No. 99-295
In the Supreme Court of the United States
ADARAND CONSTRUCTORS, INC., PETITIONER
v.
RODNEY SLATER,
SECRETARY OF TRANSPORTATION, ET AL.
ON PETITION FOR CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant
Attorney General
MARK L. GROSS
LOUIS E. PERAERTZ
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
NANCY E. MCFADDEN
General Counsel
PAUL M. GEIER
Assistant General Counsel
EDWARD V.A. KUSSY
Deputy Chief Counsel
Federal Highway
Administration
Department of Transportation
Washington, D.C. 20590
QUESTION PRESENTED
Whether this case, in which petitioner alleged that one of the United States
Department of Transportation's programs to enhance contracting opportunities
for socially and economically disadvantaged business enterprises (DBEs)
embodied a racial preference that unconstitutionally affected its ability
to compete with DBEs for subcontracts, became moot when petitioner was itself
certified as a DBE.
In the Supreme Court of the United States
No. 99-295
ADARAND CONSTRUCTORS, INC., PETITIONER
v.
RODNEY SLATER,
SECRETARY OF TRANSPORTATION, ET AL.
ON PETITION FOR CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-13) is reported at 169
F.3d 1292. The memorandum opinion and order of the district court (Pet.
App. 14-87) is reported at 965 F. Supp. 1556.
JURISDICTION
The judgment of the court of appeals was entered on March 4, 1999. A petition
for rehearing was denied on May 19, 1999 (Pet. App. 88-89). The petition
for a writ of certiorari was filed on August 17, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
This Court has previously reviewed this case. See Adarand Constructors,
Inc. v. Peña, 515 U.S. 200, 205-207 (1995). Petitioner claimed that
the United States Department of Transportation's Subcontractor Compensation
Clause (SCC) program was unconstitutionally racially discriminatory. The
SCC program compensates prime contractors who subcontract with businesses
owned by socially and economically disadvantaged persons (DBEs) and presumes
that members of certain minority groups and women are so disadvantaged.
Petitioner alleged that he was at a competitive disadvantage when competing
with DBEs for subcontracts.
1. At the time the complaint was filed, the Central Federal Lands Highway
Division of the Federal Highway Administration of the Department of Transportation
(DOT) used the Subcontracting Compensa- tion Clause program to encourage
prime contractors to subcontract with socially and economically disadvantaged
business enterprises. The subcontracts helped DOT satisfy requirements under
the Small Business Act, 15 U.S.C. 631 et seq., and the Surface Transportation
and Uniform Relocation Assistance Act of 1987 (Surface Transportation Act),
Pub. L. No. 100-17, 101 Stat. 132 et seq. Adarand, 515 U.S. at 209. The
Small Business Act established a federal government-wide goal that small
business concerns owned and controlled by socially and economically disadvantaged
individuals participate in at least "5 percent of the total value of
all prime contract and subcontract awards." 15 U.S.C. 644(g)(1) (1994
& Supp. III 1997).
The Surface Transportation Act, which authorized funds for federal highway
contracts, also had a goal for DBE participation. Section 106(c) of the
Act provided that DOT should try to ensure that "not less than 10 percent"
of the appropriated funds "shall be expended with small business concerns
owned and controlled by socially and economically disadvantaged individuals."
101 Stat. 145. The Surface Transportation Act adopted Section 8(d) of the
Small Business Act's definitions for socially and economically disadvantaged
individuals. Section 8(d) presumes that "black Americans, Hispanic
Americans, Native Americans, and other minorities," as well as any
other groups designated from time to time by the Small Business Administration
(SBA), are socially disadvantaged and economically disadvantaged, 15 U.S.C.
637(d)(3)(C); 13 C.F.R. 124.105, and adds that "women shall be presumed
to be socially and economically disadvantaged individuals for the purposes
of this subsection." § 106(c)(2)(B), 101 Stat. 146. The relevant
provisions in the Surface Transportation Act were later reenacted in the
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L.
No. 102-240, § 1003(b), 105 Stat. 1919-1921. Following an extensive
debate on the constitutionality of the DBE program,1 these provisions were
again reenacted in the Transportation Equity Act for the 21st Century, Pub.
L. No. 105-178, Tit. I, § 1101(b)(1), 112 Stat. 113.
DOT used the SCC program to encourage prime contractors to subcontract with
DBEs by compensating the prime contractors in the following manner: (1)
"[i]f a subcontract is awarded to one DBE, 10 percent of the final
amount of the approved DBE subcontract, not to exceed 1.5 percent of the
original contract amount"; or (2) "[i]f subcontracts are awarded
to two or more DBEs, 10 percent of the final amount of the approved DBE
subcontracts, not to exceed 2 percent of the original contract amount."
Adarand, 515 U.S. at 209.2
Under DOT regulations, there are two paths through which a business may
become certified as a DBE:
First, a business may be certified by the SBA as a participant in the SBA's
8(a) program, see 15 U.S.C. 637(a), which is a small business development
program for disadvantaged businesses that includes "automatic eligibility
for subcontractor compensation provisions of the kind at issue in this case."
Adarand, 515 U.S. at 207. Under the 8(a) program, members of minority groups
are presumed to be socially disadvantaged, but they must in addition prove
economic disadvantage in order to participate. Ibid.
Second, a business may receive DBE certification through a state highway
agency pursuant to standards set out in the DOT regulations which, as required
under ISTEA, incorporate the requirements and presumptions of the Small
Business Act's 8(d) program. See 15 U.S.C. 637(d) (1994 & Supp. III
1997); 13 C.F.R. 124.601; 49 C.F.R. 23.69. The 8(d) program is a subcontracting
program that provides opportunities for socially and economically disadvantaged
businesses to participate in federal government contracts and procurements.
Members of minority groups are presumed to be both socially and economically
disadvantaged under the 8(d) program. Adarand, 515 U.S. at 207. See 13 C.F.R.
124.105(b).
Those businesses whose owners are not members of minority groups presumed
to be socially and economically disadvantaged may also be certified as DBEs.
The DOT regulations require that non-minorities provide a personal statement
in which they may include that they suffered "discrimination in receipt
(award and/or bid) of government contracts." 49 C.F.R. Pt. 23, Subpt.
D, App. C, para. (A)(2)(iii); C.F.R. 23.53. Under both the 8(a) and 8(d)
programs, as well as the DBE program, the presumption that an individual
is socially or economically disadvantaged is rebuttable and may be challenged
at any time by a third party, either before or after certification. See
13 C.F.R. 124.601-124.609 (1994); 49 C.F.R. 23.69.3
2. On August 10, 1990, petitioner filed suit for declaratory and injunctive
relief against DOT officials, alleging that the SCC program violates 42
U.S.C. 1983, 42 U.S.C. 2000d et seq. (Title VI), and the Fifth and Fourteenth
Amendments to the United States Constitution. Petitioner contended that
he was denied a subcontract on a federal highway project funded by the Surface
Transportation Act because of the SCC program. Adarand, 515 U.S. at 205.
In April 1991, the parties filed cross motions for summary judgment. In
April 1992, the district court held that the constitutionality of the SCC
program should be tested under intermediate scrutiny and granted defendants'
motion for summary judgment. Adarand Constructors, Inc. v. Skinner, 790
F. Supp. 240 (D. Colo. 1992). In February 1994, the court of appeals affirmed.
Adarand Constructors, Inc. v. Peña, 16 F.3d 1537, 1539 (10th Cir.
1994). This Court granted certiorari and, in June 1995, vacated the court
of appeals' judgment. Adarand Constructors, Inc. v. Peña, 515 U.S.
200 (1995). The Court held that strict scrutiny, not intermediate scrutiny,
is the correct test to use when determining if a race-based classification
imposed by a federal government agency violates the equal protection standard
of the Fifth Amendment. Id. at 227. The Court ordered the lower courts to
determine "whether any of the ways in which the Government uses subcontractor
compensation clauses can survive strict scrutiny." Id. at 238.
3. The court of appeals remanded the case to the district court. Pet. App.
17. In the district court, the parties again filed cross motions for summary
judgment, and on June 4, 1997, the district court granted petitioner's motion
for summary judgment. The court held that DOT's SCC program satisfied the
first part of strict scrutiny, i.e., that the "requisite particularized
findings of discrimination to support a compelling governmental interest
for Congress's action in implementing the SCC program" are present.
Id. at 57. The court held, however, that the program was not narrowly tailored
to accomplish that interest. Id. at 77. Therefore, the district court struck
down "§ 106(c) [of the Surface Transportation Act], § 1003(b)
of ISTEA, § 8(d) of the [Small Business Act], 15 U.S.C. § 637(a),
and 15 U.S.C. § 644(g), the regulations promulgated thereunder, and
the subcontracting compensation clause program arising pursuant to those
statutes and regulations." Id. at 86. The court also permanently enjoined
the use of the SCC program in Colorado. Ibid. The Department of Transportation
filed a notice of appeal.
4. After the district court entered its judgment in this case, petitioner
filed a separate suit against State of Colorado officials, alleging that
Colorado's use of DBE guidelines in administering state contracts assisted
with federal funds was unconstitutional. See Adarand Constructors, Inc.
v. Romer, Civ. No. 97-K-1351 (D. Colo. filed June 26, 1997). On July 25,
1997, the district court in Romer held a hearing on petitioner's motion
for a preliminary injunction. Pet. App. 135. During that hearing, the district
court said that petitioner may not have standing in that case. The district
court stated that petitioner might be eligible to be a DBE because the court
had held, in this case, that Randy Pech, petitioner's principal, had been
discriminated against in violation of the Constitution. Id. at 136. After
the hearing, petitioner applied to the State of Colorado for, and was granted,
DBE status. Id. at 5. After being informed that petitioner was now certified
as a DBE, DOT filed a motion with the court of appeals in the instant case
to dismiss this case as moot.4
5. On March 4, 1999, the court of appeals dismissed the case as moot and
vacated the district court's judgment. Pet. App. 1-13. The court stated
that, under this Court's holding in Arizonans for Official English v. Arizona,
520 U.S. 43, 64 (1997), to have standing to litigate, a party must show
an "actual or imminent" harm and this requirement also applies
on appeal. Pet. App. 5 (quoting Arizonans, 520 U.S. at 64). The court held
that as a result of Adarand's certification as a DBE, the case was moot.
Specifically, the court held that because "Adarand is now entitled
to the preference it challenges, it can no longer assert a cognizable constitutional
injury." Id. at 5.
The court of appeals rejected petitioner's claim that it received DBE status
only as a result of the district court's judgment and would lose that status
if the judgment was vacated. The court held that petitioner's claim cannot
defeat mootness because the "dispositive fact for our standing analysis
is that [Adarand] now has that status." Pet. App. 7.
Nor was the court persuaded by petitioner's claim that this case is "capable
of repetition yet evading review." Pet. App. 7. The court explained
that that doctrine is applicable only when: (1) the challenged action is
"in its duration too short to be fully litigated prior to its cessation
or expiration"; and (2) there is a "reasonable expectation that
the same complaining party would be subjected to the same action again."
Ibid. (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990)).
The court held that petitioner failed to show that the circumstances of
its "challenge are too brief for complete litigation." Ibid. The
court also held that "Adarand's suggestion, made without factual support,
that Colorado will continually revoke Adarand's DBE certification, and then
reimpose it to avoid review, does not comprise a reasonable expectation
that the plaintiff will be subjected to the same action again." Id.
at 8 (internal quotation marks omitted). The court found that there was
no "evidence that the [federal] government manipulated both Adarand
and Colorado into respectively seeking and conferring DBE status, in an
effort to establish a repetitive and unreviewable pattern of certification
and revocation." Ibid.
The court also rejected petitioner's claim that "because its DBE certification
is not recognized by the federal government," it will not be able "to
compete equally for federal highway subcontracts in Wyoming and New Mexico."
Pet. App. 8. The court explained that, in the federal lands direct contracting
program in which the SCC is used, "a small business is entitled to
DBE treatment" if any State's Department of Highways/Transportation
certifies it as a DBE. Ibid. The court held that, in any event, "[r]efusal
of certification by other states * * * does not affect Adarand's DBE preference
in Colorado-and the use of the SCC in Colorado highway construction is the
only issue before us." Ibid.
The court of appeals rejected petitioner's claim that the "new Colorado
DBE regulations do not comply with federal regulations and might be rejected
by the Department of Transportation." Pet. App. 9. The court noted
that federal regulations allow "state DBE programs to certify nonminority
individuals on a case-by-case basis." Ibid. (quoting 49 C.F.R. 23.69).
Therefore, the claim that DOT would reject Colorado's program is too "speculative
to avoid a finding of mootness." Ibid.
In vacating the district court's judgment, the court of appeals explained
that the normal practice when a civil case becomes moot on appeal "is
to reverse or vacate the judgment below and remand with a direction to dismiss."
Pet. App. 10. The court determined that equity required that the judgment
be vacated in this case because the "circumstances causing mootness
in this case were precipitated by the actions of a third party [the State
of Colorado] and Adarand itself * * * and there is no evidence that the
[federal] government sought mootness in an effort 'to employ the secondary
remedy of vacatur as a refined form of collateral attack on the judgment.'"
Id. at 11.
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of this Court or any other court of appeals. Further review
of the court of appeals' fact-bound determination that petitioner's claim
became moot when petitioner obtained certification as a DBE is not warranted.
1. The court of appeals' decision to dismiss the case as moot is correct
and unexceptional. Article III of the Constitution prohibits federal courts
from exercising jurisdiction unless presented with live "cases"
or "controversies." The standing doctrine "serves to identify
those disputes which are appropriately resolved through the judicial process."
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). Therefore, the plaintiff
must demonstrate that he or she has suffered an actual or imminent harm,
the action being challenged caused the harm, and a favorable decision will
redress the harm. Raines v. Byrd, 521 U.S. 811, 818 (1997). The plaintiff's
standing must be present even on appeal -"an actual controversy must
be extant at all stages of review, not merely at the time the complaint
is filed." Arizonans for Official English v. Arizona, 520 U.S. 43,
67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). If, during
the appeal, the plaintiff has lost standing, the case becomes moot and the
federal court is divested of jurisdiction. Arizonans, 520 U.S. at 68 &
n.22.
The court of appeals' decision is a straightforward application of these
established principles. Petitioner's contention is that the SCC program
unfairly enhances federal contracting opportunities for businesses owned
and controlled by members of the specified minority groups. Petitioner applied
for certification as and became a DBE. Colorado's certification of petitioner
as a DBE "entitles Adarand to the benefit of the SCC under challenge,"
Pet. App. 4, as well as "to the federal contracting preference based
on any valid certification, regardless of whether it is certified by the
particular state in which the highway construction occurs." Id. at
8-9.5 As the court of appeals explained, since "Adarand is now entitled
to the preference it challenges, it can no longer assert a cognizable constitutional
injury." Id. at 5.
2. Petitioner asserts (Pet. 12-16) that it is important for this Court to
review the merits of its challenge-the question whether the SCC program
satisfies strict scrutiny-because, petitioner states, the case has important
implications for federal highway contracting and constitutional law. The
importance of the issues presented, however, provides a significant reason
why a court should not address them in the absence of a genuine and persisting
case or controversy. In addition, this Court has repeatedly stated that
it ordinarily does not "decide in the first instance issues not decided
below." NCAA v. Smith, 119 S. Ct. 924, 930 (1999); see also United
States v. Bestfoods, 524 U.S. 51, 72-73 (1998); Yee v. City of Escondido,
503 U.S. 519, 533 (1992). Since the court of appeals correctly dismissed
the case as moot, it did not adjudicate the constitutional issues that had
previously been presented in this case. Therefore, the only issue presently
before this Court is the correctness of the court of appeals' conclusion
that, on the particular facts of this case, it is moot; the constitutional
questions to which petitioner seeks the answers are not properly before
the Court on this petition.
3. Contrary to petitioner's claims (Pet. 16-25), the court of appeals' decision
does not conflict with any decision of this Court.
a. Petitioner contends (Pet. 16-17) that the decision to dismiss the appeal
conflicts with this Court's decision in Northeastern Florida Chapter of
the Associated General Contractors of America v. City of Jacksonville, 508
U.S. 656, 661-662 (1993). That contention is mistaken.
The issues presented and adjudicated by this Court in Northeastern Florida
Contractors are not present here. Northeastern Florida Contractors held,
in part, that a municipality's decision to change an ordinance being challenged
as unconstitutional did not moot the case against the municipality. 508
U.S. at 662. Here, the federal government took no action that caused the
case against it to become moot. Instead, the case became moot when petitioner-the
plaintiff in the case, not the defendant-voluntarily applied for and received
certification as a DBE. Pet. App. 5. It thereby obtained all of the relief
to which it could have been entitled in this lawsuit-the advantages of DBE
status in bidding for subcontracts-and its claim thereby became moot. The
federal government was not responsible for petitioner's decision to seek
DBE certification, for certifying petitioner as a DBE, or even for approving
the State of Colorado's certification. Colorado granted petitioner DBE status
because CDOT determined that Randy Pech, petitioner's principal, was socially
and economically disadvantaged. Ibid.
Petitioner's contention (Pet. 17) that the United States Department of Transportation
could "invalidate" CDOT's "voluntary cessation" of its
previous program does not make this case analogous to Northeastern Florida
Contractors, nor is it a persuasive argument that the case is not moot.6
Regardless of the existence or exercise of federal authority to disapprove
the State's action, the fact remains that it was petitioner who decided
to apply for DBE status and the State-a non-party to this case-that instituted
a new program and then certified petitioner as a DBE. As the court of appeals
noted, petitioner produced no "evidence that the [federal] government
'manipulated' both Adarand and Colorado into respectively seeking and conferring
DBE status, in an effort to establish a repetitive and unreviewable pattern
of certification and revocation." Pet. App. 8. Northeastern Florida
Contractors is therefore inapposite.7
b. Petitioner similarly errs in asserting (Pet. 28-29) that there is a conflict
between this case and United States v. W.T. Grant Co., 345 U.S. 629, 633
(1953). W.T. Grant Co. held that when a defendant voluntarily ceases the
conduct being challenged, the case is not moot unless the defendant proves
that there is "no reasonable expectation that the wrong will be repeated."
Ibid. Here, the circumstances that rendered this case moot had nothing to
do with any cessation of conduct by the federal defendants. Therefore, W.T.
Grant Co. is inapposite.
4. Nor does the court of appeals' decision conflict with the principle that
a case is not moot if it is capable of repetition yet evading review. See
Pet. 18-30. Under that principle, a suit for prospective relief may "go
forward despite the abatement of the underlying injury only in the 'exceptional
situations,' * * * where the following two circumstances [a]re simultaneously
present: '(1) the challenged action [is] in its duration too short to be
fully litigated prior to its cessation or expiration, and (2) there [i]s
a reasonable expectation that the same complaining party would be subjected
to the same action again.'" Lewis v. Continental Bank Corp., 494 U.S.
472, 481 (1990) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109
(1983), and Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam)).
This case does not satisfy those requirements. Petitioner does not, and
cannot, suggest that DOT's administration of the challenged statutes and
regulations is by its nature too short in duration to be fully litigated.
See Spencer v. Kemna, 523 U.S. 1, 18 (1998) (rejecting argument that case
is capable of repetition and evades review when inmate could not show time
between parole revocation and expiration of sentence "is always so
short as to evade review"); cf. Roe v. Wade, 410 U.S. 113, 125 (1973)
(noting that normal 266-day human gestation period is generally too short
to allow completion of usual appellate review process in challenge to abortion
restriction). Petitioner's contentions to the contrary, as well as his contentions
that the ordinary rules regarding the "capable of repetition, yet evading
review" doctrine are not applicable, are not persuasive.
a. Petitioner's contention (Pet. 18-21) that the United States will likely
not approve Colorado's certification of Adarand as a DBE is meritless. The
court of appeals correctly held that that claim is too speculative to defeat
a finding of mootness. Pet. App. 9.
Proceedings to challenge petitioner's certification as a DBE could be initiated
in three ways: (a) a third party could file a challenge to petitioner's
DBE certification with CDOT, see 49 C.F.R. 23.69(b)(1)8; (b) CDOT could
decide to review petitioner's DBE status if it found "reason to believe
that the challenged party is in fact not socially and economically disadvantaged,"
see 49 C.F.R. 23.69(b)(3)(i); or (c) DOT could require the State to begin
administrative proceedings to decertify petitioner, see 49 C.F.R. 26.87(c)(1)
(effective March 4, 1999).9 After one of those steps is taken, CDOT must
hold a hearing and then make a final determination as to whether petitioner's
principal is socially and economically disadvantaged. See 49 C.F.R. 23.69(b)(6).
Any adversely affected party may appeal CDOT's final determination to DOT.
See 49 C.F.R. 23.69(c).
Petitioner has provided no information, and DOT's records do not show, that
any third party challenged petitioner's certification. Nor did CDOT or DOT
officials challenge petitioner's DBE status. Even if a challenge had been
instituted, it would have been dealt with in accordance with the administrative
procedures established by DOT and by the State of Colorado, leading to ultimate
review under the Administrative Procedure Act, 5 U.S.C. 551 et seq., in
federal district court. See 49 C.F.R. 26.87. Until and unless those administrative
proceedings are initiated and completed, it cannot be concluded that petitioner
is ineligible for DBE status, and without that conclusion, petitioner has
no basis to challenge the ways in which DBE status is awarded to others.10
b. Petitioner asserts (Pet. 11, 23) that its principal owner, Randy Pech,
declined to reapply for certification as a DBE after the court of appeals
decided this case, because the vacatur of the district court judgment in
this case left Pech in a position in which he could no longer properly claim
that he had been socially disadvantaged. Id. at 23. Petitioner's decision
not to reapply occurred after the court of appeals' decision and it therefore
presents facts not in the record in this case. In any event, petitioner's
voluntary action in declining to reapply for recertification after the court
of appeals had already determined that the case was moot could not revive
its claim.
Petitioner speculates that, because the district court judgment was vacated,
petitioner had no choice but to decline to seek recertification, since it
could not meet the definition of "socially disadvantaged" under
the CDOT program. There is nothing in the court of appeals' decision, however,
that would have prevented petitioner-or that would prevent petitioner in
the future-from reaffirming to CDOT that it believed that it had been discriminated
against by the federal program on the basis of race and therefore was entitled
to DBE status. Indeed, that is precisely the claim that petitioner has advanced
all along in this lawsuit. The fact that the district court decision favoring
petitioner was vacated on a ground (mootness) unrelated to its merits surely
does not preclude petitioner from continuing to advance that claim.11
c. Nor is there merit to petitioner's contention (Pet. 24) that, because
counsel for the United States stated in the court of appeals that petitioner
could bring another lawsuit if in the future it is denied a subcontract
because of the SCC program, this is a case that is capable of repetition
yet evading review. The statements made by government counsel were legally
correct and have no bearing on whether this case satisfies the "capable
of repetition" doctrine. On the current state of the record in this
case, petitioner successfully obtained certification as a DBE and could
obtain recertification if it seeks to do so. As a result, petitioner has
no claim that, at this time, it is being denied subcontracts on account
of race. Petitioner's speculation that at some future date it will be denied
DBE certification-and will then be denied subcontracts because of the SCC
program-is insufficient to keep this lawsuit alive. If petitioner (like
any other entity) were to suffer unconstitutional discrimination in the
award of subcontracts (or in any other area) in the future, its remedy would
be to file another lawsuit. Speculation that that might occur, however,
does not establish that this case remains alive.
d. Petitioner contends (Pet. 26-28) that CDOT will abandon the program under
which it was certified as a DBE, that petitioner therefore will be subject
to the type of alleged discrimination it has been challenging since 1990,
and that this case is therefore capable of repetition. The court of appeals
reviewed that fact-specific claim and correctly held that petitioner's contention
was "made without factual support" and therefore, "does not
comprise a 'reasonable expectation that the plaintiff will be subject to
the same action again.'" Pet. App. 8.12
But even if petitioner's claim is true it does not establish that the case
would evade review. The fact that this case has been litigated for nine
years and has reached every possible level of federal court review shows
that, when a plaintiff has standing, the issues are quite capable of being
reviewed.
5. Petitioner contends that CDOT's TC-554 program, which was modified to
permit certification based on an applicant's affirmation that it is a DBE,
is a "short term order." Pet. 25. Therefore, according to petitioner,
the court of appeals' decision conflicts with Southern Pacific Terminal
Co. v. ICC, 219 U.S. 498, 515 (1911). The question, however, is not whether
Colorado's process for certifying DBEs is a "short term" order
(although there is no reason to believe that it is), but whether the federal
government's SCC program is a "short term" order. As the court
of appeals held (Pet. App. 7), the SCC program is not a short term order;
it has been in existence for 16 years.
Petitioner also contends (Pet. 29) that there is a conflict between the
court of appeals' decision and the D.C. Circuit's decision in Alton &
Southern Railway v. International Ass'n of Machinists & Aerospace Workers,
463 F.2d 872, 878-879 (1972). The D.C. Circuit in Alton did comment that
the "capable of repetition, yet evading review doctrine" includes
a "public interest" component. Regardless of whether that is correct,
however, Alton provides no reason to believe that the D.C. Circuit would
have decided this case differently from the Tenth Circuit. First, as in
this case, the appeal in Alton was dismissed as moot. Id. at 881-882. Furthermore,
the court in Alton explained that the public interest in the "capable
of repetition, yet evading review doctrine" is in "preventing
an agency from avoiding review by making its orders of limited duration."
Id. at 879 n.9. The SCC program, however, is not a program of limited duration.
Indeed, although the actions of the nonparty State of Colorado are of little
relevance in this context, even the State's TC-554 program is not one of
limited duration. Accordingly, Alton provides no basis for claiming that
the D.C. Circuit would have viewed this case as governed by the "capable
of repetition, yet evading review" doctrine.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant
Attorney General
MARK L. GROSS
LOUIS E. PERAERTZ
Attorneys
NANCY E. MCFADDEN
General Counsel
PAUL M. GEIER
Assistant General Counsel
EDWARD V.A. KUSSY
Deputy Chief Counsel
Federal Highway
Administration
Department of Transportation
OCTOBER 1999
1 See 144 Cong. Rec. S5413-S5414 (daily ed.) (May 22, 1998), H3957-H3960
(May 22, 1998), H2000-H2012 (Apr. 1, 1998), S1395-S1434 (Mar. 5, 1998),
S1481-S1498 (Mar. 6, 1998).
2 On November 10, 1997, the Federal Lands Highway Program Administrator
issued a memorandum changing the SCC program so that it no longer provides
automatic compensation on the basis of a percentage of the contract. The
prime contractor now is reimbursed only for its additional expenditures
resulting from hiring DBEs, up to the percentages stated.
3 On February 2, 1999, DOT issued new regulations for the DBE program to
account for "developments in case law requiring narrow tailoring"
of affirmative action programs and to address concerns raised during the
1998 congressional debates prior to the enactment of the Transporation Equity
Act for the 21st Century. 64 Fed. Reg. 5096 (1999) (final rule announcing
changes). For example, the new regulations require that recipients maximize
the use of race-neutral means to achieve their DBE participation goals.
64 Fed. Reg. at 5132. The goal-setting methodology used by re-cipients has
been substantially revised and the goal itself is to be based upon "demonstrable
evidence of the availability of ready, willing and able DBEs" in the
state or locality. 64 Fed. Reg. at 5131. Under the new regulations, the
ten percent statutory goal for DBE participation is an aspirational goal
that applies to DOT nationally and not to individual recipients of federal
funding. Recipients are not required to set goals at any particular level,
and they may not be sanctioned for failing to meet their DBE participation
goal. 64 Fed. Reg. at 5097. Waivers of program provisions may be sought
by recipients, 64 Fed. Reg. at 5129, and in general the DBE program has
given recipients more flexibility in achieving the program objectives. Certification
requirements have also been changed and now include a provision that businesses
seeking certification as DBEs be owned by individuals whose net worth does
not exceed $750,000. 64 Fed. Reg. at 5136.
4 The United States and the Department of Transportation appealed the district
court's denial of their motion to intervene in petitioner's action against
the State. On September 29, 1999, the Tenth Circuit ruled in a brief unpublished
order that the federal appellants should be permitted to intervene, and
it remanded that case to the district court "to consider further the
issue of mootness." Adarand Constructors, Inc. v. Romer, No. 97-1285,
1999 WL 770176 (10th Cir. Sept. 29, 1999).
5 As we noted in our response to petitioner's suggestion of rehearing en
banc in the court of appeals, the Department of Transportation has informed
us that, after it was certified as a DBE in June 1998, Adarand received
more than $2.25 million in federally assisted prime contracts and subcontracts.
See Gov't C.A. Response to Petition for Rehearing En Banc 8 n.7.
6 In issuing new regulations governing the DBE program, the Department of
Transportation has required all recipients of federal highway funds, including
the State of Colorado, to submit their DBE programs for review. See 64 Fed.
Reg. at 5129 (to be codified at 49 C.F.R. 26.21(b)(1)). The Department is
currently reviewing the large number of programs that have been submitted
to it, including Colorado's TC-554 program.
7 In addition, the inconsistency that petitioner claims to exist (Pet. 20
n.24) between federal regulations and CDOT's regulations would not assist
petitioner in urging that the case is not moot. Petitioner claims that CDOT's
regulations are inconsistent with federal regulations because CDOT's regulations
no longer presume members of specified minority groups to be socially and
economically disadvantaged. But Colorado's regulations have always permitted
certification of individuals (like petitioner's owner, Randy Pech) when
such individuals demonstrate social and economic disadvantage. Pet. App.
111. In this regard, Colorado's regulations are consistent with federal
regulations. See 49 C.F.R. 23.62 (old regulation); 64 Fed. Reg. at 5136
(to be codified at 49 C.F.R. 26.67) (new regulation effective Mar. 4, 1999);
64 Fed. Reg. at 5147 (to be codified at 49 C.F.R. Pt. 26, App. E). Any program
submitted to and approved by the Department of Transportation must continue
to provide an opportunity for non-minority individuals to be certified as
socially and economically disadvantaged and therefore eligible to be certified
as DBEs. See p. 5, supra. As we note below, see pp. 17-18, infra, Adarand's
owner therefore could reapply for certification as a DBE at any time.
8 In fiscal year 1997, DOT reviewed 12 challenges to DBE status out of the
thousands of DBEs certified nationwide.
9 Petitioner errs in contending that "the United States had unilateral
authority to order the decertification of Adarand." Pet. 21. See also
id. at 22 ("[T]he United States may order the CDOT to decertify Adarand
at any time."). The authority to which petitioner refers provides that,
if the Department of Transportation "determines that * * * information
available * * * provides reasonable cause to believe that a firm certified
does not meet the eligibility criteria," then the Department "may
direct [the State] to initiate a proceeding to remove the firm's certification."
49 C.F.R. 26.87(c)(1) (effective Mar. 4, 1999). By its plain terms that
regulation does not provide that the United States may order Adarand's decertification;
it provides only that the Department of Transportation may require CDOT
to "initiate a proceeding," which may or may not result in decertification
of Adarand and whose results, as noted in text, would ultimately be reviewable
in federal court.
10 Petitioner asserts (Pet. 5) that before the court of appeals the United
States stated that petitioner is not certified for purposes of DOT programs.
That is not correct. The federal respondents explained that DOT does not
certify firms itself; its normal practice is to accept state DBE certification
unless that certification is challenged by third-parties or by the State
itself .
11 As we have noted (see n.4, supra), the question whether petitioner's
claims are moot under its current circumstances is pending on the remand
proceedings from the Tenth Circuit's decision in Adarand v. Romer.
12 Petitioner asserts that, in March 1998, it lost another guardrail subcontract.
Pet. 27 n.31. If petitioner lost a contract in Colorado, it was not because
of the SCC, since the federal government at that time was permanently enjoined
by the district court decision in this case from using the SCC in Colorado.
In any event, petitioner's factual contention is outside the record of this
case.