Braunstein v. Arizona Department of Transportation , 683 F.3d 1177 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL BRAUNSTEIN, DBA Baseplans 
USA,
Plaintiff-Appellant,
v. No. 10-16564
ARIZONA DEPARTMENT OF  D.C. No.
TRANSPORTATION; VICTOR MENDEZ; 2:06-cv-02726-JWS
LISA WORMINGTON; SUSAN TELLEZ;
STATE OF ARIZONA,
Defendants-Appellees.

PAUL BRAUNSTEIN, DBA Baseplans 
USA,
Plaintiff,
and
GARY E. LOFLAND; PAUL S. No. 10-17193
GERDING, Jr., counsel for plaintiff,
Appellants,  D.C. No.
2:06-cv-02726-JWS
v.
OPINION
ARIZONA DEPARTMENT OF
TRANSPORTATION; VICTOR MENDEZ;
LISA WORMINGTON; SUSAN TELLEZ;
STATE OF ARIZONA,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Argued and Submitted
October 14, 2011—San Francisco, California
7653
7654 BRAUNSTEIN v. ARIZONA DOT
Filed June 27, 2012
Before: Procter Hug, Jr., Andrew J. Kleinfeld, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
7656 BRAUNSTEIN v. ARIZONA DOT
COUNSEL
Paul S. Gerding, KUTAK ROCK LLP, Scottsdale, Arizona,
and Gary Edward Lofland, LOFLAND & ASSOCIATES,
Yakima, Washington, for the appellant.
BRAUNSTEIN v. ARIZONA DOT 7657
Melissa Alice Parham, Kelly Y. Schwab, Michelle Hibbert
Swann, CURTIS GOODWIN SULLIVAN UDALL &
SCHWAB PLC, Phoenix, Arizona, and Kiersten A. Murphy,
Kevin E. O’Malley, GALLAGHER & KENNEDY, P.A.,
Phoenix, Arizona, for the appellees.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiff Paul Braunstein seeks damages based on Arizo-
na’s use of an affirmative action program in its award of a
2005 transportation engineering contract. We affirm the dis-
trict court’s holding that Braunstein lacks Article III standing.
I. Background
Braunstein owns and operates BasePlans, a small engineer-
ing and land surveying firm in Arizona that previously per-
formed work for the Arizona Department of Transportation
(“the Department”). The Department is a state agency respon-
sible for the planning, design, repair, and construction of
roads in Arizona. Beginning in 2003, Braunstein filed three
lawsuits against the Department and its employees challeng-
ing their refusal to award him additional work. He filed the
first two suits in state court alleging, inter alia, breach of con-
tract, conspiracy, and antitrust violations. In 2006, Braunstein
filed the present lawsuit in federal court, alleging that the
Department’s race- and gender-conscious affirmative action
program violated his right to equal protection.
In 1995, the Department hired the engineering firm DMJM
Harris, Inc. (“DMJM”), as its prime contractor for the Mari-
copa County regional freeway system. Initially, the Depart-
ment itself hired other firms, including BasePlans, on an as-
needed basis to locate subsurface utilities that might need to
7658 BRAUNSTEIN v. ARIZONA DOT
be relocated during freeway construction. In 2001, the Depart-
ment opted for a new contracting system under which the
prime contractor, rather than the Department, selected and
contracted with other firms for the utility location work.
DMJM chose Aztec Technical Services (“Aztec”) as its utility
subcontractor, and the Department modified its contract with
DMJM accordingly.
In March 2003, Braunstein sued the Department, a Depart-
ment official, DMJM, and Aztec in Arizona state court, alleg-
ing that they secretly and improperly conspired to divert
utility location work to Aztec. Braunstein alleged breach of
contract by the Department and intentional interference with
business expectancy by the other defendants. In June 2004,
the court granted summary judgment in favor of DMJM and
Aztec. The court found, among other things, that DMJM did
not ask BasePlans to submit a subcontracting proposal
because it had experienced problems with BasePlans on prior
projects. In December 2004, Braunstein settled his breach of
contract claim with the Department and dismissed his claims
against the Department official.
In November 2004, the Department solicited bids for a new
engineering and design contract to replace DMJM’s 1995
contract. Six firms bid on the prime contract. Braunstein did
not bid on the contract because he could not satisfy a Depart-
ment requirement that prime contractors be able to complete
50 percent of the contract work themselves. Instead, Braun-
stein contacted the bidding firms to ask about subcontracting
for the utility location work. All six firms rejected Braun-
stein’s overtures, and Braunstein did not submit a quote or
subcontracting bid to any of them. None of the prime bids
submitted to the Department identified BasePlans as a chosen
utility location subcontractor.
United States Department of Transportation regulations
require that states receiving federal highway funds maintain
a Disadvantaged Business Enterprise (“DBE”) program. 49
BRAUNSTEIN v. ARIZONA DOT 7659
C.F.R. § 26.21. To qualify as a DBE, a “for-profit small busi-
ness” must be “at least 51 percent owned by one or more indi-
viduals who are both socially and economically
disadvantaged.” Id. § 26.5. The regulations presume that
women, Black Americans, Hispanic Americans, Native
Americans, Asian-Pacific Americans, Subcontinent Asian
Americans, and certain other ethnic minorities are socially
and economically disadvantaged. Id. § 26.67(a)(1). The pre-
sumption of disadvantage is rebutted when an individual has
a personal net worth above a specified amount. Id.
§ 26.67(b)(1).
The Department reviewed the prime contract bids and
scored them on a 100-point scale. Under the Department’s
system, a bidding prime contractor would receive a maximum
of 5 points for DBE participation if (1) it was a DBE itself;
(2) it committed to hiring DBE subcontractors to perform at
least 6 percent of the contract work; or (3) it demonstrated a
“good faith effort” to achieve the 6 percent goal but was
unable to do so for reasons beyond its control. The Depart-
ment required that contracting firms adhere to their DBE par-
ticipation commitments and file monthly DBE compliance
reports.
All six firms that bid on the 2005 prime contract received
the maximum 5 points for DBE participation. No bidding firm
was itself a DBE, but all six committed to hiring DBE sub-
contractors to perform at least 6 percent of the work. Only one
of the six bidding firms selected a DBE as its desired utility
location subcontractor. Three of the bidding firms, including
DMJM, selected Aztec to perform the utility location work.
Aztec was not a DBE.
DMJM won the bid for the 2005 contract. The contract was
for one year, but the Department indicated that it expected to
renew the contract annually for 20 years. The Department
would decide whether to renew it based on DMJM’s perfor-
7660 BRAUNSTEIN v. ARIZONA DOT
mance. DMJM’s use of DBE subcontractors in future years
would not factor into the Department’s renewal decision.
In May 2005, Braunstein filed a second lawsuit in Arizona
state court against the Department and Department officials,
alleging conspiracy and violation of antitrust, public records,
and conflict of interest laws. The Superior Court dismissed all
of Braunstein’s claims, and the Court of Appeals affirmed.
The state courts concluded that Braunstein lacked standing to
bring the claims under state law because he had not bid on the
challenged contract.
Also in May 2005, we decided Western States Paving Co.
v. Washington State Department of Transportation, 407 F.3d
983 (9th Cir. 2005). We upheld against a facial challenge the
federal DBE program at the national level as a narrowly tai-
lored means of remedying race- and sex-based discrimination
in the transportation contracting industry. Id. at 995. How-
ever, we held that states, to survive an as-applied challenge to
their own DBE programs, must produce evidence of discrimi-
nation against particular groups within particular state indus-
tries to demonstrate that their DBE programs are narrowly
tailored to achieve Congress’s compelling remedial interest.
Id. at 995-99. We struck down the Washington Department of
Transportation’s DBE program as unconstitutional because
the record was “devoid of any evidence” of discrimination in
the state’s transportation contracting industry. Id. at 1002. In
January 2006, the Department suspended its DBE program in
light of Western States.
In November 2006, Braunstein brought this suit in federal
court against the Department, the state of Arizona, and three
named Department employees (the “Named Defendants”) in
their official and individual capacities. Braunstein’s federal
suit challenged Arizona’s DBE program as violating the
Equal Protection Clause of the Fourteenth Amendment and
Title VI of the Civil Rights Act. Title VI provides that no per-
son shall be subjected to discrimination under “any program
BRAUNSTEIN v. ARIZONA DOT 7661
or activity receiving Federal financial assistance.” 42 U.S.C.
§ 2000d. The attorney who litigated Western States represents
Braunstein in this suit.
Braunstein alleged that the Department violated his right to
equal protection by using race and gender preferences in its
solicitation and award of the 2005 contract. He alleged that
these preferences prevented him, as a non-minority business
owner, from competing for subcontracting work on an equal
basis. Braunstein sought: (1) declaratory relief that the DBE
program is unconstitutional; (2) damages based on 42 U.S.C.
§§ 1981, 1983, and 2000d; and (3) an injunction prohibiting
Defendants from implementing the DBE program.
In September 2007, the district court dismissed the §§ 1981
and 1983 claims against the state, the Department, and the
Named Defendants in their official capacities because of sov-
ereign immunity under the Eleventh Amendment. The court
found that Braunstein alleged sufficient injury to survive a
motion to dismiss for lack of standing, but warned that “[t]his
is not to say that after appropriate discovery a motion for
summary judgment would not succeed.” In May 2008, the
district court dismissed the § 2000d damages claims against
the Named Defendants because that provision does not pro-
vide for monetary relief against individual defendants.
In May 2010, after the parties had finished discovery and
filed cross motions for summary judgment, the district court
dismissed as moot Braunstein’s claims for injunctive and
declaratory relief because the Department had suspended its
DBE program in 2006. This left only Braunstein’s damages
claims against the state and the Department under § 2000d,
and against the Named Defendants in their individual capaci-
ties under §§ 1981 and 1983. The court questioned sua sponte
whether Braunstein had Article III standing to pursue these
remaining claims and ordered him to show cause demonstrat-
ing a redressable injury. The court wrote that it was “difficult
to see how Braunstein was harmed by the DBE program.”
7662 BRAUNSTEIN v. ARIZONA DOT
In June 2010, the district court concluded that Braunstein
lacked Article III standing to pursue his remaining claims
because he had failed to show that the Department’s DBE
program had affected him personally. The court noted that
“Braunstein was afforded the opportunity to bid on subcon-
tracting work, and the DBE goal did not serve as a barrier to
doing so, nor was it an impediment to his securing a subcon-
tract.” The court found that Braunstein’s inability to secure
utility location work stemmed from his past unsatisfactory
performance for DMJM, not his status as a non-DBE. “[T]he
reason Braunstein did not get any of the utility subcontract
work from the successful bidder on [the 2005 contract] had
nothing to do with the fact that he did not qualify for DBE
status,” the court wrote. “Rather, he did not get any of the
work because those who were in a position to provide it did
not want to do business with Braunstein.”
In September 2010, the district court awarded Defendants
attorneys’ fees under 42 U.S.C. § 1988 because “Braunstein
and his lawyer persisted in pursuing claims long after it
became clear they lacked merit.” The court also imposed
sanctions against Braunstein’s attorneys under 28 U.S.C.
§ 1927 for unreasonably prolonging the proceedings.
Braunstein and his attorneys timely appealed.
II. Standard of Review
We review de novo the district court’s conclusion that a
plaintiff lacks Article III standing. Cetacean Cmty. v. Bush,
386 F.3d 1169, 1173 (9th Cir. 2004). We review for abuse of
discretion an award of attorneys’ fees under 42 U.S.C. § 1988,
Edgerly v. City & Cnty. of S.F., 599 F.3d 946, 962 (9th Cir.
2010), and an imposition of sanctions under 28 U.S.C.
§ 1927, Lahiri v. Universal Music & Video Distrib. Corp.,
606 F.3d 1216, 1218 (9th Cir. 2010).
BRAUNSTEIN v. ARIZONA DOT 7663
III. Discussion
A. Standing
To satisfy Article III standing, a plaintiff must show (1) he
has suffered an “injury in fact” that is concrete and particular-
ized and actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely specula-
tive, that the injury will be redressed by a favorable decision.
Bernhardt v. Cnty. of L.A., 279 F.3d 862, 868-69 (9th Cir.
2002) (citing Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 180-81 (2000)). The plaintiff bears
the burden of establishing these elements. Although general
allegations of injury can suffice at the pleading stage, the
plaintiff must set forth “specific facts” to survive a motion for
summary judgment based on lack of standing. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). “A suit
brought by a plaintiff without Article III standing is not a
‘case or controversy,’ and an Article III federal court there-
fore lacks subject matter jurisdiction over the suit.” Cetacean
Cmty., 386 F.3d at 1174 (citing Steel Co. v. Citizens for a Bet-
ter Env’t, 523 U.S. 83, 101 (1998)).
[1] The Supreme Court has articulated a broad conception
of Article III standing to bring equal protection challenges. In
Northeastern Florida Chapter of Associated General Con-
tractors of America v. City of Jacksonville, Florida, 508 U.S.
656, 658-59 (1993), plaintiff construction firms challenged an
affirmative action program that set aside 10 percent of city
contracts for Minority Business Enterprises. The Court
described their injury-in-fact as “the inability to compete on
an equal footing in the bidding process, not the loss of a con-
tract.” Id. at 666. The Court explained:
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
7664 BRAUNSTEIN v. ARIZONA DOT
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.
Id.; see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265,
280 n.14 (1978) (principal opinion by Powell, J.) (plaintiff
challenging a medical school affirmative action program need
not prove that he would have been admitted absent the chal-
lenged program because his injury was the inability to com-
pete for all seats in the entering class). The same rule applies
where, as here, a prospective subcontractor challenges a gov-
ernment program that gives general contractors a financial
incentive to hire minority-owned subcontractors. Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 210-12 (1995).
We applied this rule in Bras v. California Public Utilities
Commission, 59 F.3d 869, 873-74 (9th Cir. 1995), where we
held that a plaintiff architect had standing to challenge a state
law that established aspirational affirmative action goals,
rather than strict set-aside quotas, for using minority- and
women-owned businesses in public utility contracts. Simi-
larly, in Monterey Mechanical Co. v. Wilson, 125 F.3d 702,
704, 707 (9th Cir. 1997), reh’g denied, 138 F.3d 1270 (9th
Cir. 1998), we held that a general contractor had standing to
challenge a state law requiring bidders on public contracts to
show a “good faith effort” to hire a certain percentage of
minority- and women-owned subcontractors. Id.
[2] However, Article III standing to bring an equal protec-
tion challenge is not without limits. The rule that a plaintiff
must assert a particularized injury, rather than a generalized
grievance, “applies with as much force in the equal protection
context as in any other.” United States v. Hays, 515 U.S. 737,
743 (1995). Even if the government has discriminated on the
BRAUNSTEIN v. ARIZONA DOT 7665
basis of race, only those who are “personally denied” equal
treatment have a cognizable injury under Article III. Allen v.
Wright, 468 U.S. 737, 755 (1984) (internal quotation omit-
ted); see also Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 489 n.26
(1982) (rejecting the notion that every citizen has standing to
challenge an affirmative action program). Thus, in Carroll v.
Nakatani, 342 F.3d 934, 942 (9th Cir. 2003), we held that a
plaintiff lacked standing to challenge racial preferences in a
government loan program where the plaintiff filed only a
“symbolic, incomplete application” and did not demonstrate
an “ability to compete” for the loan. See also Moose Lodge
No. 107 v. Irvis, 407 U.S. 163, 166-67 (1972) (plaintiff lacked
standing to challenge an organization’s racially discriminatory
membership policy where he never sought to become a mem-
ber).
[3] Braunstein argues that he has Article III standing
because the DBE program prevented him from “competing
for subcontracts on an equal basis.” It is true that Braunstein
challenges an affirmative action program that gave prime con-
tractors an incentive to hire DBE subcontractors. But Braun-
stein has not provided any evidence showing that the
Department’s DBE program affected him personally or that it
impeded his ability to compete for utility location work on an
equal basis.
[4] Braunstein wanted the prime bidding firms to select his
company as a subcontractor to perform the utility location
work under the 2005 contract with the Department. However,
unlike the prospective subcontractor plaintiffs in Adarand,
515 U.S. at 205, and Western States, 407 F.3d at 987, Braun-
stein did not submit a quote or a bid to any of the prime con-
tractors bidding on the government contract. He merely
“contacted” the firms that bid on the contract. As a result,
Braunstein is like the plaintiff in Carroll who filed an incom-
plete loan application and “cannot demonstrate he has been
denied equal treatment.” 342 F.3d at 942.
7666 BRAUNSTEIN v. ARIZONA DOT
[5] Braunstein argues that, under Northeastern and Bras,
he need only establish that he was “able and ready” to seek
subcontracting work under the contract. Northeastern, 508
U.S. at 666; Bras, 59 F.3d at 873; see also Gratz v. Bollinger,
539 U.S. 244, 261-62 (2003) (plaintiff had standing to chal-
lenge university’s race-conscious transfer admissions policy,
even though he never applied as a transfer student, because he
demonstrated that he was “able and ready” to do so). How-
ever, the plaintiffs in those cases sought prospective relief
against government affirmative action programs. See North-
eastern, 508 U.S. at 659; Bras, 59 F.3d at 872; Gratz, 539
U.S. at 260-61. Here, the district court dismissed as moot
Braunstein’s claims for declaratory and injunctive relief
because the Department had suspended its DBE program ten
months before he brought the suit. Braunstein does not chal-
lenge that ruling on appeal. See Western States, 407 F.3d at
988 n.2. Because Braunstein’s surviving claims are for dam-
ages rather than prospective relief, he must show more than
that he is “able and ready” to seek subcontracting work. See
Laidlaw, 528 U.S. at 185 (plaintiff must demonstrate standing
separately for prospective and retrospective relief).
As in Carroll, Braunstein “has done essentially nothing to
demonstrate that he [was] in a position to compete equally”
with the other subcontractors. 342 F.3d at 942. He has pres-
ented no evidence comparing himself with the other subcon-
tractors in terms of price or other criteria. See, e.g., Western
States, 407 F.3d at 987 (evidence that plaintiff submitted a
lower bid than other firms); Monterey Mechanical, 125 F.3d
at 704 (same); Bras, 59 F.3d at 871 (evidence that plaintiff
was “very competitive” with other firms). Nor has he pres-
ented evidence explaining why the six prospective prime con-
tractors rejected him as a subcontractor. See, e.g., Adarand,
515 U.S. at 205 (describing an affidavit from the prime con-
tractor); Western States, 407 F.3d at 987 (“The prime contrac-
tor explicitly identified the contract’s minority utilization
requirement as the reason that it rejected Western States’
bid.”).
BRAUNSTEIN v. ARIZONA DOT 7667
There is nothing in the record indicating that the DBE pro-
gram posed a barrier that impeded Braunstein’s ability to
compete for work as a subcontractor. See Scott v. Pasadena
Unified Sch. Dist., 306 F.3d 646, 657 (9th Cir. 2002) (“[The]
existence of a racial or gender barrier is [not] enough [to
establish standing], without a plaintiff’s showing that she has
been . . . subjected to such a barrier.”). To the contrary, the
district court found that Braunstein “did not get any of the
work because those who were in a position to provide it did
not want to do business with Braunstein.”
[6] In Texas v. Lesage, 528 U.S. 18, 21 (1999) (per
curiam), the Supreme Court held that, “where there is no alle-
gation of an ongoing or imminent constitutional violation to
support a claim for forward-looking relief, the government’s
conclusive demonstration that it would have made the same
decision absent the alleged discrimination precludes any find-
ing of liability.” The Court held that the plaintiff graduate
school applicant lacked a cognizable injury to challenge the
school’s affirmative action program under § 1983 because the
school presented undisputed evidence that it would have
rejected his application regardless of the challenged program.
Id. at 19-22. As in Lesage, Braunstein seeks only damages,
and the evidence establishes that he would not have received
utility location work under the 2005 contract regardless of the
DBE program. Indeed, Braunstein explicitly acknowledged in
one of his earlier state court suits that DMJM, the winning
bidder on the 2005 contract, would not hire him as a subcon-
tractor for reasons unrelated to the DBE program. Because
Lesage precludes a finding of liability in such a circumstance,
Braunstein lacks Article III standing. See, e.g., Donahue v.
City of Bos., 304 F.3d 110, 117-19 (1st Cir. 2002); Aiken v.
Hackett, 281 F.3d 516, 519-20 (6th Cir. 2002).
At the summary judgment stage, Braunstein was required
to set forth “specific facts” demonstrating that the DBE pro-
gram impeded his ability to compete for the subcontracting
work on an equal basis. Lujan, 504 U.S. at 561; see also Whit-
7668 BRAUNSTEIN v. ARIZONA DOT
more v. Arkansas, 495 U.S. 149, 155 (1990) (“The litigant
must clearly and specifically set forth facts sufficient to sat-
isfy these Art. III standing requirements.”). Braunstein’s
opening brief in this court failed to provide even one citation
to record evidence supporting his alleged Article III injury. At
oral argument, Braunstein was unable to explain how the
DBE program adversely affected him personally. We view the
evidence in the light most favorable to the plaintiff when
reviewing a grant of summary judgment, but the plaintiff still
must present at least “some evidence” establishing each of the
three requirements for Article III standing. Bras, 59 F.3d at
872-73.
[7] Because the district court correctly concluded that
Braunstein lacked Article III standing, we affirm the entry of
summary judgment in favor of Defendants.
B. Attorneys’ Fees and Sanctions
The district court awarded attorneys’ fees under 42 U.S.C.
§ 1988 and imposed sanctions under 28 U.S.C. § 1927. We
review these rulings in turn.
1. Attorneys’ Fees
[8] Under § 1988, a court in its discretion may award rea-
sonable attorneys’ fees in a suit seeking to enforce §§ 1981,
1983, or 2000d. However, because Congress wanted to
encourage individuals to seek relief for violations of their
civil rights, § 1988 operates asymmetrically. A prevailing
plaintiff may receive attorneys’ fees as a matter of course, but
a prevailing defendant may only recover fees in “exceptional
circumstances” where the court finds that the plaintiff’s
claims are “frivolous, unreasonable, or groundless.” Harris v.
Maricopa Cnty. Superior Court, 631 F.3d 963, 971 (9th Cir.
2011) (internal quotations omitted). Where the plaintiff
asserts both frivolous and non-frivolous claims, only fees
attributable exclusively to the plaintiff’s frivolous claims are
BRAUNSTEIN v. ARIZONA DOT 7669
recoverable. See id. at 971-72; Fox v. Vice, 131 S. Ct. 2205,
2215 (2011) “Section 1988 permits the defendant to receive
only the portion of his fees that he would not have paid but
for the frivolous claim.”). “[W]here a plaintiff in a § 1983
action alleges multiple interrelated claims based on the same
underlying facts, and some of those claims are frivolous and
some are not, a court may award defendants attorneys fees
with respect to the frivolous claims only when those claims
are not ‘intertwined.’ ” Harris, 631 F.3d at 973 n.2 (discuss-
ing Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1052,
1063-64 (9th Cir. 2006)); accord Fox, 131 S. Ct. at 2217 (dis-
cussing the “interrelated[ness]” of plaintiffs’ frivolous and
non-frivolous claims).
Here, the district court cited three reasons for awarding
attorneys’ fees to the prevailing Defendants under § 1988.
First, Braunstein should have known that he lacked Article III
standing because he knew that his inability to secure the sub-
contracting work “had nothing to do” with the challenged
DBE program. Second, Braunstein continued to pursue his
§ 2000d damages claims against the state and the Department
even after he knew that no federal funds were involved in the
2005 contract. Third, Braunstein brought §§ 1981 and 1983
damages claims that were clearly barred by the Eleventh
Amendment and thus “frivolous from the outset.” We discuss
these reasons in turn.
[9] First, Braunstein was put on notice early in the litiga-
tion that Article III standing would be an important issue. In
September 2007, the district court warned Braunstein that,
although he had alleged sufficient injury to survive a motion
to dismiss, he would have to develop additional facts during
discovery to survive summary judgment. Despite this warn-
ing, Braunstein failed to present any evidence demonstrating
that he had suffered a cognizable Article III injury. However,
given the broad notion of Article III standing in the equal pro-
tection context, we cannot say that Braunstein’s standing
argument, at least at the initial stages of this litigation, was
7670 BRAUNSTEIN v. ARIZONA DOT
entirely frivolous or “wholly without merit.” See Gibson v.
Office of Att’y Gen., State of Cal., 561 F.3d 920, 929 (9th Cir.
2009), as amended (internal quotation marks omitted). The
district court was correct in concluding that Braunstein lacked
Article III standing, but its emphasis on the fact that the chal-
lenged DBE participation goal was merely “aspirational” sug-
gests that it may have thought our circuit precedent more
strongly disfavored Braunstein than it actually does. See Mon-
terey Mechanical, 125 F.3d at 711 (government programs are
not “immunized from scrutiny because they purport to estab-
lish goals rather than quotas” (quoting Bras, 59 F.3d at 874)).
[10] Second, the district court appears to have made a mis-
take when it indicated that, because no federal funds were
involved in the 2005 contract, there was “no basis for a dam-
age claim under § 2000d.” Title VI forbids discrimination
under “any program or activity” receiving federal funds. 42
U.S.C. § 2000d. But it defines “program or activity” as
including “all of the operations of” a state agency or depart-
ment, “any part of which is extended Federal financial assis-
tance.” § 2000d-4a. Therefore, if he had Article III standing,
Braunstein would have had a non-frivolous Title VI claim
against the Department because the agency accepted and used
federal funds in some of its operations, even if it did not use
those funds in the challenged 2005 contract. See Radcliff v.
Landau, 883 F.2d 1481, 1483 (9th Cir. 1989) (receipt of fed-
eral funding by any portion of a school subjects the entire
school to Title VI coverage).
Finally, it is clear Braunstein’s counsel did not understand
sovereign immunity law under the Eleventh Amendment.
Braunstein’s complaint included several claims that were
obviously barred by sovereign immunity. The district court
correctly noted that it has been “well established for many
years” that sovereign immunity precludes §§ 1981 and 1983
damages claims against state entities and state actors in their
official capacity. More than 30 years ago, in Quern v. Jordan,
440 U.S. 332, 342-45 (1979), the Supreme Court held that
BRAUNSTEIN v. ARIZONA DOT 7671
§ 1983 does not abrogate state sovereign immunity. See also
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100-102 (1984) (sovereign immunity extends to state agencies
and to damage claims against state officials acting in their
official capacity); Peters v. Lieuallen, 693 F.2d 966, 970 (9th
Cir. 1982) (“There is no doubt that suit under either §§ 1981
or 1983 against [a state agency is] barred by the Eleventh
Amendment.”). During oral argument in this court, Braun-
stein’s counsel admitted that he was not familiar with Quern.
Yet only months before Braunstein’s counsel filed the present
suit, the district court in Western States had cited Quern and
these other authorities in ruling against another one of his cli-
ents on this very question. See Western States Paving v.
Wash. Dep’t of Transp., 2006 WL 1734163, at *10 (W.D.
Wash. June 23, 2006). The Western States court cited Quern,
Pennhurst, and Peters and held that sovereign immunity
“clearly prohibits” damages claims under §§ 1981 and 1983
against the Washington Department of Transportation and a
department employee named in his official capacity. Id.
Although the district court’s ruling in Western States was not
binding on Braunstein in the sense of issue preclusion, it cer-
tainly should have alerted his counsel to the existence of long-
established Supreme Court precedent that precluded §§ 1981
and 1983 damages claims against the state, the Department,
and the Named Defendants in their official capacity.
Although these specific claims may well have been frivo-
lous, they were intertwined with other claims that were not.
Congress abrogated state sovereign immunity for damages
claims under § 2000d, and the §§ 1981 and 1983 damages
claims against the Named Defendants in their individual
capacity were not barred. Braunstein alleged all of these
claims based on the same facts and in the same paragraph of
his complaint. “Where, as here, the plaintiff seeks relief for
violation of his civil rights under various legal theories based
on essentially the same facts, and a number of his claims are
not frivolous, the burden on the defendant to establish that
fees are attributable solely to the frivolous claims is from a
7672 BRAUNSTEIN v. ARIZONA DOT
practical standpoint extremely difficult to carry.” Harris, 631
F.3d at 972. We conclude that Defendants in this case have
not carried their burden of showing that they incurred attor-
neys’ fees solely because of Braunstein’s frivolous claims.
[11] In sum, this case is not one of those “exceptional cir-
cumstances” where a prevailing defendant may recover attor-
neys’ fees under § 1988. We therefore reverse the district
court’s award of attorneys’ fees under § 1988.
2. Sanctions
[12] Under § 1927, an attorney who unreasonably and vex-
atiously “multiplies the proceedings” in a case may be
required to pay the excess fees and costs caused by such con-
duct. Unlike an award of attorneys’ fees under § 1988, an
award of sanctions under § 1927 “does not distinguish
between winners and losers, or between plaintiffs and defen-
dants.” Roadway Express., Inc. v. Piper, 447 U.S. 752, 762
(1980). “Dilatory practices of civil rights plaintiffs are as
objectionable as those of defendants.” Id. “Recklessness suf-
fices for § 1927 sanctions, but sanctions imposed under the
district court’s inherent authority require a bad faith finding.”
Lahiri, 606 F.3d at 1219.
[13] Here, the district court concluded that Braunstein’s
attorneys unnecessarily multiplied the proceedings by includ-
ing §§ 1981 and 1983 claims barred by state sovereign immu-
nity under the Eleventh Amendment and by pursuing § 2000d
claims after it was clear that no federal funds were involved
in the challenged contract. As discussed above, the district
court erred when it concluded that Braunstein’s § 2000d claim
was “groundless” merely because federal funds were not used
in the specifically challenged contract. Further, the district
court quickly and correctly dismissed the claims barred by
sovereign immunity at the outset of the litigation, so those
claims did not vexatiously multiply the proceedings. Defen-
dants conceded at oral argument that Braunstein’s attorneys
BRAUNSTEIN v. ARIZONA DOT 7673
did not file repetitive motions or generate an extraordinary
volume of paperwork in this case. We therefore reverse the
district court’s imposition of sanctions under § 1927.
Conclusion
We affirm the district court’s holding that Braunstein lacks
Article III standing to seek damages in this equal protection
suit. Braunstein never demonstrated that the challenged affir-
mative action program affected him personally or impeded his
ability to compete for subcontracting work. We reverse the
award of attorneys’ fees under § 1988 and the imposition of
sanctions under § 1927. We award costs on appeal to Defen-
dants.
AFFIRMED in part, REVERSED in part.