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
 
FREE EXCERPT

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

Page 104

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. [*]

Page 105

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 protection component of the Fifth Amendment's Due Process Clause. See id., at 235 ("Federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest"). We remanded for a determination whether the race-based components of the DOT's DBE program could survive this standard of review.

On remand, the District Court for the District of Colorado found that no such race-based component then in operation could so survive. Adarand Constructors, Inc. v. Pena, 965 F.Supp. 1556 (1997). The Court of Appeals vacated the District Court's judgment, reasoning that petitioner's cause of action had been mooted because the Colorado Department of Transportation had recently certified petitioner as a DBE. Adarand Constructors, Inc. v. Slater, 169 F.3d 1292, 1296-1297 (CA10 1999). Finding it not at all clear that petitioner's certification was valid under DOT regulations, we again

Page 106

granted certiorari, reversed the Court of Appeals, and remanded for a determination on the merits consistent with Adarand I. Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000) (per curiam).

Following the submission of supplemental briefs addressing statutory and regulatory changes that had occurred since the District Court's 1997 judgment favorable to petitioner, the Court of Appeals affirmed in part and reversed in part. 228 F.3d 1147 (CA10 2000). The Court of Appeals agreed with the District Court that the DOT's DBE program was unconstitutional as it was administered in 1997. It further agreed that the automatic use of financial incentives to encourage the award of subcontracts to DBEs, as originally contemplated by the DOT's Subcontractor Compensation Clause (SCC) program, was "unconstitutional under Ada rand [I' s] strict standard of scrutiny." Id., at 1187. The Secretary of Transportation never challenged these rulings and has since discontinued any and all use of the SCC program. Brief for Respondents 2, 10, 13, 20, n. 3, 23. See also 228 F.3d, at 1194 ("The government maintains, and Adarand does not dispute, that the SCC, which spawned this litigation in 1989, is no longer in use"); Tr. of Oral Arg. 25 ("[SCCs] ha[ve been] abandoned in all respects, [they] have not been justified, and the United States Government is not employing [them]").

The Court of Appeals next turned its attention to new regulations issued by the Secretary of Transportation under the Transportation Equity Act for the 21st Century (TEA-21), § 1101(b)(1), 112 Stat. 113. See 49 CFR pt. 26 (1999). These regulations pertain almost exclusively to use of federal funds for highway projects let...

To continue reading

FREE SIGN UP