Mountain States Legal Foundation Logo

Active Cases

All Cases

Case Locations (click on the blue States to view the case list)

case-map.jpg 
Alaska California Idaho Nevada Montana Wyoming Utah Arizona Colorado New Mexico Texas Michigan New York Washington, D.C. Pennsylvania Arkansas North Dakota Ohio Oregon South Dakota Minnesota Wisconsin North Carolina Louisiana

Rothe Development Inc. v. U.S. Department of Defense

Why We Fight:

Justice Scalia’s vision that, “In the eyes of government we are just one race here.  It is American” is not yet the rule of the law as to how the federal government issues government contracts.

Summary:

Even though the Constitution bars discrimination based on race, the Small Business Administration has a program for granting federal contracts that does just that.

Legal Question:

Whether the United States may engage in racially discriminatory contracting in its procurement and contracting practices?

Plaintiff:

Rothe Development, Inc.

Defendants:

United States Department of Defense and Small Business Administration

Court:

Supreme Court of the United States

A decision by the Supreme Court of the United States on whether to grant the petition.

 

Rothe Development, Inc., a Texas corporation that bids on and performs contracts for computer systems and programming services, often bids for contracts with government agencies, including the U.S. Department of Defense (DOD) and branches of the military, to service computer systems.  In 1998, Rothe lost a bid for a DOD contract to another company, despite being the low bidder, because the contract was awarded pursuant to a race-based program.  In 2008, the United States Court of Appeals for the Federal Circuit ruled that the race-based program, on its face, as reenacted in 2006, violates the equal protection component of the Due Process Clause of the Fifth Amendment to the Constitution. 

Unfortunately, the DOD continues to award contracts on the basis of race-base through use of Section 8(a) of the Small Business Act, which sets a “government wide goal” that “not less than 5 percent of the total value of all prime [federal] contract and subcontract awards for each fiscal year” be awarded to socially and economically disadvantaged small business concerns.  The Small Business Administration (SBA) is authorized to contract with DOD to provide goods and services and then to subcontract that work to qualifying businesses, either on a “sole source” or on a “competitive” basis; most of the DOD Section 8(a) contracts are sole source.  To participate in the program, a firm must be 51 percent owned and controlled by socially and economically disadvantaged individuals, defined to include “Black[,] Hispanic[,] Native[,] [and] Asian Pacific Americans  . . . and other minorities”).

On May 9, 2012, Rothe filed its federal lawsuit.  On May 23, 2014, MSLF filed its friend of the court brief.  On June 16, 2014, the DOD and the SBA filed a cross-motion for summary judgment and a response to Rothe’s motion for summary judgment.  On July 18, 2014, Rothe filed a response and a reply in support of its motion for summary judgment.  On August 1, 2014, the DOD and the SBA filed a reply in support of its cross-motion for summary judgment.  On October 20, 2014, oral arguments were held.  On June 5, 2015, the federal district court upheld the use of race by the DOD and the SBA.

On July 2, 2015, Rothe appealed to the United States Court of Appeals for the District of Columbia Circuit.  On October 13, 2015, Rothe filed its opening brief.  On October 28, 2015, MSLF filed an amicus curiae brief in support of Rothe.  On January 21, 2016, the DOD and the SBA filed their response brief.  On January 21, 2016, the DOD and SBA filed their response brief.  Rothe filed its reply brief on February 4, 2016.  The court of appeals held oral argument on March 10, 2016.  On September 9, 2016, a three-judge panel, in a 2-1 decision, held that the challenged provisions of the Small Business Act did not contain a racial classification and that it survived rational basis review.  

On October 18, 2016, Rothe filed a petition for rehearing en banc.  On October 21, 2016, the D.C. Circuit requested a response from the DOD and the SBA.  The DOD and the SBA filed their response on November 8, 2016.  On January 13, 2017, the D.C. Circuit denied the petition for rehearing en banc.  On January 27, 2017, MSLF agreed to represent Rothe before the Supreme Court of the United States.

On April 13, 2017, MSLF filed Rothe’s petition for writ of certiorari.  On May 10, 2017, the Supreme Court extended the time for a responsive pleading to June 16, 2017. On July 7, 2017, the Acting Solicitor General of the United States filed his opposition to the petition. On July 25, 2017, MSLF filed Rothe’s reply brief. 

 

 

  • Western Legal Foundation Renews Pursuit of End to Race-Based Federal Contracting

    Jul 25, 2017
    A nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States today replied to a brief filed by the Acting Solicitor General of the United States opposing a writ of certiorari by a Texas company that suffered defeats in its attempt to end the federal government’s use of race to award contracts as unconstitutional, both before a federal district court and a court of appeals.
  • Western Legal Foundation Seeks End to Race-Based Awarding of Federal Contracts

    Apr 13, 2017
    A nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States today filed a petition for writ of certiorari on behalf of a Texas company that suffered defeats in its attempt to end the federal government’s use of race to award contracts as unconstitutional, both before a federal district court and a court of appeals.
  • Western Legal Foundation Seeks Return to Supreme Court on its Landmark Victory

    Jan 27, 2017
    A nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States today announced its representation of a Texas company that suffered defeats in its attempt to end the federal government’s use of race to award contracts as unconstitutional, both before a federal district court and a court of appeals.
  • Appeals Court Fails To Rehear Erroneous Race-Based Contracting Ruling

    Jan 13, 2017
    A nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States today bemoaned the refusal of a federal appeals court to rehear the ruling of a three-judge panel that failed to end the federal government’s use of race to award contracts as unconstitutional and thus overturn an earlier ruling by a federal district court.
  • Appeals Court Fails To Strike Down Race-Based Contracting

    Sep 9, 2016
    A nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States today bemoaned the refusal of a federal appeals court to strike down the federal government’s use of race to award contracts as unconstitutional and thus overturn an earlier ruling by a federal district court.
  • Appeals Court Must Strike Down Race-Based Contracting

    Oct 28, 2015
    A nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States today urged a federal appeals court to strike down the federal government’s use of race to award contracts as unconstitutional and thus overturn an earlier ruling by a federal district court.
  • Federal Court Upholds Race-Based Contracting

    Jun 5, 2015
    The federal government’s use of race to award contracts is constitutional a federal district court ruled today rejecting arguments made by a nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States.
  • Federal Race-Based Contracting Is Unconstitutional

    May 23, 2014
    The federal government’s use of race to award contracts is unconstitutional a federal district court was told today by a nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States.


Help protect constitutional liberties and private property rights, and promote limited and ethical government and the free enterprise system:

Donate Here