Northeastern Florida Chapter of the Ass'n of General Contractors of America v. City of Jacksonville

TJOFLAT, Chief Judge, specially

concurring:

I concur in the judgment of the court. I agree with the court that plaintiff has not made a showing of irreparable injury sufficient to support injunctive relief. In my view, however, the plaintiff-association’s failure to allege with particularity that its members suffered injury, actual or threatened, should end the inquiry at an earlier point: the plaintiff-association lacks standing to sue.1 On this issue, I adhere to the position developed more fully in my dissent in Sims v. Florida Dep’t of Highway Safety and Motor Vehicles, 862 F.2d 1449, 1464-68 (11th Cir.) (en banc), cert. denied, - U.S. -, 110 S.Ct. 64, 107 L.Ed.2d 31 (1989).2

An association, such as the Northeastern Florida Chapter of the Association of General Contractors of America (plaintiff), may, under certain circumstances, have standing to litigate its members’ claims. See Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). A prerequisite of representative standing, however, is that the members would have standing in their own right were they to bring suit themselves, see Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343-45, 97 S.Ct. 2434, 2441-42, 53 L.Ed.2d 383 (1977), and to have standing in their own right, the members would have to show that they have suffered (or will suffer) an actual (or threatened) injury, see Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). As the Supreme Court stated in Warth, affirming the dismissal of a home-builders association’s complaint on the ground that the association lacked standing:

The complaint refers to no specific project of any of its members that is currently precluded either by the ordinance or by respondents’ actions 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.... In short, ... Home Builders has failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention.

Warth, 422 U.S. at 516, 95 S.Ct. at 2214.

In the current case, the plaintiff’s complaint alleges that nonminority members “would have been eligible to, and would have, bid” on contracts set aside for minority business enterprises. The complaint fails, however, to identify any member who was not allowed to bid on a particular project or to plead facts tending to establish that member’s eligibility to bid. Nor does the complaint refer to any specific contract or subcontract that would have been awarded to a nonminority bidder but for the set-aside ordinance. It is the plaintiff’s responsibility clearly to allege particular facts that demonstrate its standing, see id. at 518, 95 S.Ct. at 2215, and it is not the role of this court “to speculate concerning the existence of standing nor to [infer] support for the plaintiff,” Anderson v. City of Alpharetta, 770 F.2d 1575, 1582 (11th Cir.1985). Although it is a close question, I conclude that, under Warth, plaintiff did not fulfill its responsibility of establishing the standing of its individual members and therefore lacks representative standing to litigate its members’ claims. See City of Alpharetta, 770 F.2d at 1582-83 (organization lacked standing to challenge statute that forestalled development of low-income housing because orga*1288nization failed to allege facts demonstrating with particularity that any individual had sought or would seek housing in area of project).

Accordingly, I concur in the judgment of the court reversing the district court’s issuance of a preliminary injunction but do so because the plaintiff failed to establish its standing to challenge the set-aside ordinance.

. A federal court is required to consider the question of standing whether or not it is raised by the parties: "A threshold question in every federal case is whether the plaintiff has made out a justiciable case or controversy within the meaning of article III." Church of Scientology Flag Serv. Org. v. City of Clearwater, 777 F.2d 598, 606 (11th Cir.1985), cert. denied, 476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 656 (1986). This requires that in every case "the minimum constitutional standing requirements be demonstrated." Id.

. The Sims court ignored Supreme Court pronouncements on representative standing. It held cursorily that a plaintiff-association could litigate on behalf of its members but did not address the plaintiff's failure to allege that any of its members suffered actual or threatened injury. Sims, 862 F.2d at 1459.