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(A
version of this article will appear in the California
Construction Law Reporter, published by the West Group.)
By James Acret
It is no small matter to deprive a litigant of the rewards
of its efforts, particularly in a case that has been litigated
up to this Court and back down again. Such action on grounds
of mootness would be justified only if it were absolutely
clear that the litigant no longer had any need of the
judicial protection that it sought.
Thus
did the United States Supreme Court explain its reasoning
in permitting Adarand Constructors to continue to defend,
on appeal, its favorable District Court judgment in which
the Department of Transportation had been enjoined from
using race as a basis for determining that a small business
was disadvantaged and therefore entitled to preference in
competing for federal contract work. Adarand Constructors,
Inc. v. Rodney Slater, Secretary of Transportation, __ U.S.
__, 2000 Daily Journal D.A.R. 373 (2000)
The Supreme Court held, in Adarand I (Adarand Constructors,
Inc. v. Pena, Secretary of Transportation, 515 U.S. 200
(1995)) that race-based measures must be subjected to strict
scrutiny and narrowly tailored. On remand the District Court
held that federal regulations were not narrowly tailored
because they require officials to presume that persons who
are black, Hispanic, Asian Pacific, Subcontinent Asian,
Native American or female are socially disadvantaged and
that this presumption is over-inclusive because it includes
members of those groups who are not disadvantaged and also
under-inclusive because it excludes members of other groups
who are disadvantaged.
The Department of Transportation
appealed from the decision of the District Court. Thereafter,
the State of Colorado amended its guidelines in response
to Adarand I, did away with the presumption of social disadvantage
and certified Adarand as socially disadvantaged. Upon hearing
this, the Tenth Circuit held that the cause of action was
moot, vacated the District Court's judgment and dismissed
the appeal. REVERSED.
The Tenth Circuit confused mootness with standing. Voluntary
cessation of challenged conduct moots the case only if it
is absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur. Here, the Colorado
procedures have not been formally accepted by the DOT, and
they are patently incompatible with the DOT regulations
and therefore it is far from clear that the DOT will accept
Adarand as disadvantaged especially since the Tenth Circuit,
by vacating the judgment of the District Court, has eliminated
the sole basis for petitioner's certification in the first
place.
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To learn more about Thelen Reid's Construction and Government Contracts Department, click here. For more information about books and other legal materials written by James Acret, click here and enter "Acret" in the Search Products Field. To learn more about topics covered in this article, contact Paul Berning at (415) 369-7229 or at pwberning@thelen.com.
©2000 Thelen Reid Brown Raysman & Steiner LLP
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