288. After this Court noted probable
jurisdiction, the city eliminated the phrase entirely. Jd.

Even though the challenged phrase no longer existed in the
city’s ordinances, this Court did not consider the case moot. “It
is well settled that a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power
to determine the legality of the practice." id., 455 U.S. at 289.
The Court considered the question of mootness in such
circumstances to be “a matter relating to the exercise rather than
the existence of judicial power." id. Because of the real

12

possibility that the city would restore the language if this Court
considered the case moot and dissolved the district court's
injunction, id., 455 U.S. at 289 n. 11, the Court decided to
resolve the issue presented to it.

Similarly, the question of standing is not moot in the
current case. The normal Article III principles underlying
mootness do not control, id. at 289, and this Court can exercise its
discretion to prevent the City from creating a moving target for
those who would challenge its ordinances.

The City will continue to subject AGC members to unequal
treatment based on the same criteria it used in 1989. In fact,
unlike the city of Mesquite, Jacksonville did not even eliminate its
Statute. The City simply made some changes in its program.
Given that fact, it is far from “absolutely clear" that the City
would not continue in its wrongful behavior. Vitek v. Jones, 445
U.S. 480, 487 (1980). Not only is there a possibility that a
finding of mootness would leave “[t}he defendant . . . free to
return to his old ways," U.S. v. W. T. Grant Co., 345 U.S. 629,
632 (1953), but the defendant in this case already has done so.

The City has not met its “heavy burden,” W. 7. Grant, 345
U.S. at 633, of showing that its October, 1992 ordinance has
“completely and irrevocably eradicated the effects” of the old
unconstitutional program. County of Los Angeles v. Davis, 440
U.S. 625, 631 (1979). The City’s claim that its behavior is now
constitutional is merely an unsupported allegation and in any event
is completely separate from the standing issue that this Court
decided to hear. No court has ruled on the validity of the City’s
new program, and under the Eleventh Circuit rule no court will be
able to do so until some fortunate plaintiff is able to show loss of
a specific contract. Judicial review of the City’s latest, or any

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other, version of its race-conscious program of preferences cannot
proceed until this Court determines the separate issue of who has
standing to sue. The City’s voluntary revision of its preferences
program does not deprive this Court of jurisdiction to decide that
issue.

Ill. The Issue of Standing to Challenge Preferences in
Government Contracts Will Remain Alive Between the City
and AGC.

In cases other than voluntary abandonment of a challenged
policy, this Court has treated mootness as an aspect of Article III
jurisdiction. Lewis v. Continental Bank Corp., 494 U.S. 472
(1990); Sosna v. lowa, 419 U.S. 393 (1975). As in Standing, the
concern is that the parties have a continuing “personal stake” in the
resolution of the case. Lewis, 110 S.Ct. at 1254 (quoting Baker
v. Carr, 369 U.S. 186, 204 (1962)).

This Court long has recognized that a party can have a
“personal stake” in the resolution of a particular issue, even though
the outcome of the specific case may no longer be relevant. E.g.,
Roe v. Wade, 410 U.S. 113 (1973). In such cases, federal courts
will rule on the merits of the issue presented to them.

In this case, there is a “reasonable expectation that the same
complaining party [will] be subjected to the same action again."
Murphy v. Hunt, 455 U.S. 478, 482 (1982). All of the facts
demonstrate that AGC members will bid for contracts awarded by
the City of Jacksonville, and that the City will subject non-
minority firms to unequal treatment in the bidding process.

In this case, there is much more than the requisite

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“reasonable expectation” that the City will once again engage in
the misconduct that AGC originally challenged. Honig v. Doe,
484 U.S. 305, 318 n. 6 (1988); First National Bank of Boston v.
Bellotti, 435 U.S. 765, 775 (1978). The City has adjusted the
formulation of its preferences, but it still grants preferences in
municipal contracts to groups to which many AGC members do
not belong.

Furthermore, the same parties will be involved in the
continuing dispute over standing to challenge the City’s
preferences. Burlington Northern Railroad Co., 481 U.S. at 436
n. 4; DeFunis v. Odegaard, 416 U.S. 312 (1974); McCorkle, 416
U.S. 115 (1974). There is a “demonstrated probability,” Honig,
484 U.S. at 318 n. 6, that AGC members, as contractors who
"regularly bid on and perform construction work for the City of
Jacksonville,” Complaint 49, R-1-1, Joint Appendix at JA-10, will
be subjected to the City’s racial preferences. In fact, more AGC
members will face unequal treatment under the revised ordinance
than before. The 1992 ordinance excludes many groups, such as
Spanish-speaking Americans, Orientals, and Native American
Indians, who were defined as minorities in the old MBE plan.
Compare Jacksonville City Code § 126.603 (1988), Petition
Appendix at App. 15, and City Code § 126.603 (1992), Motion to
Dismiss, pp. A-9 and A-14. Thus, some contractors who
benefitted from the 1988 preferences will find themselves excluded
from equal consideration by the revised version.

The probability that AGC members will bid for City
contracts and be treated unequally is as reasonable as those
expectations this Court has approved in other cases. See, ¢.g.,
Honig, 484 U.S. at 317-321 (student likely to re-enter school
system and be subjected to challenged educational policies);

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Burlington Northern Railroad Co., 481 U.S. at 436 n.4 (parties
"reasonably likely" to find themselves again involved in strike
dispute); California Coastal Comm'n vy. Granite Rock Co., 480
U.S. 572, 578 (1987) (plaintiff likely to submit new plans of
operation; live issue remained whether state agency could enforce
conditions placed on federal permit); Press-Enterprise Co., 478
U.S. at 6 ("[iJt can reasonably be assumed" that newspaper would
be subjected to order similar to the now-expired one it challenged);
Bellotti, 435 U.S. at 775 (appellants "insist they will continue"
Opposition to income tax amendment; "no reason to believe" state
will not enforce statute prohibiting contributions for such issues).
The prospect of AGC’s challenging the City’s October, 1992
ordinance is a similarly reasonable expectation and distinct
probability.

The vitality of the standing controversy is illustrated by the
almost certain course of events should this Court find the instant
petition to be moot. Whether AGC uses a new or amended
complaint to challenge the revised ordinance, the district court will
be obligated to dismiss the case for lack of standing. Cone Corp.,
921 F.2d 1190. Northeastern Florida Chapter, 951 F.2d 1217.
The Eleventh Circuit will affirm that dismissal, id, and AGC once
again will petition this Court to review the very issue that is before
the Court now. That is, of course, unless the City revises its
Statute yet again and continues to avoid judicial review of the
preferences it grants in municipal contracts.

As this scenario demonstrates, the original reasons that this
Court granted certiorari still exist, no matter how the City adjusts
its program. The federal courts will continue to adopt conflicting
rules for standing to challenge programs such as the one in this
case. The "specific contract" rule of the Eleventh Circuit will

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continue to violate this Court’s precedent regarding Standing in
equal protection cases. This Court considers carefully which
issues are worthy of its attention, Yee v. City of Escondido, Cal. ,
—._ U.S. __, 112 S.Ct. 1522, 1533 (1992), and the City should not
be allowed to short-circuit the Court’s review of the issue in this
case.

Furthermore, it is far from clear that the City’s revision of
its ordinance moots the relief that AGC won in the district court.
The injunction that the district court issued left the City free “to
enact legislation it so deems advisable, and, complies with the
constitutional mandates of Croson and Fullilove." Order Granting
Plaintiff's Motion for Summary Judgment, R-3-6%. Petition
Appendix at App.13 (emphasis added). There is no evidence that
the City’s revised ordinance complies with constitutional standards,
and such a discussion would not be appropriate for review by this
Court on this petition. The proper procedure would be for either
the City or AGC to petition the district court to determine whether
the revised ordinance complies with the court’s injunction. Cf,
Board of Education of Oklahoma City Public Schools v. Dowell,
___ U.S. __, 111 S.Ct. 630, 634 (1991) (parents of students filed
motion to reopen school desegregation case); Swann v. Charlotte-
Mecklenburg Bd. of Ed., 402 U.S. 1, 7 (1971) (parents petitioned
court for further relief in light of new Court rulings). Such a
possibility of further relief in the district court would be sufficient
to prevent this case from becoming moot. Of, Church of
Scientology v. U.S.,__ S.Ct. __» (Nov. 16, 1992) (No. 91-946)
(case not moot because court could grant some degree of relief).

In this case, however, neither AGC nor the City can ask
the district court to review the changed ordinance as subject to the
Original injunction. The district court, on instructions from the

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Eleventh Circuit, has dismissed the case for lack of standing. R-4-
82. Until this Court decides the issue on which it granted
certiorari, AGC’s standing to challenge the City’s system of racial
preferences, AGC cannot seek court review of the City’s
adjustments to its prior unconstitutional actions.

For the same reasons, it will not advance this case for the
Court to remand the case for consideration of the impact of the
1992 revisions on AGC’s original challenge. See, e.g., Lewis, 110
S.Ct. at 1256; Diffenderfer v. Central Baptist Church of Miami,
Fla., Inc., 404 U.S. 412, 415 (1972). Because the district court
has dismissed the case, it cannot consider mootness until this court
decides the standing issue.

Standing is a live controversy between AGC and the City,
and will continue until this Court approves or disapproves the
Eleventh Circuit’s “specific contract" rule. AGC has a personal
stake in its current challenge that has continued beyond the change
in the statute and will continue into the future.

If this Court decides to wait for another case to resolve the
standing controversy, the lower courts will continue to split over
the issue, even in cases that may be moot. The Fourth Circuit, for
example, announced its standing rule in a case that it specifically
held was moot. Maryland Highway Contractors Ass’n, Inc., 933
F.2d 1246. The state replaced its challenged ordinance with new
program that, based on a new study, narrowed the classes of
_ minorities who would benefit from the program. “Most of the
remaining provisions in the MBE statute were not changed by the
new MBE law.” /d., 933 F.2d at 1249. The Fourth Circuit found
the case to be moot, id. at 1250. Nevertheless, "because of the
likelihood of a new attack upon the constitutionality of the present
Maryland MBE statute,” id., the court elected to announce a new

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rule for standing. Cf, Coral Construction Co., 941 F.2d 910,
(amendments to MBE program did not render request for
declaratory and injunctive relief moot). The U.S. Supreme Court
is “at present the only Art. III court" that can decide the standing
issue in cases such as the instant one “in such a way as to bind all
other courts." Honig, 484 U.S. at 332 (Rehnquist, C.J.,
concurring).

AGC has suffered injury from Respondent’s insistence on
using preferences in awarding government contracts, and continues
to suffer injury from the Eleventh Circuit’s “specific contract"
tule. The City’s substitution of five methods of racial preferences
for one does not deprive this Court of jurisdiction to decide AGC’s
standing to challenge the City’s program. Federal courts should
“beware of efforts to defeat injunctive relief by protestations of
repentance and reform, especially when abandonment seems timed
to anticipate suit, and there is probability of resumption." U.S. v.
Oregon State Medical Soc., 343 U.S. 326, 333 (1952). In this
case, the City has resumed its program and should not succeed in
continuing to avoid judicial review.

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CONCLUSION

For all of the foregoing reasons, Petitioner respectfully
requests that this Court deny Respondents’ Motion to Dismiss as
Moot and all relief requested therein.

Respectfully submitted,

G. Stephen Parker*

Deborah A. Ausburn

Joshua R. Kenyon

SOUTHEASTERN LEGAL
FOUNDATION, INC.

2900 Chamblee-Tucker Rd.,

Bldg. 4

Atlanta, Georgia 30341

(404) 458-8313

Attorneys for Petitioner

* Counsel of Record

November 30, 1992

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0268%3A14. Public record. Not legal advice.