ADARAND CONSTRUCTORS, INC. v. SLATER

No. 97-1304.

228 F.3d 1147 (2000)

ADARAND CONSTRUCTORS, INC., a Colorado corporation, Plaintiff-Appellee, v. Rodney E. SLATER, Secretary of the Department of Transportation; Kenneth R. Wykle, Administrator of the Federal Highway Administration; Vincent F. Schimmoller, Administrator of Region VIII of the Federal Highway Administration; Larry C. Smith, Engineer of the Central Federal Lands Highway Division, Defendants-Appellants, Pacific Legal Foundation; Associated General Contractors of America, Inc.; Employment Law Center; Minority Business Enterprise Legal Defense and Education Fund, Inc., Amici Curiae.

United States Court of Appeals, Tenth Circuit.

September 25, 2000.


Attorney(s) appearing for the Case

Leslie A. Simon, Attorney, United States Department of Justice, (Nancy E. McFadden, General Counsel, Paul M. Geier, Assistant General Counsel for Litigation, Edward V.A. Kussy, Acting Chief Counsel, Federal Highway Administration, Sara McAndrew, Trial Attorney, Peter S. Smith, Trial Attorney, of the United States Department of Transportation, Washington, D.C.; Isabelle Katz Pinzler, Acting Assistant Attorney General, William R. Yeomans, Acting Deputy Assistant Attorney General, Bill Lann Lee, Acting Deputy Assistant Attorney General, Thomas E. Perez, Deputy Assistant Attorney General, Mark L. Gross, Attorney, Louis E. Peraertz, Attorney, of the United States Department of Justice, Washington, D.C., with her on the briefs), for Defendants—Appellants.

William Perry Pendley (Todd S. Welch and J. Scott Detamore, with him on the briefs), Mountain States Legal Foundation, Denver, Colorado, for Plaintiff—Appellee.

Robin L. Rivett, Sharon L. Browne, and Stephen R. McCutcheon, Jr., for Pacific Legal Foundation, Sacramento, California, filed an amicus curiae brief.

Julian A. Gross and William C. McNeill III, Legal Aid Society of San Francisco, for the Employment Law Center, San Francisco, California, and Franklin M. Lee and Tracie Anita Watkins for the Minority Business Enterprise Legal Defense and Education Fund, Inc., Washington, D.C., filed an amicus curiae brief.

Michael E. Kennedy, General Counsel for Associated General Contractors of America, Inc., and John G. Roberts, Jr., David G. Leitch, and H. Christopher Bartolomucci of Hogan & Hartson, L.L.P., Washington, D.C., filed an amicus curiae brief for Associated General Contractors of America, Inc.

Before LUCERO, Circuit Judge, McKAY, Senior Circuit Judge, and MURPHY, Circuit Judge.


OPINION ON REMAND

LUCERO, Circuit Judge.

Following the Supreme Court's vacation of our dismissal on mootness grounds, we address the merits of this appeal, namely, the federal government's challenge to the district court's grant of summary judgment to plaintiff-appellee Adarand Constructors, Inc. In so doing, we must resolve the constitutionality of the use in federal subcontracting procurement of the Subcontractor Compensation Clause ("SCC"), which employs...

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