dissenting:

I dissented from the original opinion in this case because I do not believe that relations among contracting parties are governed by the Due Process Clause .merely because one of the parties happens to be a state. See G & G Fire Sprinklers, Inc. v. Bradshaw, 156 F.3d 893, 908 (1998) (Kozinski, J., dissenting). I continue to adhere to that view. But the Supreme Court has now directed us to reconsider our opinion in light of American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 , 119 S.Ct. 977 , 143 L.Ed.2d 130 (1999). See Bradshaw v. G & G Fire Sprinklers, Inc., — U.S. -, 119 S.Ct. 1450 , 143 L.Ed.2d 538 (1999). In response, the majority reinstates its original opinion without amendment, claiming that its reasoning “fits comfortably within the analytic framework set forth in Sullivan.” Reinstatement Order at 1970. I must dissent once again, because Sullivan fits the majority’s rationale about as comfortably as Cinderella’s slipper on the wicked step-sister’s foot.

Sullivan teaches that, to state a claim for relief under section 1983, G & G must identify both an alleged constitutional deprivation and a state actor who is responsible for it. See Sullivan, 119 S.Ct. at 985 (rejecting the argument that “we need not concern ourselves with ‘the identity of the defendant’ ”). In deciding whether G & G has succeeded in this, Sullivan explains that we must begin “by identifying ‘the specific conduct of which the plaintiff complains.’ ” Id. at 985- (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 , 102 S.Ct. 2777 , 73 L.Ed.2d 534 (1982)). Here the only deprivation alleged by G & G was effected by the prime contractor, who withheld funds which G & G claims under a contract. 1 There’s no state action.

The majority waves a magic wand by asserting that “[t]he withholding here was specifically directed by state officials in an environment where the withholding party has no discretion at all.” Reinstatement Order at 1970. This would be true had the prime contractor been ordered, under penalty of law, to withhold funds from G & G. It was not. The only entity “specifically directed” to withhold funds was the awarding body, which withheld funds only from *945 the prime contractor, not from G & G. While the challenged provision authorized-even encowraged-the prime to withhold an equivalent amount from G & G, the prime was free to pay G & G the full amount specified by the contract. Sullivan clearly holds that mere authorization and encouragement do not render a private entity’s decisions “fairly attributable” to the state. 119 S.Ct. at 986. Under Sullivan , then, the prime contractor who chose to deprive G & G of its alleged property was not a state actor.

This presents the same problem for G & G as it did for the plaintiffs in Sullivan . The Court’s description of the Sullivan plaintiffs’ attempt to get around this problem is equally apt here: “Perhaps hoping to avoid the traditional application of our state-action cases, respondents attempt to characterize their claim as a ‘facial’ or ‘direct’ challenge to the [provisions in question.]” Id. at 985. In like manner, G & G’s claim comes to us in the garb of a “direct constitutional challenge to the state’s regulatory power as embodied in these statutes.... ” G & G, 156 F.3d at 902 . The reinstated opinion assumes that, so long as standing requirements are satisfied, G & G may bring such a challenge. It then goes on to find a “causal link between G & G’s injury and the state’s action” sufficient to support standing. Id. at 900 .

The problem is that standing deals only with whether the plaintiff “is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.” Flast v. Cohen, 392 U.S. 83, 100 , 88 S.Ct. 1942 , 20 L.Ed.2d 947 (1968). If the state’s conduct does not violate the Constitution, there can be no question of standing-standing to challenge what? The violation alleged here is an unconstitutional deprivation of property. Sullivan tells us that the deprivation at issue cannot be attributed to the state. Therefore, the state cannot have violated G & G’s right to due process. G & G is left with two alternatives: suing a depriver who is not a state actor, or suing a state actor who has committed no deprivation. The panel’s opinion lets G & G get away with the latter, by substituting the normal causation prong of standing analysis for the more intimate causal relationship required by the state action doctrine. 2 Were it permissible to thus turn a pumpkin into a carriage, the Court should have allowed the Sullivan plaintiffs to bring their “facial challenge,” on the theory that, while the private insurers in that case were not state actors, the state bureau’s authorization of their withholding created a “causal link” sufficient to support standing. 3

In addition to ignoring Sullivan’s state action holding, the majority fails to apply the other teaching of the case-that before finding a deprivation, we must carefully identify the nature of the property interest at stake. See Sullivan, 119 S.Ct. at 989-90 (holding that a statutory entitlement to payment for “reasonable” and “necessary” medical treatment cannot give rise to a property interest until the payments in question have been proven to be reasonable and necessary). The opinion reinstated today asserts that G & G has a protect- *946 able property interest “in being paid in full for the construction work it has completed.” G & G, 156 F.3d at 901 . This cannot be so, for just as the Sullivan plaintiffs had no property interest in receiving payment for medical treatments that had not been shown to be “reasonable” and “necessary,” G & G can have no property interest in being paid for work that has not been shown to satisfy the contractual condition that it be completed in accordance with prevailing wage requirements. Nevertheless, though the majority now attempts to recharacterize its position, see Reinstatement Order at 1969, its opinion remains unambiguous in holding that G & G has already suffered a deprivation for which the state is required to provide a post-deprivation hearing. See G & G, 156 F.3d at 903-04 .

Even if the reinstated opinion actually rested on the rationale now attributed to it, we would still have a case of premature remediation. The majority’s current position is that its holding is in line with previous Supreme Court precedent protecting plaintiffs’ “property interest in their claims for payment.” Reinstatement Order at 1968. If the property interest at stake here is G & G’s claim for payment, however, when and how was G & G deprived of it? This is not a case like Logan v. Zimmerman Brush Co., 455 U.S. 422 , 102 S.Ct. 1148 , 71 L.Ed.2d 265 (1982), where the plaintiff had filed a timely claim that was dismissed because of a procedural default committed by the state. See id. at 426-27 , 102 S.Ct. 1148 . G & G has yet to attempt to file a claim in state court. How can the state have deprived G & G of a legal claim it has never asked the state to enforce? 4

The reinstated opinion forces the state to create an entirely new administrative machinery if it wishes to withhold funds in accordance with the terms of its contract. See G & G, 156 F.3d at 905-06 . The majority appears to believe this is justified by Justice Ginsburg’s concurring statement in Sullivan that “ ‘due process requires fair procedures for the adjudication [of claims.]’” Reinstatement Order at 1969 (quoting Sullivan, 119 S.Ct. at 991 (Ginsburg, J., concurring)). No doubt it does. But this is not a case like Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970), where the Court, having identified a previously unrecognized property interest in welfare benefits, was obliged to create a new procedural regime to protect it. This is a claim for payment on a contract. There is a well-established “fair procedure” for dealing with such claims: an action for breach of contract in state court. It seems unlikely that Justice Ginsburg would regard such a time-honored procedure as inadequate to satisfy the demands of due process. The majority has not explained why working on a government contract heightens one’s interest in receiving prompt payment so as to require procedural safeguards not available to other parties that have a disputed claim under a contract.

It is true that the law does not on its face guarantee that a subcontractor will attain an assignment enabling it to sue the awarding body. But G & G has not tried to obtain such an assignment from the prime contractor, nor has it given the state courts a chance to decide whether a subcontractor who has been denied such assignment nevertheless has an equitable right to sue under state law. Until these questions have been resolved against G & G, it simply cannot be said that the state has “ ‘finally rejected] their claims without affording them appropriate procedural protections.’ ” Reinstatement Order at 1968 (quoting Sullivan, 119 S.Ct. at 990 n. 13).

To sum up, the reinstated opinion papers over a state action deficiency with standing analysis, identifies a property interest the Court has told us can’t yet exist, and holds that due process entitles G & G *947 to the creation of a new procedure bypassing the one all other unpaid contractors are required to use. A fairy godmother could do no more. Once again, I must respectfully dissent.

. See G & G, 156 F.3d at 901 n. 4 ("Here, G & G was not paid by its respective principal obligor, the prime contractor, and it is asking for an opportunity to contest that deprivation.”)

. Compare G & G, 156 F.3d at 899-900 (causation requirement for standing satisfied where choices of third party have been made " 'in such a manner as to produce causation and permit redressability’ ”) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992)), with Sullivan, 119 S.Ct. at 986 (no state action unless the state has " 'exercised coercive power' ” or provided such significant encouragement that " 'the choice must in law be deemed to be that of the State’ ”) (quoting Blum, 457 U.S. at 1004 , 102 S.Ct. 2777 ).

. Like G & G, the Sullivan plaintiffs had also named as defendants the state officials who administered the challenged act. See Sullivan, 119 S.Ct. at 984 . Yet after holding that the private insurers regulated by the act were not state actors, the Court held that this alone would be sufficient to reverse the Third Circuit’s holding that the act violated due process. See id. at 989. The Court nevertheless went on to address the merits of the claim, because it thought the question an important one. See id.

. Cf. Sullivan, 119 S.Ct. at 988 (noting that the legal obligation to pay on a contract arises only after one has ‘'initiated a claim and reduced it to a judgment”).