Goode v. City of Austin, TX ( 1999 )

  •                   UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                                No. 99-50152
                              Summary Calendar
              JOHN GOODE, doing business as MR. BONES BBQ,
                                Plaintiff-Counter Defendant-Appellant,
                           CITY OF AUSTIN, TEXAS,
                                   Defendant-Counter Claimant-Appellee,
              Appeal from the United States District Court
                    for the Western District of Texas
                             November 10, 1999
    Before SMITH, BARKSDALE and PARKER, Circuit Judges.
         Plaintiff John Goode appeals the grant of summary judgment in
    favor of defendants.   We affirm.
                       PROCEDURAL HISTORY AND FACTS
         Between 1987 and the present, the City of Austin has enacted
    a series of ordinances designed to alleviate discrimination against
    women and minorities in the award of city contracts for goods and
          Pursuant to 5TH CIR. R. 47.5, the Court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    services.       The    current    ordinance,      passed    in   1996,    provides
    incentives     for    city   contractors     to   subcontract     with    business
    enterprises owned by women and minorities (“M/WBE”).                      The City
    employs a certification process that focuses on ownership of the
    business to determine M/WBE status.
         In 1992, Fine Host Corporation contracted with the City to
    provide food services at city venues.                Fine Host was obligated
    under   the     contract     to   make   good     faith    efforts   to    provide
    subcontracting opportunities to food service providers certified as
    minority owned businesses.
         In 1996, Fine Host subcontracted with Goode, the African-
    American owner of Mr. Bones Barbeque, understanding that he had
    certified Mr. Bones Barbeque as a M/WBE.              Although Mr. Bones had
    been certified as an M/WBE in 1992-93, he chose not to renew the
    certification after it expired in 1993.             He explained that he had
    privacy concerns and did not want to continue to reveal personal
    and financial information as was required by the certification
    process.      In August 1996, after Goode refused to obtain a current
    M/WBE certification, Fine Host terminated its contract with Goode
    and replaced him with another African-American owned barbeque
         Goode brought this 42 U.S.C. §§ 1981 and 1983 suit against the
    City of Austin and Fine Host alleging that he was the victim of
    intentional racial discrimination when Fine Host terminated his
    contract.      Goode also asserted breach of contract claims against
    Austin and Fine Host.             All parties filed motions for summary
    judgment.      The     district    court     granted    summary    judgment    for
    defendants on the merits of the breach of contract claims.                     The
    district court dismissed Goode’s racial discrimination claims,
    finding that Goode had suffered no injury-in-fact and accordingly
    lacked standing. Finally, the district court denied Goode’s cross-
    motion for summary judgment without discussion.
         Goode filed a pro se notice of appeal, stating only that he
    was appealing “the decision of the trial court to dismiss his
    claims[.]”    However, Goode’s brief alleges that the district court
    erred in     denying    his   motion   for    partial    summary    judgment    on
    liability.     Generally, a notice of appeal “shall designate the
    judgment, order or part thereof being appealed.”                  FED. R. APP. P.
    3(c)(1)(B)(1994).       Because Goode did not apprise this court in his
    Notice of Appeal that he intended to appeal the district court’s
    denial of his motion for partial summary judgment, we do not have
    jurisdiction to review that decision.            See C.A. May Marine Supply
    Co. v. Brunswick Corp., 
    649 F.2d 1049
    , 1056 (5th Cir. 1981).                   Our
    jurisdiction is therefore limited to Goode’s challenge to the
    district court’s dismissal of his discrimination claims.
         Federal courts have jurisdiction to adjudicate only actual
    cases or controversies.           See Valley Forge Christian College v.
    Americans United for Separation of Church and State, Inc., 
    454 U.S. 464
    , 471 (1982).       The standing doctrine requires that a plaintiff
    have “such a personal stake in the outcome of the controversy as to
    assure that concrete adverseness which sharpens the presentation of
    issues upon which the court so largely depends for illumination of
    difficult constitutional questions[.]”                   Baker v. Carr, 
    369 U.S. 186
    , 204 (1962). Ideological opposition to a government program is
    insufficient to confer standing.                  See Valley Forge, 454 U.S. at
           Goode argues that he was injured because he could not take
    advantage of Austin’s M/WBE preferences without submitting to
    allegedly intrusive certification procedure.                   He does not dispute
    the defendants’ contention that he was free to compete for vending
    contracts on an equal, race-neutral basis with all other non-
    certified      businesses.           Further,      he   does   not    attack    racial
    preferences, but complains that the defendants’ system did not
    afford     such       preferential       treatment       completely       devoid    of
    administrative burden on the beneficiaries.
           When a “governmental actor is discriminating on the basis of
    race, the resulting injury accords a basis for standing only to
    those persons who are personally denied equal treatment by the
    challenged discriminatory conduct.”                  United States v. Hays, 
    515 U.S. 737
    ,    734-44       (1995)    (quotations       omitted).       Because    the
    “intentionally discriminatory race and gender conscious goals” of
    which Goode complains benefitted rather than injured him, we
    conclude       that     Goode        lacks        standing     to     attack    their
           Based   on     the   foregoing,       we    AFFIRM    the    district   court’s
    dismissal of Goode’s § 1983 action.