OCTOBER TERM, 1992
Syllabus
NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL
CONTRACTORS OF AMERICA
v. CITY OF JACKSONVILLE, FLORIDA, ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No.91-1721. Argued February 22, 1993-Decided June 14, 1993
Respondent city enacted an ordinance requiring that 10% of the
amount spent on city contracts be set aside each fiscal year for
so-called "Minority Business Enterprises" (MBE's). Petitioner
construction contractors' association, most of whose members did
not qualify as MBE's, filed suit in the District Court against the
city and respondent mayor, alleging that many of its members
regularly bid on, and performed, construction work for the city and
"would have ... bid on ... designated set aside contracts but for
the restrictions imposed" by the ordinance in violation of the
Fourteenth Amendment's Equal Protection Clause. Ultimately the
court entered summary judgment for petitioner, but the Court of
Appeals vacated the judgment, ruling that petitioner lacked
standing to challenge the ordinance because it had "not
demonstrated that, but for the program, any ... member would have
bid successfully for any of [the] contracts." After certiorari was
granted, the city repealed its MBE ordinance, replacing it with
another ordinance which, although different from the repealed
ordinance, still set aside certain contracts for certified black-
and female-owned businesses. Subsequently, this Court denied
respondents' motion to dismiss the case as moot.
Held:
1. The case is not moot. It is well settled that the voluntary
cessation of a challenged practice does not deprive a federal court
of its power to determine the practice's legality, because a
defendant is not precluded from reinstating the practice. Here,
there is more than a mere risk that the city will repeat its
allegedly wrongful conduct; it has already done so. Insofar as the
city's new ordinance accords preferential treatment in the award of
city contracts, it disadvantages petitioner's members in the same
way that the repealed ordinance did. Pp. 661-663.
2. Petitioner has standing to sue the city. Pp. 663-669.
657
(a) When the government erects a barrier that makes it more
difficult for members of one group to obtain a benefit than it is
for members of another group, a member of the former group seeking
to challenge the barrier need not allege that he would have
obtained the benefit but for the barrier in order to establish
standing. See,
e. g., Regents of Univ. of Cal. v.
Bakke, 438 U.
S. 265. The "injury in fact" element of standing in such an
equal protection case is the denial of equal treatment resulting
from the imposition of the barrier-here, the inability to compete
on an equal footing in the bidding process-not the ultimate
inability to obtain the benefit. To establish standing, therefore,
petitioner need only demonstrate that its members are able and
ready to bid on contracts and that a discriminatory policy prevents
them from doing so on an equal basis. Pp. 663-666.
(b) Respondents' reliance on
Warth v.
Seldin,
422 U. S. 490-in
which a construction association was denied standing to challenge a
town's zoning ordinance-is misplaced. Unlike petitioner, the
association in
Warth claimed that its members could not
obtain variances and permits, not that they could not apply for the
variances and permits on an equal basis, and did not allege that
any members had applied for a permit or variance for a current
project. Pp. 666-668.
(c) Petitioner's allegations that its members regularly bid on
city contracts and would have bid on the contracts set aside under
the ordinance were unchallenged and are assumed to be true. Pp.
668-669.
951 F.2d
1217, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, KENNEDY, and SOUTER,
JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which
BLACKMUN, J., joined,
post, p. 669.
Deborah A. Ausburn argued the cause for petitioner.
With her on the briefs was G.
Stephen Parker.
Leonard S.
Magid argued the cause for
respondents.
With him on the brief were Charles W Arnold, Jr., and Steven E.
Rohan. *
*Briefs of
amici curiae urging reversal were filed for
the Associated General Contractors of America, Inc., by
Walter
H. Ryland and
Michael E. Kennedy; for the Equal Rights
Advocates et al. by
Curtis E. A. Karnow, Judith Kurtz, Eva
Jefferson Paterson, Antonia Hernandez, and
William C.
McNeill III; for the Pacific Legal Foundation et al. by
John
658
658 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
JUSTICE THOMAS delivered the opinion of the Court.
A Jacksonville, Florida, ordinance accords preferential
treatment to certain minority-owned businesses in the award of city
contracts. In this case we decide whether, in order to have
standing to challenge the ordinance, an association of contractors
is required to show that one of its members would have received a
contract absent the ordinance. We hold that it is not.
I A
In 1984, respondent Jacksonville enacted an ordinance entitled
"Minority Business Enterprise Participation," which required that
10% of the amount spent on city contracts be set aside each fiscal
year for so-called "Minority Business Enterprises" (MBE's). City of
Jacksonville Purchasing Code §§ 126.604(a), 126.605(a) (1988). An
MBE was defined as a business whose ownership was at least 51%
"minority" or female, § 126.603(a), and a "minority" was in turn
defined as a person who is or considers himself to be black,
Spanishspeaking, Oriental, Indian, Eskimo, Aleut, or handicapped, §
126.603(b). Once projects were earmarked for MBE bidding by the
city's chief purchasing officer, they were "deemed reserved for
minority business enterprises only." §§ 126.604(c), 126.605(c).
Under the ordinance, "[m]athematical certainty [was] not required
in determining the amount of the set aside," but the chief
purchasing officer was required to "make every attempt to come as
close as possible to
H. Findley, Ronald A. Zumbrun, and James W Polk; and for Public
Citizen et al. by Paul R. Q. Wolfson, Alan B. Morrison, John A.
Powell, and Steven R. Shapiro.
Richard Ruda filed a brief for the National League of
Cities et al. as
amici curiae urging affirmance.
Lee Fisher, Attorney General of Ohio,
Andrew I.
Sutter, Assistant Attorney General, and
Frank J.
Kelley, Attorney General of Michigan, filed a brief for the
State of Ohio et al. as
amici curiae.
659
the ten percent figure." §§ 126.604(a)(4), 126.605(a)(4). The
ordinance also provided for waiver or reduction of the 10%
set-aside under certain circumstances. § 126.608.
Petitioner, the Northeastern Florida Chapter of the Associated
General Contractors of America (AGC), is an association of
individuals and firms in the construction industry. Petitioner's
members do business in Jacksonville, and most of them do not
qualify as MBE's under the city's ordinance. On April 4, 1989,
petitioner filed an action, pursuant to 42 U. S. C. § 1983, against
the city and its mayor (also a respondent here) in the United
States District Court for the Middle District of Florida. Claiming
that Jacksonville's ordinance violated the Equal Protection Clause
of the Fourteenth Amendment (both on its face and as applied),
petitioner sought declaratory and injunctive relief. In its
complaint, petitioner alleged that many of its members "regularly
bid on and perform construction work for the City of Jacksonville,"
Complaint' 9, and that they "would have ... bid on ... designated
set aside contracts but for the restrictions imposed" by the
ordinance, id., , 46.
On April 6, 1989, the District Court entered a temporary
restraining order prohibiting the city from implementing the MBE
ordinance, and, on April 20, it issued a preliminary injunction.
Respondents appealed. Concluding that petitioner had not
demonstrated irreparable injury, the Court of Appeals reversed the
issuance of the preliminary injunction, and remanded the case for
an expedited disposition on the merits.
896 F.2d
1283 (CAll 1990). Chief Judge Tjofiat concurred in the
judgment. In his view the suit should have been dismissed for lack
of standing, because petitioner's complaint did not "refer to any
specific contract or subcontract that would have been awarded to a
nonminority bidder but for the set-aside ordinance."
Id., at
1287.
660
660 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
In the meantime, both petitioner and respondents had moved for
summary judgment.1 On May 31, 1990, the District Court entered
summary judgment for petitioner, concluding that the MBE ordinance
was inconsistent with the equal protection criteria established by
this Court in
Richmond v. J.
A. Croson Co., 488 U. S. 469 (1989).
Once again respondents appealed, and once again they obtained a
favorable ruling.
951 F.2d
1217 (1992). Rather than addressing the merits of petitioner's
equal protection claim, the Court of Appeals held that petitioner
"lacks standing to challenge the ordinance establishing the
set-aside program," id., at 1218, because it "has not demonstrated
that, but for the program, any AGC member would have bid
successfully for any of these contracts," id., at 1219. The Court
of Appeals accordingly vacated the District Court's judgment, and
remanded the case with instructions to dismiss petitioner's
complaint without prejudice.
Because the Eleventh Circuit's decision conflicts with decisions
of the District of Columbia Circuit and the Ninth Circuit, see
O'Donnell Constr. Co. v.
District of Columbia, 295 U.
S. App. D. C. 317, 320,
963 F.2d
420, 423 (1992);
Coral Constr. Co. v.
King
County, 941 F.2d
910, 930 (CA9 1991), cert. denied, 502 U. S. 1033 (1992), we
granted certiorari. 506 U. S. 813 (1992).
B
On October 27, 1992,22 days after our grant of certiorari, the
city repealed its MBE ordinance and replaced it with an ordinance
entitled "African-American and Women's Business Enterprise
Participation," which became effective the next day. This ordinance
differs from the repealed ordinance in three principal respects.
First, unlike the prior ordinance,
1 In their motion for summary judgment, respondents claimed only
that they were entitled to judgment as a matter of law on the
merits; they did not challenge petitioner's standing. See 2 Record,
Exh. 33.
661
which applied to women and members of seven different minority
groups, the new ordinance applies only to women and blacks.
Jacksonville Purchasing Code § 126.601(b) (1992). Second, rather
than a 10% "set aside," the new ordinance has established
"participation goals" ranging from 5 to 16%, depending upon the
type of contract, the ownership of the contractor, and the fiscal
year in which the contract is awarded. § 126.604. Third, the new
ordinance provides not one but five alternative methods for
achieving the "participation goals." §§ 126.605, 126.618. Which of
these methods the city will use is decided on a "project by project
basis," § 126.605, but one of them, the "Sheltered Market Plan," is
(apart from the percentages) virtually identical to the prior
ordinance's "set aside." Under this plan, certain contracts are
reserved "for the exclusive competition" of certified black- and
female-owned businesses. § 126.605(b).2
Claiming that there was no longer a live controversy with
respect to the constitutionality of the repealed ordinance,
respondents filed a motion to dismiss the case as moot on November
18, 1992. We denied that motion on December 14. 506 U. S. 1031
(1992).
II
In their brief on the merits, respondents reassert their claim
that the repeal of the challenged ordinance renders the case moot.
We decline to disturb our earlier ruling, however; now, as then,
the mootness question is controlled by
2 The four other methods are (1) a "Participation Percentage
Plan," under which contractors are required to subcontract with
black- or femaleowned businesses, §§ 126.605(a), 126.612; (2) a
"Direct Negotiation Plan," pursuant to which the city engages in
"direct negotiations" with black- or female-owned businesses, §
126.605(c); (3) a "Bid Preference Plan," which provides for the
award of a contract to the black- or female-owned business whose
bid is within a certain percentage or dollar amount of the lowest
bid, § 126.605(d); and (4) an "Impact Plan," under which "point
values" are awarded to black- and female-owned businesses and to
businesses that use black- or female-owned subcontractors or
suppliers or have a specified employment program for black and
female employees, § 126.618.
662
662 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
City of Mesquite v.
Aladdin's Castle, Inc.,
455 U. S. 283
(1982), where we applied the "well settled" rule 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., at 289. Although the challenged
statutory language at issue in
City of Mesquite had been
eliminated while the case was pending in the Court of Appeals, we
held that the case was not moot, because the defendant's "repeal of
the objectionable language would not preclude it from reenacting
precisely the same provision if the District Court's judgment were
vacated."
Ibid.
This is an
afortiori case. There is no mere risk that
Jacksonville will repeat its allegedly wrongful conduct; it has
already done so. Nor does it matter that the new ordinance differs
in certain respects from the old one.
City of Mesquite does
not stand for the proposition that it is only the possibility that
the
selfsame statute will be enacted that prevents a case
from being moot; if that were the rule, a defendant could moot a
case by repealing the challenged statute and replacing it with one
that differs only in some insignificant respect. The gravamen of
petitioner's complaint is that its members are disadvantaged in
their efforts to obtain city contracts. The new ordinance may
disadvantage them to a lesser degree than the old one, but insofar
as it accords preferential treatment to black- and female-owned
contractorsand, in particular, insofar as its "Sheltered Market
Plan" is a "set aside" by another name-it disadvantages them in the
same fundamental way.3
3 At bottom, the dissent differs with us only over the question
whether the new ordinance is sufficiently similar to the repealed
ordinance that it is permissible to say that the challenged conduct
continues-or, as the dissent puts it, whether the ordinance has
been "sufficiently altered so as to present a substantially
different controversy from the one the District Court originally
decided."
Post, at 671. We believe that the ordinance has
not been "sufficiently altered"; the dissent disagrees. As for the
merits of that disagreement, the short answer to the dissent's
argument that this case is controlled by
Diffenderfer v.
Central Baptist Church of Miami,
663
We hold that the case is not moot, and we now turn to the
question on which we granted certiorari: whether petitioner has
standing to challenge Jacksonville's ordinance.
III
The doctrine of standing is "an essential and unchanging part of
the case-or-controversy requirement of Article III,"
Lujan
v.
Defenders of Wildlife, 504 U. S. 555, 560
(1992), which itself "defines with respect to the Judicial Branch
the idea of separation of powers on which the Federal Government is
founded,"
Allen v.
Wright, 468 U. S. 737, 750
(1984). It has been established by a long line of cases that a
party seeking to invoke a federal court's jurisdiction must
demonstrate three things: (1) "injury in fact," by which we mean an
invasion of a legally protected interest that is "(a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical,"
Lujan, supra, at 560 (citations, footnote,
and internal quotation marks omitted); (2) a causal relationship
between the injury and the challenged conduct, by which we mean
that the injury "fairly can be traced to the challenged action of
the defendant," and has not resulted "from the independent action
of some third party not before the court,"
Simon v.
Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 41-42
(1976); and (3) a likelihood that the injury will be redressed by a
favorable decision, by which we mean that the "prospect of
obtaining relief from
Inc., 404
U. S. 412 (1972)
(per curiam), and
Fusari v.
Steinberg, 419
U. S. 379 (1975)-both of which predate
City of
Mesquite-is that the statutes at issue in those cases were
changed substantially, and that there was therefore no basis for
concluding that the challenged conduct was being repeated. See
Diffenderfer, supra, at 413-414 ("crux of [the] complaint"
was that old statute violated Constitution insofar as it authorized
tax exemption "for church property used primarily for commercial
purposes"; new statute authorized exemption "only if the property
is used predominantly for religious purposes");
Fusari, 419
U. S., at 380 (challenged statute was "significantly revised");
id., at 385 (legislature enacted "major revisions" of statute).
664
664 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
the injury as a result of a favorable ruling" is not "too
speculative,"
Allen v.
Wright, supra, at 752. These
elements are the "irreducible minimum,"
Valley Forge Christian
College v.
Americans United for Separation of Church and
State, Inc., 454
U. S. 464, 472 (1982), required by the Constitution.
The Court of Appeals held that petitioner could not establish
standing because it failed to allege that one or more of its
members would have been awarded a contract but for the challenged
ordinance. Under these circumstances, the Court of Appeals
concluded, there is no "injury." 951 F.2d, at 1219-1220. This
holding cannot be reconciled with our precedents.
A
In
Turner v.
Fouche, 396 U. S. 346 (1970), a
Georgia law limiting school board membership to property owners was
challenged on equal protection grounds. We held that a plaintiff
who did not own property had standing to challenge the law, id., at
361, n. 23, and although we did not say so explicitly, our holding
did not depend upon an allegation that he would have been appointed
to the board but for the property requirement. All that was
necessary was that the plaintiff wished to be considered for the
position. Accord,
Quinn v.
Millsap, 491 U. S. 95, 103 (1989)
(plaintiffs who do not own real property have standing to challenge
property requirement for membership on "board of freeholders").
We confronted a similar issue in
Clements v.
Fashing, 457
U. S. 957 (1982). There, a number of officeholders claimed that
their equal protection rights were violated by the "automatic
resignation" provision of the Texas Constitution, which requires
the immediate resignation of some (but not all) state officeholders
upon their announcement of a candidacy for another office. Noting
that the plaintiffs had alleged that they would have announced
their candidacy were it not for the consequences of doing so, we
rejected the claim that the dispute was "merely hypothetical," and
that the allegations were insufficient to create an "actual case or
contro-
665
versy."
Id., at 962. Citing
Turner v.
Fouche, we emphasized that the plaintiffs' injury was the
"obstacle to [their]
candidacy," 457 U. S., at 962 (emphasis
added); we did not require any allegation that the plaintiffs would
actually have been elected but for the prohibition.
The decision that is most closely analogous to this case,
however, is
Regents of Univ. of Gal. v.
Bakke,
438 U. S. 265
(1978), where a twice-rejected white male applicant claimed that a
medical school's admissions program, which reserved 16 of the 100
places in the entering class for minority applicants, was
inconsistent with the Equal Protection Clause. Addressing the
argument that the applicant lacked standing to challenge the
program, Justice Powell concluded that the "constitutional
requirements of Art. III" had been satisfied, because the requisite
"injury" was the medical school's "decision not to permit Bakke to
compete for all 100 places in the class, simply because of
his race."
Id., at 281, n. 14 (emphasis added) (principal
opinion). Thus, "even if Bakke had been unable to prove that he
would have been
admitted in the absence of the special
program, it would not follow that he lacked standing."
Id.,
at 280-281, n. 14 (emphasis added). This portion of Justice
Powell's opinion was joined by four other Justices. See id., at
272.4
4 Although
Bakke came to us from state court, our
decision in
ASARCO Inc. v.
Kadish, 490 U. S. 605 (1989),
does not retroactively render
Bakke's discussion of standing
dictum. See Brief for Public Citizen et al. as
Amici Curiae
7, n. 4 (suggesting that it might). In
ASARCO we held that
we had jurisdiction to review the judgment of a state court even
though the respondents (plaintiffs in the trial court) "had no
standing to sue under the principles governing the federal courts,"
490 U. S., at 623, because the petitioners (defendants in the trial
court) "allege[d] a specific injury stemming from the state-court
decree," id., at 617. But we did not hold that it was
irrelevant whether the state-court plaintiffs met federal
standing requirements; instead we made it clear that a
determination that the plaintiffs satisfied those requirements
would have "obviated any further inquiry."
Id., at 623, n.
2. Thus, while Bakke's standing was not a necessary condition for
our exercise of jurisdiction, it was sufficient.
666
666 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
Singly and collectively, these cases stand for the following
proposition: When the government erects a barrier that makes it
more difficult for members of one group to obtain a benefit than it
is for members of another group, a member of the former group
seeking to challenge the barrier need not allege that he would have
obtained the benefit but for the barrier in order to establish
standing. The "injury in fact" in an equal protection case of this
variety is the denial of equal treatment resulting from the
imposition of the barrier, not the ultimate inability to obtain the
benefit. See,
e. g.,
Turner v.
Fouche, supra,
at 362 ("We may assume that the [plaintiffs] have no right to be
appointed to the ... board of education. But [they] do have a
federal constitutional right to be
considered for public
service without the burden of invidiously discriminatory
disqualifications") (footnote omitted) (emphasis added). And 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, not the loss of a contract. See
Croson, 488 U. S.,
at 493 (principal opinion of O'CONNOR, J.) ("The [set-aside
program] denies certain citizens the
opportunity to compete
for a fixed percentage of public contracts based solely upon their
race") (emphasis added). To establish standing, therefore, 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.5
B
In urging affirmance, respondents rely primarily upon
Warth v.
Seldin, 422 U. S. 490 (1975).
There the plaintiffs claimed that a town's zoning ordinance, both
by its terms and as enforced, violated the Fourteenth Amendment
insofar as
5 It follows from our definition of "injury in fact" that
petitioner has sufficiently alleged both that the city's ordinance
is the "cause" of its injury and that a judicial decree directing
the city to discontinue its program would "redress" the injury.
667
it had the effect of preventing people of low and moderate
income from living in the town. Seeking to intervene in the suit,
an association of construction firms alleged that the zoning
restrictions had deprived some of its members of business
opportunities and profits. We held that the association lacked
standing, and we provided the following explanation for our
holding:
"The complaint refers to no specific project of any of [the
association's] members that is currently precluded either by the
ordinance or by respondents' action in enforcing it. There is no
averment that any member has applied to respondents for a building
permit or a variance with respect to any current project. Indeed,
there is no indication that respondents have delayed or thwarted
any project currently proposed by [the association's] members, or
that any of its members has taken advantage of the remedial
processes available under the ordinance. In short, insofar as the
complaint seeks prospective relief, [the association] has failed to
show the existence of any injury to its members of sufficient
immediacy and ripeness to warrant judicial intervention."
Id., at 516.
We think
Warth is distinguishable. Unlike the other cases
that we have discussed,
Warth did not involve an allegation
that some discriminatory classification prevented the plaintiff
from competing on an equal footing in its quest for a benefit. In
Turner v.
Fouche, Quinn v.
Millsap, and
Clements v.
Fashing, the plaintiffs complained that
they could not be considered for public office. And in both
Bakke and this case, the allegation was that the plaintiff
(or the plaintiff's membership) was excluded from consideration for
a certain portion of benefits-in
Bakke, places in a medical
school class; here, municipal contracts. In
Warth, by
contrast, there was no claim that the construction association's
members could not apply for variances and building permits on the
same basis as other firms; what the association objected
668
668 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
to were the "refusals by the town officials to
grant
variances and permits." 422 U. S., at 515 (emphasis added). See
also id., at 530 (Brennan, J., dissenting) ("[T]he claim is that
respondents will not approve any project") (emphasis deleted). The
firms' complaint, in other words, was not that they could not
compete equally; it was that they did not win. Thus, while there is
undoubtedly some tension between
Warth and the
aforementioned line of cases, this case is governed by the
latter.
In any event, the tension is minimal. Even assuming that the
alleged injury in
Warth was an inability to
compete
for variances and permits on an equal basis, and that
Warth,
too, is analogous to this case, it is distinguishable nonetheless.
Unlike petitioner, which alleged that its members regularly bid on
contracts in Jacksonville and would bid on those that the city's
ordinance makes unavailable to them, the construction association
in
Warth did not allege that "any member ha[d] applied ...
for a building permit or a variance with respect to any current
project."
Id., at 516. Thus, unlike the association in
Warth, petitioner has alleged an "injury ... of sufficient
immediacy ... to warrant judicial intervention."
Ibid.
Furthermore, we did not hold in
Warth, as the Court of
Appeals-mutatis
mutandis-did here, that the association was
required to allege that but for a discriminatory policy,
variances or permits would have been awarded to its members. An
allegation that a "specific project" was "precluded" by the
existence or administration of the zoning ordinance,
ibid.,
would certainly have been sufficient to establish standing, but
there is no suggestion in
Warth that it was necessary.
IV
In 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. Complaint" 9,46. Because those allegations have
not been challenged (by way of
669
a motion for summary judgment, for example), we must assume that
they are true. See
Lucas v.
South Carolina Coastal
Council, 505 U.
S. 1003, 1012-1013, n. 3 (1992);
Pennell v.
San
Jose, 485 U. S.
1, 7 (1988). Given that assumption, and given the legal
standard we have reaffirmed today, it was inappropriate for the
Court of Appeals to order that petitioner's complaint be dismissed
for lack of standing.6 The judgment of the Court of Appeals is
therefore reversed, and the case is remanded for further
proceedings consistent with this opinion.
So ordered.
JUSTICE O'CONNOR, with whom JUSTICE BLACKMUN joins,
dissenting.
When a challenged statute expires or is repealed or
significantly amended pending review, and the only relief sought is
prospective, the Court's practice has been to dismiss the case as
moot. Today the Court abandons that practice, relying solely on our
decision in
City of Mesquite v.
Aladdin's Castle,
Inc., 455 U. S.
283 (1982). See
ante, at 661-663. I believe this case
more closely resembles those cases in which we have found mootness
than it does
City of Mesquite. Accordingly, I would not
reach the standing question decided by the majority.
I A
Earlier this Term, the Court reaffirmed the longstanding rule
that a case must be dismissed as moot "if an event occurs [pending
review] that makes it impossible for the court to grant 'any
effectual relief whatever' to a prevailing party."
6 There has been no suggestion that even if petitioner's members
have standing to sue, petitioner itself does not, because one or
more of the prerequisites to "associational standing" have not been
satisfied. See
Hunt v.
Washington State Apple Advertising
Comm'n, 432 U. S.
333, 343 (1977). Nor, given the current state of the record, do
we have any basis for reaching that conclusion on our own.
670
670 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
Church of Scientology of Cal. v.
United States,
506 U. S. 9, 12
(1992) (quoting
Mills v.
Green, 159 U. S. 651, 653
(1895)). That principle applies to challenges to legislation that
has expired or has been repealed, where the plaintiff has sought
only prospective relief. If the challenged statute no longer
exists, there ordinarily can be no real controversy as to its
continuing validity, and an order enjoining its enforcement would
be meaningless. In such circumstances, it is well settled that the
case should be dismissed as moot. See,
e. g.,
New Orleans
Flour Inspectors v.
Glover, 160 U. S. 170 (1895)
(repeal). Accord,
Burke v.
Barnes, 479 U. S. 361, 363-365
(1987) (expiration); cf.
Richmond v. J.
A. Croson
Co., 488 U. S.
469,478, n. 1 (1989) (expiration of set-aside law did not moot
case where parties had continuing controversy over question whether
prior application of ordinance entitled plaintiff to
damages).
The analysis varies when the challenged statute is amended or is
repealed but replaced with new legislation. I agree with the Court
that a defendant cannot moot a case simply by altering the law "in
some insignificant respect."
Ante, at 662. We have
recognized, however, that material changes may render a case moot.
See,
e. g., Princeton Univ. v.
Schmid, 455 U. S. 100, 103 (1982)
(per curiam) ("substantia[l] amend[mentJ" of challenged
regulation mooted controversy over its validity). It seems clear,
for example, that when the challenged law is revised so as plainly
to cure the alleged defect, or in such a way that the law no longer
applies to the plaintiff, there is no live controversy for the
Court to decide. Such cases functionally are indistinguishable from
those involving outright repeal: Neither a declaration of the
challenged statute's invalidity nor an injunction against its
future enforcement would benefit the plaintiff, because the statute
no longer can be said to affect the plaintiff. See,
e. g.,
Department of Treasury v.
Galioto, 477 U. S. 556, 559560
(1986) (equal protection challenge to federal firearms statute
treating certain felons more favorably than former
671
mental patients moot after Congress amended statute to eliminate
discrimination);
Kremens v.
Bartley, 431 U. S. 119, 128-130
(1977) (challenge to law permitting parents to commit juveniles
under 18 to mental hospital mooted, with respect to those over 13,
by new legislation permitting such commitment only of juveniles 13
and under);
Board of Pub. Util. Comm'rs v.
Compania
General De Tabacos De Filipinas, 249 U. S. 425, 426 (1919)
(challenge to statute alleged to constitute unlawful delegation of
legislative power to regulatory board dismissed after statutory
amendment detailed board's responsibilities);
Berry v.
Davis, 242 U.
S. 468, 470 (1917) (suit to enjoin mandatory vasectomy on
plaintiff dismissed after statute requiring operation was replaced
by law inapplicable to plaintiff).
A more difficult question is presented when, after we have
granted review of a case, the challenged statute is replaced with
new legislation that, while not obviously or completely remedying
the alleged infirmity in the original act, is more narrowly drawn.
The new law ultimately may suffer from the same legal defect as the
old. But the statute may be sufficiently altered so as to present a
substantially different controversy from the one the district court
originally decided. In such cases, this Court typically has
exercised caution and treated the case as moot.
In
Diffenderfer v.
Central Baptist Church of Miami,
Inc., 404 U. S.
412 (1972)
(per curiam), for example, plaintiffs
challenged a Florida statute that exempted from taxation certain
church property used in part as a commercial parking lot as
violative of the Religion Clauses of the First Amendment. After
this Court noted probable jurisdiction, the Florida Legislature
repealed the statute and replaced it with new legislation exempting
from taxation only church property used predominantly for religious
purposes. Observing that the church property in question might not
be entitled to an exemption under the new law, we concluded that
the controversy before us was moot. We reasoned:
672
672 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
"The only relief sought in the complaint was a declaratory
judgment that the now repealed [statute] is unconstitutional as
applied to a church parking lot used for commercial purposes and an
injunction against its application to said lot. This relief is, of
course, inappropriate now that the statute has been repealed."
Id., at 414-415.
Recognizing that the plaintiffs might wish to challenge the
newly enacted legislation, we declined simply to order dismissal,
as is our practice when a controversy becomes moot pending a
decision by this Court. See
United States v.
Munsingwear,
Inc., 340 U. S.
36, 39, and n. 2 (1950). Instead, we vacated the lower court's
judgment and remanded with leave to the plaintiffs to amend their
pleadings. 404 U. S., at 415.
The Court took a similar approach in
Fusari v.
Steinberg, 419
U. S. 379 (1975), in which plaintiffs challenged Connecticut's
procedures for determining continuing eligibility for unemployment
compensation. A three-judge District Court held that the scheme
violated due process because it failed to provide an adequate
hearing and because administrative review of the hearing examiner's
decision took an unreasonably long time. After this Court noted
probable jurisdiction, the state legislature amended the relevant
statutes, establishing additional procedural protections at the
hearing stage and altering the structure of administrative review
to make it quicker and fairer. Because these changes "[might] alter
significantly the character of the system considered by the
District Court," id., at 386-387, and because it was unclear how
the new procedures would operate, id., at 388-389, we vacated the
lower court's judgment and remanded for reconsideration in light of
the intervening changes in state law. See
id., at 390; see
also
Allee v.
Medrano, 416 U. S. 802, 818-820
(1974) (where criminal statutes declared unconstitutional were
replaced by "more narrowly drawn" versions, case was moot absent
pending prosecutions).
673
These precedents establish that, where a challenged statute is
replaced with more narrowly drawn legislation pending our review,
and the plaintiff seeks only prospective relief, we generally
should decline to decide the case. The controversy with respect to
the old statute is moot, because a declaration of its invalidity or
an injunction against the law's future enforcement would not
benefit the plaintiff. Where we cannot be sure how the statutory
changes will affect the plaintiff's claims, dismissal avoids the
possibility that our decision will prove advisory.
B
Like
Diffenderfer, this case concerns a law that was
repealed and replaced after this Court granted review. Petitioner's
complaint requests only declaratory and injunctive relief from a
set-aside ordinance that no longer exists. The Court acknowledges
that Jacksonville's new ordinance is more narrowly drawn than the
last. See
ante, at 662 ("The new ordinance may disadvantage
[petitioner's members] to a lesser degree than the old one"). But
the majority believes that
Diffenderfer and similar cases
are inapposite because, in the majority's view, Jacksonville's new
ordinance does not differ substantially from the one challenged in
petitioner's complaint. See
ante, at 662-663, n. 3. I cannot
agree.
"The gravamen of petitioner's complaint,"
ante, at 662,
as I read it, was that the original set-aside law violated the
Equal Protection Clause for two reasons: The law "[lacked] an
adequate factual basis," in that the city had not undertaken
studies to determine whether past discrimination or its continuing
effects made a preference program necessary, App. 15-17; and the
ordinance "[was] not narrowly tailored to remedy any prior racial
discrimination," because the program was not limited in time, the
10% set-aside figure was not rationally related to any relevant
statistic, and preferences were awarded to groups against whom no
discrimination ever had occurred in the city, id., at 17-18. The
District Court invalidated the ordinance on the authority of
Rich-
674
674 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
mond v. J.
A. Croson Co., 488 U. S. 469 (1989), in
which we held that a set-aside program deficient in similar
respects violated the Equal Protection Clause. App. to Pet. for
Cert. 10-13. The District Court concluded that Jacksonville had not
made sufficient findings of past discrimination; it therefore did
not reach the "narro[w] tailor[ing]" question.
Id., at
12.
The new ordinance clearly was written to remedy the
constitutional defects that petitioner alleged and the District
Court found in the original program. The new law was passed after
completion of an independent study, which the city commissioned,
and after a select committee of the Jacksonville City Council
conducted numerous public hearings. The new ordinance expressly
adopts the select committee's findings concerning "the present
effects of past discrimination" in city contracting. Jacksonville
Purchasing Code § 126.601 (1992).
The city's effort to make the law more narrowly tailored also is
evident. By its terms, the new program will expire in 10 years. §
126.604(a). In addition, as the Court explains, all but two of
eight previously favored groups have been eliminated from the list
of qualified participants; the participation goals vary according
to the type of contract and the ownership of the contractor; and
there are now five alternative methods for achieving the
participation goals. See
ante, at 660-661. Only one of the
five methods for complying with the participation goals, the
"Sheltered Market Plan," resembles the earlier set-aside law.
Ante, at 661. It is unclear how the city will decide when,
if ever, to use the Sheltered Market Plan, rather than an
alternative method, for a particular project. As in
Fusari,
"we can only speculate how the new system might operate." 419 U.
S., at 388-389.
Whether or not the new ordinance survives scrutiny under the
Fourteenth Amendment-a question on which I express no view-I cannot
say that these changes are "insignificant,"
ante, at 662, to
petitioner's equal protection claim. The ma-
675
jority avoids this difficulty by characterizing petitioner's
complaint in the most general terms possible: "The gravamen of
petitioner's complaint is that its members are disadvantaged in
their efforts to obtain city contracts."
Ibid. We did not
undertake such a generalized approach in
Diffenderfer or our
other cases involving more narrowly drawn statutory changes. There,
as here, any challenge to the new law "presents a different case,"
Allee, 416 U. S., at 818, and the proper course therefore is
to decline to render a decision.
That the only issue before us-and the only question decided by
the Court of Appeals-concerns petitioner's standing does not compel
a different result. Cf.
Burke v.
Barnes, 479 U. S.,
at 363 (declining to reach standing question where expiration of
law mooted controversy). A determination that petitioner has
standing to challenge the repealed law avails it nothing, since
that law no longer exists. Petitioner can benefit only from a
determination that it has standing to challenge the new ordinance.
But even assuming that the standing questions are identical under
the old and new ordinances, the Court's decision in this case, in
my view, remains inappropriate. Petitioner has not yet attempted to
amend its pleadings or to file another complaint to challenge the
new ordinance. See Tr. of Oral Arg. 5. Thus, today's ruling on the
standing question could prove advisory. For that reason, I believe
the wiser course, and the one most consistent with our precedents,
would be to follow
Diffenderfer. On the authority of that
case, I would vacate the Court of Appeals' judgment and remand to
that court with instructions to remand the case to the District
Court to permit the petitioner to challenge the new ordinance.
II
I also cannot agree with the majority's assertion that
City
of Mesquite "control[sJ" this case.
Ante, at 661. I
understand
City of Mesquite to have created a narrow
exception to
676
676 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
O'CONNOR, J., dissenting
the general principles I have described-an exception that
clearly is inapplicable here.
The plaintiff in
City of Mesquite challenged a licensing
ordinance governing coin-operated amusement establishments. One of
the factors considered in determining whether to grant a license
under the ordinance was whether the applicant has "connections with
criminal elements." 455 U. S., at 287 (internal quotation marks
omitted). The District Court held that this phrase was
unconstitutionally vague, and the Court of Appeals affirmed. While
the case was pending before the Court of Appeals, however, the
contested language was eliminated from the ordinance.
When the case came before us, we concluded that it need not be
dismissed as moot. We relied on the voluntarycessation doctrine,
which provides 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., at 289. If
it did, defendants forever could avoid judicial review simply by
ceasing the challenged practice, only to resume it after the case
was dismissed. In such cases, we have said that the defendant, to
establish mootness, bears a heavy burden of "demonstrat[ing] that
there is no reasonable expectation that the wrong will be
repeated."
United States v.
W T. Grant Co., 345 U. S. 629, 633 (1953)
(internal quotation marks omitted).
In
City of Mesquite, we decided to reach the merits of
the plaintiff's claim because "the city's repeal of the
objectionable language would not preclude it from reenacting
precisely the same provision if the District Court's judgment were
vacated." 455 U. S., at 289. We expressly noted that the city in
fact had announced an intention to do exactly that, just as it
already had eliminated and then reinstated another aspect of the
same ordinance in the course of the same litigation, obviously in
response to prior judicial action.
Id., at 289, and n. 11.
These circumstances made it virtually im-
677
possible to say that there was "no reasonable expectation" that
the city would reenact the challenged language.
City of Mesquite did not purport to overrule the long
line of cases in which we have found repeal of a challenged statute
to moot the case. Significantly, we have not referred to the
voluntary-cessation doctrine in any other case involving a statute
repealed or materially altered pending review. The reason seems to
me obvious. Unlike in
City of Mesquite, in the ordinary case
it is not at all reasonable to suppose that the legislature has
repealed or amended a challenged law simply to avoid litigation and
that it will reinstate the original legislation if given the
opportunity. This is especially true where, as here, the law has
been replacedno doubt at considerable effort and expense-with a
more narrowly drawn version designed to cure alleged legal
infirmities. We ordinarily do not presume that legislative bodies
act in bad faith. That is why, other than in
City of
Mesquite, we have not required the government to establish that
it cannot be expected to reenact repealed legislation before we
will dismiss the case as moot.
At most, I believe
City of Mesquite stands for the
proposition that the Court has discretion to decide a case in which
the statute under review has been repealed or amended. The Court
appropriately may render judgment where circumstances demonstrate
that the legislature likely will reinstate the old law-which would
make a declaratory judgment or an order enjoining the law's
enforcement worthwhile. But such circumstances undoubtedly are
rare. And the majority points to nothing in the record of this case
to suggest that we are dealing with the same sort of legislative
improprieties that concerned us in
City of Mesquite.
The majority is therefore quite unconvincing in its assertion
that the mootness question in this case "is controlled by"
City
of Mesquite. Ante, at 661. By treating that exceptional case as
announcing a general rule favoring the exer-
678
678 NORTHEASTERN FLA. CHAPTER, ASSOCIATED GEN.
CONTRACTORS OF AMERICA
v. JACKSONVILLE
cise of jurisdiction, moreover, today's decision casts doubt on
our other statutory-change cases and injects new uncertainty into
our mootness jurisprudence. In my view, the principles developed in
the other decisions I have described should continue to apply in
the ordinary case. Where, as here, a challenged statute is replaced
with a more narrowly drawn version pending review, and there is no
indication that the legislature intends to reenact the prior
version, I would follow
Diffenderfer, vacate the lower court
judgment, and direct that the plaintiff be permitted to challenge
the new legislation. Accordingly, I respectfully dissent.
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