534 U.S. 103 (2001), 00-730, Adarand Constructors, Inc. Mineta

Docket Nº:Case No. 00-730
Citation:534 U.S. 103, 122 S.Ct. 511, 151 L.Ed.2d 489, 70 U.S.L.W. 4025
Party Name:ADARAND CONSTRUCTORS, INC. v. MINETA, SECRETARY OF TRANSPORTATION, et al.
Case Date:November 27, 2001
Court:United States Supreme Court
 
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Page 103

534 U.S. 103 (2001)

122 S.Ct. 511, 151 L.Ed.2d 489, 70 U.S.L.W. 4025

ADARAND CONSTRUCTORS, INC.

v.

MINETA, SECRETARY OF TRANSPORTATION, et al.

Case No. 00-730

United States Supreme Court

November 27, 2001

Argued October 31, 2001

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Syllabus

In Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (Adarand I), this Court held that strict scrutiny governs whether race-based classifications violate equal protection and remanded for a determination whether the race-based components of the Department of Transportation's (DOT's) Disadvantaged Business Enterprise (DBE) program could survive such review. The District Court then found that no such component could survive, but the Tenth Circuit vacated and this Court again reversed and remanded, Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (per curiam). Subsequently, the Tenth Circuit held, inter alia, that new regulations issued under the Transportation Equity Act for the 21st Century (TEA-21) pertain almost exclusively to the use of federal funds for highway projects let by States and localities, the only relevant aspect of the DBE program under review; that petitioner lacked standing and had waived its right to challenge any other race conscious program; and that under the new regulatory framework, the DBE program being reviewed was constitutional. When this Court again granted certiorari to decide whether the Tenth Circuit misapplied Adarand I, it appeared that petitioner was challenging the DBE program as it pertains to the use of federal funds for state and local highway projects. Petitioner now asserts that it is challenging only the statutes and regulations pertaining to DOT's direct procurement of highway construction on federal lands.

Held:

The writ of certiorari is dismissed as improvidently granted. The direct procurement statutes and regulations are quite different from the ones the Tenth Circuit reviewed. While state and local procurement is governed by the Transportation Secretary under TEA-21, direct federal procurement is governed by the Small Business Act and regulations promulgated thereunder. The shift in this case's posture requires dismissal of the writ for two reasons. First, this Court held in Adarand I that application of the strict scrutiny standard should be addressed in the first instance by the lower courts. However, the Tenth Circuit has not considered whether race-based programs applicable to direct federal contracting could satisfy strict scrutiny, and the Government has not addressed such programs in its merits brief. Second, to reach the merits of any challenge to the direct procurement statutes and regulations

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would require a threshold examination of standing, but petitioner, in its certiorari petition, did not dispute the Tenth Circuit's holding that it lacked standing to make such a challenge. This Court is obliged to examine standing sua sponte where it has erroneously been presumed below, but not simply to reach an issue for which standing has been denied below. Mindful that this is a Court of final review, not first view, the Court thus declines to reach the merits of the present challenge.

Certiorari dismissed. Reported below: 228 F.3d 1147.

William Perry Pendley argued the cause and filed briefs for petitioner.

Solicitor General Olson argued the cause for respondents. With him on the brief were Assistant Attorney General Boyd, Deputy Solicitor General Clement, Jeffrey A. Lamken, Mark L. Gross, Teresa Kwong, Paul M. Geier, Peter J. Plocki, Peter S. Smith, and Edward V. A. Kussy. [*]

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Per Curiam

We granted certiorari to review for a second time whether the Court of Appeals was correct when it concluded that the Department of Transportation's (DOT's) Disadvantaged Business Enterprise (DBE) program is consistent with the constitutional guaranty of equal protection. But upon full briefing and oral argument we find that the current posture of this case prevents review of that important question. To address it would require a threshold inquiry into issues decided by the Court of Appeals but not presented in the petition for certiorari. We therefore dismiss the writ of certiorari as improvidently granted.

Six years ago in Adarand Constructors, Inc. v. Pen a, 515 U.S. 200 (1995) (Adarand I), we held that strict scrutiny governs whether race-based classifications violate the equal...

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