Associated General Contractors of America, San Diego Chapter, Inc. v. California Department of Transportation
713 F.3d 1187
9th Cir.2013Background
- AGC challenges Caltrans’ 2009 DBE program as unconstitutional race- and gender-conscious dispatch on federally aided contracts.
- District court upheld constitutionality, applying Western States’ narrow-tailoring framework to show discrimination evidence and tailoring to groups harmed by discrimination.
- Caltrans’ disparity study (2007) found substantial underutilization of African American, Native American, Asian-Pacific, and women-owned firms across multiple contract categories.
- A newer disparity study (2012) expanded to include Hispanic Americans, but Caltrans’ 2009 program remained largely intact and received DOT approval.
- AGC lacked associational standing: it did not name harmed members or submit competent member declarations, leading to dismissal for lack of standing.
- Appeal proceedings occurred amid questions of mootness and standing, with Caltrans arguing the program’s continuation mooted the case, and AGC arguing associational standing remains.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | AGC members harmed by Caltrans’ program | No named harmed members; lack of standing | Dismissed for lack of standing on AGC's associational claim |
| Mootness | Program remains potential future harm despite new policy | New program substantially similar; not moot | Not moot; appeal proceeds despite new program |
| Strict scrutiny and narrow tailoring | Program lacks narrow tailoring; does not target groups discriminated against | Evidence shows discrimination; program narrowly tailored to groups actually discriminated | Program survives strict scrutiny and is narrowly tailored to identified groups |
Key Cases Cited
- Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal., 159 F.3d 1178 (9th Cir.1998) (standing requirements for associational suits; injury, causation, redressability)
- Croson Co. v. City of Richmond, 488 U.S. 469 (U.S. 1989) (strict scrutiny; specificity of discrimination findings may vary)
- Western States Paving Co. v. Washington State Dept. of Transp., 407 F.3d 983 (9th Cir.2005) (two-prong narrow-tailoring test; must show discrimination and tailor to groups actually discriminated)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (U.S. 1995) (strict scrutiny for racial classifications)
- City of Richmond v. J.A. Croson Co., 488 U.S. 469 (U.S. 1989) (discrimination patterns; requirement of tailored remedial action)
- Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (U.S. 1993) (not moot where challenged program persists)
- Grutter v. Bollinger, 539 U.S. 306 (U.S. 2003) (highly persuasive justification standard for race-conscious programs)
- United States v. Virginia, 518 U.S. 515 (U.S. 1996) (intermediate scrutiny for gender classifications)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing requirements and injury in fact)
- Summers v. Earth Island Inst., 555 U.S. 488 (U.S. 2009) (standing and organizational plaintiff requirements)