On Friday, January 24, 2025, the National Association of Minority Contractors (“NAMC”); Women First National Legislative Committee; Airport Minority Advisory Council (“AMAC”); Women Construction Owners & Executives, Illinois Chapter (“WCOE”); Atlantic Meridian Contracting Corp. (“AMC-Civil”); and Upstate Steel, Inc., filed a motion to intervene in the Mid-America Milling case filed in the United States District Court for the Eastern District of Kentucky. The motion seeks to fight the injunction entered by the court against the Disadvantaged Business Enterprise (“DBE”) Program. Read my prior blogs on the injunction here and here. A copy of the filed Motion to Intervene can be found here.
This Motion to Intervene comes at a crucial time in the fight to save the DBE program. A recent executive order entered by the new administration seeks to put a stop to any programs associated with diversity, equity, and inclusion in any way. Because the DBE program has been repeatedly authorized by Congress (with wide bipartisan support), an executive order cannot end the program. However, it does make it unlikely that the Department of Transportation would continue its vigorous defense of the DBE program within the existing litigation.
The intervenors assert that they meet all of the required timeliness elements to intervene:
- Timeliness- the intervenors note that the litigation is still in the earlier stages, with the discovery deadline months away and trial set for a year in the future.
- Purpose for which intervention is sought- the intervenors are not merely seeking an opportunity to present an argument- they are seeking to protect their existence. The intervenors cite how they and their members (in the case of organizations) have already been harmed by the DBE injunction- losing millions of dollars and contracting opportunities, among other things.
- Length of time preceding the motion when the proposed intervenors should have known of their interest in the case- the intervenors argued that until the issuance of the executive order, the DOT (represented by the Department of Justice) had robustly defended the program. The issuance of the executive order (only a few days before the filing of the motion to intervene) made clear that the government would have a substantive change in position.
- Prejudice to the existing parties- there is no prejudice caused by the motion to intervene, as the intervenors acted immediately after realizing that the government would not be protecting their interests.
- Existence of unusual circumstances for or against the intervention- the very recent executive orders and the need for the court to hear from the intervening parties, who have unique and relevant perspectives, weigh in favor of granting the motion.
The Intervenors also explain how they have substantial interests in the DBE Program’s rebuttable presumption of disadvantage (the issue in the underlying litigation). The Intervenor DBEs currently bid for contracts under and benefit from the DBE program, and the organizations that represent them have a strong interest in preserving the DBE program to mitigate the pervasive discrimination they confront in seeking access to federally funded transportation contracts. The Intervenors also have a history of legislative, administrative, and policy advocacy that provide a direct and substantial interest in advancing their advocacy goals.
The Intervenors also argue that they have substantial legal interests that will be impaired if the intervention is denied. They are the very entities that are the victims of discrimination intended to be addressed by the statute and regulations being challenged. They will no longer be able to access contracts within the transportation sector if the DBE program is demolished.
Finally, the Intervenors argue that the recent executive orders make it clear that the current government defendants are unlikely to sufficiently defend the Intervenor’s interests in the litigation due to the message conveyed by the recent executive orders.
It is likely that the Mid-America Milling Plaintiffs will oppose the Motion to Intervene. They will have the opportunity to file a response, and then the court will decide whether or not to allow the intervention. Keep an eye out for future blogs when that decision is made!
If your company needs assistance with DBE or ACDBE certification, please contact Danielle Dietrich, Esq. at ddietrich@potomaclaw.com or 412-449-9141.
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