OCTOBER TERM, 2001
Syllabus
ADARAND CONSTRUCTORS, INC. v. MINETA, SECRETARY OF
TRANSPORTATION, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
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
104
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,
105
PER CURIAM.
We granted certiorari to review for a second time whether the
Court of Appeals was correct when it concluded that the Department
of Transportation's (DOT's) Disadvantaged Business Enterprise (DB
E) program is consistent with the constitutional guaranty of equal
protection. But upon full briefing and oral argument we find that
the current posture of this case prevents review of that important
question. To address it would require a threshold inquiry into
issues decided by the Court of Appeals but not presented in the
petition for certiorari. We therefore dismiss the writ of
certiorari as improvidently granted.
Six years ago in Adarand Constructors, Inc. v. Pena,
515 U. S. 200 (1995)
(Adarand I), we held that strict scrutiny governs whether
race-based classifications violate the equal protection component
of the Fifth Amendment's Due Process Clause. See
id., at 235
("Federal racial classifications, like those of a State, must serve
a compelling governmental interest, and must be narrowly tailored
to further that interest"). We remanded for a determination whether
the race-based components of the DOT's DBE program could survive
this standard of review.
On remand, the District Court for the District of Colorado found
that no such race-based component then in operation could so
survive. Adarand Constructors, Inc. v. Pena, 965 F. Supp. 1556
(1997). The Court of Appeals vacated the District Court's judgment,
reasoning that petitioner's cause of action had been mooted because
the Colorado Department of Transportation had recently certified
petitioner as a DBE. Adarand Constructors, Inc. v. Slater,
169 F.3d
1292, 12961297 (CAlO 1999). Finding it not at all clear that
petitioner's certification was valid under DOT regulations, we
again
and Vincent A. Eng; for Social Science and Comparative Law
Scholars by Clark D. Cunningham; for the Southeastern Legal
Foundation, Inc., by Walter H. Ryland and Valle Simms Dutcher; and
for L. S. Lee, Inc., by Mr. Ryland.
106
granted certiorari, reversed the Court of Appeals, and remanded
for a determination on the merits consistent with Adarand 1.
Adarand Constructors, Inc. v. Slater,
528 U. S. 216 (2000) (per
curiam).
Following the submission of supplemental briefs addressing
statutory and regulatory changes that had occurred since the
District Court's 1997 judgment favorable to petitioner, the Court
of Appeals affirmed in part and reversed in part.
228 F.3d
1147 (CAlO 2000). The Court of Appeals agreed with the District
Court that the DOT's DBE program was unconstitutional as it was
administered in 1997. It further agreed that the automatic use of
financial incentives to encourage the award of subcontracts to
DBEs, as originally contemplated by the DOT's Subcontractor
Compensation Clause (SCC) program, was "unconstitutional under
Adarand [1's] strict standard of scrutiny." Id., at 1187. The
Secretary of Transportation never challenged these rulings and has
since discontinued any and all use of the SCC program. Brief for
Respondents 2, 10, 13, 20, n. 3, 23. See also 228 F. 3d, at 1194
("The government maintains, and Adarand does not dispute, that the
SCC, which spawned this litigation in 1989, is no longer in use");
Tr. of Oral Arg. 25 ("[SCCs] ha[ve been] abandoned in all respects,
[they] have not been justified, and the United States Government is
not employing [them]").
The Court of Appeals next turned its attention to new
regulations issued by the Secretary of Transportation under the
Transportation Equity Act for the 21st Century (TEA21), §
1101(b)(1), 112 Stat. 113. See 49 CFR pt. 26 (1999). These
regulations pertain almost exclusively to use of federal funds for
highway projects let by States and localities, which the Court of
Appeals found to be the only "relevant" aspect of the DBE program
under review. 228 F. 3d, at 1160. The Court of Appeals further
noted that petitioner either lacked standing or had waived its
right to challenge any other race-conscious program. Ibid. Finally,
the
107
Court of Appeals held that, by virtue of the new regulatory
framework under which the DOT's state and local DBE program now
operates, that program passed constitutional muster under Adarand
1. 228 F. 3d, at 1176-1187.
We again granted certiorari to decide whether the Court of
Appeals misapplied the strict scrutiny standard announced in
Adarand 1. 532 U. S. 941 (2001). We anticipated that we would be
able to review the same "relevant program" that was addressed by
the Court of Appeals.1 But since certiorari was granted there has
been a shift in the posture of the case that precludes such
review.
Both parties agree that the Court of Appeals confined its
opinion to the constitutionality of the DOT's DBE program as it
pertains to the use of federal funds for highway projects let by
States and localities. See Brief for Petitioner 15-17; Brief for
Respondents 19-23. It is clear from its opinion that the Court of
Appeals considered no other programs; its strict scrutiny analysis
relies almost exclusively on regulations designed to channel
benefits, through States and localities, to firms owned by
individuals who hold themselves out to be socially and economically
disadvantaged. See 228 F. 3d, at 1176-1188. These regulations
clearly permit the award of contracts based on raceconscious
measures in jurisdictions where petitioner operates, and, as the
Government concedes, provide petitioner with a potential basis for
prospective relief, at least to the extent petitioner challenges
them. Brief for Respondents 3.
It appeared at the certiorari stage that petitioner was indeed
challenging these statutes and regulations. Nothing
1 We granted certiorari to review the following questions:
"1. Whether the Court of Appeals misapplied the strict scrutiny
standard in determining if Congress had a compelling interest to
enact legislation designed to remedy the effects of racial
discrimination?
"2. Whether the United States Department of Transportation's
current Disadvantaged Business Enterprise program is narrowly
tailored to serve a compelling governmental interest?" 532 U. S.
968 (2001).
108
in the petition for certiorari contested the Court of Appeals'
determination that petitioner lacked standing to challenge the
statutes and regulations relating to any other raceconscious
program. The petition for certiorari simply noted the Court of
Appeals' determination on this ground as a matter of fact, without
further comment. Pet. for Cert. 4, nn. 2, 3.
Petitioner now asserts, however, that it is not challenging any
part of DOT's state and local procurement program. Instead, it
claims to be challenging only the statutes and regulations that
pertain to DOT's direct procurement of highway construction on
federal lands. Brief for Petitioner 12-17. But the statutes and
regulations relating to direct procurement are quite different from
the statutes and regulations reviewed by the Court of Appeals. In
particular, while procurement by States and localities is governed
by the regulations issued by the Secretary of Transportation under
TEA-21, direct federal procurement is governed by the Small
Business Act, including §§ 8(d)(4)-(6), as added by § 211 of Pub.
L. 95-507, 92 Stat. 1768, and as amended, 15 U. S. C. §§
637(d)(4)-(6) (1994 ed. and Supp. V), and the regulations
promulgated thereunder, 48 CFR pt. 19 (1998).
This shift in posture requires dismissal of the writ for two
reasons. First, the Court of Appeals has not considered whether the
various race-based programs applicable to direct federal
contracting could satisfy strict scrutiny. See 228 F. 3d, at 1189,
n. 35 ("There is no indication from any of the parties in their
briefs or elsewhere that the particular requirements of paragraphs
(4)-(6) of § 8(d) are at issue in the instant lawsuit") (citing 15
U. S. C. §§ 637(d)(4)-(6) (1994 ed. and Supp. IV)); see also 228 F.
3d, at 1188-1189, n. 32 ("The parties have not addressed paragraph
(4) of § 8(d) at all, and ... we do not address it in great
detail"). The Government also has not addressed such programs in
its brief on the merits. Brief for Respondents 38-50. Petitioner
urges us to take on this task ourselves, and apply
109
strict scrutiny in the first instance to a complex web of
statutes and regulations without benefit of any lower court review.
But in Adarand I, 515 U. S., at 238-239, we said that application
of our strict scrutiny standard "should be addressed in the first
instance by the lower courts." We ordinarily "do not decide in the
first instance issues not decided below." National Collegiate
Athletic Assn. v. Smith,
525 U. S. 459, 470
(1999). See also Glover v. United States,
531 U. S. 198, 205 (2001)
("In the ordinary course we do not decide questions neither raised
nor resolved below"); Youakim v. Miller,
425 U. S. 231 (1976) (per
curiam) (same).
Second, to reach the merits of any challenge to statutes and
regulations relating to direct federal procurement would require a
threshold examination of whether petitioner has standing to
challenge such statutes and regulations. Petitioner has sought to
show that it does have such standing, but this showing was not made
(and no argument was ever advanced) until three weeks before oral
argument. It was made then in a reply brief submitted with a
lodging of voluminous evidence that has never been presented to any
lower court. Reply Brief for Petitioner 1-9. The Government has
responded with a lodging of its own, contending that no
race-conscious measures are used for direct procurement in any
jurisdiction in which petitioner does business.2 Whatever the
merits of these competing positions, the petition for certiorari
nowhere disputed the Court of Appeals' explicit
2 The Government states that a "Benchmark Study" completed by
the Department of Commerce, see 64 Fed. Reg. 52806 (1999); 63 Fed.
Reg. 35714 (1998), prohibits the use of race-conscious mechanisms
for direct federal procurement of highway construction projects in
any State other than Alabama, Mississippi, Louisiana, Arkansas,
Kentucky, Tennessee, Texas, and Oklahoma, in none of which does
petitioner conduct operations. Brief for Respondents 8-10, 22. At
oral argument, the Government stated its view that the §§
8(d)(4)-(6) programs in their current form would not meet the
constitutional requirement of "narrow tailoring" if used in
jurisdictions where the Benchmark Study has found no disparity
suggesting discrimination or its continuing effects. Tr. of Oral
Arg. 29-30.
110
holding that petitioner lacked standing to challenge the very
provisions petitioner now asks us to review. 228 F. 3d, at 1160
("Nor are we presented with any indication that Adarand has
standing to challenge paragraphs (4)-(6) of 15 U. S. C. §
637(d)").
We are obliged to examine standing sua sponte where standing has
erroneously been assumed below. See Steel Co. v. Citizens for
Better Environment,
523 U. S. 83, 95 (1998) ("
'[I]f the record discloses that the lower court was without
jurisdiction this court will notice the defect, although the
parties make no contention concerning it''') (quoting United States
v. Corrick,
298 U. S.
435, 440 (1936)). But we do not examine standing sua sponte
simply to reach an issue for which standing has been denied
below-exactly what petitioner asks that we do here. See, e. g.,
Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp.,
510 U. S. 27,
31-32 (1993) (per curiam) (discussing this Court's Rule 14.1(a) and
the "heavy presumption" against reaching threshold questions not
presented in the petition for certiorari (internal quotation marks
and citations omitted)).
"Mindful that this is a court of final review and not first
view," Matsushita Elec. Industrial Co. v. Epstein,
516 U. S. 367, 399 (1996)
(GINSBURG, J., concurring in part and dissenting in part), we thus
decline to reach the merits of petitioner's present challenge.
Petitioner points out that this case presents questions of
fundamental national importance calling for final resolution by
this Court. But the importance of an issue should not distort the
principles that control the exercise of our jurisdiction. To the
contrary, "by adhering scrupulously to the customary limitations on
our discretion regardless of the significance of the underlying
issue, we promote respect ... for the Court's adjudicatory
process." Adams v. Robertson,
520 U. S. 83, 92, n. 6
(1997) (per curiam) (internal quotation marks omitted). We also
"ensure that we are not tempted to engage in ill-considered
111
decisions of questions not presented in the petition." Izumi
Seimitsu, supra, at 34.
For the foregoing reasons, the writ of certiorari is dismissed
as improvidently granted.
It is so ordered.
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