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ROTHE DEVELOPMENT CORP. v. DEPARTMENT OF DEFENSE

No. 2008-1017.

545 F.3d 1023 (2008)

ROTHE DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. DEPARTMENT OF DEFENSE and Department of the Air Force, Defendants-Appellees.

United States Court of Appeals, Federal Circuit.

November 4, 2008.

Attorney(s) appearing for the Case

David F. Barton, The Gardner Law Firm, of San Antonio, Texas, argued for plaintiff-appellant. Of counsel was Jay K. Farwell.

Karen L. Stevens, Attorney, Appellate Section, Civil Rights Division, United States Department of Justice, of Washington, DC, argued for defendants-appellees. With her on the brief were Grace Chung Becker, Acting Assistant Attorney General, and Mark L. Gross, Attorney. Of counsel was Gregory B. Friel, Attorney.

J. Scott Detamore, Mountain States Legal Foundation, of Lakewood, Colorado, for amicus curiae Mountain States Legal Foundation.

Paul J. Beard II, Pacific Legal Foundation, of Sacramento, California, for amici curiae Pacific Legal Foundation and Center for Equal Opportunity.

Before MICHEL, Chief Judge, MAYER, Circuit Judge, and STEARNS, District Judge.

MICHEL, Chief Judge.

This case concerns the constitutionality of 10 U.S.C. § 2323 ("Section 1207"), which, in relevant part, (1) sets a "goal" that five percent of federal defense contracting dollars for each fiscal year be awarded to certain entities including small business concerns owned and controlled by "socially and economically disadvantaged individuals"; (2) incorporates the Small Business Act's presumption that Black Americans, Asian Americans, Hispanic...

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