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No. 00-730. Argued October 31, 200l-Decided November 27, 2001

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

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


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

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

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

Solicitor General Olson argued the cause for respondents.

With him on the brief were Assistant Attorney General Boyd, Deputy Solicitor General Clement, Jeffrey A. Lamken, Mark L. Gross, Teresa Kwong, Paul M. Geier, Peter J. Plocki, Peter S. Smith, and Edward v: A. Kussy. *

*Briefs of amici curiae urging reversal were filed for the Associated General Contractors of America, Inc., by John G. Roberts, Jr., and Michael E. Kennedy; for the Center for Individual Rights by Michael E. Rosman; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for GEOD Corp. et al. by Martin S. Kaufman and Briscoe R. Smith; and for the Pacific Legal Foundation et al. by John H. Findley and Sharon L. Browne.

Briefs of amici curiae urging affirmance were filed for the City and County of Denver by Eileen Penner and J. Wallace Wortham, Jr.; for the Lawyers' Committee for Civil Rights Under Law et al. by John A. Payton, Charles T. Lester, Jr., Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Steven R. Shapiro, Christopher A. Hansen, Antonia Hernandez, Dennis C. Hayes, and Elliot M. Mincberg; for the NOW Legal Defense and Education Fund et al. by Martha F. Davis and Mitchell A. Lowenthal; for the Minority Business Enterprise Legal Defense and Education Fund, Inc., et al. by Bradley S. Phillips, Paul J. Watford, and Fred A. Rowley, Jr.; for the NAACP Legal Defense and Educational Fund, Inc., by Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, James L. Cott, and Robert H. Stroup; for the National League of Cities et al. by Richard Ruda, James I. Crowley, and Robert Brauneis; for the Office of Communication of the United Church of Christ et al. by David Honig and Shelby D. Green; for the Women First National Legislative Committee et al. by Edward W Correia; and for Senator Max Baucus et al. by Mr. Correia.

Briefs of amici curiae were filed for the National Asian Pacific American Legal Consortium et al. by Mark A. Packman, Jonathan M. Cohen,

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Powered by Justia US Supreme Court Center: ADARAND CONSTRUCTORS, INC. v. MINETA, SECRETARY OF TRANSPORTATION, ET AL - 534 U.S. 103 (2001)

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