On May 21, 2025, the U.S. District Court for the Eastern District of Kentucky granted the Motion to Intervene filed by 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. (collectively, “Intervenor DBEs”).
This is a small victory in the ongoing battle to keep the Disadvantaged Business Enterprise (“DBE”) Program alive. The group that filed the motion sought to fight the injunction entered by the court against the DBE Program. Read my prior blogs on the injunction here and here. A copy of my blog on the Motion to Intervene can be found here.
The court issued a 13-page opinion granting the motion to intervene, making the following findings:
Standing – The court found that the plaintiffs’ arguments that the Intervenor DBEs lacked standing to intervene unpersuasive. The Intervenor DBEs will be representing their own interests, not those of the United States government. Because they are seeking to intervene as defendants, they need not independently demonstrate Article III. As they effectively seek the same outcome that the defendants in the case would (such as defend the constitutionality of the DBE program), inquiry into their standing is improper.
Timeliness – The court found that the motion was timely, meeting each of the five factors to demonstrate timeliness. First, the intervention is timely considering that discovery was in its infancy – initial disclosures (a preliminary part of the discovery process) had only been made the month before the motion. Second, the Intervenor DBEs’ strong interest in preserving the DBE program is an appropriate purpose to purse the intervention. Third, it was also timely that the motion was filed only a few days after the relevant Executive Orders were published, showing that the government would be unlikely to vigorously defend the DBE program. Fourth, there is minimal prejudice to the original parties, as the Intervenor DBEs will address the same issues the original defendants would have confronted. Finally, the overall totality of the circumstances weighs in favor of finding that the motion was timely.
Substantial Legal Interest – The court found that the Intervenor DBEs alleged facts to show that they had a substantial legal interest in the litigation. The Intervenor DBEs’ businesses rely heavily on the program to obtain contracts, without which they would not be able to obtain due to the pervasive discrimination within their industries.
Impairment of Ability to Protect Interest – This case focuses on the constitutionality of the DBE program. If the DBE program were overturned, the Intervenor DBEs would no longer have access to contracts for their businesses (or the businesses of their members). If they were unable to intervene, their ability to protect their own interests could be impaired. This weights in favor of allowing the intervention.
Inadequate Representation by Current Parties – The Intervenor DBEs needed only show that there was a potential for inadequate representation. Here, the court acknowledges that the change in administration (along with filings in the case) suggests that the government will take a far different stance than it had previously in defending the case.
What does this all mean? This means that the Mid-America Milling plaintiffs must also now litigate against the Intervenor DBEs, and not just the government. It is expected that the Intervenor DBEs will put on a much more rigorous defense of the program than the Department of Justice (the governmental agency responsible for defending the government in litigation).
Stay turned for further blogs on this subject. For now, the DBE program lives on!
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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