Opposition Brief — S. J. Groves & Sons Co. v. Fulton County

Supreme Court, US |

a FILED

No. 90-1562 ~~ MAY 8 199]

BEFICE GF THE couse |

IN THE

Supreme Court of the Wnited States

OcTOBER TERM, 1990

ss

S.J. GROVES & SONS COMPANY AND

JASPER CONSTRUCTION COMPANY,

Petitioners,

V.

FULTON COUNTY, GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

THE ELEVENTH CIRCUIT

>

RESPONDENT'S BRIEF IN OPPOSITION

ys

>

KeITH M. WIENER

WEBB & DANIEL

Suite 3100, IBM Tower

One Atlantic Center

1201 West Peachtree St., N.W.

Atlanta, Georgia 30309-3400

(404) 881-0433

Counsel of Record for Respondent

LinDA K. THOMPSON

WEBB & DANIEL

Atlanta, Georgia

Attorneys for Respondent

Lex Publishing Company, 2161 Monroe Dr., Atlanta, Georgia 30324 (404) 875-5140

i

QUESTIONS PRESENTED FOR REVIEW

(1) Whether the United States Department of

Transportation (“DOT”) was authorized to promulgate 49

Code of Federal Regulations, Part 23 (hereinafter “49

C.F.R. Part 23”)?!

(2) Whether an intermediate level of scrutiny is the

appropriate standard to evaluate the validity of DOT

regulations authorized by Congress, which require State

and local government recipients of federal funds

pursuant to federal grant agreements to adopt a Minority

Business Enterprise program (hereinafter “MBE”

program) utilizing goal percentages?

(3) Whether an intermediate level of scrutiny is the

appropriate standard to evaluate the validity of Fulton

County’s 1982-1987 MBE program adopted and developed

solely in compliance with DOT Regulations and pursuant

to a federal grant agreement?

' Respondent Fulton County, Georgia (hereinafter "Fulco") does not

agree with Question No. 1 presented by Petitioner to the extent it

suggests 49 C.F.R., Part 23 requires stace and local governments to

establish a quota or set-aside for awarding contracts solely on the basis

of race or ethnic origin.

ii

LIST OF INTERESTED PARTIES

The parties to the proceedings below are the

following:

Petitioners: S.J. Groves & Sons Company

Jasper Construction Company

(Jasper Construction Company is a

wholly owned subsidiary of S.J. Groves

& Sons Company)

Responde it: Fulton County, Georgia

The United States Department of Transportation was

a party in the District Court and an appellant in the Court

of Appeals. On September 28, 1989, the Eleventh Circuit

dismissed the United States Department of

Transportation pursuant to its motion for voluntary

dismissal.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.0ceccsccc. ossssssseeesee

LIST OF INTERESTED PARTIES. c..scsocssscccsscssssessssoseeevssseee ii

TABLE OF CONTENTS. .ccssscssscosssssssessssssssssssssessesesssseense iii

TABLE OF AUTHORITIES ...cccccccssscccossssesssssssesssesseesnsesevvenes v

OPINIONS BELOW .vscccscccssccssssssessesssssssssssessnsssvnsesevnssenee i

JURISDICTIONAL STATEMENT o..sscccssccosessccsssevseeesnsseeeve 1

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED. vscccssccossssssesscseeesee oi

STATEMENT OF THE CASE.....cccccssscosssscccsssccscssccsscsseecees 6

REASONS FOR DENYING THE WRIT ..ssscsccosssssssssesseee 11

. The Eleventh Circuit Correctly Held That

Congress Authorized The DOT Regula-

tions, And Therefore, They Have The Force

ESSEC 11

II. The Eleventh Circuit Correctly Held That

An Intermediate Level Of Scrutiny Is The

Appropriate Standard To Determine The

Constitutionality Of The DOT Regulations....... 18

Il. The Eleventh Circuit Correctly Held That

Metro Broadcasting Applies In Determin-

ing The Constitutionality Of Federal

Regulations In Public Contracting ...........0........ 23

iv

IV. The Eleventh Circuit Correctly Held That

The Implementation By Local Govern-

ments Of A MBE Program Pursuant To A

Federal Grant Agreement Adopted Solely

In Compliance With Congressionally

Authorized Federal Regulations Should Be

Evaluated Under An Intermediate Level Of

STII iccsnsatnestinasnecnemnenneianunanronnviebvesinnenamacsnaninnnseinn 24

V. Supreme Court Review Of This Action Is

PIII. scascsisasicninnenennsntaivisateiiiniesanetan vaapoasabhelae 29

ce aie ctinsicinisanvcsnnsiscensentnensneeonainntieieniihadiiduenlaboasniiang 30

APPENDIX

A. 122 Cong. Rec. 8200 (March 25, 1976)

(statement of Sen. Beall)..............:sseseeee App. 1A

B. 121 Cong. Rec. 41802 (December 18, 1975)

(statement of Rep. Dellums)...................+. App. 1B

Vv

TABLE OF AUTHORITIES

CASES

Associated General Contractors of California v. City and

County of San Francisco,

Se te I I, WO oa cccncesaressdcsanbaissacciniundnbomsbilen 22

Bowsher v. Merck & Co.,

RE REE nn. ee Se ee INE, EN eR 15

Brotherhood of Locomotive Firemen v. Bangor &

Arrostook Railroad,

aati heisssckhicisanniacssncnnisgneiacsstsesamantomnbvesanses 29

Chrysler Corp. v. Brown,

od id caine nioonsauneetinbil 11

City of Richmond v. ].A. Croson Co.,

ci iscarsnctabsannsntnsoeiaestnbowes aacaticn passim

Ernst & Ernst v. Hochfelder,

I ierinicspsecsnncnidncicssnicoskcionkas puhcipelihnaninscil 16

Fullilove v. Klutznick,

a deccseesaeinnsivininessscseninidnnsesenenisunisniien passim

Grandfinaciera v. Nordberg,

2 US. ._, DOG L. Beet. 2a 25 (IDG)... nnerceccrcscsssr.cen 17

Hamilton Brown Shoe Co. v. Wolf Brothers & Co.,

toes csiinntanstnrceetektbaneensaveneoasiiaenieininanibintts 29

Katzenbach v. Morgan,

I I iscsessccviosoninntacsnrscstisigioneiohaessiapbncalendsan 27

Lau v. Nichols,

414 U.S. 563 (1974), cited with approval in Fullilove,

Se Be sincebnisactinpencttiieatecshseeaanantynenvdenbten 27, 28

Lewis v. United States,

TCE ee a ES ORCL AO IO 15

vi

M.C. West, Inc. v. Lewis,

522 F. Supp. 338 (M.D. Tenn. 1981)...........:ceseeseseeeees 18

Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Curran,

SOG LID. Fe iets etestsshenitnntine sh testcase vecntsinsnoenenee 18

Metropolitan Broadcasting, Inc. v. F.C.C.,

120 Sa, Fae ee ietrentntiensstieieenisadeandsonnameree passim

Milwaukee County Pavers Assn. v. Fiedler,

710 F. Supp. 1532 (W.D. Wis. 1989),

modified in part, 731 F. Supp. 1395 (1990), aff'd,

FEZ Fe SEF re Wie acencen ssi canstesesenessnnnsnsnssnssesecaes 27

North Haven Board of Education v. Bell,

O36 US. FEE GR esteesttssininsssnccicnteimemsinnien casein eninke 15

Oregon v. Mitchell,

QOD TD. TE ain ctataes titer idinkiniicessercarmnnnmnies 27

Rice v. Rehner,

O63 CUS. Fa er eieieticpeestearseicctanecsedtiesetnntsisisarcenecncpsessenss 15

S.]. Groves & Sons Company v. Fulton County,

20 F.2d TSS CETERA, TOPE) csssnsecsccssrsonsvsesosaesseeens passim

S.J. Groves & Sons Company v. Fulton County, Georgia,

696 F. Supp. 1480 (N.D. Ga. 1987).........0.cceeeees passim

South Dakoia v. Dole,

GBS US. AR Gaara aisisitnerisntnsantanieesetiscacesiatabenanencesesss 25

Tennessee v. Dunlap,

4ab UD: FE nasa eiiniscieneenn: 16

United States v. Rutherford,

GES US, SG irre reat ts easneessdsteniatennsiecsesinorecnsiensssnonenss 17

University of California Regents v. Bakke,

5B US, BRD Ge ates aaccadaraiccechtavidaievinesisiisiniansnsen 22, 23

vii

CONSTITUTION, STATUTES AND REGULATIONS

7 ssheebiebeneibiommanineiationss 2

Ss SUNN SEW gy GUD scseveecsnsencsnanenenssonenecnsncarencssenese 2

Civil Rights Act of 1964, Title VI,

A citeteinnacinieninnnnicrnsnsnaniencasevnorsnn 3, 10, 12, 16

Airport and Airway Improvement Act (“AAIA”) of 1982,

i eetinrccnetansivnennnmnnneatneenpennt aval passim

Airport and Airway Development Act (“AADA”) of 1976,

SPU TP ROME: canrssccnssenenrccessnsnnewicceesenecensenasensnannene passim

Airport and Airway Development Act (“AADA”) of 1970,

OF ae Ie cre cnnecrescensncscnccscenmseneesncee samnsscntimailioen passim

Public Works Employment Act of 1977, § 103(f)(2)

Se OAc sncnsessssnenssnccnesenncensenshensnesncensonteseeh passim

Railroad Revitalization and Regulatory Reform Act of

1976, § 905, Pub. L. 94-210, 90 Stat. 31 (formerly 45

U.S.C. § 803, now codified at 49 U.S.C. § 306)............. 16

Surface Transportation Assistance Act (“STAA”) of 1978,

Pub. L. No. 95-599, 92 Stat. 2689,

49 U.S.C. § 1516(a)(2) (1978) ..cccccscsssvssvsssssssssseseeseesee 20, 21

Oe I i scssnnnnssnnnonaneacacnnsncncnnnnsnnnnnsnnnnn 1

a sscsucsnsanacosanconnessesnnensnansnsnensnenivan 5

O.C.G.A. § 36-10-2.1 (March 26, 1986).......cc.csssssssssssvvvveeseeeeseee 4

NN iii nncccsssaneasannnnnconnsnsonnns 4, 12, 16

49 C.F.R., Part 23 (45 F.R. 21172 et seq., March 31, 1980,

as amended at 46 F.R. 23457 et seq., April 27, 1981,

and as amended at 46 F.R. 60458 et seq.,

December 10, 1981) entitled “Participation by

Minority Business Enterprises in Department

of Transportation Programs” ...............::000e passim

Vili

MISCELLANEOUS

121 Cong. Rec. 41802 (Dec. 19, 1975) ...........csssseseeseseseenes 14,15

122 Cong. Rec. 8200 (Mar. 25, 1976) ..........c.s.cseeseeseeseseee 13, 14

H.R. Rep. No. 95-1485, 95th Cong., 2d Sess., reprinted in

1978 U.S. Code Cong. Ad. News 6575, 6647... 20

S. Rep. No. 94-499, at pages 44 and 45, reprinted in 1976

U.S. Code Cong. & Ad. News 58-59... cececeneeee 16

1976 U.S. Code Cong. & Ad. News 1600, 1602-04, 1608,

Be IE WIE Rice vscnscateninnencirasesecosnnnnibininniniianinencesiien 6

1982 U.S. Code Cong. & Ad. News 1156, 1159, 1161, 1163,

SA IE cath inencnensspssnsonnnrnssnsisnisnimnnanneninannanisncintesenanneina 6

DOT Order 4000.71 (March 6, 1978) ......c.ccccccccccccseeeceeeceees 20, 21

No. 90-1562

IN THE

Supreme Court of the United States

OctoserR TERM, 1990

,™

S.J. GROVES & SONS COMPANY AND

JASPER CONSTRUCTION COMPANY,

Petitioners,

v.

FULTON COUNTY, GEORCIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

~~

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eleventh Circuit is reported at 920 F.2d 752 (11th Cir. 1991), and

is reproduced in Petitioners’ Appendix at App. 1a. The opinion

of the United States District Court is reported at 696 F. Supp.

1480 (N.D. Ga. 1987), and is reproduced in Petitioners’

Appendix at App. 1b. The District Court’s other orders are

unpublished, but are reproduced in the Petitioners’ Appendix

at App. 1d and le.

JURISDICTIONAL STATEMENT

The judgment of the Court of Appeals was entered on

January 7, 1991. Petitioners purport to invoke this Court’s

jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES AND

2

REGULATIONS INVOLVED

U.S. Const., Amend. V:

U.S.

U.S.

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself; nor be deprived of life, limb, or

property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

Const., Amend. XIV, Sec. 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shali abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the law.

Const., Amend. XIV, Sec. 5:

The Congress shall have power to enforce, by

appropriate legislation, the provisions of this

article.

3

42 U.S.C. § 2000(d) (Title VI):

No person in the United States shall, on the

ground of race, color, or national origin, be

excluded from participation in, be denied the

benefits of, or be subjected to discrimination

under any program or activity receiving Federal

financial assistance.

Section 30 of the Airport and Airway Development Act of

1970, as amended by the Airport and Airway

Development Act Amendments (“AADA”) of 1976, 49

U.S.C. § 1730, and as amended by the Airport and Airway

Improvement Act (“AAIA”) of 1982, 49 U.S.C. § 2219.

The Secretary shall take affirmative action to

assure that no person shall, on the grounds of

race, creed, color, national origin, or sex, be

excluded from participating in any activity

conducted with funds received from any grant

made under this chapter. The Secretary shall

promulgate such rules as the Secretary deems

necessary to carry oui the purposes of this

section and may enforce this section, and any

rules promulgated under this section, through

agency and department provisions and rules

which shall be similar to those established and

in effect under title VI of the Civil Rights Act of

1964. The provisions of this section shall be

considered to be in addition to and not in lieu of

the provisions of Title VI of the Civil Rights Act

of 1964.

49 Code of Federal Regulations, Part 23 (45 F.R. 21172 et

seq., March 31, 1980, as amended at 46 F.R. 23457 et seq.,

April 27, 1981, and as amended at 46 F.R. 60458 et seq.,

December 10, 1981) entitled “Participation by Minority

4

Business Enterprises in Department of Transportation

Programs”.

49 C.F.R. § 23.01-23.55 is reprinted in Petitioners’

Appendix at App. 1f.

49 C.F.R. § 21.5(b)\7):

This part does not prohibit the consideration of

race, color, or national origin if the purpose and

effect are to remove or overcome the

consequences of practices or impediments

which have restricted the availability of, or

participation in, the program or activity

receiving Federal financial assistance, on the

grounds of race, color, or national origin. Where

prior discriminatory practice or usage tends, on

the grounds of race, color, or national origin to

exclude individuals from participation in, to

deny them the benefits of, or to subject them to

discrimination under any program or activity to

which this part applies, the applicant or

recipient must take affirmative action to

remove or overcome the effects of the prior

discriminatory practice or usage. Even in the

absence of prior discriminatory practice or usage,

a recipient in administering a program or

activity to which this part applies, is expected to

take affirmative action to assure that no person

is excluded from participation in or denied the

benefits of the program or activity on the

grounds of race, color, or national origin.

O.C.G.A. § 36-10-2.1 (March 26, 1986):

In any county of this state having a population

of 550,000 or more according to the United States

decennial census of 1980 or any future such

5

census, contracts for building or repairing any

courthouse or other public building, jail, bridge,

causeway, or other public works or public

property shall be let to the lowest responsible

bidder, but the governing authority of any such

county shall have the right to reject any or all

bids for any such contract. The governing

authority of any such county, in considering

whether a bidder is responsible, may consider

the bidder’s quality of work, general reputation

in the community, financial responsibility,

previous employment on public works, and

compliance with a minority business enterprise

participation plan or making a good faith effort

to comply with the goals of such a plan.

O.C.G.A. § 36-10-2:

Whenever it becomes necessary to build or

repair any courthouse, jail, bridge, causeway, or

other public works in any county, the county

governing authority shall cause the same to be

built or repaired by letting out the contract

therefor to the lowest bidder, at public outcry,

before the courthouse door, after having

advertised the letting of the contr «ts, as

provided in Code Section 36-10-3, provided that

such county authorities shall have authority to

reject any and all bids at the public letting. If in

their discretion, the public interest and economy

require it, the courity authorities may build or

repair other public property in the county by

contract or sealed proposals, to be invited under

the same provisions as to specifications and like

information as are provided in Code Sections

36-10-3 and 36-10-4.

~~

6

STATEMENT OF THE CASE

This case arises out of a resurfacing project at the

Fulton County (“Fulco”) Airport. The Fulco Airport is

designated as a “reliever airport” by the United States

Federal Aviation Administration (“FAA”). The function

of a reliever airport is to provide facilities to divert as

much general aviation traffic from air carrier airports

such as Hartsfield International Airport as is possible in

the interest of safety to the traveling public using such

fields. Because Fulco’s Airport is a designated “reliever

airport” it is eligible for federal assistance under the

provisions of the Airport and Airway Development Act

of 1970, as amended in 1976 (49 U.S.C. § 1701 et seq.(1976))

(“AADA”), and as amended in 1982 (Airport and Airway

Improvement Act of 1982) (“AAIA”) (49 U.S.C. § 2201 et

seq.).

One of the purposes of the AADA and AAIA was to

make funds available for improvements to reliever

airports because of the critical purpose they serve in

connection with aviation traffic and safety to the

travelling public. 1982 U.S. Code Cong. & Ad. News 1156,

1159, 1161, 1163, 1165, 1175; 1976 U.S. Code Cong. & Ad.

News 1600, 1602-04, 1608, 1611, 1637-1640, 1644. According

to the legislative history of the AADA and AAIA,

“reliever airports” serve a vital role nationwide, and it is

a federal policy to maintain the operation of and improve

reliever airports. Id.

It is with this background that the FAA determined

Fulco’s instrumented runway was in a “rapidly”

deteriorating condition, that it “would soon become

hazardous and unusable” and that the runway would

have to be closed if it was not repaired immediately. The

DOT/FAA also determined that the Airport project “be

furnished a high-priority status to federal funds.” Closing

7

the runway would have resulted immediately in closing

the airport. The undisputed evidence establishes that

because Fulco did not have sufficient funds at that time to

repair the runway, Fulco in order to keep the airport in

operation had no alternative except to apply for a grant

‘from the United States Department of Transportation

(“DOT”) pursuant to the AADA.

As an express condition to approval of the Federal

Grant Agreement from the FAA and the DOT, Fulco was

required to comply with the provisions of the AADA and

the regulations promulgated by the DOT, including the

provisions of 49 Code of Federal Regulations, Part 23 (45

F.R. 21172 et. seq., March 31, 1980 as amended at 46 F.R.

23457 et seq., April 27, 1981 and as amended at 46 F.R.

60458 et seq., December 10, 1981) (hereinafter “49 C.F.R.

Part 23”) entitled “Participation by Minority Business

Enterprises in Department of Transportation Programs”.

The DOT Regulations and Federal Grant required Fulco

to prepare and submit for approval by the FAA a

Minority Business Enterprise (“MBE”) program solely for

the Airport Project. [See Cross-Petitioner Fulco’s

Appendix at 1a]. In compliance with the DOT Regulations

and Federal Grant, Fulco prepared the MBE program for

the Airport Project in 1982.

The MBE percentage goals as required by the DOT

Regulations were based upon the availability of qualified

MBE’s in the area, the type of work involved on a

particular project, and past experience with other MBE

programs. 49 C.F.R. § 23.45(g). A contractor who was

unable to meet those goals, however, could still be

awarded the contract if it exercised good faith efforts to

meet the goals. 49 C.F.R. 23.45(h). Pursuant to the DOT

Regulations, satisfying the MBE goals or making a good

faith effort to meet the goals was a condition of Fulco’s

8

receiving the DOT assisted contract. [Id.]. The Fulco MBE

Program was developed solely to comply with the DOT

Regulations and as an express condition of the Grant

Agreement. Fulco was contractually bound to the

commitments made in the MBE program as approved by

the DOT.

The Fulco 1982 MBE Program was a five-year

program solely for construction at the Fulco Airport. The

DOT/FAA reviewed the Fulco Program and determined

its compliance with 49 C.F.R. Part 23 (in effect in April

1982), including the minority and female percentage

goals. Fulco’s MBE Program was approved by the

FAA/DOT in April 1982.

In approving the Fulco MBE Program the FAA

considered in particular whether the MBE participation

percentage goals set by Fulco were reasonable, practical,

and complied with 49 C.F.R. Part 23.45. It was determined

by the FAA based on this analysis that the Fulco MBE

Program complied with 49 C.F.R. § 23.45. The percentage

goals for the MBE Program were considered reasonable

and attainable and were approved by the FAA. The Fulco

1982 MBE Program complied with the DOT Regulations

in every respect and the Program was submitted to and

approved by the FAA.

The MBE participation percentage given by Groves

with its bid was 4.15%, a number which was not

documented as required by the Bid Specifications. The

second lowest bid received (approximately $22,000 higher

on a $800,000 plus contract) contained the MBE

participation level of 10%. The third lowest bid contained

the MBE participation level of 22%.

Fulco conditionally awarded the contract to Groves

provided that it make a good faith effort to increase its

9

MBE participation pursuant to the DOT Regulations.

Approximately one month later Groves had not

increased its 4.15% MBE participation figure. At its next

regularly scheduled Board Meeting, Fulco determined

that Groves had not used good faith efforts to increase its

MBE participation.

Thereafter, Fulco conditionaily awarded the contract

to the second lowest bidder which had the MBE

participation level of 10% in its original bid. The award

was conditioned upon that bidder's good faith efforts to

increase its MBE participation. Two days following the

conditional award of the contract, it increased its MBE

participation from 10% to 16%. Fulco determined that a

6% increase in two days constituted a good faith effort on

the part of the second lowest bidder, and although it did

not achieve the 22% MBE/FBE goal, it awarded the

contract to the second lowest bidder with the approval of

the FAA.

In its September 30, 1985 Order the District Court,

inter alia, deferred the cross-motions for summary

judgment filed by the parties pending resolution of the

validity of the DOT Regulations, and ordered that the

DOT be joined as a party defendant. [Petitioners’ App. at

1c, 33c]. The District Court concluded that if the DOT

Regulations are valid, they would preempt the Georgia

low-bid statute, even if Fulco violated that statute. [/d.].

Subsequently, the DOT and the Secretary of the DOT

were joined to defend the validity of the DOT

Regulations. The District Court held the DOT Regulations

were invalid. S.J. Groves & Sons Company and Jasper

Construction Company v. Fulton County, Georgia, 696 F.

Supp. 1480 (N.D. Ga. 1987).

10

The District Court also held that Fulco’s 1982 MBE

Program for the Airport Project was invalid. The Court

stated that reliance on valid DOT Regulations would

have provided a defense to Groves’ ciaims against Fulco

since it would preempt the Georgia low-bid statute and

the State Constitution and would be consistent with Title

VI and the Fourteenth Amendment. [Petitioners’ App. at

2d]. However, since the Court held the DOT Regulations

were invalid, the Court held that reliance on the DOT

Regulations by Fulton County did not provide it with a

defense. [Id.].

The Fulco Program contained an overall 20% MBE

and 2% Female Business Enterprise goal concerning all

the projects at the Fulco Airport over a five year period.

The MBE goal is not a quota or a “set-aside”. Fulco may

award any contract on an individual basis to a contractor

who achieved less than 22% participation, and in fact that

is exactly what happened on the Airport Project Groves

bid on. Any Fulco contract for the Airport may contain

less than 20% and even 0% MBE participation depending

on the availability of qualified MBE’s for a particular

coniract.

Fulco in its application of the Program considers

good faith efforts to obtain the goal. If a bidder does not

achieve the goal, it still may receive an award of the

contract if it exercises good faith efforts to achieve that

goal, but is unable to do so. Fulco has an administrative

review procedure in its application of the Program and

considers each contract on an individual basis.?

2 The Fulco 1979 Resolution referred to by Groves in Fulco's Policy

Statement has nothing to do with the claims Groves has asserted

against Fulco relating to the 1982 Fulco MBE Program for projects at

the airport adopted in compliance with the DOT Regulations.

11

REASONS FOR DENYING THE WRIT

I. The Eleventh Circuit Correctly Held That Congress

Authorized The DOT Regulations, And Therefore,

They Have The Force And Effect of Law.

The Eleventh Circuit correctly held that Congress

authorized the DOT to promulgate the DOT Regulations.

S.J. Groves, 920 F.2d at 764. Substantive agency

regulations have the “force and effect of law,” and

therefore preempt state statutes, only when they are

“rooted in a grant of [legislative] power by the Congress

and subject to limitations which that body imposes.”

Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979); S.J.

Groves, 696 F. Supp. 1480, 1483 (N.D. Ga. 1987), aff’d 920

F.2d 752, 764 (11th Cir. 1991). “[I]t is necessary to establish a

nexus between the regulations and some delegation of

the requisite legislative authority by Congress.” Chrysler

Corp., 441 U.S. at 304. “What is important is that the

reviewing court reasonably be able to conclude that the

grant of authority contemplates the regulations.” Id. at

308; S.J. Groves, 920 F.2d at 764; S.J. Groves, 696 F. Supp. at

1483.

The DOT identifies eight sources of authority for the

DOT Regulations. 49 C.F.R. 23.1(b). The Eleventh Circuit

considered only the AADA of 1970 because it concluded

Section 30 of the AADA as amended in 1976 (49 U.S.C. §

1730), and as reenacted (changing the number only) in

1982 in the Airport and Airway Improvement Act (49

U.S.C. § 2219), cuthorizes the DOT to enact its MBE

Contrary to Groves’ assertion, that Resolution did not apply to all

county contracts regardless of the source of funding, and specifically

did not apply to the Airport Project Groves bid on. The only relevance

of the 1979 Resolution is that it shows Fulco made findings of past

discrimination against MBEs.

12

regulations. S.J. Groves, 920 F.2d at 764. Section 30

provides:

The Secretary shall take affirmative action to

assure that no person shall, on the grounds of

race, creed, color, national origin, or sex, be

excluded from participating in any activity

conducted with funds received from any grant

made under this chapter. The Secretary shall

promulgate such rules as the Secretary deems

necessary to carry out the purposes of this

section and may enforce this section, and any

rules promulgated under this section, through

agency and department provisions and rules

which shall be similar to those established and

in effect under title VI of the Civil Rights Act of

1964 [42 U.S.C. 2000 et seq.]. The provisions of

this section shall be considered to be in addition

to and not in lieu of the provisions of title VI of

the Civil Rights Act of 1964.

The Eleventh Circuit found two reasons why Section

30 authorizes the DOT Regulations. First, the actual

language of Section 30 indicates a “broad delegation of

power to the DOT to create regulations necessary to

ensure there is no discrimination by recipients of federal

funds under the AADA.” S.J. Groves, 920 F.2d at 764.

Second, Section 30 “endorses rules similar to those

established under Title VI of the Civil Rights Act of 1964,

42 U.S.C. § 2000d, and those rules condone, and in some

cases require, race-conscious regulations and/or actions.

See 49 C.F.R. § 21.5(b)(7).” Id

3 49 C.F.R. § 21.5(b)(7) provides:

This part does not prohibit the consideration of race, color,

or national origin if the purpose and effect are to remove

13

The Eleventh Circuit and the District Court correctly

concluded that the AADA grants the DOT the authority

to effectuate the Act’s purposes, and those purposes

explicitly condone and in some cases require race-

conscious regulations and/or remedies. S.J. Groves, 920

F.2d at 764; 696 F. Supp. at 1484. Therefore, the DOT acted

within the bounds of properly delegated congressional

authority in promulgating the MBE Regulations.

Senator Beall in introducing the floor amendment to

add Section 30 to the AADA explained his amendment as

follows:

Mr. President, | consider this to be in the nature

of a technical amendment actually but if will

insure minority and female participation in

program activities under the Airport

Development Act. This amendment will

or overcome the consequences of practices or impediments

which have restricted the availability of, or participation

in, the program or activity receiving Federal financial

assistance, on the grounds of race, color, or national origin.

Where prior discriminatory practice or usage tends on the

grounds of race, color, or national origin to exclude

individuals from participation in, to deny them the

benefits of, or to subject them to discrimination under any

program or activity to which this part applies, the applicant

or recipient must take affirmative action to remove or

overcome the effects of the prior discriminatory practice or

usage. Even in the absence of prior discriminatory practice

or usage, @ recipient in administering a program or activity

to which this part applies, is expected to take affirmative

action to assure that no person is excluded from

participation in or denied the benefits of the program or

activity on the grounds of race, color, or national origin.

(emphasis added).

14

require the development of affirmative action

plans that will require that a portion of the

money going to construction, cencessions, and

other projects of the airport development are

earmarked for minority and female business

persons.

Although I am aware that there has been

assurance of minority and female participation

in these programs by the Department of

Transportation in the past I am introducing this

amendment so that airport management will be

required to adhere to the Department of

Transportation’s administrative regulations and

will be required to contract with minority and

female owned forms [sic].

122 Cong. Rec. 8200 (Mar. 25, 1976) (emphasis added).

[Respondent App. at 1A].

In the House of Representatives, Representative

Dellums in offering the same amendment to add Section

30 to the AADA stated:

Mr. Chairman, this is a technical amendment

designed to assure minority participation in

program activities under this act. The language

of the amendment is similar to -- and based

upon -- comparable provisions enacted by

Congress for other major programs such as the

Trans-Alaska Pipeline.

The need for this amendment came to my

attention through a series of meetings held

within the last 45 days and conducted by my

colleague from Maryland (Mr. Mitchell) and

myself with representatives of the Federal

Aviation Administration, the Office of Minority

15

Business Enterprise, the Small Business

Administration and minority businessmen.

Those meetings centered on existing ADAP

regulations, agreements and effectiveness, and it

became apparent to me in those discussions that

minority entrepreneurs had had little share in

projects funded under ADAP. This amendment

stipulates that the Secretary of Transportation

develop regulations to provide affirmative

action needed to remedy that problem.

121 Cong. Rec. 41802 (Dec. 19, 1975) (emphasis added).

{Respondent App. at 1B].

This Court recognizes that floor remarks of Members

of Congress are a valuable source of information

regarding Congress’ intent in enacting legislation.‘ In fact,

former Chief Justice Burger’s opinion in Fullilove v.

Klutznick, 448 U.S. 448 (1980) relied heavily on floor

remarks of various Members of Congress. See Fullilove,

448 U.S. at 458-463 nn. 14, 20-34, and 39-41 and

accompanying text.

Therefore, the DOT’s establishment of an affirmative

action program was mandated by Congress, just as the

Public Works Employment Act MBE set-aside in

Fullilove was mandated by Congress. The introduction of

Section 30 to Congress made it clear that it “will require

the development of affirmative action plans that will

require that a portion of the money going to construction

* See Rice v. Rehner, 463 U.S. 713, 728, (1983) (sponsor’s remarks are

“particularly valuable” and “an authoritative guide to the statute's

construction.”); Bowsher v. Merck & Co., 460 U.S. 824, 832 (1983);

North Haven Board of Education v. Bell, 456 U.S. 512, 527 (1982). See

also Lewis v. United States, 445 U.S. 55, 62-63 (1980). Floor remarks are

16

. Of the airport development are earmarked for

minority and female business persons.” 122 Cong Rec.

8200 (March 25, 1976) (emphasis added). Moreover, the

stated purpose of Section 30 to Congress was “to assure

minority participation in program activities under this

act.” 121 Cong. Rec. 41802 (December 19, 1975) (emphasis

added).5

In an attempt to avoid the Eleventh Circuit's

conclusion that the AADA’s reference to Title VI rules

incorporates Subsection 7 (49 C.F.R. § 21.5(b)(7)), Groves

for the first time in this case argues that Congress did not

authorize Subsection 7 under the Civil Rights Act of 1964

(Title VI), and therefore the AADA’s reference to that

rule cannot provide authority for the DOT Regulations.

This argument has never been raised in this case, Groves

did not raise it below in either the District Court or the

Court of Appeals, and there has been no briefing or

argument concerning this issue in those Courts. Groves

has not preserved for this Court's review this issue it now

presents for the first time in its Writ of Certiorari.

It is the general rule of this Court that it does not

grant certiorari to consider issues which were not

properly argued or preserved below. See e.g., Tennessee v.

Dunlap, 426 U.S. 312, 316 n.3 (1976); Ernst & Ernst v.

Hochfelder, 425 U.S. 185, 193 n.13 (1976). “We decline to

even more important where, as here, the provision at issue originated

as a floor amendment. See Bowsher, supra; Bell, supra; Lewis, supra.

* Another source of authority for the DOT’s MBE regulation is § 905 of

the Railroad Revitalization and Regulatory Reform Act (RRRRA) of

1976, Pub. L. 94-210, 90 Stat. 31 (formerly 45 U.S.C. § 803, now codified at

49 U.S.C. § 306). The Senate Report accompanying the RRRRA, S.

Rept. No. 94-499, at pages 44 and 45, reprinted in 1976 USCCAN 58-59,

also strongly indicated Congress’ intent that an affirmative action

program be created.

17

address this argument because respondent failed to raise

it below and because the question it imposes has not been

adequately briefed and argued.” Grandfinaciera v.

Nordberg, 492 U.S. __, 106 L.Ed.2d 26, 38-39 (1989).

Because this argument has not been raised below,

this Court lacks guidance from the District Court or the

Court of Appeals on this issue. Since in the nine years of

proceedings in this case, this argument or issue was never

raised by Groves and never addressed by any court below,

it is unfair and unnecessary to consider it as a subject of

Groves’ Petition and without the benefit of the views of

the Courts below.

The Secretary of Transportation’s determination that

it was Congress’ intent that an affirmative action program

was to be created is entitled to substantial deference.

United States v. Rutherford, 442 U.S. 544, 553-554 (1979)

(“Such deference is particularly appropriate where, as

here, an agency’s interpretation involves issues of

considerable public controversy, and Congress has not

acted to correct any misperception of its statutory

objectives.”) In the instant case, as in Rutherford, the

DOT’s interpretation that Section 30 of the AADA

requires an “affirmative action” program “involves

issues of considerable public controversy, and Congress

has not acted to correct any misperception of its statutory

objectives.” The DOT’s construction of Section 30

therefore “is entitled to substantial deference.”

Moreover, in 1982 Congress replaced the 1976 AADA

with the AAIA and reenacted in the new AAIA a

provision identical to Section 30 of the 1976 AADA. 49

U.S.C. § 2219. It is a well-established principal of law that

“Congress is presumed to be aware of an administrative

or judicial interpretation of a statute and to adopt that

interpretation when it re-enacts a statute without

18

change.” Merrill, Lynch, Pierce, Fenner & Smith, Inc. v.

Curran, 456 U.S. 353, 382 n.66, (1982). The reenactment of

Section 30 of the AADA also took place after M.C. West,

Inc. v. Lewis, 522 F. Supp. 338 (M.D. Tenn. 1981).

II. The Eleventh Circuit Correctly Held That An

Intermediate Level Of Scrutiny Is The Appropriate

Standard To Determine The Constitutionality Of The

DOT Regulations

In Metro Broadcasting, Inc. v. F.C.C., 110 S.Ct. 2997

(1990), this Court utilized an intermediate level of

scrutiny in evaluating the validity of federal agency

regulations. The Eleventh Circuit correctly held that an

analysis of Fullilove, Croson, and Metro Broadcasting

establishes that an intermediate level of scrutiny, not

strict scrutiny, is the appropriate standard of review in

evaluating the validity of federal regulations like the

DOT Regulations.

In Metro Broadcasting this Court held “that benign

race-conscious measures mandated by Congress - even if

those measures are not ‘remedial’ in the sense of being

designed to compensate victims of past government or

societal discrimination — are constitutionally permissible

to the extent that they serve important governmental

objectives within the power of Congress and are

substantially related to the achievement of those

objectives.” 110 S.Ct. at 3008-09. The majority opinion in

Metro Broadcasting “made ii clear that Croson does not

prescribe the level of scrutiny to be applied to a benign

racial classification employed by Congress.” Id. at 3009.

The opinion of this Court in Metro Broadcasting instead

relied on Fu'lilove, asserting that a “majority of the Court

in Fullilove did not apply strict scrutiny to the race-based

classification at issue.” Id. at 3008

19

The Eleventh Circuit correctly concluded that a

“clear demarcation between affirmative action programs

developed by state and local governments and those

developed at the direction of Congress was drawn.” S.].

Groves, 920 F.2d at 767. “Therefore, it seems to us that the

Court has created a dual inquiry for evaluating

affirmative action programs. First, we must determine

whether a state or local government has developed the

program, or whether Congress has authorized the

program's creation. \f the former, a Court must strictly

scrutinize the program. . . . If the latter, however, then an

intermediate level of scrutiny is appropriate.” 920 F.2d at

767 (emphasis added). “Intermediate scrutiny means the

program must serve an important governmental interest

and the means must be substantially related to the

achievement of that objective.” Id.

Because Congress authorized the creation of the MBE

program contained in the DOT Regulations, an

intermediate level of scrutiny is the appropriate standard

in evaluating the regulations. 920 F.2d at 767. The

E.eventh Circuit remanded the case for reconsideration

in the District Court in light of the intermediate level of

scrutiny standard. Id.

As shown in Part I, infra, the federal statute and

regulatory scheme for the AADA, in particular tke

introduction and passage of Section 30 to the AADA

amendments of 1976 and its reenactment in the AAIA of

1982, establishes that its purpose was to insure MBE

participation in federal government projects and

mandate the development of affirmative action plans.

On March 6, 1978 the DOT issued Order 4000.7A,

which reemphasized the enforcement of DOT’s MBE

Program, and like DOT Circular 1165.1 encouraged all

grant recipients to establish percentage goals for MBE

20

participation. DOT Order 4000.7A provided that the policy

of the DOT was to encourage and increase the

participation of MBE’s in contracts and projects funded by

the DOT, and the DOT required its operating elements

and all aid recipients and their contractors to make

“affirmative action” efforts to meet goals for increasing

MBE involvement.

In November 1978 Congress passed the Surface

Transportation Assistance Act of 1978 (“STAA”), Pub. L.

No. 95-599, 92 Stat. 2689 (1978). In the STAA legislative

history, “the House Report of the Committee on Public

Works and Transportation acknowledged a departmental

initiative on behalf of the . . . (DOT) to encourage the

participation of minority business enterprises in the

DOT’s programs.” H.R. Rep. No. 95-1485, 95th Cong., 2d

Sess., reprinted in 1978 U.S. Code Cong. & Ad. News 6575,

6647:

The Committee is aware that Secretary of

Transportation Adams on March 6, 1978, issued

a major Departmental initiative to encourage

participation by minority businesses in DOT's

programs. Among the mechanisms provided in

the new order are requirements that the

operating elements within DOT establish

percentage goals for minority utilization, and

that DOT grantees prepare written affirmative

action plans that include goals, and when

allowed by state law, provision under

appropriate circumstances for set-asides limited

for bidding to minority firms ... . The

Committee supports this strong action by the

Secretary and encourages vigorous efforts to

carry out the spirit and intent of the new

Department Order.

21

The March 6, 1978 DOT initiative referred to above

by the Committee is DOT Order 4000.7A. Congress in the

STAA at 49 U.S.C. § 1516(a)(2) specifically delegated to the

Secretary of the DOT the responsibility to take affirmative

action to insure compliance with Congress’

determination that minorities were not fully

participating in public contracts at the federal, state and

local level. Section 1615(a)(2) of the STAA is virtually

identical to Section 30 of the AADA. There is no

distinction drawn or limitation applied by Congress with

regard different types of federally-funded government

contracts in its “finding” that MBE’s were not fully

participating in public contracts at the federal, state and

local level involving the DOT. This is a Congressional

finding relating to all federally-funded government

contracts involving the DOT, including contracts under

the AADA.

In Fullilove, Chief Justice Burger stated that in 1977

“Congress had abundant evidence from which it could

conclude that minority businesses have been denied

effective participation in public contracting opportunities

by procurement practices that perpetuated the effects of

prior discrimination . . . . [T]here was direct evidence

before the Congress that this pattern of disadvantage and

discrimination existed with respect to state and local

construction contracting as well.” 448 U.S. at 478; see Id.

at 461-467. The Court held that although Congress did

not, and need not, make the kind of “findings” which

would be required of a state or local government, “we are

satisfied that Congress had abundant historical basis from

which it could conclude that traditional procurement

practice, when applied to minority businesses, could

perpetuate the effects of prior discrimination.” 448 U.S. at

478.

22

The substantial remedial power of Congress is

reaffirmed in City of Richmond v. ].A. Croson Co., 488

U.S. 469 (1989). The Court held that “Congress may

identify and redress the effects of society-wide

discrimination”, and Congress does not have to make

findings of discrimination with the specificity as the states

or local governments: “the City is not just like the federal

government with regard to the findings it must make to

justify race-conscious remedial action.” Croson, 488 US.

at 491 and quoting Associated General Contractors of

California v. City and County of San Francisco, 813 F.2d

922, 929 (9th Cir. 1987) (emphasis added). Justice

O’Connor, along with Chief Justice Rhenquist and Justice

White concurring, do not make a distinction between the

branches of the “federal government” with regard to the

findings in connection with race-conscious remedial

action.

Moreover, Croson reaffirms that Congress, unlike

the States, may “induce voluntary action to assure

compliance with existing federal statutory or

constitutional antidiscrimination provisions . . . [and]

also, where Congress has the authority to declare certain

conduct unlawful, it may .. . authorize and induce state

action to avoid such conduct.” Croson, 488 U.S. at 488,

quoting Fullilove 448 U.S. at 483-484 (emphasis added).

Croson also reaffirms that Congress can empower states

to implement remedial programs that the States could

not do, constitutionally, on their own account: “Congress

may authorize, pursuant to section 5 [of the Fourteenth

Amendment], state action that would be foreclosed to the

States acting alone.” 488 US. at 491.

Groves ignores Justice Powell’s explicit statement in

University of California Regents v. Bakke, 438 U.S. 265

(1978), that the Bakke decision “does not call into

23

question Congressionally authorized administrative

actions ....” Bakke, 438 U.S. 302, n.41 (emphasis added).

Therefore, since the DOT Regulations were

“Congressionally authorized administrative actions”,

Metro Broadcasting, Bakke, Fullilove and Croson make it

clear that federal administrative agency findings enjoy

the same deferential treatment as Congress, and that

there is no material distinction between the PWEA MBE

Program in Fullilove and the DOT Regulations

promulgated pursuant to Section 30 of the AADA, for

purposes of determining the level of scrutiny to apply in

evaluating the Regulations.

III. The Eleventh Circuit Correctly Held That Metro

Broadcasting Applies In Determining The

Constitutionality Of Federal Regulations In Public

Contracting

Contrary to the suggestions by Groves, there is no

authority for the position that Metro Broadcasting does

not apply to MBE programs in the public contracting

arena or that under Croson every MBE program in the

public contracting arena should be reviewed under the

strict scrutiny standard. Justice Stevens’ concurring

opinion in Metro Broadcasting does not indicate that

Metro Broadcasting is inapplicable to affirmative action

programs in public contracting. Justice Stevens

specifically stated as follows: “I join both the opinion and

the judgment of the Court”. Metro Broadcasting, 110 S.Ct.

at 3028. It is clear that the opinion and judgment of the

Court in Metro Broadcasting was to apply an intermediate

level of scrutiny in evaluating an affirmative action

program promulgated by a federal agency where Congress

authorized the program’s creation.

Justice Stevens did not indicate any distinction as to

the standard of scrutiny applied in Metro Broadcasting

24

from that to be applied in the public contracting arena.

Groves is merely speculating in its argument that Justice

Stevens’ opinions suggest any kind of distinction between

the scrutiny that should be applied in evaluating

congressionally authorized federal regulations depending

upon the subject matter of the regulations.

Moreover, Justice O’Connor in her dissenting

opinion in Metro Broadcasting indicates that Justice

Stevens’ opinion in Fullilove did not apply strict scrutiny

in the public contracting arena. Metro Broadcasting, 110

S.Ct. at 3032. This Court should not grant certiorari to

limit the ruling of Metro Broadcasting to selectively

exclude federal agency public contracting programs.

IV. The Eleventh Circuit Correctly Held That The

Implementation By Local Governments Of A MBE

Program Pursuant To A Federal Grant Agreement

Adopted In Compliance With Congressionally

Authorized Federal Regulations Should Be

Evaluated Under An Intermediate Level Of Scrutiny

The federal statute and regulatory scheme, legislative

history, and the historical context in which Section 30

arose establish that there was a clear Congressional

mandate for the DOT to promulgate 49 C.F.R. Part 23,

Subpart C, and for Fulco to promulgate its 1982 MBE

Program. The broad remedial powers of Congress are

specifically involved in Section 30 of the AADA, 49 C.F.R.

Part 23, and Fulco’s implementation of the federal

remedial program. Fulco in implementing the MBE

provisions of its contract with the United States pursuant

to the AADA “was acting pursuant to Congress’

compelling interest in eradicating the continuing effects

of past discrimination against minorities in the

participation of government contracts.” Fullilove, 448

U.S. 497, (Powell, J. concurring). |

25

The DOT Regulations establish a federal remedial

program with which Fulco must comply to receive

federal funds. When Fulco implements Congress’ plan as

developed by the DOT Regulations, it is acting in a quasi-

federal capacity, as an agent of the federa! government,

not as a county. Therefore, Fulco-is not in the same

position as was the City of Richmond and is not obligated

to meet the Croson requirements.

The Court in Fullilove relied primarily on the

Spending Power and Section 5 in upholding the PWEA’s

MBE set-aside. The Court noted that it “has repeatedly

upheld against constitutional challenge the use of [the

Spending Power] to induce governments and private

parties to cooperate voluntarily with federal policy.” 448

U.S. at 474. See South Dakota v. Dole, 483 U.S. 203, 206-207

(1987). Because Congress can require local governments

and states to comply with race conscious requirements,

which Fullilove held is within Congress’ power, state and

local government implementation to fulfill those

requirements must be reviewed under the same standard

of scrutiny applicable to a congressional statute. This is

because in such a case the state or local legislation is not a

state or local program, but rather is the final step in the

implementation of a congressionally created federal

remedial program.

Congress can “induce voluntary action to assure

compliance with existing Federal statutory or

constitutional antidiscrimination provisions . . .”,

including state or local government actions that would be

foreclosed to the local government or states if they were

acting alone. Croson, 488 U.S. at 488. Fulco acted pursuant

to the congressional authority of the AADA/AAIA and

the DOT Regulations, when it adopted its Program.

Therefore, the federal nature of the DOT Regulations and

26

Fulco’s MBE Program establish that the requirements of

Croson are inapplicable.

In Fullilove the PWEA of 1977, which was upheld by

the Court, operated and was implemented in a manner

virtually identical to the federal program in this case.

Congress appropriated money for construction projects

which would be distributed to state and local grantees.

Those grantees would use the federal funds to award

contracts paid for in whole or in part with the federal

assistance, and would require of its contractors that a

percentage of each grant be provided to MBE’s.

In upholding the PWEA “set-aside”, the Court in

Fullilove relied on Congress’ authority under Section 5 of

the Fourteenth Amendment to enforce the Equal

Protection Clause, the Federal Spending Power, and

Congress’ determination that there was a problem of

nationwide scope requiring a nationwide remedy:

“[T]here was direct evidence before the Congress that this

pattern of disadvantage and discrimination existed with

respect to state and local construction contracting as well.

In relation to the MBE provisions, Congress acted within

its competence to determine that the problem was

national in scope.” 448 U.S. at 478 (emphasis added).

Once Congress concluded existing public contracting

practices would be “perpetuating the prevailing impaired

access by minority businesses to public contracting

opportunities,” the Court found that Congress had the

authority to establish a nationwide remedy. Id. at 475.

Where, as in this case, a local or state program is

enacted to implement federal legislation or reyulations

imposing requirements on the local or state government,

and the legislation or regulations are an integral part of

the federal-state-local legislative framework, the local or

27

state MBE program should be considered a subsidiary

element of the federal legislation or regulations.

The Court in Fullilove recognized that Congress’

decision to require all states and localities accepting

federal funds to adopt MBE programs did not depend on

findings by a particular state or local grantee. See

Milwaukee County Pavers Assn. v. Fiedler, 710 F. Supp.

1532, 1545-47 (W.D. Wis. 1989), modified in part, 731 F.

Supp. 1395, 1409-1410, aff'd 922 F.2d 419 (7th Cir. 1991) (A

local government implementing a federal program need

not make independent findings, but rather may rely on

Congress’ findings).

This Court has rejected the distinction suggested by

Groves for local governments, holding that once

Congress has exercised its authority to determine that

nationwide legislation was necessary, no further findings

by any locality are necessary. E.g., Lau v. Nichols, 414 US.

563, 564-568 (1974), cited with approval in Fullilove, 448

U.S. at 479-480; Oregon v. Mitchell, 400 U.S. 112, 233, 284

(1970); Katzenbach v. Morgan, 384 US. 641, 648-649 (1966).

In Oregon v. Mitchell, the Court refused to require state-

by-state findings before a nationwide application would

be appropriate. 400 U.S. at 284. In Lau there were no

findings of discrimination; nevertheless, the Court

upheld a federal regulation applicable to public school

systems receiving federal funds subject to statutory and

administrative conditions. 448 U.S. at 479.

The DOT Regulations and Fulco’s 1982 MBE Program

contain virtually all the limitations and waiver

provisions the Court identified in Fullilove. First,

Congress found that other alternative remedies had

failed, and therefore the use of an MBE program on a

nationwide basis was necessary. Fullilove, 448 U.S. at 463-

68, and 448 U.S. at 511 (Powell, J. concurring). The federal

28

program in Fullilove, the DOT Regulations and the Fulco

MBE Program operate prospectively only. 448 U.S. at 481.

Both permit a waiver of the percentage goal, if it can be

shown that the goals in good faith couid not be met. 448

U.S. at 487-89; 448 U.S. at 514 (Powell, J. concurring). The

percentage chosen as a goal is not unreasonable. 448 US.

at 513 (Powell, J. concurring). Both included a

complaint/certification procedure to insure that only

bona fide minority firms were eligible. 448 U.S. at 482; 4)

C.F.R. § 23.45(c),(e) and (f). Both are of limited duration.

Fulco’s Program expired in 1987.

The good faith provision in the DOT Regulations

and Fulco’s Program would permit a waiver of the MBE

requirement in the event that a MBE was charging an

unreasonable price. There is nothing in the record

suggesting Groves was rejected as a bidder because Fulco

was insisting it accept an MBE who was requesting an

unreasonably high price.

Groves attempts to distinguish Fullilove from the

instant case based upon the fact that under the PWEA

Congress expressly set aside 10% of the monies for

minority contractors while under the AADA the MBE

mechanism was left up to the DOT to put into place. This,

however, is a distinction without significance. The

PWEA set-aside included a waiver provision which, as

Justice Powell noted, was a virtue because it took into

account “the availability of qualified minority contractors

in a particular geographic area, the size of the locale’s

minority population, and the efforts made to find

minority contractors.” 448 U.S. at 514.

® Fullilove attached little significance to the difference between the

“thou-shalt-not discriminate” regulation in Lau and the affirmative

action program in Fullilove. 448 U.S. at 479.

29

The net effect of the structure of Section 30 and the

MBE regulation is the same as the PWEA MBE set-aside.

Rather than Congress setting a rigid quota and directing

the Secretary to determine exceptions to it, as under the

PWEA, the MBE regulation merely allows the Secretary

to approve the percentage and the exceptions thereto. 49

C.F.R. Part 23. “

In addition to the waiver provisions, the PWEA

MBE set-aside and Fulco’s MBE Program (in conjunction

with the DOT’s MBE Regulations) have other similarities:

neither overinclusive nor underinclusive, 448 U.S. at

485-486, involvement with only a minimal amount of

‘total construction work (and therefore little burden on

nonminorities), Id. at 514-515, and periodic review. There

is no practical difference between the policy and

administrative approach of the Fulco Program and the

DOT Regulations, and the policy and administrative

approach upheld in Fullilove.

V. Supreme Court Review Of This Action Is Premature

This case is not ripe for review. The decree that

Groves is seeking to be reviewed by certiorari is not a

final one, a fact that alone furnishes sufficient ground for

denial of the Petition. Hamilton Brown Shoe Co. v. Wolf

Bros. & Co., 240 U.S. 251, 257-258 (1916). “[E]xcept in

extraordinary cases, a writ of certiorari does not issue

until there is a final decree.” Id.

The Eleventh Circuit remanded this case to the

District Court. 920 F.2d at 767, 769. “{B]ecause the Court of

Appeals remanded the case, it is not ripe for review by

this Court.” Brotherhood of Locomotive Firemen v.

Bangor & Arrostook R.R., 389 U.S. 327, 328 (1967).

30

CONCLUSION

For all the foregoing reasons, Respondent Fuiton

County, Georgia respectfully requests that this Court deny

the Petition for a Writ of Certiorari.

DATED: May 8, 1991

Atlanta, Georgia

Respectfully submitted,

Keitii M. WIENER

Counsel of Record

WEBB & DANIEL

Suite 3100, IBM Tower

One Atlantic Center

1201 West Peachtree St., N.W.

Atlanta, Georgia 30309-3400

(404) 881-0433

LINDA K. THOMPSON

WEBB & DANIEL

Atlanta, Georgia

Attorneys for Respondent

APPENDIX 4

RESPONDENT IN OPPOSITION

*

INDEX TO APPENDIX

122 Cong. Rec. 8200 (March 25, 1976) (statement of

alr i heralidaecilipanncnniaatanoemeerentevenesoiesce 1A

121 Cong. Rec. 41802 (December 18, 1975) (statement

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March 25, 1976 8199

CONGRESSIONAL RECORD — SENATE

Mr. BEALL. Mr. President, I send an amendment to

the desk and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report the

amendment.

The second assistant legislative clerk read as follows:

The Senator from Maryland (Mr. BEALL) proposes

an amendment on page 29, after line 21 add the following

new section.

Mr. BEALL. Mr. President, I ask unanimous consent

that further reading of the amendment be dispensed

with. '

The PRESIDING OFFICER. Without objection, it is

so ordered.

’

The amendment is as follows:

On page 29, after line 21 add the following new

section:

"SEC.--. Civil Rights.

"The Secretary shall take affirmative action to assure

that no person shall, on the grounds of race, creed, color,

national origin, or sex, be excluded from participating in

any activity conducted with funds received from any

grant made under this title. The Secretary shall

promulgate such rules as he deems necessary to carry out

the purposes of this section and may enforce this section,

and any rules promulgated under this section, through

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agency and department provisions and rules which shall

be similar to those established and in effect under title VI

of the Civil Rights Act of 1964. The provisions of this

section shall be considered to be in addition to and not in

lieu of the provisions of title VI of the Civil Rights Act of

1964."

Mr. BEALL. Mr. President, | am introducing an

affirmative action amendment to S. 1972, the Airport

Development Act of 1970. This amendment would, ai

page 43, line 17, strike out the final quotation mark and

the final period and insert the following new section:

Section 31, Civil Rights:

The Secretary shall take affirmative action to assure

that no person shall, on the grounds of race, creed, color,

national origin, or sex, be excluded from participating in

any activity conducted with funds received from any

grant made under this title. The Secretary shall

promulgate such rules as he deems necessary to carry out

the purposes of this section and may enforce this section,

and any rules promulgated under this section, through

agency and department provisions and rules which shall

be similar to those established and in effect under title VI

of the Civil Rights Act of 1964. The provisions of this

section shall be considered to be in addition to and not in

lieu of the provisions of title VI of the Civil Rights Act of

1964.

Mr. President, I consider this to be in the nature of a

technical amendment actually but it will insure minority

and female participation in program activities under the

Airport Development Act. This amendment will require

the development of affirmative action plans that will

require that a portion of the money going to construction,

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concessions, and other projects of the airport

development are earmarked for minority and female

business persons.

Although I am aware that there has been assurance

of minority and female participation in these programs by

the Department of Transportation in the past | am

introducing this amendment so that airport management

will be required to adhere to the Department of

Transportation administrative regulations and will be

required to contract with minority and female owned

forms.

Mr. President, I might say that the Secretary of

Transportation has given his approval to this

amendment and the House has also adopted an

amendment of this sort without objection. | hope the

managers of the bill see fit to agree to the adoption of the

amendment.

The PRESIDING OFFICER (Mr. FORD). The Senator

from NEVADA.

Mr. CANNON. Mr. President, if the Senator would

agree not to overtry his case, and with no objection, | am

inclined to agree with him on it.

Mr. BEALL. With that, I rest my case.

The PRESIDING OFFICER. Is all time yielded back?

All time having been yielded back, the question is on

agreeing to the amendment of the Senator from

Maryland.

The amendment was agreed to.

Mr. PASTORE. Third reading.

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Mr. CANNON. Third reading.

The PRESIDING OFFICER. If there be no further

amendment to be proposed, the question is on the

engrossment and third reading of the bill.

The bill was ordered to be engrossed for a third

reading and was read the third time.

Mr. CANNON. Mr. President, I ask for the yeas and

nays.

The PRESIDING OFFICER. Is there a sufficient

second? There is a sufficient second.

The yeas and nays were ordered.

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ee

December 18, 1975 41802

CONGRESSIONAL RECORD — HOUSE

PARLIAMENTARY INQUIRY

Mr. EDGAR. Mr. Chairman, I have a parliamentary

inquiry.

The CHAIRMAN. The gentleman will state it.

Mr. EDGAR. Mr. Chairman, if we accept this

amendment to delete from the bill the specific language

relating to the Oakland International Airport, would a

subsequent amendment be in order to delete on page 46,

lines 1 through 4, which provide for an authorization of

$72 million, which is a duplication of existing law?

The CHAIRMAN. A subsequent amendment to that

portion of the bill would still be in order.

The question is on the amendment offered by the

gentleman from Ohio (Mr. HARSHA).

The amendment was agreed to.

AMENDMENT OFFERED BY MR. DELLUMS

Mr. DELLUMS. Mr. Chairman, I offer an

amendment.

The Clerk read as follows:

Amendment offered by Mr. DELLUMS: Page 43, line

17, strike out the final quotation mark and the final

period.

Page 43, immediately after line 17, insert the

following new section:

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“SEC. 31. CIVIL RIGHTS.

“The Secretary shall take affirmative action to assure

that no person shall, on the grounds of race, creed, color,

national origin, or sex, be excluded from participating in

any activity conducted with funds received from any

grant made under this title. The Secretary shall

promulgate such rules as he deems necessary to carry out

the purposes of this section and may enforce this section,

and any rules promulgated under this section, through

agency and department provisions and rules which shall

be similar to those established and in effect under title VI

of the Civil Rights Act of 1964. The provisions of this

section shall be considered to be in addition to and not in

lieu of the provisions of title VI of the Civil Rights Act of

1964.”

Mr. ANDERSON of California (during the reading).

Mr. Chairman, I ask unanimous consent that the

amendment be considered as read and printed in the

RECORD.

The CHAIRMAN. Is there objection to the request of

the gentleman from California?

There was no objection.

Mr. DELLUMS. Mr. Chairman, this is a technical

amendment designed to assure minority participation in

program activities under this act. The language of the

amendment is similar to--and based upon--comparable

provisions enacted by Congress for other major programs,

such as the Trans-Alaska Pipeline.

The need for this amendment came to my attention

through a series of meetings held within the last 45 days

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and conducted by my colleague from Maryland (Mr.

MITCHELL) and myself with representative of the

Federal Aviation Administration, the Office of Minority

Business Enterprise, the Small Business Administration

and minority businessmen. Those meetings centered on

existing ADAP regulations, agreements and effectiveness,

and it became apparent to me in those discussions that

minority entrepreneurs had little share in projects

funded under ADAP. This amendment stipulates that the

Secretary of Transportation develop regulations to

provide the affirmative action needed to remedy that

problem.

Mr. SNYDER. Mr. Chairman, will the gentleman

yield?

Mr. DELLUMS. I yield to the distinguished ranking

minority member.

Mr. SNYDER. | thank the gentleman for yielding.

Mr. Chairman. I have looked over the amendment,

and I have no objection to the gentleman's amendment. |

think that it is a situation which already exists with the

Department of Transportation, but to put it into law

would not bother me at all. I am willing to accept it, as are

the Members with whom I have discussed it.

Mr. ANDERSON of California. Mr. Chairman, will

the gentleman yield?

Mr. DELLUMS. I yield to the gentleman from

California.

Mr. ANDERSON of California. I thank the

gentleman for yielding.

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Mr. Chairman, J accept the gentleman's amendment,

and I feel it is a useful addition to the program.

Mr. DELLUMS. I thank the gentleman.

The CHAIRMAN. The question is on the

amendment offered by the gentleman from California

(Mr. DELLUMS).

The amendment was agreed to.

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