UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARYLAND MINORITY CONTRACTORS

ASSOCIATION, INCORPORATED; RICHARD

J. COLON; PLESS B. JONES, t/a P and J

Contracting Company, Incorporated,

Plaintiffs-Appellants,

v.

No. 98-2655

GENE LYNCH, Officially and

Individually; COLUMBIA CONSTRUCTION

COMPANY, INCORPORATED; WILLIAM

CULLEN, Officially and Individually;

JOHN L. COOK, Officially and

Individually,

Defendants-Appellees.

MARYLAND MINORITY CONTRACTORS

ASSOCIATION, INCORPORATED; RICHARD

J. COLON; PLESS B. JONES, t/a P and J

Contracting Company, Incorporated,

Plaintiffs-Appellees,

v.

COLUMBIA CONSTRUCTION COMPANY,

INCORPORATED, No. 99-1272

Defendant-Appellant,

and

GENE LYNCH, Officially and

Individually; WILLIAM CULLEN,

Officially and Individually; JOHN L.

COOK, Officially and Individually,

Defendants.
Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CA-97-3038-MJG)

Argued: December 1, 1999

Decided: February 7, 2000

Before MOTZ and TRAXLER, Circuit Judges, and

Cynthia Holcomb HALL, Senior Circuit Judge of the

United States Court of Appeals for the Ninth Circuit,

sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Marcia Avis Stephenson, STEPHENSON & ASSOCIATES, Baltimore, Maryland, for Appellants. Steven Marshall Sullivan, Assistant Attorney General, Baltimore, Maryland; Matthew A.

Egeli, HARTMAN & EGELI, Annapolis, Maryland, for Appellees.

ON BRIEF: Georgia M. H. Goslee, Silver Spring, Maryland, for

Appellants. J. Joseph Curran, Jr., Attorney General of Maryland,

Maureen Mullen Dove, Assistant Attorney General, Baltimore, Maryland; C. Edward Hartman, III, HARTMAN & EGELI, Annapolis,

Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

 2
OPINION

PER CURIAM:

Appellants Maryland Minority Contractors Association, Inc.

("MMCA"), Richard J. Colon, and Pless B. Jones appeal the district

court's dismissal of their civil rights action against Columbia Construction Company, Inc. ("Columbia") and Gene Lynch, William Cullen and John Cook (collectively "the state defendants"). The

appellants also appeal the district court's decision to award attorneys

fees to Columbia. Columbia cross-appeals the amount of the award.

We affirm the decision of the district court in its entirety.

I.

This appeal arises from an 11.8 million dollar government contract

to renovate the Hill Field House on the campus of Morgan State University. In February 1997, the Maryland Department of General Services commenced the bidding process by issuing a request for

proposals from interested contractors. Maryland's Minority Business

Enterprise statute ("MBE statute") is aimed at ensuring participation

by minority-owned businesses in the performance of such government

contracts. See Md. Code Ann., State Fin. & Proc. § 14-301 - 309

(1990). Specifically, the statute directs that a unit of state government

"shall structure procurement procedures, consistent with the purposes

of this subtitle, to try to achieve the result that a minimum of 14% of

the unit's total dollar value of procurement contracts is made directly

or indirectly from certified minority business enterprises." Md. Code

Ann., State Fin. & Proc. § 14-302(a)(1). The statute defines "minority

business enterprise" ("MBE") as a commercial business in which an

interest of at least 51% is "owned and controlled by 1 or more individuals who are members of a group that is disadvantaged socially or

economically, including: 1. African Americans; 2. American Indians;

3. Asians; 4. Hispanics; 5. women; or 6. physically or mentally disabled individuals." Md. Code Ann. State Fin. & Proc. § 14-302(e).

In this case, the Department of General Services' bid solicitation

sought a commitment from the prospective general contractors to subcontract at least 20 percent of the value of the contract to MBEs. Four

general contractors submitted proposals; Columbia was selected. Prior

 3
to approval of Columbia's bid by the Maryland Board of Public

Works (Public Works),1 the Department of General Services determined that Columbia had met the MBE participation goal. Columbia,

in putting together its bid, obtained proposals from potential subcontractors, including appellant Colon's business, Mace Electric Company, and appellant Jones's business, P & J Contracting Company,

Inc. Mace Electric Company and P & J Contracting Company, Inc.

are certified MBEs. See Md. Code Ann. State Fin. & Proc. § 14-

302(d). Neither company was awarded the subcontract; however, it is

undisputed that neither Colon nor Jones submitted the low bid. In

fact, the appellants acknowledge that "Colon's sub-bid's price quote

of $1,688,430.00 was $108,430.00 higher than the price quoted by

another non-minority subcontractor firm" and that"Jones' subcontract

price quote of $216,000.00 was approximately $40,000.00 higher than

a price quote submitted by another firm." Brief of Appellants at 6.

Colon, Jones and MMCA, an organization of Hispanic and

African-American contractors, then filed this action against Columbia

and three state officials employed by the Maryland Department of

General Services -- Lynch, Cullen and Cook. The complaint alleged

equal protection violations under sections 1981, 1982 and 1983 of

Title 42 of the United States Code, as well as the Thirteenth, Fourteenth, and Fifteenth Amendments. To the extent that we can distill

the appellants' specific causes of action from the lengthy and

unfocused allegations in the complaint, the appellants claim that

Maryland's MBE statute amounts to an unconstitutional race-based

quota and that the appellees violated their civil rights by enforcing its

terms. According to the appellants, who are Hispanic and AfricanAmerican, there is no compelling state interest that supports the inclusion of women, Asians or minorities other than Hispanics and

African-Americans within the protection of the MBE statute because

only Hispanic and African-American business owners have been subject to past discrimination in Maryland's construction industry. The

appellants also claim that they submitted the most advantageous bid

and that they would have been awarded the subcontracts had the MBE

criterion not been used. Finally, although the appellants allege that the

use of the MBE participation goal was improper, they claim that

_________________________________________________________________

1 Bids for contracts worth more than $100,000 must be approved by the

Board of Public Works. See Md. Code Ann. State Fin. & Proc. § 10-204.

 4
Columbia acted unlawfully by "restricting the contract work awarded

to firms owned by ethnic, gender and racial persons to only 21%,"

J.A. 27, and "by selecting and subcontracting with firms to meet the

contract required goal 20% MBE goal that were not bona fide and

legitimate MBE firms," J.A. 27.

Based on these allegations, the appellants sought an order from the

district court declaring that the MBE participation goal is unconstitutional and ordering the state defendants to "set-aside a minimum of

fifteen percent (15%) of their total yearly construction contracts for

award to exclusively businesses owned by Hispanic and AfricanAmerican persons." J.A. 30. Also, the appellants sought to enjoin the

execution and performance of the contract to renovate the Hill Field

House.

Columbia moved to dismiss the action on the grounds that it was

not a state actor under section 1983 or the Fourteenth Amendment,

and because the appellants failed to state a viable claim against it

under any theory. The appellants failed to respond to Columbia's

motion, and the district court granted the motion in a summary order

without a hearing. Columbia subsequently moved for attorneys fees,

which the district court awarded based on its conclusion that "[t]he

claims presented against Columbia were frivolous, unreasonable, and

without foundation." J.A. 235. The state defendants also moved to

dismiss the action, contending that the appellants lacked standing. In

the alternative, the state defendants sought summary judgment based

on qualified immunity. The district court agreed that Jones, Colon and

MMCA lacked standing to bring the action and, therefore, granted the

state defendants' motion to dismiss and denied their motion for summary judgment as moot.

II.

The appellants contend that the district court committed error when

it granted Columbia's unopposed motion to dismiss. We disagree.

First, the appellants failed to allege any facts that would convince

us that Columbia, a private company, is a state actor for purposes of

section 1983 or the Fourteenth Amendment. In particular, the complaint contains no allegations that suggest Columbia was under exten-

 5
sive state regulation or control or that Columbia had a sufficiently

symbiotic relationship with Maryland to convert it into a state actor.

See Rendell-Baker v. Kohn, 457 U.S. 830, 840-43 (1982). Accordingly, the district court properly dismissed the claims asserted against

Columbia under section 1983 and the Fourteenth Amendment.

Likewise, the complaint contains insufficient facts to support a

claim of discrimination under section 1981. See Gairola v. Virginia

Dep't of Gen. Servs., 753 F.2d 1281, 1285-86 (4th Cir. 1985)

(explaining that the elements of a prima facie case are identical for

Title VII and section 1981 actions). Most significant is that the complaint fails to allege that Jones and Colon submitted bid proposals that

were equivalent to or relatively close to the lowest bid. Indeed, the

appellants concede in their brief that "Colon's sub-bid's price quote

of $1,688,430.00 was $108,430.00 higher than the price quoted by

another non-minority subcontractor firm" and that"Jones' subcontract

price quote of $216,000.00 was approximately $40,000.00 higher than

a price quote submitted by another firm." Brief of Appellants at 6.

Thus, the appellants have admitted race-neutral facts that would

explain why Jones and Colon were not awarded subcontracts. The

complaint contains nothing to suggest to the contrary, other than conclusory, bald allegations that their bids were nevertheless the most

advantageous to Columbia. The complaint is devoid of any other factual allegations that would establish intentional discrimination under

section 1981. Accordingly, we conclude that the district court committed no error when it granted Columbia's unopposed motion to dismiss the claims against Columbia under section 1981. The appellants'

remaining claims against Columbia under section 1982, and the Thirteenth and Fifteenth Amendments, are patently meritless, and the district court properly dismissed them as well.

III.

The appellants contend that the district court improperly granted

the state defendants' motion to dismiss for lack of standing. See Fed.

R. Civ. P. 12(b)(1). Again, we disagree.

A. Colon and Jones

There are three requirements for establishing individual standing:

(1) there must be an injury-in-fact that is concrete and particularized;

 6
(2) there must be a causal relationship between the plaintiff's injury

and the defendant's alleged conduct; and (3) there must be a nonspeculative likelihood that the injury will be relieved by the remedy

requested. See Northeastern Fla. Chapter of Associated Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656, 663-64

(1993). The district court concluded that Colon and Jones failed to

allege a concrete and particularized injury which, in turn, left them

unable to establish the other two requirements.

Colon and Jones dispute this conclusion as a general matter, but the

complaint simply fails to identify any concrete injury that could be

redressed by the relief sought in the complaint. First, as they concede,

Jones and Colon had no right to be awarded the subcontract; they only

had the right to compete on an equal footing with everyone else. And,

indeed, they were permitted to submit, and in fact did submit, subcontracting proposals. Unfortunately for Jones and Colon, their competitors underbid them. They also claim to have endured unspecified

"stigmatic" and emotional injuries, apparently associated with their

failure to win the subcontracts, but the appellants have not attempted

to elaborate on these allegations. In our view, these vague allegations

are simply insufficient to establish the requisite concrete and particularized injury necessary for standing.

Second, even if the complaint could be construed as alleging an

injury in fact, the appellants still have failed to allege facts sufficient

to establish causation or the likelihood that their requested relief

would redress their injuries. Appellants advance the theory that the

MBE participation goal is unconstitutional because it benefits other

minorities in addition to Hispanics and African-Americans. Even if

this were correct and the statute ceased to be valid, Jones and Colon

would be in no different position than they are now since they were

not the low bidders. In fact, the MBE goal made it easier, not harder,

for Jones and Colon to compete for a subcontract by eliminating an

entire class of potential bidders from competition for at least 20 percent of the value of the contract. To suggest that the appellees suffered an injury because the state defendants decided that 20 percent

of the contract value should go to MBEs like the very ones operated

by Jones and Colon is nonsensical. And, the naked assertion that

Colon and Jones would have been awarded subcontracts but for the

MBE scheme does not supply the requisite concrete and particular-

 7
ized injury, especially when they concede that their bids were not the

lowest bids.

Based on the foregoing, we conclude that Jones and Colon do not

have standing to pursue these claims. The district court did not err,

therefore, in dismissing their claims against the state defendants.

B. MMCA

There are two ways for an organization such as MMCA to establish

standing: it can establish associational standing, see Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977), or it can

establish standing in its own right, see Warth v. Seldin, 422 U.S. 490,

511 (1975).

First, an association's representative standing is derivative of its

members' standing. The Supreme Court has instructed that "an association has standing to bring suit on behalf of its members when: (a)

its members would otherwise have standing to sue in their own right;

(b) the interests it seeks to protect are germane to the organization's

purpose; and (c) neither the claim asserted, nor the relief requested,

requires the participation of individual members in the lawsuit." Hunt,

432 U.S. at 343. As we have just observed, however, neither Jones

nor Colon have standing to assert their claims because they have not

sustained a sufficiently concrete injury. Since MMCA has not identified any other individual members that have sustained an injury in

connection with the contract to renovate Hill Field House, it has not

established that any of its members have standing to sue in their own

right. Thus, MMCA necessarily lacks associational standing.

To establish standing in its own right, MMCA must make the same

showing that an individual litigant is required to make. See Havens

Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982). MMCA contends

that it has sustained sufficiently concrete and demonstrable injuries.

The conduct of Columbia and the state defendants, it claims, has

"frustrat[ed] its corporate policies [and] practices" and has caused it

to "expend[ ] over $7,600.00 of its corporate funds to fight against

Defendants' unlawful racially discriminatory contracting policies and

practices complained of herein." Brief of Appellants at 27. Such

claims, however, fall short of the mark. MMCA cannot satisfy this

 8
requirement by simply alleging that the MBE statute or the conduct

of the appellees runs counter to its general organizational interests.

See Simon v. Eastern Kentucky Welfare Rights Org. , 426 U.S. 26, 40

(1976) ("[A]n organization's abstract concern with a subject that

could be affected by an adjudication does not substitute for the concrete injury required by [Article] III."); Maryland Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1250-51 (4th Cir. 1991)

(observing that a "non-economic injury" to an association's "`organizational purpose'" produced by the MBE statute is insufficient to confer Article III standing). Likewise, MMCA's contention that it

expended $7,600 to challenge the allegedly "discriminatory policies"

does not endow MMCA with standing. MMCA has not told us

whether these expenditures consist of attorneys fees and litigation

costs or whether they arise from activity not directly related to the

lawsuit. Either way, their theory that such expenses establish standing

is flawed, since "[a]n organization cannot, of course, manufacture the

injury necessary to maintain a suit from its expenditure of resources

on that very suit." Spann v. Colonial Village, Inc., 899 F.2d 24, 27

(D.C. Cir. 1990).

We conclude, therefore, that the district court properly granted the

state defendants' motion to dismiss for lack of standing.2

_________________________________________________________________

2 Below, the state defendants sought, in the alternative, summary judgment based on qualified immunity. In light of its determination that the

appellants lacked standing, the district court denied the motion as moot.

The state defendants press their qualified immunity argument on appeal

as well. We agree that even if standing were not an issue, the state defendants would be entitled to qualified immunity because reasonable persons in the state defendants' position would not have known that their

actions violated any clearly established constitutional rights enjoyed by

MMCA, Jones or Colon. See Rish v. Johnson, 131 F.3d 1092, 1095 (4th

Cir. 1997) ("Government officials performing discretionary functions are

entitled to qualified immunity from liability for civil damages to the

extent that their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known."

(internal quotation marks omitted)).

 9
IV.

MMCA, Jones and Colon appeal the district court's award of attorneys fees to Columbia. See 28 U.S.C.A. § 1988(b) (West Supp. 1998).

Columbia, in turn, cross-appeals the amount of the award, contending

that the district court erred in reducing the amount of attorneys fees

sought by Columbia. We conclude that the district court did not abuse

its discretion in awarding attorneys fees to Columbia, nor did it err in

reducing the size of the award sought by Columbia.

A.

A prevailing civil rights defendant is entitled to attorneys fees if the

district court determines that the plaintiff's action is "`frivolous,

unreasonable, or without foundation, even though not brought in subjective bad faith.'" DeBauche v. Trani, 191 F.3d 499, 510 (4th Cir.

1999) (quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980)), petition for

cert. filed, 68 U.S.L.W. 3401 (4th Cir. Dec. 13, 1999) (No. 99-1009).

MMCA, Jones and Colon contend that the district court erred in its

conclusion that their claims were frivolous and thus abused its discretion in awarding attorneys fees, primarily because the court based its

decision on a misinterpretation of Maryland Highways Contractors.

Although we agree that the district court misread that decision, the

district court nevertheless properly exercised its discretion in finding

the action to be completely meritless. MMCA, Jones and Colon

asserted in the complaint that Columbia, by attempting to comply

with the MBE requirements set forth in the state's bid solicitation,

violated the Thirteenth Amendment, as well as 42 U.S.C.A. § 1982.

Such claims are utterly meritless and indefensible. Moreover,

MMCA, Jones and Colon have not even attempted to explain how

Columbia, a private entity negotiating at arm's length with the state

defendants, could possibly be considered a state actor for purposes of

claims under section 1983 or the Fourteenth Amendment. The appellants' response to the state actor question, as far as we can tell, seems

to be that because a private entity can qualify as a state actor in certain circumstances, Columbia may possibly be a state actor, and we

should send the matter back to district court to see if something develops. This is no response at all, of course. We are satisfied that the district court did not abuse its discretion in deciding to award attorneys

fees to Columbia.

 10
B.

Finally, Columbia contends that the court abused its discretion by

reducing the size of the award sought by Columbia. 3 Having closely

reviewed the record and the briefs of the parties with respect to the

attorneys fees issue, we are content that the district court committed

no reversible error. Thus, we affirm the district court's award of attorneys fees in its entirety.

V.

For the foregoing reasons, the decision of the district court is

affirmed.

AFFIRMED

_________________________________________________________________

3 At oral argument, Columbia conceded that the district court had the

power to reduce the requested fees.

 11