No. 03-35783.

407 F.3d 983 (2005)

WESTERN STATES PAVING CO., INC., Plaintiff-Appellant, v. WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; City of Vancouver, Washington; Clark County, Washington; Douglas MacDonald, Defendants-Appellees, United States of America; U.S. Department of Transportation; Federal Highway Administration, Defendants-Intervenors-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed May 9, 2005.

Attorney(s) appearing for the Case

Gary E. Lofland, Lofland and Associates, Yakima, WA, argued the cause for the appellant.

Lisa J. Stark, United States Department of Justice, Washington, DC, argued the cause for appellees United States of America, U.S. Department of Transportation, and Federal Highway Administration; R. Alexander Acosta, Assistant Attorney General, Mark L. Gross, United States Department of Justice, Washington, DC, and Jeffrey A. Rosen, Paul M. Geier, and Edward V.A. Kussy, United States Department of Transportation, Washington, DC, were on the brief.

Steve E. Dietrich, Assistant Attorney General, Olympia, WA, argued the cause for appellee Washington State Department of Transportation; Christine O. Gregoire, Attorney General, Olympia, WA, was on the brief.

E. Bronson Potter, Senior Deputy Prosecuting Attorney, Vancouver, WA, argued the cause for appellee Clark County.

Alison J. Chinn, Assistant City Attorney, Vancouver, WA, was on the brief for appellee City of Vancouver.

Before: McKAY, O'SCANNLAIN, and BEA, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether the Transportation Equity Act for the 21st Century, which authorizes the use of race- and sex-based preferences in federally funded transportation contracts, violates equal protection, either on its face or as applied by the State of Washington.


Western States Paving Co. ("Western States") is an asphalt and paving contractor based in Vancouver, Washington. The company is owned by a white male....

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