Road-Con, Inc. v. the City of Philadelphia

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 23-1782
_____________
ROAD-CON, INC.; NESHAMINY CONSTRUCTORS,
INC.; LOFTUS CONSTRUCTION, INC.; PKF-MARK III,
INC.; SCOTT A. LACAVA,
Appellants
v.
THE CITY OF PHILADELPHIA; MAYOR OF
PHILADELPHIA
MECHANICAL CONTRACTORS ASSOCIATION OF
EASTERN PENNSYLVANIA, INC., D/B/A
MECHANICAL AND SERVICE CONTRACTORS
ASSOCIATION OF EASTERN PENNSYLVANIA;
NATIONAL ELECTRICAL CONTRACTORS
ASSOCIATION, PENN-DEL-JERSEY CHAPTER,
(Intervenors in District Court)
_____________
On Appeal from the United States District Court for the
Eastern District of Pennsylvania
(D.C. Civil No. 2:19-cv-01667)
District Judge: Honorable Juan R. Sánchez
____________

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Argued April 3, 2024
Before: RESTREPO, MATEY, and McKEE, Circuit Judges
(Filed: October 29, 2024)
_____________
Jonathan F. Mitchell [ARGUED]
111 Congress Avenue
Suite 400
Austin, TX 78701
Counsel for Appellants
Craig R. Gottlieb [ARGUED]
City of Philadelphia Law Department
1515 Arch Street
17th Floor
Philadelphia, PA 19102
Counsel for Appellees
Edward T. Kang
Susan M. O
Kang Haggerty
123 S. Broad Street
Suite 1950
Philadelphia, PA 19109
Counsel for Intervenor-Appellees
___________
OPINION OF THE COURT
____________

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MATEY, Circuit Judge.
Philadelphia’s policies prevented Plaintiffs from
bidding on public contracts. Because their suit raises a
justiciable controversy under Article III of the Constitution, we
will vacate the District Court’s judgment and remand for
further proceedings.
I.
Road-Con, Inc. (Road-Con), Neshaminy Constructors
(Neshaminy), Inc., Loftus Construction, Inc., (Loftus) and
PKF-Mark III (PKF) are contractors working in the
Philadelphia area. Scott LaCava worked for Road-Con. All
regularly handled public works initiatives for the Pennsylvania
Department of Transportation (PennDOT) and the
Southeastern Pennsylvania Transit Authority, but none have
worked on public projects for the City of Philadelphia. Since
1995, Philadelphia has required “project labor agreements”
(PLAs), a kind of collective-bargaining agreement with
“conditions of employment for a particular construction
project,” including terms “recognizing a union as the workers’
exclusive bargaining representative and paying the workers
union wages.” Pennsylvania v. Cmty. Coll. of Allegheny Cnty.,
81 F.4th 279, 283 (3d Cir. 2023).1 In 2011, Philadelphia
1 Philadelphia started using PLAs under a pilot program
established by Executive Order 5-95. In 2011, Philadelphia
city agencies were told they “should” use PLAs for all projects
with estimated construction budgets of $5 million or more
absent “clear countervailing considerations.” App. 617. That
number was lowered to $3 million or more in 2015, and

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introduced a standard Template for PLAs.2 Article III of the
Template, titled Union Recognition and Employment, required
contractors and their employees to recognize, become
members of, and pay dues to designated unions to work on any
public works project. Those designated unions must be
“affiliated with the Philadelphia Building and Construction
Trades Council,” App. 750, an organization of more than fifty
local unions. Schedule C of the Template, titled Increasing
Opportunities for Women and Minorities in the Building
Trades Union(s) and the Public Works Projects, required
contractors to “use their best efforts to add minority males and
women to their permanent or steady workforces” that meet or
exceed “the goals established” by Philadelphia.3 App. 671. The
Philadelphia began using PLAs “on a majority of the public-
works construction projects” above that threshold. App. 731.
2 Executive Order 15-11 established the Template in
2011, which was then modified by Executive Order 8-15 in
2015. 3 Schedule C required Philadelphia to “establish goals
for workforce diversity in City and City-funded construction
projects.” App. 669. Section 1(c) of the Schedule established
those goals “based on the March 2009 Report of the Mayor’s
Advisory Commission on Construction Industry Diversity.”
App. 669. Section 2(b) of the Schedule required unions to “set
participation goals that will significantly increase participation
of minority males and women,” and those goals must be
“consistent with the [Mayor’s Advisory] Commission [on
Construction Industry Diversity] Report and such Commission
updates as may be issued.” App. 670. Sections 3(a) through (d)
of the Schedule requires contractors to 1) “support the City and
Union efforts to increase the participation of minority males

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established goals called for male minorities to work 32% of all
construction employment hours for a project, and 7% worked
by women.
In April 2019, Plaintiffs challenged the PLAs used for
projects at the 15th Street Bridge in Philadelphia and runway
at the Northeast Philadelphia Airport.4 Road-Con, Neshaminy,
and Loftus all alleged their interest in bidding for the 15th
Street Bridge Project, and Road-Con wanted to bid for the
Airport Project. But all were ineligible because of their existing
collective bargaining agreements with the United
Steelworkers,5 which is “neither a member nor an affiliate” of
and women . . . through apprenticeship programs and other
initiatives”; 2) “use their best efforts to add minority males and
women to their permanent or steady workforces” and “provide
workforce demographic information to the City in advance of
project commencement”; and 3) “use their best efforts to meet
or exceed the goals established for minority males and women
participation in . . . Schedule C.” App. 5 n.2.
4 In the Third Amended Complaint filed in September
2021, Plaintiffs alleged that Philadelphia’s use of the Template
violated their rights under 1) the First Amendment, as applied
via the Fourteenth Amendment and interpreted by the Supreme
Court in Janus v. American Federation of State, County, &
Municipal Employees, Council 31, 585 U.S. 878 (2018), 2) the
Fourteenth Amendment Equal Protection Clause, 3) 42 U.S.C.
§ 1981, 4) Pennsylvania state competitive bidding laws, and 5)
the Philadelphia Home Rule Charter.
5 The United Steelworkers is “North America’s largest
industrial union,” with “1.2 million members and retirees.”
United Steelworkers, Our Union, https://perma.cc/WTQ9-

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the Philadelphia Building and Construction Trades Council.
App. 40. Nor did the United Steelworkers commit to the
workforce diversity goals. Five days after Plaintiffs sued,
Philadelphia rescinded the PLAs for both projects.6
The District Court granted summary judgment to
Philadelphia. As relevant to this appeal, the District Court
concluded that Plaintiffs 1) lacked standing to challenge the
Template’s union-eligibility requirement; and 2) failed to show
the Template’s diversity requirement caused any harm on
SX52. Road-Con, Neshaminy, and Loftus are members of the
Pennsylvania Heavy and Highway Contractors Bargaining
Association, whose collective-bargaining agreement with the
United Steelworkers governs the terms of employment. PKF is
not a member of the Pennsylvania Heavy and Highway
Contractors Bargaining Association but has signed a separate
collective bargaining agreement with United Steelworkers
Local 15024. Scott LaCava is a member of the United
Steelworkers.
6 In 2020, while this suit was still pending,
Philadelphia’s Mayor rescinded Executive Order 8-15 to
“[m]ake clear that no employee shall be required to be or
become a member of an Appropriate Labor Organization or
pay any agency fees to an Appropriate Labor Organization, as
a condition of performing work under the Project Labor
Agreement.” App. 859 (Executive Order 5-20). Further, “[a]ny
provision in a Project Labor Agreement that requires an
employee to be, or become, a member of Appropriate Labor
Organization, or to pay any agency fees to an Appropriate
Labor Organization, shall be unenforceable, null, and void.”
App. 859.

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account of their race. Seeing error in those conclusions, we will
vacate and remand.7
II. The First Amendment Claims
Plaintiffs allege that Article III of the Template compels
city contractors to join a specified union to work on a public
project and so violates the First Amendment, as asserted via a
§ 1983 claim. As remedies, they seek declaratory injunctive
relief and nominal and compensatory damages. The District
Court agreed that the Template violates the First Amendment,
but determined Plaintiffs lacked standing. That was error.
A. Plaintiffs Have Standing
Standing is an “irreducible constitutional minimum”
that requires a plaintiff to “establish (1) an injury in fact (2)
that is fairly traceable to the challenged conduct . . . [and] (3) a
remedy that is likely to redress that injury.” Uzuegbunam v.
Preczewski, 592 U.S. 279, 285 (2021) (citation and internal
quotations omitted). The plaintiff bears the burden of showing
these three elements, Associated Builders & Contractors W.
Pa. v. Cmty. Coll. of Allegheny Cnty., 81 F.4th 279, 287 (3d
7 The District Court had jurisdiction under 28 U.S.C.
§§ 1331, 1343, and 1367, and we have jurisdiction under 28
U.S.C. § 1291. We “review anew the District Court’s summary
judgment decisions, applying the same standard it must apply.”
Ellis v. Westinghouse Elec. Co., 11 F.4th 221, 229 (3d Cir.
2021). To prevail on summary judgment, the moving party is
required to “show[] that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a).

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Cir. 2023), and likewise “must demonstrate standing separately
for each form of relief sought,” Friends of the Earth v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000).
“[S]tanding is assessed ‘at the time the action commences’”—
that is, at the time the plaintiff brought the lawsuit. Carney v.
Adams, 592 U.S. 53, 60 (2020) (quoting Friends of the Earth,
528 U.S. at 191). A “case or controversy exists . . . when at
least one plaintiff establish[es] that [she] ha[s] standing to sue.”
Murthy v. Missouri, 144 S. Ct. 1972, 1985 (2024) (citation and
internal quotations omitted) (alterations in original). As we
explain, Road-Con, Neshaminy, and Loftus have standing and
“[i]f at least one plaintiff has standing, the suit may proceed.”
Biden v. Nebraska, 143 S. Ct. 2355, 2365 (2023).
The District Court determined that Plaintiffs failed to
establish an injury in fact,8 “‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.
Robins, 578 U.S. 330, 339 (2016), as revised, (May 24, 2016)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
“When a plaintiff seeks retrospective (backward-looking)
relief in the form of money damages, they can establish
standing through evidence of a past injury.” Yaw v. Del. River
Basin Comm’n, 49 F.4th 302, 317–18 (3d Cir. 2022). “But
when a plaintiff seeks prospective (forward-looking) relief in
8 Although Defendants “do not dispute causation or
redressability,” App. 21 n.49, we “are under an independent
obligation to examine [our] own jurisdiction,” United States v.
Hays, 515 U.S. 737, 742 (1995) (citation and internal
quotations omitted). We agree the alleged injury is traceable to
Philadelphia’s Template and can be redressed with damages
and prospective relief.

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the form of an injunction or a declaratory judgment, they must
show that they are ‘likely to suffer future injury.’” Id. at 318
(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 105
(1983)).
The complaint satisfies this standard. The First
Amendment guards against abridging the freedom of speech
and grants a “corresponding right to associate with others in
pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends.” Roberts v. U.S.
Jaycees, 468 U.S. 609, 622 (1984); see also Janus, 585 U.S. at
891–92. As this Court explained in another case involving a
PLA, “a plaintiff . . . suffers injury to his legally protected First
Amendment interest . . . when the state forces him to speak . . .
or associate.” Associated Builders, 81 F.4th at 288. That
includes contractors and their employees who are “forced to
recognize a union as the exclusive representative of employees,
hire employees from a union’s job-referral system[], and
financially contribute to unions in order to work on PLA-
covered public projects.” Id. at 289 (citation and internal
quotations omitted) (alteration in original). And that is the case
here.
The alleged injury is also concrete and particularized.
An injury is concrete when it is “real” and “not abstract,”
Spokeo, 578 U.S. at 340, with a “close relationship to harms
traditionally recognized as providing a basis for a lawsuit in
American courts,” including “harms specified by the
Constitution itself,” TransUnion LLC v. Ramirez, 594 U.S.
413, 425 (2021). And “because Plaintiffs allege an injury to
themselves, not someone else, there is no particularity issue.”
Associated Builders, 81 F.4th at 288. Under Associated
Builders, Plaintiffs’ injury is concrete because it is a “harm to

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their legally protected First Amendment interest” in voluntary
association. Id. at 289.
Finally, the alleged injuries are actual and imminent.
Philadelphia’s use of the Template left Plaintiffs ineligible to
work on city projects, given their excluded union affiliation.
See App. 493–94 (affidavit from Loftus), 488–89
(Neshaminy), 484–86 (Road-Con). Because standing is
assessed at the time of the suit, Carney, 592 U.S. at 60, the
Template blocked Plaintiffs from winning work for the 15th
Street Bridge and Airport Projects, unless they switched their
union affiliation.
Plaintiffs’ future injuries are also imminent. “[F]uture
injury [is imminent] if the threatened injury is certainly
impending, or there is a substantial risk that the harm will
occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158
(2014) (citation and internal quotations omitted) (emphases
added); see also Murthy, 144 S. Ct. at 1986. As the Supreme
Court explained in Adarand Constructors, Inc. v. Pena,
imminent injury considers whether the contractor “has made
an adequate showing that sometime in the relatively near future
it will bid.” 515 U.S. 200, 211 (1995). In contrast, where a
contractor declares that “they never have and never will bid on
PLA-covered projects” and shows no “desire to . . . [or] inten[t]
to work on PLA-covered public projects,” the injury lacks
imminence. Associated Builders, 81 F.4th at 289–90.
Plaintiffs’ future injuries—their ineligibility to work on
PLA-covered projects without changing unions9—are
9 See also App. 42 (“Because Road-Con, Neshaminy,
and Loftus maintain a collective bargaining agreement with the

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imminent because several intended to bid on PLA-covered
projects. See Oral Arg. Tr. at 31:7–32:13 (Plaintiffs “were
interested in applying or bidding for work on the 15th Street
Bridge Project and the [Airport] Project at the moment the
lawsuit was filed.”). Road-Con intended to bid on the 15th
Street Bridge and Airport Projects. Neshaminy and Loftus
were “interested in submitting bids for the 15th Street Bridge
Project at the time the original complaint was filed.” App. 41.
That is imminence under Adarand, 515 U.S. at 212, because
“an intent to bid is the proxy we may use for assuming an injury
is imminent.” Associated Builders, 81 F.4th at 290.
B. Plaintiffs’ Claims Are Not Moot
The District Court did not reach Philadelphia’s separate
argument—pressed again on appeal—that Plaintiffs’ First
Amendment claims are now moot. Philadelphia says there is
no longer a live controversy because, after Plaintiffs sued, the
PLAs for the 15th Street Bridge and Airport Projects were
withdrawn and, later still, Philadelphia revised the Template to
preclude compelled unionization. We disagree.
Mootness evaluates a plaintiff’s “personal interest in the
dispute” throughout the proceedings. Uzuegbunam, 592 U.S.
at 282. A “case generally is moot” when “in the course of
litigation[,] a court finds that it can no longer provide a plaintiff
with any effectual relief.” Id.; see also Lutter v. JNESO, 86
F.4th 111, 130 (3d Cir. 2023). Mootness, like standing, turns
on the relief sought. See Doe v. Delie, 257 F.3d 309, 314 (3d
Cir. 2001). And Philadelphia, as “the party seeking to
United Steelworkers, they cannot perform work on the 15th
Street Bridge Project with their current workforces.”).

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demonstrate the loss of standing during the pendency of the
litigation[,] bears the burdens of production and persuasion.”
Lutter, 86 F.4th at 130; West Virginia v. EPA, 597 U.S. 697,
719 (2022). Philadelphia does not carry that burden.
First, Plaintiffs seek damages for the alleged First
Amendment violations. And “an award of nominal damages by
itself can redress a past injury.” Uzuegbunam, 592 U.S. at 282–
83, 290 (citing Webb v. Portland Mfg. Co., 29 F. Cas. 506, 508
(C.C.D. Me. 1838) (Story, J.) (“The law tolerates no farther
inquiry than whether there has been the violation of a right . . .
. When a right is violated, that violation ‘imports damage in the
nature of it’ and ‘the party injured is entitled to a verdict for
nominal damages.’”)).10 Philadelphia’s changed conduct after
the suit was commenced does not alter that outcome. Nor does
it moot Plaintiffs’ claims for compensatory damages, for past
violations of their rights. See Phillips v. Borough of Keyport,
107 F.3d 164, 177 (3d Cir. 1997) (en banc) (holding that
Plaintiffs’ § 1983 damages claim was not mooted, even though
the defendant municipality had changed the offending
ordinance); Khodara Env’t, Inc. ex rel. Eagle Env’t L.P. v.
Beckman, 237 F.3d 186, 196 (3d Cir. 2001) (holding that a
claim for damages based on the past application of a law
10 See also Burns v. PA Dep’t of Corr., 544 F.3d 279,
284 (3d Cir. 2008) (rejecting mootness based on availability of
nominal damages); Delie, 257 F.3d at 314 & n.3 (describing
how nominal damages survive mootness because “availability
of damages or other monetary relief almost always avoids
mootness” (citation omitted)); see also 13C Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure: Jurisdiction § 3533.3 (3d ed. updated
2024) (“Nominal damages also suffice to deflect mootness.”).

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invested the plaintiff “with a continuing, concrete stake in the
outcome of this litigation that has not been redressed by the
passage of” an amended law).
Second, Plaintiffs pair their demand for damages with a
request for prospective relief, including a declaration that the
Template violates the First Amendment, and a permanent
injunction against Philadelphia from imposing the Template on
future projects. This remains a live controversy because “[i]t is
well settled that a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its
power to determine the legality of the practice.” Friends of the
Earth, 528 U.S. at 189 (citation and internal quotations
omitted). Put differently, a defendant may not moot a case “by
the simple expedient of suspending its challenged conduct after
it is sued.” Fed. Bureau of Investigation v. Fikre, 601 U.S. 234,
241 (2024). Rather, the “defendant claiming that its voluntary
compliance moots a case bears the formidable burden of
showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.” Friends
of the Earth, 528 U.S. at 190 (citation and internal quotations
omitted) (emphases added). This standard is the same “for
governmental defendants no less than for private ones.” Fikre,
601 U.S. at 241.
Philadelphia responds to this “formidable burden” by
noting it is unlikely to return to the old Template compelling
affiliation with the Philadelphia Building and Construction
Trades Council because of the Supreme Court’s decision in

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Janus.11 That was the result in Hartnett v. Pennsylvania State
Education Ass’n, which held that the legal change effected by
Janus demonstrated mootness in circumstances that are lacking
here. 963 F.3d 301, 306–07 (3d Cir. 2020).
Unlike in Hartnett, in which the defendant conceded
that under Janus its previous scheme violated the First
Amendment, id. at 307, Philadelphia has never conceded error.
Instead, Philadelphia argued that “its past usage of PLAs did
not violate the First Amendment rights of Plaintiff[s] . . . even
under Janus, because discovery in this case revealed no
instances of compelled speech or compelled association.” Dist.
Ct. Dkt. 79 at 4 n.1. Although it “acknowledge[d] that Janus
altered the law of freedom of association and compelled
speech,” Philadelphia only noted that it “re-evaluat[ed]” its
practices and “decided to change” them “going forward.” Dist.
Ct. Dkt. 79 at 4 n.1. That is not a concession of a past error.
Mere voluntary cessation “because of a new statute or a ruling
in a completely different case,” while still maintaining “that its
conduct was lawful all along” is insufficient. Hartnett, 963
F.3d at 306.
Then there is the timing. After Janus, the defendants in
Hartnett “immediately” ceased the challenged conduct, 963
F.3d at 307, but here Philadelphia admits it “did not
immediately respond to Janus,” Response Br. 34; see also Oral
Arg. Tr. at 19:17 (conceding that “[i]t . . . took a while”). That
is an understatement. The Executive Order rescinding the
11 Allan Myers v. PennDOT also held that PennDOT
violated state competitive bidding laws by utilizing PLAs that
placed different classes of bidders on unequal footing. 202
A.3d 205, 210–16 (Pa. Commw. Ct. 2019).

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Template compelling unionization was signed over two years
after Janus, and five days after this suit was filed. That course
of conduct makes it more likely that litigation, not a change in
law, prompted Philadelphia’s choice. See United States v.
Gov’t of V.I., 363 F.3d 276, 285 (3d Cir. 2004) (rejecting
mootness based on voluntary cessation where the conduct
occurred, as here, “just five days after the [plaintiff] moved to
invalidate it” because it “strongly suggest[ed] that the
impending litigation was the cause of the termination” and thus
provided “no assurance” that it would not happen again
(emphasis added)). Taken together, Plaintiffs’ First
Amendment claims are not moot.
III. The Equal Protection Claims
The District Court granted Philadelphia summary
judgment because Plaintiffs had “not shown an equal
protection injury,” since they could not prove “differential
treatment.” App. 5–6. And it found that Plaintiffs’ § 1981 claim
failed because “race was not a but for cause of their inability to
work on City projects with PLAs.” App. 25. We will vacate
both determinations and remand.
A. Standing
We start with Plaintiffs’ standing to raise an Equal
Protection claim, applying the same tests to these claims for 1)
damages, 2) a declaration that Schedule C is unlawful, and 3)
an injunction preventing Philadelphia from enforcing Schedule
C. The Supreme Court has explained that if “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,” then “a member of the former group seeking to

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challenge the barrier need not allege that he would have
obtained the benefit but for the barrier in order to establish
standing.” N.E. Fla. Chapter of Associated Gen. Contractors
of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993).
Rather, “[t]he injury in fact in a[] . . . case of this variety is the
denial of equal treatment from the imposition of the barrier, not
the ultimate inability to obtain the benefit.” Id. (internal
quotations omitted); see also Hassan v. City of New York, 804
F.3d 277, 294 (3d Cir. 2015), as amended (2016) (“Unequal
treatment is a type of personal injury [that] ha[s] long [been]
recognized as judicially cognizable.” (citation and internal
quotations omitted)). This is because a “discriminatory
classification is itself a penalty,” and thus “qualifies as an
actual injury for standing purposes, where a citizen’s right to
equal treatment is at stake.” Hassan, 804 F.3d at 290 (citation
and internal quotations omitted).
In contracting cases, the Supreme Court has further
recognized that “the injury in fact is the inability to compete on
an equal footing in the bidding process,” which does not
require a showing that a party “would have received a
contract.” N.E. Fla. Chapter of Associated Gen. Contractors of
Am., 508 U.S. at 658, 666. Instead, standing is satisfied when
a party can “demonstrate that it is able and ready to bid on
contracts and that a discriminatory policy prevents it from
doing so on an equal basis.” Id. at 666; see also Adarand, 515
U.S. at 212.
Those standards are met here because Road-Con,
Neshaminy, and Loftus established that they are ready and able
to bid on the projects covered by Schedule C and intend to do
so. See Adarand, 515 U.S. at 211–12. And this same intent to
bid in the future is enough to support Plaintiffs’ claim for

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prospective relief. See id. at 212; cf. Schurr v. Resorts Int’l.
Hotel, Inc., 196 F.3d 486, 495 (3d Cir. 1999) (finding no
standing for prospective relief for an Equal Protection
challenge where there was no evidence of future action).
Philadelphia responds that Plaintiffs’ Equal Protection
claim belongs to their union, United Steelworkers, which has
not filed suit. But the possibility that another party might also
have standing to sue does not defeat the claims filed. Rather,
“that hundreds or thousands (or even millions) of other persons
may have suffered the same injury does not change the
individualized nature of the asserted rights and interests at
stake.” Hassan, 804 F.3d at 291. The “right to equal protection
of the laws” is “personal,” Adarand, 515 U.S. at 227, and
“where a plaintiff is asserting [his or her] own [equality] right,
a claim of discrimination, even where it affects a broad class,
is not an abstract concern or generalized grievance,” Hassan,
804 F.3d at 291 (citation and internal quotations omitted)
(alterations in original). Plaintiffs have shown that they
suffered an Equal Protection injury, and that is all standing
requires.12 And because Plaintiffs have standing for their Equal
Protection claim, they also have standing to raise their claim
under § 1981. See Gratz v. Bollinger, 539 U.S. 244, 276 n.23
(2003); see also Contractors Ass’n of E. Pa., Inc. v. City of
Philadelphia, 6 F.3d 990, 995–96 (3d Cir. 1993).
12 Causation and redressability are also satisfied.
Plaintiffs have shown that their injury is fairly traceable to
Philadelphia’s implementation of Schedule C, and that their
requested relief would remedy that alleged harm.

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B. Intentional Discrimination
Claims under § 1983 alleging an Equal Protection
violation require proof of “purposeful discrimination” or
“different treatment from that received by other individuals
similarly situated.” Shuman ex rel. Shertzer v. Penn Manor
Sch. Dist., 422 F.3d 141, 151 (3d Cir. 2005); Hassan, 804 F.3d
at 294; see also Stradford v. Sec. Pa. Dep’t. of Corr., 53 F.4th
67, 73 (3d Cir. 2022). Once that showing is satisfied, the
burden shifts to the defendant to demonstrate the classification
passes the relevant level of scrutiny. Hassan, 804 F.3d
at 298–99.
“[D]irect evidence of [discriminatory] intent is supplied
by the policy itself” when the policy is “facially
discriminatory, meaning that the policy by its own terms”
singles out a group “for different treatment.” Id. at 294–95.
That is the case here, as Schedule C mandated a percentage of
construction hours based on race and sex. And that “express
classification” is sufficient because “the protected trait by
definition plays a role in the decision-making process,
inasmuch as the policy explicitly classifies people on that
basis.” Id. at 295 (citation and internal quotations omitted).
Intentional discrimination shown, we will remand to the
District Court to analyze the Template’s Schedule C under the
appropriate level of scrutiny.13 As to Plaintiffs’ § 1981 claim,
13 “[T]he Fourteenth Amendment requires strict
scrutiny of all race-based action by state and local
governments.” Adarand, 515 U.S. at 222. The question of
which level of scrutiny to apply to racial quotas or goals
created by state and local governments was already resolved in

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the District Court found that “race was not a but for cause of
[Plaintiffs’] inability to work on City projects with PLAs.”
App. 25. Because Plaintiffs’ Equal Protection claim can
proceed, we will vacate and remand the § 1981 claim as well,
expressing no view on the merits.
* * *
We will vacate and remand to the District Court to
proceed to considering the merits of Plaintiffs’ First
Amendment, Equal Protection Clause, and § 1981 claims.
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) because
“[a] majority of the Court in Croson held that ‘the standard of
review under the Equal Protection Clause is not dependent on
the race of those burdened or benefited by a particular
classification,’ and that the single standard of review for racial
classifications should be ‘strict scrutiny.’” Adarand, 515 U.S.
at 22 (quoting Croson, 488 U.S. at 493–94). Schedule C’s sex-
based classifications are subject to intermediate scrutiny.
United States v. Virginia, 518 U.S. 515, 533 (1996);
Contractors Ass’n of E. Pa., Inc., 6 F.3d at 999.

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