As we have detailed before, Christian Bruckner and his company, Project Management Corporation, sued the federal government in Florida claiming that the Infrastructure Investment and Jobs Act’s earmarked 10%—of its transportation funds for socially and economically disadvantaged and women-owned contractors—violated the Constitution by discriminating against Bruckner, a white immigrant who is ineligible for a presumption of social and/or economic disadvantage.

On Monday, April 3, 2023, the federal district court dismissed Bruckner’s lawsuit because he failed to identify any specific contract he intended to bid on that would be subject to race- or sex-based criteria due to the Infrastructure Investment and Jobs Act. The district court found that while a recognized injury for purposes of standing is the inability to compete on an equal footing in the context of government contracting, Bruckner still needed to allege that he intended to bid on a specific contract that would be subject to race- or sex-based criteria. Absent such an allegation, Bruckner’s complaint fails to allege that he will be denied equal treatment and thus his suit would be dismissed for lack of standing.

The court’s decision was based in large part on the fact that not all projects funded under the Infrastructure Investment and Jobs Act will be awarded based on, in whole or in part, race- or sex-based criteria. The district court noted that some projects funded by the Infrastructure Investment and Jobs Act used race-neutral means to award contracts to economically and socially disadvantaged small businesses and that Bruckner would not suffer any injury if he only bid on such contracts. Therefore, according to the district court, Bruckner had to identify in his complaint contracts that he intended to bid on that would be awarded based on race- or sex-based criteria, and his failure to do so meant he did not have standing:

In this case, because States and localities sometimes award contracts without considering the contractor’s race or gender, the Plaintiffs fail to allege an injury in fact. To be sure-contrary to Defendants’ arguments-the Plaintiffs need not allege that they applied for a government contract and were denied the contract on account of Bruckner’s race or sex. But as the Plaintiffs acknowledged at the preliminary injunction hearing, a party does not suffer an injury if he is only ready and able to bid on contracts that do not use discriminatory means. And because the Plaintiffs fail to demonstrate that they are ready and able to bid on an identified contract, or set of contracts, that use discriminatory means, they only allege the possibility of future harm, not an actual or imminent one. That will not suffice for purposes of Article III standing.

The district court accordingly dismissed Bruckner’s lawsuit without prejudice and denied his motion for a preliminary injunction as moot.

However, the district court did note that “the Plaintiffs raise compelling merits arguments based on the preliminary-injunction-stage record.” Moreover, Bruckner’s suit was dismissed without prejudice. That means Bruckner will have the opportunity to refile his complaint, this time potentially with sufficient allegations to establish standing such that his substantive claims will have to be addressed. Alternatively, Bruckner may appeal the district court’s decision to the 11th Circuit Court of Appeals. We will continue to monitor this case.

This article summarizes aspects of the law. It does not constitute legal advice, nor does it create an attorney-client relationship. For legal advice for your situation, you should contact an attorney.