Adarand Constructors Inc. v. Pena Brief Amicus Curiae of the NAACP LDF In Support of Respondents

    No. 93-1841

In The

S u p re m e  C o u rt ot ti]t ® niteb States?
October Term, 1994

ADARAND CONSTRUCTORS, INC.,
Petitioner,

v.

FEDERICO PENA, et al,
Respondents.

On Writ of Certiorari To The United States 
Court of Appeals for the Tenth Circuit

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.,

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS1

The NAACP Legal Defense and Educational Fund, 
Inc., is a non-profit corporation formed to assist African- 
Americans to secure their constitutional and civil rights by 
means of litigation. The Subcontracting Compensation 
Clause at issue in this case was adopted in part to

1 Copies of letters from the parties consenting to the filing of 
this brief have been filed with the Clerk.



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encourage federal contractors to subcontract with firms 
owned by African-Americans who have been the victims of 
racial discrimination. Amicus has previously filed briefs 
with this Court, on behalf of parties or amici, in a wide 
variety of cases involving race-conscious affirmative action. 
We believe our views on the circumstances presented by this 
case may be of assistance to the Court.

SUMMARY OF ARGUMENT

The petitioner in this case seeks only prospective 
injunctive relief with regard to certain possible future 
applications of the Subcontracting Compensation Clause. 
In order to establish standing to obtain such injunctive 
relief, petitioner must demonstrate that it faces reasonably 
certain and immediate injury if the injunction is denied.
Lujan v. Defenders o f Wildlife, 504 U.S. ____ (1992); Los
Angeles v. Lyons, 461 U.S. 95 (1983); O ’Shea v. Littleton, 414 
U.S. 488 (1974). Petitioner faces no such imminent injury.

(1) Although the SCC has been in use since 1979, 
and petitioner has been in business since 1976, petitioner 
can point to only one contract which it allegedly ever lost 
because of the SCC.

(2) The SCC is utilized only in the relatively 
uncommon instances in which FHWA itself directly 
contracts for the construction of a highway. In 1990 the 
FHWA let in Colorado only one construction contract 
involving guardrail work, the particular work engaged in by 
petitioner.

(3) Not all such FHWA direct contracts contain 
an SCC.

(4) In some instances the SCC is of no practical 
importance because subcontracting with DBEs, which the

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SCC merely encourages, is required by other contract 
provisions not challenged in this action.

(5) Petitioner can identify only six instances 
between 1976 and 1990 when it ever bid on any 
subcontracting work for an FHWA direct contract.

(6) Petitioner does not challenge all applications 
of the SCC. It raises no constitutional objection to the use 
of the SCC where the owners of a DBE are in fact 
disadvantaged, or where a firm qualified as a DBE solely 
because it was owned and managed by women. Petitioner 
challenges the constitutionality of the SCC only in those 
cases, if any, in which the SCC results in the award of a 
subcontract to a firm whose owners and managers are not 
disadvantaged, but qualified for DBE status solely because 
of the rebuttable presumption that minority owner operators 
of small firms were disadvantaged by past discrimination. 
Whether and when petitioner will be injured in the future 
by any such application of an SCC are too speculative to 
confer the requisite standing.

ARGUMENT

I. INTRODUCTION

Petitioner urges this Court to decide in this case 
fundamental constitutional issues of far-reaching importance 
regarding the ability of the Congress, and of federal 
executive agencies, to engage in any form of race-conscious 
action. Petitioner’s brief sets forth an elaborately detailed 
formulation of constitutional principles which petitioner asks 
this Court to adopt. Noticeably absent from both the 
petition and that brief, however, is any account of how a 
decision by this Court on these complex issues would 
actually affect the petitioner itself.



4

In the proceedings below, the respondents directly 
challenged petitioner’s standing to litigate the constitutional 
questions now presented to this Court.2 The issue of 
standing must be addressed before the Court undertakes to 
consider the substantive constitutional questions raised by 
the briefs; in the absence of standing, this appeal would not 
present the "case or controversy" required by Article III, and 
the federal courts would lack subject matter jurisdiction. It 
is particularly important that standing problems be carefully 
assessed before resolving such substantive constitutional 
questions, since constitutional issues are to be decided on 
the merits only where clearly necessary.

Since the initial filing of the complaint in this action, 
both the litigation in the courts below and a substantial 
body of discovery have sharpened, clarified and ultimately 
limited the scope of petitioner’s claim. In its current 
posture, petitioner’s claim has been narrowed in three 
important respects.

First, although there are a variety of different federal 
programs regarding contracting and subcontracting, 
petitioner challenges only one -- the inclusion of 
Subcontract Compensation Clauses (SCC) in certain 
construction contracts executed by the Federal Highway 
Administration.3 Petitioner is not here challenging set

2 Defendants’ Motion for Summary Judgment, 112; Pet.App. 
12-14.

5 Petition for Writ of Certiorari, 1 ("On August 10, 1990, 
Adarand ... filed an action ... challenging the use ... of ... the 
’Subcontracting Compensation Clause’"), 3 ("Adarand asserts that the 
SCC program ... violates the right of equal protection ..."); Pet.Br. 7 
(SCC is "the ... mechanism that is at issue in this case"), 11 (action 
challenges "the constitutionality of the use ... of the contract 
provision referred to as the SCC.”)

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asides or other practices by state highway agencies engaged 
in federally assisted construction projects. As a practical 
matter, the vast majority of federal highway funds are 
disbursed to the states in the form of grants, and the states 
themselves in tum contract for the building of roads; these 
state contracts, although federally funded, do not include 
any SCC. Of all federal funds utilized for highway 
construction, only two percent are expended directly by the 
Federal Highway Administration, rather than being 
funnelled through the states.4 Even among the limited 
number of federal highway contracts entered into directly by 
the FHWA, not all include an SCC.5

Second, petitioner does not object to ah applications 
of the Subcontracting Compensation Clause. The SCC 
provides compensation for federal highway contractors who 
subcontract with Disadvantaged Business Enterprises 
(DBEs). Petitioner does not and could contend that a race- 
neutral policy of assisting socially and economically 
disadvantaged individuals raises any constitutional question. 
Petitioner thus does not attack the utilization of a SCC 
where the owners and managers of a DBE are white.

Petitioner’s brief at a number of points obscures the nature 
of the issue by describing the case as "a challenge to a federal 
program, ... ‘the Federal Construction Procurement Program,’ 
authorized by §502 of the Small Business Act.” Pet.Br. 5; see id. at 
4446, 49. Petitioner’s conclusion urges the Court to declare the 
Federal Construction Procurement Program unconstitutional. Id. at 
50. But the only specific action taken under that program to which 
petitioner objects is the SCC. Id. at 7.

For each fiscal year from 1988 through 1992, federal highway 
construction spending totaled $7.35 billion. Expenditures by FITWA 
on forest highways, the type of construction involved in the West 
Dolores project, were only $55 million annually. 101 Stat. 144-45.

5 See part III, infra.



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Under the terms of the regulations incorporated in the SCC, 
moveover, any firm owned and managed by women is 
treated as a DBE,6 whether the women are white or 
otherwise. The number of white women in the United 
States is of course substantially larger than the total number 
of racial minorities. Petitioner does not challenge the 
constitutionality of this gender-based criterion.7 Petitioner’s

6 The SCC provision of FHA contracts, section 108.01, states 
in pertinent part that "a DBE shall mean a small business owned and 
controlled by socially and economically disadvantaged individuals ... 
or a woman owned business as defined under FAR Contract Clause 
52.219-13." Answer, Exhibit C, p. 1-24; J.App. 24. The referenced 
provision of the FAR Contract states:

” ’Woman-owned small business’ ... means small 
business concerns that are at least 51 percent owned 
by women who are United States citizens and who 
also control and operate the business.”

Answer, Exhibit B, p. F-16; 48 C.F.R. 52.219-13. The treatment of 
women-owned and operated firms under the SCC is thus significantly 
different than the treatment of minority owned and operated firms. 
All women-owned small business are classified as DBEs, whereas 
minority owners are only accorded a rebuttable presumption of 
disadvantage. J.App. 24.

Although petitioner systematically avoids expressly 
mentioning this provision, which applies to both white as well as 
minority women, it carefully states that there is no presumptive 
classification as a DBE for firms "owned or operated by white men." 
Pet.Br.9 (emphasis added).

7 The questions presented by the petition all deal exclusively 
with the "race-based" aspect of the SCC. Petition, p.i; see also 
Pet.App. 14 ("Both parties ... proceeded before the district court on 
the apparently shared assumption that the instant controversy 
concerned only the racial preference aspect of the SCC program. 
Because Adarand never argued the point in its motion for summary 
judgment, the district court was never afforded an opportunity to 
evaluate the merits of the WBE .... Moreover, Adarand did not 
press this point during arguments before us .... For these reasons, we 
limit our review only to the constitutionality of the SCC program’s

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sole constitutional objection is to the fact that, in 
determining whether a male-owned or managed firm is 
disadvantaged by past discrimination, officials apply a 
rebuttable presumption that members of racial minorities 
were so disadvantaged.

Third, the relief sought by petitioner is expressly 
limited to the utilization of SCCs in future federal contracts. 
The instant litigation was apparently triggered by the 
rejection in 1989 of petitioner’s bid to supply guardrails for 
a highway project known as the West Dolores Project. 
Petitioner alleged that the guardrail subcontract was given 
instead to a DBE which had submitted a bid higher than 
that of the petitioner. Petitioner’s 1990 complaint, however, 
did. not ask that petitioner be awarded the disputed 
subcontract, or request damages or any other form of 
monetary relief in connection with the West Dolores 
Project. Perhaps coincidentally, the complaint did not 
allege that the particular DBE which won the guardrail 
contract for the West Dolores Project had qualified as a 
DBE because of the disputed minority-disadvantage 
presumption, or even that that DBE was minority-owned.

Because the complaint seeks solely prospective 
injunctive relief, petitioner has standing only if it faces a 
real and reasonably immediate injury if use of the disputed 
minority- disadvantage presumption is not enjoined. The 
record makes clear that that is not the case. Although

racial preference."). Petitioner’s brief in this Court contains no 
reference to the rule regarding businesses owned and managed bv 
women. 1

J. App. 22-23. Neither the Statement of the Facts in the 
petition, pp. 4-6, nor the Statement of the Case in petitioner’s brief, 
PP* 5-18, mentions this limitation on the relief requested.



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petitioner has been in business since 1976,9 and the SCC 
has been in use since 1979,10 petitioner has been able to 
identify only one instance -- the West Dolores Project -- in 
which petitioner assertedly lost a contract because of the 
SCC.11 As we set out in part III, infra, whether the 
minority-disadvantage presumption will again affect 
petitioner in the future, least of all in the near future, is 
utterly speculative.

II. PETITIONER LACKS STANDING TO SEEK 
D E C L A R A T O R Y  O R  P R O S P E C T IV E  
INJUNCTIVE RELIEF UNLESS IT CAN 
DEMONSTRATE A SUBSTANTIAL RISK OF 
REASONABLY IMMINENT INJURY FROM 
THE PRACTICE WHICH IT SEEKS TO ENJOIN

This Court has repeatedly held that a plaintiff cannot 
establish standing to seek declaratory or prospective 
injunctive relief merely by proving that he or she has been

9 Pet. Br. 7 ("Adarand has engaged continuously in this 
business since 1976.").

10 Pet. App. 6 ("The SCC program was implemented in 
1979....").

11 Plaintiffs Answers to Defendants’ Interrogatories,
Attachment 1.

An official of Adarand suggested that because of the SCC 
the firm had also lost a subcontract to a DBE in connection with a 
highway construction project at McClure Pass. Deposition of Steven 
Goeglein, p. 21. Adarand’s own records revealed, however, that the 
guardrail subcontract on the McClure Pass project was actually won 
by a non-DBE firm which underbid Adarand. Plaintiffs Answers to 
Defendant’s Interrogatories, Attachment 3, Project FH 15-1; id., 
Attachment 1, Project FH 15-1; Defendants’ Responses to Plaintiffs 
Requests for Production of Documents, "CFHLD Project with 
Guardrail," Project FII 15-1.

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injured in the past by a challenged practice. Unless such a 
plaintiff also faces injury in the proximate future from a 
repetition of that practice, he or she would lack a 
substantial stake in whether continued use of the practice is 
enjoined. Absent such an impending injury, issuance of the 
injunction would confer no palpable benefit on the plaintiff, 
and would provide no redress for any imminent harm.

The Court has on repeated occasions invoked this 
aspect of standing jurisprudence to deny declaratory or 
prospective injunctive relief. In Golden v. Zwickler, 394 U.S. 
103 (1969), the plaintiff, a former member of Congress, had 
been convicted under a New York law forbidding the 
circulation of anonymous political pamphlets; he sued for a 
declaratory judgment that the statute was unconstitutional. 
Although the plaintiff alleged that he intended to distribute 
similar leaflets in subsequent elections, 394 U.S. at 106, this 
Court concluded that the plaintiff lacked standing to seek 
such relief because there was not a "real [or] immediate" 
prospect that the plaintiff would run for office again in the 
near future, and thus it was "wholly conjectural that another 
occasion might arise" when the plaintiff might again be 
prosecuted. 394 U.S. at 109.

In O ’Shea v. Littleton, 414 U.S. 488 (1974), the 
plaintiffs claimed that they had been subjected to 
unreasonably high bail and unusually harsh sentences as 
part of a scheme of intentional racial discrimination on the 
part of police and judicial officials. In O ’Shea, as here, the 
plaintiffs sought no damages as a result of past actions, but 
requested purely prospective relief. In holding that the 
plaintiffs lacked standing to seek such relief, the Court 
insisted that the "threat of injury must be both Teal and 
immediate’, not ‘conjectural’ or ‘hypothetical’." 414 U.S. at 
494. The plaintiffs had "not pointed to any imminent 
prosecutions contemplated against any of their number." 
414 U.S. at 498.



10

Apparently, the proposition is that if  
[plaintiffs] proceed to violate an unchallenged 
law and if they are charged, held to answer, 
and tried in any proceedings before 
[defendants], they will be subjected to the 
discriminatory practices that [the defendants] 
are alleged to have followed.

414 U.S. at 497 (Emphasis in original). The Court 
concluded that such a possible injury was simply too 
"conjectural" to support standing. 414 U.S at 502; see id. 
(equitable relief requires "the likelihood of substantial and 
immediate irreparable injury").

The complaint in Ashcroft v. Mattis, 431 U.S. 171 
(1977), sought a declaratory judgment holding 
unconstitutional a state law that authorized the use of 
deadly force against non-dangerous fleeing suspects. See 
Gamer v. Tennessee, 471 U.S. 1 (1985). The plaintiff, the 
father of an 18 year old who had been killed by the police, 
asserted that he had a second son who was also at risk. The 
complaint alleged that:

if ever arrested or brought under an attempt 
at arrest on suspicion of a felony, [the 
surviving son] might flee or give the 
appearance of fleeing, and would therefore 
be in danger of being killed_

431 U.S. at 172 n. 2 (Emphasis by Court). The Court 
dismissed the case for failure to present a case or 
controversy, reasoning that "[s]uch speculation is insufficient 
to establish the existence of a present, live controversy." Id.

In Los Angeles v. Lyons, 461 U.S. 95 (1983), the 
plaintiff had allegedly been the victim of unconstitutionally 
excessive force in the form of a chokehold then utilized by

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the Los Angeles Police Department. Although 
acknowledging that Lyons could maintain an action for 
damages, the Court dismissed for lack of standing the count 
of Lyons’ complaint that sought injunctive relief. The Court 
reasoned that Lyons would have had standing to seek such 
prospective relief only if he could demonstrate the existence 
of an "immediate," 461 U.S. at 105, 107, 110-11, and 
realistic threat," 461 U.S. at 106 n. 7, that he would again 

be subject to such abuse by the police. The Court 
emphasized that no further such incidents had occurred in 
the five months following the only known occasion on which 
Lyons had been assaulted. 461 U.S. at 108.

Whitmore v. Arkansas, 495 U.S. 149 (1990), noted 
that the Court’s earlier decisions demonstrated

what we have said many times before and 
reiterate today: Allegations of possible 
future injury do not satisfy the requirements 
of Article] III. A threatened injury must be 

certainly impending’" to constitute injury in 
fact.

m̂  U S' at 158‘ That recluirement could not be satisfied in 
Whitmore by "speculation and conjecture" that appellate 
review of the conviction and death sentence that had been 
imposed on one defendant might provide information 
helpful to another capital defendant. Id.

This Court most recently applied these principles in
Lujan v. Defenders o f Wildlife, 504 U .S.___ , 119 L. Ed. 2d
351 (1992). The plaintiffs in that case sought to enjoin 
certain actions by the Secretary of the Interior which they 
alleged would imperil the Nile crocodile in Egypt and the 
Asian Elephant in Sri Lanka. The plaintiff organization 
based its claim of standing on affidavits from two members 
both residents of the United States, who stated that they



12

respectively had visited in the past, and intended to return 
in the future to Egypt and Sri Lanka to observe the 
allegedly imperiled animals. This Court held that those 
affidavits were insufficient to establish the plaintiffs’ 
standing to seek injunctive relief:

[TJhese affidavits ... plainly contain no facts ... 
showing how damage to the species will produce 
"imminent" injury to [the affiants] ... "‘[P]ast 
exposure to illegal conduct does not in itself show a 
present case or controversy regarding injunctive 
relief....’" ....[Tjhe affiants’ profession of an 
"inten[t]" to return to the places they had visited 
before -- where they will presumably ... be deprived 
of the opportunity to observe animals of the 
endangered species -- is simply not enough. Such 
"some day" intentions — without ... any specification 
of when the some day will be -- do not support a 
finding of the actual or imminent injury that our 
cases require.

119 L. Ed. 2d at 36712 (Emphasis in original). The Court 
stressed that a plaintiffs burden is particularly heavy if the 
likelihood of injury "depends on the unfettered choices

12 See id. at 367 n. 2:
"Although imminence is concededly a somewhat elastic 

concept, it cannot be stretched beyond its purpose, which is to insure 
that the alleged injury is not too speculative for Article III purposes - 
- that the injury is ‘certainly impending ....’ ... It has been stretched 
beyond the breaking point where, as here, the plaintiff alleges only 
an injury at some indefinite future time, and the acts necessary to 
make the injury happen are at least partly within the plaintiffs own 
control. In such circumstances we have insisted that the injury 
proceed with a high degree of immediacy, so as to reduce the 
possibility of deciding a case in which no injury would have occurred 
at all." (Emphasis in original).

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made by independent actors not before the courts," 119 L. 
Ed. 2d at 365, or turns on circumstances "at least partly 
within the plaintiffs own control." 119 L. Ed. 2d at 367 n. 
2. Both of those complicating considerations are present in 
the instant case.

The circumstances of this case, as set out below, are 
readily distinguishable from those in Northeastern Florida 
Chapter o f AG C v. City o f Jacksonville, 124 L. Ed.2d 586 
(1993). First, the plaintiff in Northeastern was an association 
of 240 contractors and subcontractors;13 counsel for the 
plaintiffs there conceded that the standing question would 
have been very different if he had represented only a single 
firm.  ̂ Second, the plaintiffs in Northeastern alleged that 
they "regularly bid on"15 the contracts actually affected by 
the disputed set-aside; here petitioner had bid on only one 
such subcontract in eleven years. Third, the ordinance at 
issue in Northeastern applied to all purchases made by the 
City of Jacksonville; here the SCC is found on average in 
less than one contract per year per state, and in many of 
even those limited instances the SCC is for practical reasons 
devoid of operational significance. Fourth, the set-aside 
provision in Northeastern precluded non-MBE firms from 
even bidding on many contracts. The SCC has no such 
effect, petitioner in fact bid for the subcontract in the 
disputed West Dolores Project.16 Petitioner’s claim is not

13 Northeastern Florida Chapter of AGC v. City of 
Jacksonville, No. 91-1721, Joint Appendix, p.10.

14 Transcript of Oral Argument, Feb. 22, 1993, p. 13.

Northeastern, J. App. 18, 124 L. Ed.2d at 593.

Petitioner concedes that the only instance in which it decided 
not to bid on a contract because of a set-aside involved a state 
contract. Deposition of Steven Goeglein, p. 14-15.



14

that it is barred from bidding, but that, at some remote 
point in the future, it may "not win," a claim analogous to 
that of the unsuccessful plaintiffs in Worth v. Seldin, 422 
U.S. 490 (1975). See Northeastern, 124 L. Ed.2d at 598.

Finally, this case, unlike Northeastern, is largely 
concerned with the actions of agencies and individuals who 
simply are not before the Court. See Lujan v. Defenders o f 
Wildlife, 119 L. Ed.2d at 365. Petitioner objects not to the 
SCC incentive for subcontracting with DBEs, but to the 
manner in which the list of eligible DBEs is complied. The 
list of eligible DBE’s, however, is prepared not by the 
FHWA or any other respondent, but by Colorado state 
officials.17 The particular manner and extent to which 
Colorado officials in practice rely on the minority- 
disadvantage presumption is entirely unclear, and cannot 
readily be litigated in the instant case. See General Bldg. 
Contractors Assoc, v. Pennsylvania, 458 U.S. 375 (1982). In 
addition, what impact if any an SCC may have on petitioner 
will depend on the independent actions of future general 
contractors, who are free to disregard the SCC incentive 
where it exists, and to prefer a DBE bidder even if no SCC 
is applicable. See Simon v. Eastern Kentucky Welfare Rights 
Organization, 426 U.S. 26 (1976).

III. PETITIONER FACES NO REAL AND
IMMINENT INJURY BY REASON OF THE 
MINORITY - DISADVANTAGE PRESUMPTION

Whether in any given case a plaintiff faces a real and 
imminent injury by reason of a challenged practice is 
necessarily a fact-specific question. In the instant case 
petitioner has been able to identify only one instance since 
1979 in which it lost a contract because of the SCC, and

17 Deposition of James L. Robinson, p. 107.

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even here there is no express claim that the DBE which won 
the West Dolores subcontract had obtained DBE status 
because of the minority-disadvantage presumption. The 
record in the instant case makes clear why the SCC has had 
only this single isolated impact on petitioner, and why a 
recurrence, while not impossible, is far from sufficiently 
certain to provide petitioner with standing.

(1) The threshold problem is that there are 
relatively few construction projects which are contracted 
for directly by FHWA. In 1989 and again in 1990, 
FHWA awarded in the entire state of Colorado only a 
single direct bid contract involving guardrail 
subcontracting.18 The annual FHWA expenditure for 
forest highway projects is only $55 million. (Pet. App. 7 
n.4). The West Dolores Project, typical in size for the 
FHWA, totalled more than $1 million; at that rate the 
FHWA could fund fewer than fifty contracts annually, 
approximately one contract per state per year. Not all of 
these highway projects will involve subcontracted 
guardrail work; in those cases in which it is competent to 
do so, the general contractor ordinarily builds the 
guardrails itself.20 The record reveals that during the 
eight year period from 1983 to 1990, inclusive, the 
FHWA office in the instant case, which is responsible for

Defendants’ Responses to Plaintiffs Requests for Production 
of Documents, Attachment "CFLHD Projects with Guardrail- 
Projects FH 60-2(2) and FH 59-3(3).

"Direct Federal Program FY 1983 Estimate of 
MBE/WBE/SBC Procurements" (Average contract of $1 million).

n DePositlon of Randy Pech, p. 19. In approximately 20% of 
iV P T  co,nstructlon Projects no guardrail work is subcontracted 
Defendants Answers to Plaintiffs Interrogatories, p. 1 (no guardrail 
work subcontracted in 14 of 78 projects).



16

thirteen states,21 had a total of only sixty-four direct bid 
contracts in which guardrail work was subcontracted,22 
an average of less than one such subcontract per year per 
state. Petitioner ordinarily bids only on projects in 
Colorado23, and its business consists almost exclusively 
of guardrail work.24 As a practical matter, all but a 
small fraction of Adarand’s work is on state and city 
rather than federal contracts.25 During a single year 
FHW A does fund several hundred state-managed 
highway construction projects in Colorado26, but none of 
these are subject to an SCC.

(2) Even in those isolated instances in which 
the FHW A does issue a direct contract in Colorado, the 
terms of the contract would have no impact on petitioner 
unless petitioner actually bids for the guardrail 
subcontracting work. Petitioner concedes that it does not 
ordinarily bid on certain types of guardrail projects where 
"we don’t feel like we are totally qualified on it."27

21 Pet.App. 9 n.7.

22 Defendants’ Answers to Plaintiffs Interrogatories, p.9.

23 Deposition of Randy Pech, p. 22.

24 Id. at 26, 27.

23 Id. at 14-18.

26 Defendants’ Responses to Plaintiffs Requests for Production 
of Documents, Attachment "FY 1988 Twelve Month Report of 
Federal-Aid."

Deposition of Randy Pech, pp. 13-14 (distinguishing Type 3, 
guardrail in which Adarand specialize[sj", from Type 4 guardrail); 
Deposition of Steve Goeglein, p. 9 (Adarand bids on Type 3

17

Petitioner can identify only six instances from 1976 
through 1990 in which it actually bid on an FHW A 
contract.28

(3) Not every direct-bid contract let by FHW A 
contains an SCC. In some instances, pursuant to section 
8(a) of the Small Business Act, a contract is awarded to 
a DBE general contractor.29 In such cases the general 
contract contains no subcontracting compensation clause, 
and the general contractor has no financial incentive to 
award guardrail or any other subcontracts to a DBE. As 
a practical matter, most DBEs who work on FHW A 
direct bid contracts do so as general contractors, pursuant 
to section 8(a), the validity of which petitioner does not 
here challenge.30 On the one occasion in which it bid 
for the guardrail subcontract work for a section 8(a) 
contract, Adarand won the subcontract.31 The SCC is 
also omitted from certain non-section 8(a) contracts.32 
Petitioner can identify only one contract on which it ever

guardrail).

24 Plaintiffs Answers to Defendants’ Interrogatories,
Attachment 1. At least one of these was a section 8(a) contract, 
which contains no SCC. See part III (3), infra.

29 "(T]he [SCC] clause is . . . not included in the 8(a) contracts. 
. . Petitioner’s Brief, p. 6 n.3; Deposition of Craig Actis, p. 14.

30 Deposition of James L. Robinson, pp. 39, 57-58, 67.
Petitioner has never sought to serve as the general contractor on any 
FHA direct-bid project. Deposition of Randy Pech, pp. 17-18,

Plaintiffs Answers to Defendants’ Interrogatories,
Attachment 1, Project WYFH 11-1(3).

32 Deposition of James L. Robinson, pp. 39, 57-58, 67.



18

bid which actually contained an SCC -  the West Dolores 
project.33

(4) In other instances, although a contract does 
contain an SCC, the compensation provided by the SCC 
is of no practical significance because the general 
contractor is required by other contact terms to submit 
and adhere to a specific plan for subcontracting with 
DBEs. Whenever a large general contractor receives a 
direct-construction contract worth in excess of $1 million, 
the FHW A requires that contractor to submit an 
acceptable written "subcontracting plan"34. "The 
subcontracting plan must specify the "[tjotal dollars to be 
subcontracted to small disadvantaged business concerns" 
and provide for certain specified assistance to such 
DBEs.35 In the case of the West Dolores Project, the 
general contractor was too small to be subject to this 
"subcontracting plan" requirement;36 the SCC was thus 
of operational significance. But a larger contractor with 
a subcontracting plan would be under an independent 
obligation to subcontract to DBEs the amount of work 
specified in its subcontracting plan, and thus would not 
ordinarily be affected by the deletion or modification of

Plaintiffs Answers to Defendants’ Interrogatories, 
Attachment 1.

48 C.I-.R. § 19.704; 15 U.S.C. § 637 (c)(6); Answer, Exhibit 
A, p. 1; id., Exhibit B, pp. F-13 to F-16; Deposition of James L. 
Robinson, p. 79. The form for submitting such plans is reproduced 
as an attachment to Defendants’ Responses to Plaintiffs Requests 
for Production of Documents, "Subcontracting Plan Submitted In 
Accordance With Public Law 95-507."

33 Answer, Exhibit B, pp. F-13, F-16.

36 Deposition of James L. Robinson, p. 77, 91.

19

the SCC.37 Petitioner is not challenging in this appeal 
the subcontracting plan requirement.

(5) Even in the case of a contractor whose 
contract contains an SCC but no subcontracting plan, the 
SCC at times will have no actual impact on the 
contractor’s behavior. The compensation provided by the 
SCC is not contingent on the contractor extending any 
special bidding preference to a DBE; if lowest bidder for 
a subcontract of the requisite size happens to be a DBE, 
the contractor receives the specified additional payment, 
even though the contractor would have awarded the 
subcontract to the low-bidding DBE regardless of the 
SCC. ^T he record in this case reveals that this does 
occur. If the low bidder on a non-guardrail 
subcontract were already a DBE, the SCC would provide 
the general contractor no incentive to favor a higher 
bidding DBE over petitioner in awarding a guardrail 
subcontract.

(6) Even where there is no such DBE low 
bidder, it is far from certain that the SCC will affect the 
award of a guardrail subcontract. A general contractor 
might chose to qualify for compensation under the SCC 
by seeking a DBE for some form of subcontracting work

„. 0,(5 Courl of Appeals described the SCC as a provision
included in small-value contracts or where the prime contractor is 

a small business." Pet. App. 6. The record indicates the SCC is also 
included in large contracts with large business, but in those cases the 
SCC is of no operational significance.

“  Deposition of Steven Goeglein, p. 15; Plaintiffs Answers to 
Defendants’ Interrogatories, Attachment 1, Project FH 59-3(3)
(Adarand underbid by DBE); Project FH 60-1(1) (Adarand underbid 
by DBE).



20

other than guardrail construction. In addition, the SCC 
provides only an additional payment equal to 1.5 to 2% 
of the contract; thus if the cost of training and assisting 
a DBE, plus any difference between the bid of the DBE 
and the lowest non-DBE bid, exceeds the proffered 
compensation, the general contractor will lose money by 
contracting with the DBE, and presumably will refuse to 
do so. Even where the DBE’s bid is close enough to the 
non-DBE bid for the SCC to avoid such a loss, general 
contractors may nonetheless decide to contract with the 
non-DBE firms for a variety of reasons, such as prior 
business relationships.39 For whatever combination of 
reasons, many FHWA general contractors whose 
contracts include an SCC in fact do chose not to 
subcontract with DBE firms40; for the years 1982-85 only 
about 60% of such general contractors subcontracted with 
any D BE’s.41 Of the three non-section 8(a) subcontracts 
bid on by petitioner for which a non-DBE firm was the 
low bidder, the low bidding non-DBE firm actually won 
two of the subcontracts.42

(7) Even in the uncertain event that petitioner 
bids on a subcontract which is awarded to a DBE because 
of the SCC, an injunction modifying the way firms are

39 Deposition of Craig Actis, pp. 24, 26.

40 Deposition of James L. Robinson, p. 90.

41 Evaluation of Direct Federal DBE Subcontracting 
Compensation Clause, Fiscal Years 1982, 1983, 1984, 1985, Appendix 
D (72 of 182 general contractors receive no compensation under 
SCC; 70 of 182 general contractors had no subcontracts with DBE’s.)

42 Plaintiffs Answers to Defendants’ Interrogatories, 
Attachment 1, Projects FH 60-2(2), FH 20-1(1) FH 15-1(10).

2 1

designated as DBEs could have no impact on petitioner 
unless Adarand were itself the lowest bidder on the 
project.

(8) Even when and if petitioner were to face loss 
of a contract because of the SCC, the injunctive relief 
sought in this case might still confer no benefit on 
petitioner. Petitioner attacks only the use of the 
minority-disadvantage presumption. An injunction 
against utilization of that presumption would afford 
petitioner no benefit if the next DBE to which it loses a 
subcontract by virtue of the SCC is owned and managed 
by whites, by women, or even by minorities, if those 
minorities were able to demonstrate, without the 
assistance of the challenged presumption, that they were 
in fact socially and economically disadvantaged.

In light of all these circumstances, it is readily 
understandable why petitioner can point to only a single 
case between 1979 and 1990 in which it allegedly lost a 
subcontract because of the SCC. Obviously, the 
possibility that petitioner will lose one contract every 
eleven years falls far short of imminent injur)'.

IV. R E SO L U T IO N  O F P E T IT IO N E R ’S Cl 1ALLENGE  
T O  T H E  M I N O R I T Y -D I S A D V A N T A G E  
PR E SU M PT IO N  W O U LD  BE PR E M A T U R E

Dismissal o f  the instant action for lack o f standing 
will not, o f  course, leave petitioner without a remedy if at 
som e point in the future it actually faces loss o f  a 
subcontract because o f the disputed minority-disadvantage 
presumption. Should that occur, petitioner itself 
acknowledges, it is entitled to seek to persuade officials that, 
despite the presumption, the minority-owned firm com peting  
with it does not in fact qualify for D B E  status. If faced with



22

the imminent loss of a subcontract because of the minority- 
disadvantage presumption, petitioner could at that point 
seek injunctive relief against the officials preparing the DBE 
list, against federal officials to enjoin payment under the 
terms of the SCC, or against the general contractor for an 
order awarding petitioner the disputed contract. Petitioner 
might in at least some circumstances have an action for 
damages.

The merits of petitioner’s challenge to the minority- 
disadvantage presumption necessarily turns to some degree 
on circumstances which may be quite different today than 
they will be if and when petitioner actually faces at some 
point in the future an immediate likelihood of being 
affected by that presumption. In the instant appeal, for 
example, the parties are in dispute regarding the adequacy 
of congressional findings (Pet. Br. 34-39, 42-43), the 
sufficiency of the information on which the FHWA relied in 
adopting the SCC (Pet. Br. i, 48), and the adequacy of the 
evidence "in the record" in this case to justify the minority- 
disadvantage presumption. (Pet. Br. 34). All of these 
circumstances are likely to be different in the future than 
they were when the instant case arose in 1989.

Similarly, the outcome of any constitutional challenge 
to the minority-disadvantage presumption may conceivably 
turn on the manner and frequency with which the 
presumption is utilized, the responses of officials to 
challenges to the DBE status of minority firms, or the actual 
availability of DBE status to non-minority firms. At this 
juncture in the instant case the record is silent on all of 
these questions. But it is clear that the method of selecting 
firms advantaged by the SCC has changed substantially since

23

1979 43( and there is no reason to believe that it will 
change again in the future. 1,1 not

‘r e ™  as^DBEs." 1 ™ ^ ' “ and by are
Adarand stock is concededTy^owned"’ by x° f

L e 'm nth a tda M h f  P-re8“ en! is a woman “  Petitioner sserts that at this point in time it is ineligible for DRF
Ada“ n? s  “ fcmr ° ' ™ d a"< operated n™  t c a u s e
Adarand s general manager is a m an“  Assuming,

owned firms See “  P i  7  e? re ss Iy  limited to minority
subcontracting Col“  n s a t l T ^  ^  **“
January 1982 " n 1 <r\ Consolidated Report -
enterprisers]^ ’ In 1983 th s sT h T  ‘° "minority b™ness , . , i i / this standard was replaced ilw* n np
whtcb permit, inclusion of white-owned firm, and ac ,rd ,m  *  'owned firms onlv a 4 ana JC(-°rds to minority
Ann 7 4 F y , rtbultable presumption of disadvantage Pet 
n p f h ’4’> f emale owned hrms were included as DBEs in 1987 
Defendants Answer, to Plain,iff. Interrogatories, p to

r pp “ ,2: dcp“ ik)"

President "a u lh o ^ p a y m cm s o7biil,P'' She” '  “  (re,”ale
contracts to make sure rh™T She 'S resPonsible for the

. t  s  ” d“ °

Answers to Defendants’ In te r to g a E ^ p '

because its ’managemcn^and daily bu°' Cl'g'ble for a Presuniplion...
white d

position as "(g|e„.ra, manager,. Pech o w n / n o ' ^ f j ^ d 8



24

arguendo, that that circumstance would preclude petitioner 
from invoking the gender-based classification as a DBE,47 
it is entirely possible that Adarand’s stockholders and 
president may in the future decide to name a woman as 
general manager. Manifestly the legal issues presented 
would be very different if petitioner, having itself been 
placed on the DBE list by virtue of the gender-based rule, 
were then to challenge use of the mere presumption of 
disadvantage accorded minority owned and managed firms.

It is, of course, impossible to foresee the extent to 
which these or other possibly significant developments might 
transpire between now and the date, if any, on which 
petitioner actually faces loss of a subcontract by reason of 
the minority-disadvantage presumption. Even if some form 
of injunction relief were awarded in the instant case, 
however, it would be subject to modification if such changes 
were to occur in the interim.

Id. at 10 ("Q. What portion of Adarand do you own now? A. 
None.").

47 The employment of a man as general manager would not 
necessarily preclude classification of Adarand as a woman-owned 
business. FAR Contract Clause 52.219-13 requires only that women 
"exercis[e] the power to make policy decisions" and are "actively 
involved in the day-to-day management of the business." Answer, 
Exhibit B, p. F-16. On the other hand, a firm which is in reality 
owned and operated by a non-disadvantaged man could not qualify 
as a DBE merely by conferring purely nominal ownership and job 
titles on women or disadvantaged individuals.

25

CONCLUSION

For the above reasons, the decision of the court of 
appeals should be vacated, and the case remanded with 
instructions that it be dismissed for lack of jurisdiction.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
Eric Schnapper*
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Amicus 
* Counsel o f  Record



No. 93-1841

In The

Suprem e C ourt of tfje fHmteb S ta te s
October Term, 1994

ADARAND CONSTRUCTORS, INC.,
Petitioner,

v.

FEDERICO PENA, et al,
Respondents.

On Writ of Certiorari To The United States 
Court of Appeals for the Tenth Circuit

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.,

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS1

The NAACP Legal Defense and Educational Fund, 
Inc., is a non-profit corporation formed to assist African- 
Americans to secure their constitutional and civil rights by 
means of litigation. The Subcontracting Compensation 
Clause at issue in this case was adopted in part to

1 Copies of letters from the parties consenting to the filing of 
this brief have been filed with the Clerk.



2

encourage federal contractors to subcontract with firms 
owned by African-Americans who have been the victims of 
racial discrimination. Amicus has previously filed briefs 
with this Court, on behalf of parties or amici, in a wide 
variety of cases involving race-conscious affirmative action. 
We believe our views on the circumstances presented by this 
case may be of assistance to the Court.

SUMMARY OF ARGUMENT

The petitioner in this case seeks only prospective 
injunctive relief with regard to certain possible future 
applications of the Subcontracting Compensation Clause. 
In order to establish standing to obtain such injunctive 
relief, petitioner must demonstrate that it faces reasonably 
certain and immediate injury if the injunction is denied.
Lujan v. Defenders o f Wildlife, 504 U.S. ___  (1992); Los
Angeles v. Lyons, 461 U.S. 95 (1983); O ’Shea v. Littleton, 414 
U.S. 488 (1974). Petitioner faces no such imminent injury.

(1) Although the SCC has been in use since 1979, 
and petitioner has been in business since 1976, petitioner 
can point to only one contract which it allegedly ever lost 
because of the SCC.

(2) The SCC is utilized only in the relatively 
uncommon instances in which FHWA itself directly 
contracts for the construction of a highway. In 1990 the 
FHWA let in Colorado only one construction contract 
involving guardrail work, the particular work engaged in by 
petitioner.

(3) Not all such FHWA direct contracts contain 
an SCC.

(4) In some instances the SCC is of no practical 
importance because subcontracting with DBEs, which the

3

SCC merely encourages, is required by other contract 
provisions not challenged in this action.

Petitioner can identify only six instances 
benveen 1976 and !990 when i7  ever Wd o n a „  
subcontracting work for an FHWA direct contract. '

of the e r r  „Pet.i,ioner does "°* challenge all applications 
of i  w  1°cons,‘tutional objection to the use 
of the SCC where the owners of a DBE are in fact 
disadvantaged, or where a firm qualified as a DBE solely 
because ,t was owned and managed by women. Petitioner- 
challenges the constitutionality of the SCC only in those 
cases, if any, in which the SCC results in the award of a 
subcontract to a firm whose owners and managers are not 
disadvantaged but qualified for DBE status solely because
of r  pres“mPtionthat minority owner operators 

f small firms were disadvantaged by past discrimination. 
Whether and when petitioner will be injured in the future 
by any such application of an SCC are too speculative to 
confer the requisite standing.

ARGUMENT

I. INTRODUCTION

Petitioner urges this Court to decide in this case 
undamental constitutional issues of far-reaching importance 

regarding ,he ability of the Congress, and of federal 
executive agencies, to engage in any form of race-conscious 
action Petitioners brief sets forth an elaborately detailed
ormulation of constitutional principles which petitioner asks 

this Court to adopt. Notjceab|y absem fPom b o t- ^
petition and that brief, however, is any account of how a 
decision by this Court on these complex issues would 
actually affect the petitioner itself.



4

In the proceedings below, the respondents directly 
challenged petitioner’s standing to litigate the constitutional 
questions now presented to this Court.2 The issue of 
standing must be addressed before the Court undertakes to 
consider the substantive constitutional questions raised by 
the briefs; in the absence of standing, this appeal would not 
present the "case or controversy" required by Article III, and 
the federal courts would lack subject matter jurisdiction. It 
is particularly important that standing problems be carefully 
assessed before resolving such substantive constitutional 
questions, since constitutional issues are to be decided on 
the merits only where clearly necessary.

Since the initial filing of the complaint in this action, 
both the litigation in the courts below and a substantial 
body of discovery have sharpened, clarified and ultimately 
limited the scope of petitioner’s claim. In its current 
posture, petitioner’s claim has been narrowed in three 
important respects.

First, although there are a variety of different federal 
programs regarding contracting and subcontracting, 
petitioner challenges only one -- the inclusion of 
Subcontract Compensation Clauses (SCC) in certain 
construction contracts executed by the Federal Highway 
Administration.3 Petitioner is not here challenging set

1 Defendants’ Motion for Summary Judgment, 112; Pet.App. 
12-14.

3 Petition for Writ of Certiorari, 1 ("On August 10, 1990, 
Adarand ... filed an action ... challenging the use ... of ... the 
’Subcontracting Compensation Clause”'), 3 ("Adarand asserts that the 
SCC program ... violates the right of equal protection ..."); Pet.Br. 7 
(SCC is "the ... mechanism that is at issue in this case"), 11 (action 
challenges "the constitutionality of the use ... of the contract 
provision referred to as the SCC.”)

5

asides or other practices by state highway agencies engaged 
in federally assisted construction projects. As a practical 
matter, the vast majority of federal highway funds are 
disbursed to the states in the form of grants, and the states 
themselves in turn contract for the building of roads; these 
state contracts, although federally funded, do not include 
any SCC. Of all federal funds utilized for highway 
construction, only two percent are expended directly by the 
Federal Highway Administration, rather than being 
funnelled through the states.4 Even among the limited 
number of federal highway contracts entered into directly by 
the FHWA, not all include an SCC.5

Second, petitioner does not object to ah applications 
of the Subcontracting Compensation Clause. The SCC 
provides compensation for federal highway contractors who 
subcontract with Disadvantaged Business Enterprises 
(DBEs). Petitioner does not and could contend that a race- 
neutral policy of assisting socially and economically 
disadvantaged individuals raises any constitutional question. 
Petitioner thus does not attack the utilization of a SCC 
where the owners and managers of a DBE are white.

Petitioner s brief at a number of points obscures the nature 
of the issue by describing the case as "a challenge to a federal 
program, ... ‘the Federal Construction Procurement Program' 
authorized by §502 of the Small Business Act." Pet.Br. 5; see id. at 
44-46, 49. Petitioner’s conclusion urges the Court to declare the 

ederal Construction Procurement Program unconstitutional. Id at 
5U. But the only specific action taken under that program to which 
petitioner objects is the SCC. Id. at 7.

For each fiscal year from 1988 through 1992, federal highway 
construction spending totaled $7.35 billion. Expenditures by FIIWA 
on forest highways, the type of construction involved in the West 
Dolores project, were only $55 million annually. 101 Stat. 144-45.

5 See part III, infra.



6

Under the terms of the regulations incorporated in the SCC, 
moveover, any firm owned and managed by women is 
treated as a DBE,6 whether the women are white or 
otherwise. The number of white women in the United 
States is of course substantially larger than the total number 
of racial minorities. Petitioner does not challenge the 
constitutionality of this gender-based criterion.7 Petitioner’s

The SCC provision of FHA contracts, section 108.01, states 
in pertinent part that "a DBE shall mean a small business owned and 
controlled by socially and economically disadvantaged individuals ... 
or a woman owned business as defined under FAR Contract Clause 
52.219-13." Answer, Exhibit C, p. 1-24; J.App. 24. The referenced 
provision of the FAR Contract states:

’Woman-owned small business’ ... means small 
business concerns that are at least 51 percent owned 
by women who are United States citizens and who 
also control and operate the business."

Answer, Exhibit B, p. F-16; 48 C.F.R. 52.219-13. The treatment of 
women-owned and operated firms under the SCC is thus significantly 
different than the treatment of minority owned and operated firms. 
AJ1 women-owned small business are classified as DBEs, whereas 
minority owners are only accorded a rebuttable presumption of 
disadvantage. J.App. 24.

Although petitioner systematically avoids expressly 
mentioning this provision, which applies to both white as well as 
minority women, it carefully states that there is no presumptive 
classification as a DBE for firms "owned or operated by white men." 
Pet.Br.9 (emphasis added).

The questions presented by the petition all deal exclusively 
with the "race-based” aspect of the SCC. Petition, p i; see also 
Pet.App. 14 ("Both parties ... proceeded before the district court on 
the apparently shared assumption that the instant controversy 
concerned only the racial preference aspect of the SCC program. 
Because Adarand never argued the point in its motion for summary 
judgment, the district court was never afforded an opportunity to 
evaluate the merits of the WBE .... Moreover, Adarand did not 
press this point during arguments before us .... For these reasons, we 
limit our review only to the constitutionality of the SCC program’s

7

sole constitutional objection is to the fact that in 
determining whether a male-owned or managed fim  is
rebmmble8ed ^  P*St J iscrimination> officials apply a 
were so disadvantaged" * *  members of rac,al minorities

,imi th.e rellef sou8ht by petitioner is expressly
Ignited to the utilization of SCCs in future federal contracts 
The instant litigation was apparently triggered by the 
rejection in 1989 of petitioner’s bid to supply guardrails for 
a highway project known as the West Dolores Project, 

etitioner alleged that the guardrail subcontract was given
hateafth° 3 DBE Wh'Ch had submitted a b'd higher than that of the petitioner. Petitioner’s 1990 complaint, however

did not ask that petitioner be awarded the disputed 
subcontract, or request damages or any other form of
P r n ie r f ^  P h connection with the West Dolores 
II J U ^rhaPs co>ncidentalIy, the complaint did not 

allege that the particular DBE which won the guardrail 
contract for the West Dolores Project had qualified as a 

E because of the disputed minority-disadvantage 
presumption, or even that that DBE was minority-owned8

Because the complaint seeks solely prospective 
injunctive relief, petitioner has standing only if it faces a 
real and reasonably immediate injury if use of the disputed 
minority- disadvantage presumption is not enjoined The 
record makes clear that that is not the case. Although

racial preference.”). Petitioner’s brief in this Court contains no 

women'" ‘°  ^  businesses ow"ed and managed by

. -  J' App; 22*23- Neither the Statement of the Facts in the
pp 5°i8 nP' ’ n° lJ ber Statement ot the Case in petitioner’s brief 
PP- 5-18, mentions this limitation on the relief requested.



8

petitioner has been in business since 1976,9 and the SCC 
has been in use since 1979,10 petitioner has been able to 
identify only one instance — the West Dolores Project ~ in 
which petitioner assertedly lost a contract because of the 
SCC.11 As we set out in part III, infra, whether the 
minority-disadvantage presumption will again affect 
petitioner in the future, least of all in the near future, is 
utterly speculative.

II. PETITIONER LACKS STANDING TO SEEK 
D E C L A R A T O R Y  O R  P R O S P E C T IV E  
INJUNCTIVE RELIEF UNLESS IT CAN 
DEMONSTRATE A SUBSTANTIAL RISK OF 
REASONABLY IMMINENT INJURY FROM 
THE PRACTICE WHICH IT SEEKS TO ENJOIN

This Court has repeatedly held that a plaintiff cannot 
establish standing to seek declaratory or prospective 
injunctive relief merely by proving that he or she has been

9 Pet. Br. 7 ("Adarand has engaged continuously in this 
business since 1976.").

10 Pet. App. 6 ("The SCC program was implemented in 
1979....").

11 Plaintiffs Answers to Defendants’ Interrogatories, 
Attachment 1.

An official of Adarand suggested that because of the SCC 
the firm had also lost a subcontract to a DBE in connection with a 
highway construction project at McClure Pass. Deposition of Steven 
Goeglein, p. 21. Adarand’s own records revealed, however, that the 
guardrail subcontract on the McClure Pass project was actually won 
by a non-DBE firm which underbid Adarand. Plaintiffs Answers to 
Defendant’s Interrogatories, Attachment 3, Project FH 15-1; id., 
Attachment 1, Project FH 15-1; Defendants’ Responses to Plaintiffs 
Requests for Production of Documents, "CFHLD Project with 
Guardrail," Project FH 15-1.

9

injured in the past by a challenged practice. Unless such a 
plaintiff also faces injury in the proximate future from a 
repetition of that practice, he or she would lack a 
substantial stake in whether continued use of the practice is 
enjoined. Absent such an impending injury, issuance of the 
injunction would confer no palpable benefit on the plaintiff, 
and would provide no redress for any imminent harm.

The Court has on repeated occasions invoked this 
aspect of standing jurisprudence to deny declaratory or 
prospective injunctive relief. In Golden v. Zwickler, 394 U.S. 
103 (1969), the plaintiff, a former member of Congress, had 
been convicted under a New York law forbidding the 
circulation of anonymous political pamphlets; he sued for a 
declaratory judgment that the statute was unconstitutional. 
Although the plaintiff alleged that he intended to distribute 
similar leaflets in subsequent elections, 394 U.S. at 106, this 
Court concluded that the plaintiff lacked standing to seek 
such relief because there was not a "real [or] immediate" 
prospect that the plaintiff would run for office again in the 
near future, and thus it was "wholly conjectural that another 
occasion might arise” when the plaintiff might again be 
prosecuted. 394 U.S. at 109.

In O ’Shea v. Littleton, 414 U.S. 488 (1974), the 
plaintiffs claimed that they had been subjected to 
unreasonably high bail and unusually harsh sentences as 
part of a scheme of intentional racial discrimination on the 
part of police and judicial officials. In O ’Shea, as here, the 
plaintiffs sought no damages as a result of past actions, but 
requested purely prospective relief. In holding that the 
plaintiffs lacked standing to seek such relief, the Court 
insisted that the "threat of injury must be both ‘real and 
immediate’, not ‘conjectural’ or ‘hypothetical’." 414 U.S. at 
494. The plaintiffs had "not pointed to any imminent 
prosecutions contemplated against any of their number" 
414 U.S. at 498.



10

Apparently, the proposition is that if 
[plaintiffs] proceed to violate an unchallenged 
law and if  they are charged, held to answer, 
and tried in any proceedings before 
[defendants], they will be subjected to the 
discriminatory practices that [the defendants] 
are alleged to have followed.

414 U.S. at 497 (Emphasis in original). The Court 
concluded that such a possible injury was simply too 
"conjectural'' to support standing. 414 U.S at 502; see id. 
(equitable relief requires "the likelihood of substantial and 
immediate irreparable injury").

The complaint in Ashcroft v. Mattis, 431 U.S. 171 
(1977), sought a declaratory judgment holding 
unconstitutional a state law that authorized the use of 
deadly force against non-dangerous fleeing suspects. See 
Gamer v. Tennessee, 471 U.S. 1 (1985). The plaintiff, the 
father of an 18 year old who had been killed by the police, 
asserted that he had a second son who was also at risk. The 
complaint alleged that:

if ever arrested or brought under an attempt 
at arrest on suspicion of a felony, [the 
surviving son] might flee or give the 
appearance of fleeing, and would therefore 
be in danger of being killed....

431 U.S. at 172 n. 2 (Emphasis by Court). The Court 
dismissed the case for failure to present a case or 
controversy, reasoning that "[s]uch speculation is insufficient 
to establish the existence of a present, live controversy." Id.

In Los Angeles v. Lyons, 461 U.S. 95 (1983), the 
plaintiff had allegedly been the victim of unconstitutionally 
excessive force in the form of a chokehold then utilized by

11

the Los Angeles Police Department. Althoueh 
acknowledging that Lyons could maintain an action for 
damages, the Court dismissed for lack of standing the count 
o Lyons complaint that sought injunctive relief. The Court 
reasoned that Lyons would have had standing to seek such 
prospective relief only if he could demonstrate the existence 
of an immediate," 461 U.S. at 105, 107, 110-1 and 
real,sue threat," 461 U.S. at 106 n. 7, that he would'again 

be subject to such abuse by the police. The Court 
mphasized that no further such incidents had occurred in

Lvons had°h''1S ^ " i " 8 ,he onl>' known occasion on which Lyons had been assaulted. 461 U.S. at 108.

. .u Wh iCmore v■ Arkansas, 495 U.S. 149 (1990) noted 
hat the Court’s earlier decisions demonstrated

what we have said many times before and 
reiterate today: Allegations of possible 
future injury do not satisfy the requirements 
of Artficle] III. A threatened injury must be 
fa'ct'1310^  lmpending’" to constitute injury in

m i m L V v t Th1' rec|uirement could bc satisfied inWhitmore by speculation and conjecture" that appellate
review of the conviction and death sentence that hid been 
.mposed on one defendant might provide inforntation 
helpful to another capital defendant. Id.

i , ■ T^ s,Co.urt mOSt recent|y applied these principles in
35 i r n ^ °  of midlife. 504 U .S.____ 119 L. Ed. 2d
351 (1992). The plaintiffs in that case sought to enjoin 
certain actions by the Secretary of the Interior which they 
al eged would imperil the Nile crocodile in Egypt and the 
Asian Elephant in Sri Lanka. The plaintiff organization 
based its claim of standing on affidavits from two members 
both residents of the United States, who stated that they



12

respectively had visited in the past, and intended to return 
in the future to Egypt and Sri Lanka to observe the 
allegedly imperiled animals. This Court held that those 
affidavits were insufficient to establish the plaintiffs’ 
standing to seek injunctive relief:

[Tjhese affidavits ... plainly contain no facts ... 
showing how damage to the species will produce 
"imminent" injury to [the affiants] ... "‘[P]ast 
exposure to illegal conduct does not in itself show a 
present case or controversy regarding injunctive 
relief....’" ...,[T]he affiants’ profession of an 
"intenft]" to return to the places they had visited 
before -  where they will presumably ... be deprived 
of the opportunity to observe animals of the 
endangered species -  is simply not enough. Such 
some day intentions — without ... any specification 

of when the some day will be -- do not support a 
finding of the actual or imminent injury that our 
cases require.

119 L. Ed. 2d at 36712 (Emphasis in original). The Court 
stressed that a plaintiffs burden is particularly heavy if the 
likelihood of injury "depends on the unfettered choices

12 See id. at 367 n. 2:
"Although imminence is concededly a somewhat elastic 

concept, it cannot be stretched beyond its purpose, which is to insure 
that the alleged injury is not too speculative for Article III purposes - 
- that the injury is ‘certainly impending ....’ ... It has been stretched 
beyond the breaking point where, as here, the plaintiff alleges only 
an injury at some indefinite future time, and the acts necessary to 
make the injury happen are at least partly within the plaintiffs own 
control. In such circumstances we have insisted that the injury 
proceed with a high degree of immediacy, so as to reduce the 
possibility of deciding a case in which no injury would have occurred 
at all." (Emphasis in original).

13

FHd 9Hby :ni T ndent act° rs not before *he courts," 119 L. 

within the plaintiff’s'own Z ~ T l E6 2 ^ 1  J S ?

f h e l t n f  ^  «  P ~ " «  *"

... The circumstances of this case, as set out below, are 
readily d.st.nguishable from those in Northeastern Florida
( \ WV>r \  ^  °f  Jacksonville’ 124 L. Ed.2d 586 
(1993). First, the plamtiff in Northeastern was an association
. 2^ rco" tractors and subcontractors;13 counsel for the 

plaintiffs there conceded that the standing question would 
have been very different if he had represented only a single 
, econd> lhe plaintiffs in Northeastern alleged that
, ,.regu arly bid on"‘5 the contracts actually affected by 

the disputed set-aside; here petitioner had bid on only one

issue in v ? 0’ m deVen yearS' Th'rd’ the ordi"ance at ^sue in Northeastern applied to all purchases made by the
City of Jacksonville; here the SCC is found on average in

iven tho", T C C°HtraCt PCr y£ar PCr St3te’ and in "aSy of even those limited instances the SCC is for practical reasons
devoid of operational significance. Fourth, the set-aside
provision in Northeastern precluded non-MBE firms from
even bidding on many contracts. The SCC has no such
effect; pemioner in face bid for the subcontract in f te
disputed West Dolores Project.16 Petitioner’s claim is not

13 Northeastern Florida Chapter of AGC v Ciw of 
Jacksonville, No. 91-1721, Join. Appendix, p.10 *  ° f

Transcript of Oral Argument, Feb. 22, 1993, p. 13

Northeastern, J. App. 18, 124 L. Ed.2d at 593,

not to b id 'o n T  C°"CedcSKthat lhe on,y instance in which it decided 
not to bid on a contract because of a set-aside involved a state 
contract. Deposition of Steven Goeglein, p. 14-15. ------



14

that it is barred from bidding, but that, at some remote 
pomt m the future, it may "not win," a claim analogous to 
that of the unsuccessful plaintiffs in Worth v. Seldin 422 
U.S. 490 (1975). See Northeastern, 124 L. Ed.2d at 598.

Finally, this case, unlike Northeastern, is largely 
concerned with the actions of agencies and individuals who
^ / v aT in0T bef° re thC Court' See Lui an v■ defenders o f 

119 Ed2d at 365> Petitioner objects not to the 
incentive for subcontracting with DBEs, but to the 

manner in which the list of eligible DBEs is complied. The 
el'g|bIe DBE’s, however, is prepared not by the

hr r W , n r 3ny ° ther resPondent, but by Colorado state 
officials. The particular manner and extent to which 
Colorado officials in practice rely on the minority- 
disadvantage presumption is entirely unclear, and cannot 
readily be litigated in the instant case. See General Bldg. 
Contractors Assoc, v. Pennsylvania, 458 U.S. 375 (1982) In 
addition, what impact if any an SCC may have on petitioner 
will depend on the independent actions of future general 
contractors, who are free to disregard the SCC incentive 
where it exists, and to prefer a DBE bidder even if no SCC 
is applicable. See Simon v. Eastern Kentucky Welfare Rights 
Organization, 426 U.S. 26 (1976).

III. PETITIONER FACES NO REAL AND 
IMMINENT INJURY BY REASON OF THE 
MINORITY - DISADVANTAGE PRESUMPTION

Whether in any given case a plaintiff faces a real and 
imminent injury by reason of a challenged practice is 
necessarily a fact-specific question. In the instant case
in™ ° nCruh3u bCen 3ble l°  ident'fy on*y one instance since 
iy /9  in which it lost a contract because of the SCC, and

17
Deposition of James L. Robinson, p. 107.

15

,he w " t  n  i l XpreSS C aUT1 that the DBE which w°n the West Dolores subcontract had obtained DBE status
because of the minority-disadvantage presumption. The
record in the instant case makes clear why the SCC has had
recurrence lsola,e<? on p e . i L e r  and t hy1recurrence, while not impossible, is far from sufficiently
certain to provide petitioner with standing. y

i The thresho,d problem is that there are
relatively few construction projects which are contracted

Fh w a !  y / / HW,A In 1989 and a8ain in 1990, FHWA awarded in the entire state of Colorado only a
single direct bid contract involving guardrail
subcontracting. The annual FHWA expenditure for
forest highway projects is only $55 million. (Pet App 7

L I  m° re than $1 milIion; at that rate the 
HWA could fund fewer than fifty contracts annually 

approximately one contract per state per year. Not all of 
these highway projects will involve subcontracted 
guardrail work; in those cases in which it is competent to 
do so, the general contractor ordinarily builds the 
guardrails itself.20 The record reveals that during the
p f ‘ yeaI  Period from ^83 to 1990, inclusive the 

HWA office in the instant case, which is responsible for

Defendants Responses to Plaintiffs Requests for Production
of Documents, Attachment "CFLHD Projects with a a" 
Projects FH 60-2(2) and FH 59-3(3) J C-uardra.l",

m b e /w d e /s r p  PFederal Program ^  1983 Es,iinate ofMBLAVBE/SBC Procurements' (Average contract of $1 million).

all FH A ^,n°^tl01- ° f Randy Pech’ P- 19- In approximately 20% of 
all rHA construction projects no guardrail work is subcontracted 
Defendants’ Answers to Plaintiffs Interrogatories, p. 1 (no S S  
work subcontracted in 14 of 78 projects) guardrail



16

thirteen states,21 had a total of only sixty-four direct bid 
contracts in which guardrail work was subcontracted,22 
an average of less than one such subcontract per year per 
state. Petitioner ordinarily bids only on projects in 
Colorado23, and its business consists almost exclusively 
of guardrail work.24 As a practical matter, all but a 
small fraction of Adarand’s work is on state and city 
rather than federal contracts.25 During a single year 
FHW A does fund several hundred state-managed 
highway construction projects in Colorado26, but none of 
these are subject to an SCC.

(2) Even in those isolated instances in which 
the FHW A does issue a direct contract in Colorado, the 
terms of the contract would have no impact on petitioner 
unless petitioner actually bids for the guardrail 
subcontracting work. Petitioner concedes that it does not 
ordinarily bid on certain types of guardrail projects where 
"we don’t feel like we are totally qualified on it."27

21 Pet.App. 9 n.7.

22 Defendants’ Answers to Plaintiffs Interrogatories, p.9.

23 Deposition of Randy Pech, p. 22.

24 Id. at 26, 27.

23 Id. at 14-18.

26 Defendants’ Responses to Plaintiffs Requests for Production 
of Documents, Attachment ”FY 1988 Twelve Month Report of 
Federal-Aid."

27 Deposition of Randy Pech, pp. 13-14 (distinguishing Type 3 
guardrail in which Adarand "specializefs]", from Type 4 guardrail)’ 
Deposition of Steve Goeglein, p. 9 (Adarand bids on Type 3

17

Petitioner can identify only six instances from 1976 
through 1990 in which it actually bid on an FHW A
contract.28

(3) Not every direct-bid contract let by FHW A 
contains an SCC. In some instances, pursuant to section 
8(a) of the Small Business Act, a contract is awarded to 
a DBE general contractor.29 In such cases the general 
contract contains no subcontracting compensation clause, 
and the general contractor has no financial incentive to 
award guardrail or any other subcontracts to a DBE. As 
a practical matter, most DBEs who work on FHW A 
direct bid contracts do so as general contractors, pursuant 
to section 8(a), the validity of which petitioner does not 
here challenge.30 On the one occasion in which it bid 
for the guardrail subcontract work for a section 8(a) 
contract, Adarand won the subcontract.31 The SCC is 
also omitted from certain non-section 8(a) contracts.32 
Petitioner can identify only one contract on which it ever

guardrail).

24 Plaintiffs Answers to Defendants’ Interrogatories,
Attachment 1. At least one of these was a section 8(a) contract, 
which contains no SCC. See part III (3), infra.

” "H*16 ISCC] clause is . .  . not included in the 8(a) contracts.
. . Petitioner’s Brief, p. 6 n.3; Deposition of Craig Actis, p. 14.

Deposition of James L. Robinson, pp. 39, 57-58, 67. 
Petitioner has never sought to serve as the general contractor on any 
H1A direct-bid project. Deposition of Randy Pech, pp. 17-18.

1 Plaintiffs Answers to Defendants’ Interrogatories,
Attachment 1, Project WYFH 11-1(3).

32 Deposition of James L. Robinson, pp. 39, 57-58, 67.



18

bid which actually contained an SCC -  the West Dolores 
project.

(4) In other instances, although a contract does 
contain an SCC, the compensation provided by the SCC 
is of no practical significance because the general 
contractor is required by other contact terms to submit 
and adhere to a specific plan for subcontracting with 
DBEs. Whenever a large general contractor receives a 
direct-construction contract worth in excess of $1 million 
the FHW A requires that contractor to submit an 
acceptable written "subcontracting plan"34. "The 
subcontracting plan must specify the "[t]otal dollars to be 
subcontracted to small disadvantaged business concerns" 
and provide for certain specified assistance to such 
DBEs. In the case of the West Dolores Project the 
general contractor was too small to be subject to this 
subcontracting plan" requirement;36 the SCC was thus 

of operational significance. But a larger contractor with 
a subcontracting plan would be under an independent 
obligation to subcontract to DBEs the amount of work 
specified in its subcontracting plan, and thus would not 
ordinarily be affected by the deletion or modification of

A u,chmc m t ' rS A"SW" S '°  >»'-roga,ori=,

A n i 4w C p ’k;k§ n'7° 4; 15 U S C  § 637 Answer, ExhibitA, p. 1; uJ., Exhibit B, pp. F-13 to F-16; Deposition of James L.
Robinson, p. 79. The form for submitting such plans is reproduced 
as an attachment to Defendants’ Responses to Plaintiffs Requests 
for Production of Documents, "Subcontracting Plan Submitted In 
Accordance With Public Law 95-507."

36

Answer, Exhibit B, pp. F-13, F-16. 

Deposition of James L. Robinson, p. 77, 91.

19

' h!  f ? c  "Petitioner is not challenging in this appeal 
the subcontracting plan requirement.

(5) Even in the case of a contractor whose 
contract contains an SCC but no subcontracting plan, the 
SCC at times will have no actual impact on the 
ontractor s behavior. The compensation provided by the 

C is not contingent on the contractor extending any 
special bidding preference to a DBE; if lowest bidder for 
a subcontract of the requisite size happens to be a DBE 
the contractor receives the specified additional payment,’ 
even though the contractor would have awarded the
S r r ° nt^ Ct l°  thC, lovv-bidding DBE regardless of the 

CC. ^T he record in this case reveals that this does
occur. If the low bidder on a non-guardrail 
subcontract were already a DBE, the SCC would provide 
he general contractor no incentive to favor a higher

sub co n trac t^  Pe,i,i° " er " " " “ " i  a

, . . .  Even where there is no such DBE low
bidder, it is far from certain that the SCC will affect the

3 guardrai' subcontract. A general contractor 
might chose to qualify for compensation under the SCC 
by seeking a DBE for some form of subcontracting work

The Court of Appeals described the SCC as a provision
included in small-value contracts or where the prime contractor is

3 T h ,bUSI.neSS " PeL APP 6- The record indicates the SCC is also
S C c t  of" f8e C° ntraCts with large business, but in those cases the SCC is of no operational significance.

j w ” . D,eP ° f tion of Stevcn Goeglein, p. 15; Plaintiffs Answers to 
Defendants Interrogatories, Attachment 1, Project FI1 5 9 -3 ft 
(A d a ^ d  underb.d b, DDE); Project FII 60-1(1) (Adored „ „ d c r S



20

other than guardrail construction. In addition, the SCC 
provides only an additional payment equal to 1.5 to 2% 
of the contract; thus if the cost of training and assisting 
a DBE, plus any difference between the bid of the DBE 
and the lowest non-DBE bid, exceeds the proffered 
compensation, the general contractor will lose money by 
contracting with the DBE, and presumably will refuse to 
do so. Even where the DBE’s bid is close enough to the 
non-DBE bid for the SCC to avoid such a loss, general 
contractors may nonetheless decide to contract with the 
non-DBE firms for a variety of reasons, such as prior 
business relationships.39 For whatever combination of 
reasons, many FHWA general contractors whose 
contracts include an SCC in fact do chose not to 
subcontract with DBE firms40; for the years 1982-85 only 
about 60% of such general contractors subcontracted with 
any DBE s.41 Of the three non-section 8(a) subcontracts 
bid on by petitioner for which a non-DBE firm was the 
low bidder, the low bidding non-DBE firm actually won 
two of the subcontracts.42

(7) Even in the uncertain event that petitioner 
bids on a subcontract which is awarded to a DBE because 
of the SCC, an injunction modifying the way firms are

39 Deposition of Craig Actis, pp. 24, 26.

40 Deposition of James L. Robinson, p. 90.

Evaluation of Direct Federal DBE Subcontracting 
Compensation Clause, Fiscal Years 1982, 1983, 1984, 1985, Appendix 
D (72 of 182 general contractors receive no compensation under 
SCC; 70 of 182 general contractors had no subcontracts with DBE’s.)

Plaintiffs Answers to Defendants’ Interrogatories, 
Attachment 1, Projects FH 60-2(2), FH 20-1(1) FH 15-1(10).

21

designated as DBEs could have no impact on petitioner 
unless Adarand were itself the lowest bidder on the 
project.

(8) Even when and if petitioner were to face loss 
of a contract because of the SCC, the injunctive relief 
sought in this case might still confer no benefit on 
petitioner. Petitioner attacks only the use of the 
minority-disadvantage presumption. An injunction 
against utilization of that presumption would afford 
petitioner no benefit if the next DBE to which it loses a 
subcontract by virtue of the SCC is owned and managed 
by whites, by women, or even by minorities, if those 
minorities were able to demonstrate, without the 
assistance of the challenged presumption, that they were 
in fact socially and economically disadvantaged.

In light of all these circumstances, it is readily 
understandable why petitioner can point to only a single 
case between 1979 and 1990 in which it allegedly lost a 
subcontract because of the SCC. Obviously the 
possibility that petitioner will lose one contract ’every 
eleven years falls far short of imminent injuiy.

IV. RESOLUTION OFPETITIONER’S Cl 1ALLENGE
TO TH E  M IN O R IT Y -D IS A D V A N T A G E  
PRESUMPTION WOULD BE PREMATURE

Dismissal o f  the instant action for lack o f  standing 
will not, o f  course, leave petitioner without a remedy if at 
som e point in the future it actually faces loss o f  a 
subcontract because o f  the disputed minority-disadvantage 
presumption. Should that occur, petitioner itself
acknowledges, it is entitled to seek to persuade officials that 
despite the presumption, the minority-owned firm com peting  
with it does not in fact qualify for D B E  status. If faced with



22

the imminent loss of a subcontract because of the minority- 
disadvantage presumption, petitioner could at that point 
seek injunctive relief against the officials preparing the DBE 
list, against federal officials to enjoin payment under the 
terms of the SCC, or against the general contractor for an 
order awarding petitioner the disputed contract. Petitioner 
might in at least some circumstances have an action for 
damages.

The merits of petitioner’s challenge to the minority- 
disadvantage presumption necessarily turns to some degree 
on circumstances which may be quite different today than 
they will be if and when petitioner actually faces at some 
point in the future an immediate likelihood of being 
affected by that presumption. In the instant appeal, for 
example, the parties are in dispute regarding the adequacy 
of congressional findings (Pet. Br. 34-39, 42-43), the 
sufficiency of the information on which the FHWA relied in 
adopting the SCC (Pet. Br. i, 48), and the adequacy of the 
evidence in the record" in this case to justify the minority- 
disadvantage presumption. (Pet. Br. 34). All of these 
circumstances are likely to be different in the future than 
they were when the instant case arose in 1989.

Similarly, the outcome of any constitutional challenge 
to the minority-disadvantage presumption may conceivably 
turn on the manner and frequency with which the 
presumption is utilized, the responses of officials to 
challenges to the DBE status of minority firms, or the actual 
availability of DBE status to non-minority firms. At this 
juncture in the instant case the record is silent on all of 
these questions. But it is clear that the method of selecting 
firms advantaged by the SCC has changed substantially since

23

^ ,^ K e iBfi; ; rereaa0n l°  be,ieve that “  "fl! not

Will not^necessaWlyRemain^h^sa0061  ̂ Under the SCC
current practice all firms owned andopcrated bv**' 
treated as DBEs In the mc*o ♦ °Perated by women are
Adarand stock is concededt ^ '  £ ° f
addition, Adarand’s Pres.VW ■ ^  d by women- In
asserts that at this point n " “  ■“ W° man- Petitioner
status as a female-owned JUri "  lnell8'_ble for DBE
Adarand’s general m ana • °Perated brrn because general manager ,s a m an.- Assuming,

owned firms. See »Evatoation 1,m,,ed to minority
subcontracting Compensation Clause C ^ T  MBE
January 1982," p. , (cIause * ' ^ " ^ d a t e d  Report -

zr, it  ~  srcsr
Defendants' ^ sw cts  ,0 p j ™  s“  T ’ ”  ' 987''

Deposition of Randy Pech dd 11 n - h 
Goeglein, p.8; Pet. App 10 n. 8. ’ PP‘ *12’ d posillon of Steven

Deposition of Randv Pech n 1?. o 
president "authorizes payments of bills She ^ ^  35 f̂ema,e
contracts to make sure they are wriu IS resPons|ble for the
the contracts and signs them and m t T '  ‘°  hUM US’ She reviews 
“»  “ "'-acts as deletions ,Q

A”™'" “  Dc,mda"K' ' « ^ o , T p .  pL S:“ ,rs

because ils 'manageLlntand daily bus' el'8'ble ,0’ a Presumption...
by... a While male",; see depos p ’ T u " " ”* “" “ >»'™lled
position ,s  "[gjeneral mana^" Pech o w u tn o 't' f -s )■ recn owns no stock in Adarand.



24

arguendo, that that circumstance would preclude petitioner 
from invoking the gender-based classification as a DBE,47 
it is entirely possible that Adarand’s stockholders and 
president may in the future decide to name a woman as 
general manager. Manifestly the legal issues presented 
would be very different if petitioner, having itself been 
placed on the DBE list by virtue of the gender-based rule, 
were then to challenge use of the mere presumption of 
disadvantage accorded minority owned and managed firms.

It is, of course, impossible to foresee the extent to 
which these or other possibly significant developments might 
transpire between now and the date, if any, on which 
petitioner actually faces loss of a subcontract by reason of 
the minority-disadvantage presumption. Even if some form 
of injunction relief were awarded in the instant case, 
however, it would be subject to modification if such changes 
were to occur in the interim.

Id. at 10 ( Q. What portion of Adarand do you own now9 A 
None.").

The employment of a man as general manager would not 
necessarily preclude classification of Adarand as a woman-owned 
business. FAR Contract Clause 52.219-13 requires only that women 
exercisfe] the power to make policy decisions" and are "actively 

involved in the day-to-day management of the business." Answer, 
Exhibit B, p. F-16. On the other hand, a firm which is in reality 
owned and operated by a non-disadvantaged man could not qualify 
as a DBE merely by conferring purely nominal ownership and job 
titles on women or disadvantaged individuals.

25

CONCLUSION

For the above reasons, the decision of the court of 
appeals should be vacated, and the case remanded with 
instructions that it be dismissed for lack of jurisdiction.

Respectfully submitted,

Elaine R. Jones
D irector-Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
Eric Schnapper*
NAACP Legal D efense & 

Educational Fund, Inc. 
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Amicus 
* Counsel of Record