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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 959

## Text

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
EERE A en 1B

| ttle tae iat eet

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

1A

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,

2A

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.

3A

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.

4A

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:

1B

“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

2B

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.

3B

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.

4B

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1910%3A3. Public record. Not legal advice.