Case Summary
Issue:
Whether the United States may engage in racially discriminatory contracting in its procurement and contracting practices?
Plaintiff:
Rothe Development Corporation
Defendant:
U.S. Department of Defense, U.S. Department of the Air Force
Amicus Curiae:
Mountain States Legal Foundation
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Case History
Rothe Corporation is a woman-owned and -controlled consortium of businesses based in San Antonio, Texas. Since 1987, Rothe has contracted with the Air Force to maintain, operate, and repair the computer systems at Columbus Air Force Base in Mississippi. It bid on another such contract in 1997, and, although Rothe’s was the low bid, the contract was awarded to Rothe’s chief competitor, a Korean-owned business, because of the Department of Defense’s “Section 1207 program,” which includes a racial preference or quota.
In November 1998, Rothe challenged the constitutionality of the Section 12 program. On appeal, the U.S. Court of Appeals for the Federal Circuit ruled for Rothe in August 2001. The case was remanded for a factual determination regarding Congress’s reauthorization of the program. In July 2004, the trial court ruled against Rothe. After the Federal Circuit, in June 2005, reversed, the trial court ruled again, on August 10, 2007, against Rothe. Rothe again appealed to the Federal Circuit.
The rulings in favor of Rothe have been based on the Supreme Court’s 1994 ruling in Adarand Constructors, Inc. v. Peòa, a case litigated by MSLF. The rulings against Rothe have relied on decisions by the U.S. Court of Appeals for the Tenth Circuit in two challenges to race-based contracting that were not reviewed and reversed by the Supreme Court.
On December 14, 2007, MSLF filed its friend of the court brief in support of Rothe Development Corporation. Oral arguments were held on September 2, 2008.