Recent and Pending Contracting Cases

Case Name Court Type of Program Status Holding
Concrete Works of Colorado v. City and County of Denver, 321 F.3d 950 (2003) 10th Cir. Local • 10th Circuit decision, 2/23/03
• Supreme Court denied cert, 11/17/03, 124 S. Ct. 556 (2003). 		Upheld program:

• The city does not need to prove discrimination; it can offer strong evidence from which an inference of past or present discrimination could be drawn (970). That strong evidence can consist of statistical and anecdotal evidence alone.
• Did not reach narrow tailoring – had been decided at earlier state of litigation and not appealed.
Sherbrooke Turf, Inc., v. Minn. DOT.
Gross Seed Co. v. Nebr. Dept. of Roads., 345 F.3d 964 (2003) 		8th Cir. US • 8th Circuit decision, 5/15/03
• Supreme Court denied cert, 5/17/04 		Upheld program on face and as applied by both Nebraska and Minnesota:

• Compelling interest was unquestioned. Narrow tailoring: Federal regs emphasized using race-neutral means to increase minority business participation, contained substantial flexibility, tied the program’s goals to the relevant labor markets, and took steps to minimize the race-based nature of the program.  Program also narrowly tailored as applied because each state had attempted to discern the appropriate participation level and set its goals accordingly.
Northern Contracting, Inc. v. Illinois, 2004 U.S. Dist. LEXIS 3226; No. 00-CV-4515 N.D. III. US • Summary judgment granted to federal, 3/3/04
• Trial began 10/19/04
• Post trial briefs due by 1/7/05
• Trial Continued to 2/4/05
• Argument set for 2/11/05 		Upheld on face; no summary judgment on application

• Appeal re sjm of fed def. pending
• The federal program advanced a compelling interest and was narrowly tailored.
• There remains a material issue of fact as to whether the program as applied by Minnesota is narrowly tailored to advance the federal government’s compelling interest.
Builders Association of Greater Chicago v. City of Chicago, 298 F. Supp. 2d 725 (2003), No. 96-1122 N.D. III. Local • N.D. Ill. Decision, 12/29/03
• (City ordered to pay some fees to plaintiff, 3/8/2004)
• City adopted new ordinance revamping program, effective 6/29/04 		Struck down program

• City had compelling interest in avoiding discrimination, and in preventing its tax dollars from perpetuating a market flawed by past discrimination.
• City's program was not narrowly tailored: no individualized review; no sunset or reevaluation; waivers rarely granted; goals are rigid and not tied to reality; failure to consider race-neutral alternatives (e.g., related to credit) 
• Injunction striking program delayed for 6 months during which city could fashion remedy.
Western States Paving Co. v. Wash. State Dept. of Transp., No. 03-35783 (W.D. Wash. Sept. 3, 2003) W.D. Wash; 9th Cir. US • W.D. Wash. decision, 9/3/2003
• On appeal to 9th Cir.; briefs have been filed. Awaiting calendaring 		Upheld on face and as applied - Appeal Pending

• Under Adarand’s guidance, found fed. interest compelling
• Under Croson and Paradise, examined: (1) efficacy of alternative remedies; (2) flexibility; (3) duration; (4) relationship of numerical goals to local labor market; (5) impact on third parties; (6) over- and under-inclusiveness.  Implementation was narrowly tailored.
Enterprise Flasher Co. v. Mineta, No. 03-198 D. Del. US • Plaintiff filed motion for summary judgment on issue of standing, 4/19/04; defendants have responded,
• P replied, 6/14/04
• Order granting  motion for summary judgment on the Issue of Standing 12/16/04 		Pending

• Challenge to Delaware’s administration of DBE program.
Dynalantic v. U.S. DOD, No. 95-2301 D. DC US • Both parties have filed motions for summary judgment, 10/15/03, and responses, 4/16/04
• Motion hearing set for 8/18/04,
• Order staying the case pending amici brief on pending cross motions for summary judgment   9/22/04
• 1/27/05 Amicus Briefs filed 		Pending

• Challenge to DOD’s administration of SBA’s 8(a) program
Mechanical Contrators Ass’n of Memphis, Inc. v. Memphis-Shelby Cty. Airport Auth., No. 02-2525 W.D. Tenn. Local • Case settled, 3/3/04
• The Memphis BDDP program still exists and under the settlement agreement has only been modified slightly to bring the local program more in line with the federal DBE program. 		Settled

• Challenge to constitutionality of airport authority’s minority and women contracting program
Florida AGC v. State of Florida, No. 4:03CV59 N.D. Fla. Local • Granted plaintiff’s motion for summary judgment, 2/6/04. However, the parties had simultaneously come to an amicable settlement. Parties moved to stay proceedings, 2/20/04
• Plaintiff dismissed action, 3/26/04 		Settled

• Challenge to Florida’s minority and women contracting program.
H.B. Rowe, Co. v. W. Lyndo Tippett and NC DOT, No. 5:03-cv-278 E.D. N.C. Local • Discovery set to conclude on 5/27/04
• Motion filing deadline, 10/15/04 		Pending

• Challenge to constitutionality of NC highway program for women and minority contractors
Associated Utility Contractors v. City of Baltimore, 01-1508 D. Md. Local • Settled, 10/22/03
• Program remains intact with the addition of an Advisory Committee designed to provide advice in matters affecting annual goals and disparities in the availability and utilization of MBEs and WBEs. 		Settled

• Challenge to Baltimore’s MBE program
Hershell Gill Consulting Engineers, Inc. v. Miami-Dade County, Fl, No. 98-2300-CIV-Jordan, 2004 U.S. Dist. LEXIS 17197 (S. D. Fl. 2004) S.D. Fla. Local • District Court decision on 8/24/04 Struck down program

• Defendants were permanently enjoined from using gender, racial or ethnic criteria in deciding whether to award A&E contracts. 
• An expert’s conclusion that there was discrimination against women and Hispanics in the A&E areas was based on unreliable and inaccurate data.
• Programs were not narrowly tailored or substantially related to the interest of remedying discrimination.
Behavioral Interventions v. Missouri Office of Administration, No.   4:2004cv00872 W.D. Mo. Local • Order granting plaintiffs preliminary injunction, 1/24/2005 Pending

• Court granted preliminary injunction to cease all MBE and WBE programs in MO until final outcome of trial.

State Cases

Case Name Court Type of Program Status Holding
Coral Construction, Inc. v. City and County of San Francisco, No. 421249 CA Superior Local • Order Granting Plaintiffs Summary Judgment, 7/26/04 Struck down program - City plans to appeal

• City’s MWBE program violates Proposition 209
• Prop 209 bans all race- and sex-based programs irrespective of the good will and moral position behind the program.
C&C Construction v. Sacramento Municipal Utility District, et al., 2004 Cal. App. LEXIS 1529 (Ca. Ct. App. 2004). CA Appeals Court Local • Order Affirming the trial court’s judgment and permanent injunction in favor of the plaintiff contractor. • Supreme Court denied appeal Struck down program

• San Francisco Municipal Utility District (SMUD) affirmative action contracting program violates Proposition 209
• There was no evidence that SMUD was in jeopardy of losing federal funding if it discontinued its affirmative action program.
• SMUD cannot impose race-based affirmative action before attempting to use racial-neutral measures to eradicate past discrimination.
Want more information?
MBELDEF deeply appreciates your interest, participation, and assistance. Please direct any individual inquiries to Kimberly A. Pumphrey, Special Assistant.