Appellate Section - Affirmative Action

Briefs and Opinions

• Hierholzer v. Guzman (4th Cir.) - Appellee

  • Plaintiffs lack standing to challenge the race-conscious component of the 8(a) program

   

  Document	Date
  Court of Appeals Decision, reported at 125 F.4th 104	01/03/25
  Brief as Appellee	06/24/24

• Students for Fair Admissions v. University of North Carolina (S. Ct.) - Amicus

  • This Court should adhere to Grutter’s holding that the educational benefits of diversity are a compelling interest
  • The lower court correctly upheld UNC's admissions process under this Court’s precedents

   

  Document	Date
  Supreme Court Decision, reported at 143 S. Ct. 2141	06/29/23
  Brief as Amicus (Merits)	08/01/22

• Students for Fair Admissions v. Harvard (S. Ct.) - Amicus

  • This Court should adhere to Grutter’s holding that the educational benefits of diversity are a compelling interest
  • The lower court correctly upheld Harvard’s admissions process under this Court’s precedents
  • The court of appeals’ application of this Court’s precedents does not warrant further review
  • This Court should not grant review to consider overruling its precedents in this area

   

  Document	Date
  Supreme Court Decision, reported at 143 S. Ct. 2141	06/29/23
  Brief as Amicus (Merits)	08/01/22
  Brief as Amicus in Response to Court's Invitation	12/08/21

• Midwest Fence Corporation v. U.S. Department of Transportation (S. Ct.) - Respondent

  • The decision below rejecting petitioner’s facial and as-applied equal-protection challenges to the federal DBE regulations does not warrant further review

   

  Document	Date
  Certiorari Denied, reported at 137 S.Ct. 2292	06/26/17
  Brief in Opposition	05/23/17

• Midwest Fence Corporation v. U.S. Department of Transportation (7th Cir.) - Appellee

  • The federal program satisfies all six narrow tailoring factors
  • The federal regulations are not unconstitutionally vague
  • Plaintiff’s purported as-applied challenge to the federal regulations is actually an as-applied challenge to the state’s implementation of the DBE Program

   

  Document	Date
  Court of Appeals Decision, reported at 840 F.3d 932	11/04/16
  Brief as Appellee	10/26/15

• DynaLantic Corp. v. Department of Defense (D.C. Cir.) - Appellants/Cross-Appellees

  • Section 1981 does not apply to the federal government based on the doctrine of sovereign immunity and the plain language of the statute

   

  Document	Date
  Court of Appeals Order, available at 2014 WL 812829	02/04/14
  Reply in Support of Motion for Partial Summary Affirmance	02/04/13
  Motion for Partial Summary Affirmance	01/02/13

• Fisher v. University of Texas (S. Ct.) - Amicus

  • The narrow-tailoring inquiry under Grutter and Fisher examines whether a university’s consideration of race is tailored to its concretely defined educational objectives
  • The University of Texas has established that its consideration of race is narrowly tailored
  • The United States has a compelling interest in the educational benefits of diversity
  • The University of Texas' use of race in freshman admissions to achieve the educational benefits of diversity is constitutional

   

  Document	Date
  Supreme Court Decision, reported at 136 S. Ct. 2198	06/23/16
  Brief as Amicus	11/02/15
  Supreme Court Decision, reported at 133 S. Ct. 2411	06/24/13
  Brief as Amicus	08/13/12

• American General Contractors v. California Department of Transportation (9th Cir.) – Amicus

  • AGC lacks standing to challenge Caltrans' program
  • Caltrans' program, which implements the U.S. Department of Transportation's DBE program, does not violate the constitutional rights of non-minority business owners
  • A State that produces a sound and thorough statistical analysis revealing underutilization of DBEs in a jurisdiction, and then crafts a program responding to those disparities, needs to show nothing more to satisfy narrow tailoring

   

  Document	Date
  Court of Appeals Decision, reported at 713 F.3d 1187	04/16/13
  Brief as Amicus	02/09/12

• Doe v. Lower Merion School District (3d Cir.) – Amicus

  • Strict scrutiny did not apply to the school district's consideration of neighborhood racial demographics in order to promote diversity and avoid racial isolation, as per Justice Kennedy's concurrence in Parents Involved

   

  Document	Date
  Court of Appeals Decision, reported at 665 F.3d 524	12/14/11
  Brief as Amicus	02/02/11

• Rothe Development Corporation v. Department of Defense and Department of the Air Force (S. Ct.) – Respondent

  • District court’s analysis under established precedent was correct: petitioner argues that a more heightened standard than the “substantial justification” language in EAJA should apply where the government loses in a case defending the constitutionality of the use of racial criteria in a federal program

   

  Document	Date
  Certiorari Denied, reported at 138 S.Ct. 354	10/16/17
  Brief in Opposition	07/07/17
  Certiorari Denied, reported at 131 S. Ct. 907	01/10/11
  Brief in Opposition to Petition for Writ of Certiorari	12/01/10

• Kevcon, Inc. v. United States (Fed. Cl.) – Defendant

  • Congress continues to have a substantial basis in evidence for believing that racial discrimination in federal contracting remains a serious problem
  • Congress has a compelling interest in addressing the past and present effects of this discrimination
  • Section 8(a) is a narrowly tailored method of promoting this interest

   

  Document	Date
  Cross-Motion for Judgment Upon the Administrative Record	05/14/10

• Fisher v. University of Texas (5th Cir.) – Amicus

  • The court should defer to many of the findings underlying the University's determination, such as its assessment of how much diversity is required for it to accomplish its mission, but that the court should "independently review" the ultimate conclusion that the University lacked sufficient diversity
  • That, applying that standard to the record in this case, the court should uphold the University's determination
  • The University has a compelling interest in achieving a diverse student enrollment, and its limited use of race in freshman admissions is narrowly tailored to further that interest

   

  Document	Date
  Court of Appeals Decision, reported at 758 F.3d 633	07/15/14
  Supplemental Brief as Amicus	11/01/13
  Court of Appeals Decision, reported at 631 F.3d 213	01/18/11
  Brief as Amicus	03/12/10

• Rothe Development Corp. v. United States Department of Defense (5th Cir., Fed. Cir., D.C. Cir.) – Appellee

  • Based on Rothe’s concession, the panel majority correctly applied rational review to the 8(a) statute and its decision does not conflict with other decisions involving challenges to the race-based presumption in 8(a)’s regulations or other provisions of the Small Business Act not implicated in this case
  • The Section 8(a) program is facially constitutional and does not violate the nondelegation doctrine
  • The district court did not abuse its discretion in rejecting Rothe’s experts
  • The district court appropriately granted DOD’s motion for summary judgment because the court carefully evaluated the legislative record and correctly found Congress had a strong basis in evidence for the legislation, and correctly found that the DOD program is narrowly tailored
  • Congressional program authorizing affirmative action in defense contracting satisfies strict scrutiny
  • This case is not justiciable, and this court has no jurisdiction to entertain this appeal because this case is moot, Rothe lacks standing to maintain this lawsuit, and if Rothe has any claims, they are not ripe
  • If any of Rothe's claims are justiciable, this court should remand the case for further findings and additional development of the evidentiary record
  • Rothe has not properly preserved its challenge to the district court's denial of attorney's fees
  • The district court correctly denied Rothe's application for attorney's fees under the Equal Access to Justice Act, because the government was substantially justified in defending the constitutionality of Section 1207 of the National Defense Authorization Act, 10 U.S.C. 2323

   

  Document	Date
  Court of Appeals Order	01/13/17
  Response to Petition for Rehearing	11/08/16
  Court of Appeals Decision, reported at 836 F.3d 57	09/09/16
  Brief as Appellee	01/28/16
  Summarily Affirmed	05/04/10
  Brief as Appellee	02/05/10
  Court of Appeals Decision, reported at 545 F.3d 1023	11/04/08
  Brief as Appellee	03/17/08
  Court of Appeals Decision, reported at 413 F.3d 1327	06/28/05
  Brief as Appellee	12/08/04
  Court of Appeals Decision, reported at 262 F.3d 1306	08/20/01
  Motion to Lift Stay	01/14/00
  Court of Appeals Decision, reported at 194 F.3d 622	10/27/99
  Brief as Appellee	10/20/99

• Western States Paving Co. v. United States & Washington State Department of Transportation (9th Cir.) – Appellee

  • The district court correctly determined that TEA-21 and DOT's DBE regulations are facially constitutional

   

  Document	Date
  Court of Appeals Decision, reported at 407 F.3d 983	05/09/05
  Brief as Appellee	04/19/04

• Gross Seed Co. v. Nebraska Dep't of Roads & United States (8th Cir.) – Appellees

  • The district court correctly determined that the federal DBE program is facially constitutional
  • The district court correctly determined that the federal DBE program is constitutional as applied

   

  Document	Date
  Court of Appeals Decision, reported at 345 F.3d 964	10/06/03
  Brief as Appellees	01/10/03

• American Federation of Government Employees v. United States (D.C. Cir.) – Defendants-Appellees

  • The contracting provision in section 8014(3) directed at companies owned by members of federally recognized Native American tribes and tribal entities does not violate the equal protection guarantee of the Fifth Amendment
  • Section 8014(3) does not violate the plaintiffs' due process rights under the Fifth Amendment to the Constitution

   

  Document	Date
  Court of Appeals Decision, reported at 330 F.3d 513	06/06/03
  Brief as Defendants-Appellees	01/10/03

• Sherbrooke Turf, Inc. v. Minnesota Department of Transportation, et al. (8th Cir.) – Appellee

  • Sherbrooke has standing to challenge the DBE program
  • District court correctly concluded that recipients of TEA-21 financial assistance need not independently satisfy satisfy strict scrutiny
  • District court correctly determined that the federal DBE program is facially constitutional

   

  Document	Date
  Court of Appeals Decision, reported at 345 F.3d 964	10/06/03
  Brief as Appellee	07/15/02

• Scott v. Pasadena Unified School District (9th Cir.) – Amicus

  • School district's decision to examine the racial composition of the applicant pool in deciding whether to take race into account in the selection of students not subject to strict scrutiny

   

  Document	Date
  Court of Appeals Decision, reported at 306 F.3d 646	09/04/02
  Brief as Amicus	09/15/00

• Concrete Works of Colorado, Inc. v. City and County of Denver (10th Cir.) – Amicus

  • In subjecting local affirmative action plan to strict scrutiny, district court erred in presuming, without supporting empirical data, that numerous statistical studies, demonstrating a substantial underutilization of minority- and women-owned businesses as compared to their numbers in the local market, were unreliable merely because the studies failed to account for certain variables

   

  Document	Date
  Court of Appeals Decision, reported at 321 F.3d 950	02/10/03
  Brief as Amicus	07/13/00

• Brennan v. New York City Board of Education (2d Cir.) – Appellee

  • Showing of compelling interest to warrant the use of race-based remedial measures can be satisfied upon some showing of prior discrimination by the governmental unit involved
  • Showing that a challenged employment procedure has a significant disparate impact is a sufficiently firm basis for adopting narrowly tailored race-conscious remedial measures
  • Providing retroactive seniority to a small class of qualified individuals is narrowly tailored relief

   

  Document	Date
  Court of Appeals Decision, reported at 260 F.3d 123	08/03/01
  Brief as Appellee	06/26/00

• United States v. Brown (City of Yonkers) (2d Cir.) – Appellee

  • District court has broad discretion to adopt measures for remedying segregated housing patterns caused by the City's intentional racial discrimination, including race-based remedial measures

   

  Document	Date
  Opposition to Petition for Writ of Certiorari	05/31/01
  Court of Appeals Decision, reported at 239 F.3d 211	01/05/01
  Brief as Appellee	06/08/00

• Adarand v. Slater (10th Cir.) – Appellant

  • Disadvantaged Business Enterprise (DBE) program authorized by Transportation Equity Act for the 21st Century (TEA-21) satisfies strict scrutiny

   

  Document	Date
  Dismissed	11/27/01
  Brief as Respondent	08/10/01
  Certiorari Granted	03/26/01
  Opposition to Petition for Writ of Certiorari	01/19/01
  Court of Appeals Decision, reported at 228 F.3d 1147	09/25/00
  Reply Brief	04/14/00
  Supplemental Brief	03/15/00

• Belk v. Charlotte-Mecklenburg Board of Education (4th Cir.) -- Amicus

  • In determining whether school district is "unitary," district court must make findings that closely assess whether the school system fully complied with prior federal court orders
  • School district may consider race as one factor in its admissions decisions
  • Maintaining an integrated school system is a national policy sufficiently important to be deemed compelling

   

  Document	Date
  Court of Appeals En Banc Decision, reported at 269 F.3d 305	09/21/01
  Petition for Rehearing En Banc Granted	01/17/01
  Court of Appeals Decision, reported at 233 F.3d 232	11/30/00
  Brief as Amicus	03/08/00

• City of San Jose v. Hi-Voltage Wire Works, Inc. (Supreme Court of California) -- Amicus

  • Where a municipality can identify its own race discrimination, it has not only the power but the duty under the federal constitution and statutes to eradicate the effects of that discrimination
  • Where race-neutral means prove unsuccessful in remedying the effects of race discrimination, race-based measures must be used as a last resort to remedy fully the effects of past discrimination
  • State law prohibiting use of race-based remedies under all circumstances will be preempted when U.S. Constitution or federal statutes requires such remedies

   

  Document	Date
  Court of Appeals Decision, reported at 101 Cal. Rptr. 2d 653	11/30/00
  Brief as Amicus	01/04/00

• Smith v. University of Washington Law School (9th Cir.) -- Amicus

  • University may consider race as one factor in its admissions decisions in order to enroll a diverse student body

   

  Document	Date
  Court of Appeals Decision, reported at 233 F.3d 1188	12/04/00
  Brief as Amicus	09/16/99

• Brewer v. West Irondequoit Central School District (2d Cir.) -- Amicus

  • School districts have a compelling interest in reducing racial isolation in elementary and secondary schools
  • Race-conscious transfer policy narrowly tailored when race-neutral assignment policies have been insufficient to reduce or halt increasing levels of racial isolation

   

  Document	Date
  Court of Appeals Decision, reported at 212 F.3d 738	05/11/00
  Brief as Amicus	04/22/99

• Eisenberg v. Montgomery County Public Schools (4th Cir.) -- Amicus

  • School districts have a compelling interest in reducing racial isolation in elementary and secondary schools
  • Race-conscious transfer policy narrowly tailored when race-neutral assignment policies have been insufficient to reduce or halt increasing levels of racial isolation

   

  Document	Date
  Certiorari Denied, reported at 529 U.S. 1019	03/20/00
  Court of Appeals Decision, reported at 197 F.3d 123	10/06/99
  Brief as Amicus	01/19/99

• Tuttle v. Arlington County School Board (4th Cir.) -- Amicus

  • School districts have a compelling interest in promoting racial integration in elementary and secondary schools
  • Use of family income or students' first language as criteria in the selection of students does not trigger strict scrutiny unless school district intended to use a proxy for race or national origin

   

  Document	Date
  Dismissed, reported at 529 U.S. 1050	03/28/00
  Court of Appeals Decision, reported at 195 F.3d 698	11/01/99
  Brief as Amicus	07/21/98

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