UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________ SUMMARY CALENDAR No. 01-10213 __________________________

AZTECA ENTERPRISES, INC., Plaintiff-Appellant v. DALLAS AREA RAPID TRANSIT, Defendant-Appellee. ______________________________________________________________________________ Appeal from the United States District Court for the Northern District of Texas (3:99-CV-281) ______________________________________________________________________________ February 6, 2002 Before REYNALDO G. GARZA, SMITH, and PARKER, Circuit Judges REYNALDO G. GARZA, Circuit Judge:1 I. Dallas Area Rapid Transit (“DART”), in anticipation of the construction of its light-rail transportation system, solicited bids from contractors for the manufacture of concrete crossties. DART notified 102 contractors, more than forty of which were minority-owned businesses.

entitled to Eleventh Amendment sovereign immunity. DART then filed a Motion for Summary

Judgment on the remaining Title VI claim. DART insists that Azteca is neither a beneficiary nor a participant in the federally assisted funding for construction of a light-rail system.

Indep. School Dist., 951 F.Supp. 1293, 1298 (S.D. Tex. 1996)(citing Simpson v. Reynolds

Metals, Co., Inc., 629 F.2d 1226, 1235 (7th. Cir. 1980). Azteca asserts that it is both an intended beneficiary and a participant in the DART’s federally-funded light-rail construction project. We disagree.

It is difficult to see how a vender of crossties is more than indirectly related to DART’s light-rail operations, and Azteca’s unsupported claim that Title VI “was designed to cover this

exact situation” is not persuasive. The intended beneficiaries of transit system are the commuters, rather than contractors or vendors. See Miller v. Phelan, 845 F.Supp. 1201, 1207 (N.D. Ill.

1993). Azteca fails to produce any support for its argument that it is an intended beneficiary of DART. Indeed, courts have tended to interpret “intended beneficiary” narrowly, and a consistent approach here precludes us from finding that Azteca qualifies as such. See id.; Jackson, 951

F.Supp. at 1298 (holding that parents of students attending the school system could not sue on their own behalf because it was the students, rather than the parents, who were the intended beneficiaries);United States v. Harris Methodist Fort Worth, 970 F.2d 92, 97 (5th Cir.

1992)(holding that doctors are participants in a federally-funded hospital, but that this is not to say that all vendors of necessary supplies would be considered as such).

Azteca also fails to demonstrate that it was a participant in a federally-funded program.

As Azteca admits, no contract was formed. Furthermore, not all vendors qualify as participants.

See Harris, 970 F.2d at 97. There “must be some logical nexus between a person’s

‘participation’ and the federally funded program in order for [Title VI] to apply.” See id. at 97 n.3 (citing Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647

F.2d 256, 276 (2d. Cir. 1981)). Thus, even if there had been a contract in place, it would by no means automatically qualify Azteca as a participant under Title VI. Azteca contends that its standing to sue DART under Title VI derives from past dealings with DART. Such dealings by themselves, however, are insufficient to cause us to view Azteca as a participant in a federally funded program. Azteca’s relationship in the context of the federally funded program at issue is minimal; it was simply one of twenty-nine bidders for a contract. We find a logical nexus to

DART’s mission to be lacking. In Harris, we noted that it would be impossible for a hospital to function without doctors, and while the receipt of goods and services from other vendors may ultimately be necessary as well, these vendors are not as central to a hospital’s mission as are doctors. See Harris, 970 F.2d at 97-98.

It is likewise difficult to classify Azteca as an applicant to a federally funded program.

Azteca was not applying to receive the benefits of DART; the intended beneficiaries are the commuters that utilize the DART system. Similarly, if Azteca, as a bidding contractor, would not qualify as a participant even if a contract had been in place, Azteca could not be considered an applicant in that sense either.

We affirm the lower court’s granting of DART’s Motion for Summary Judgment.

avoid technical barriers to review.” Smith v. Barry, 502 U.S. 244, 248 (1992). Additionally, in the Fifth Circuit, “an appeal from a final judgment sufficiently preserves all prior orders

intertwined with the final judgment.” Trust Co. of Louisiana v. N.N.P., Inc., 104 F.3d 1478, 1485 (5th Cir. 1997); Cates v. International Tel. & Tel. Corp., 756 F.2d 1161, 1173 n. 18 (5th

Cir. 1985).

Azteca’s Notice of Appeal stated that it was appealing the Court’s Order and Judgment filed by the Court on January 12, 2001. DART maintains that this appeal reached only the Title

VI claim and not the claims dismissed following DART’s 12(b)(6) Motion in August. This

January Order was the Court’s final judgment, making it clear that Azteca was appealing the final judgment entered by the district court. Furthermore, this final judgment was predicated on having previously dismissed Azteca’s §§ 1981 and 1983 claims in the August 4, 1999 Order. Thus, this

August Order is sufficiently intertwined with the final judgment. As such, we will not now reconsider our denial of DART’s Motion to Dismiss for Lack of Jurisdiction.

Azteca urges us to reverse the district court’s ruling dismissing Azteca’s claims under 42

U.S.C. §§ 1981 and 1983, the Texas Constitution, and for punitive damages after finding that

DART is entitled to sovereign immunity under the Eleventh Amendment. Azteca points us to

Williams v. Dallas Area Rapid Transit, 242 F.3d 315 (5th Cir. 2001), a recent age discrimination case in which we held that DART is not an arm of the State of Texas for purposes of the Eleventh

Amendment and therefore not entitled to sovereign immunity. See id. at 319. DART, in its brief, argues that the case has been appealed to the U.S. Supreme Court and notes that both the Ninth and District of Columbia Circuits have held similar transit authorities to be arms of the state entitled to sovereign immunity.

Since the briefs in this case have been filed, however, the Supreme Court has denied certiorari, 122 S.Ct. 618 (2001), leaving any circuit split a moot point. Having previously ruled that DART is not entitled to Eleventh Amendment protection, there are no longer grounds left upon which to affirm the district court’s dismissal of claims due to sovereign immunity.

Accordingly, the judgment of the lower court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings not inconsistent with this opinion.