Braunstein v. Arizona DOT

A prospective subcontractor can challenge a government program that “gives general contractors a financial incentive to hire minority-owned subcontractors” under the equal protection clause when he satisfies the elements of Article III standing, (1) he has suffered an “injury in fact” that is particular and concrete (2) the injury is traceable to the defendants actions (3) the injury can be remedied by a favorable decision, and proves that the program affected him personally. A subcontractor fails to meet this standard where he does not submit a bid and would be unable to compete with other subcontractors.

Paul Braunstein, an owner and operator of a land surveying and engineering firm in Arizona, had formerly performed work for the “Arizona Department of Transportation” (“the department”). In 2006, Braunstein filed a suit in federal court against the “Department, the State of Arizona” alleging that the departments Disadvantaged Business Enterprise (“DBE”) violated the “Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act.” Braunstein claimed that the department used race and gender preferences in awarding their 2005 contract that prevented him from competing for “subcontracting work” as he was a non-minority business owner. Braunstein appeals the district court dismissal of his claims for lack of Article III standing and award of attorney’s fees to the defendant. The Ninth Circuit held that a plaintiff satisfies Article III standing when (1) he has suffered a concrete and particular injury in fact (2) the injury is traceable to the defendant’s action and (3) the injury can be remedied by a favorable decision. The Ninth Circuit held Braunstein did not allege a particular injury, but a general grievance. He did not receive unequal treatment because he did not submit a formal bid to the prime contractors. Further the Ninth Circuit held that Braunstein must show that he is more than “able and ready” to obtain subcontracting work and that Braunstein did not provide evidence regarding his ability to compete with the other subcontractors. The Ninth Circuit held that Braunstein would not have gotten the contract for factors unrelated to the DBE program. The Ninth circuit held that this was not a case where the prevailing defendant could recover attorney fees under “§1988” and the district court erred in mandating sanctions under § 1927 because Braunstein’s attorney did not file unnecessary and repetitive motions. AFFIRMED in part, REVERSED in part.