I have previously blogged about the legal challenge to the DBE program taking place in the United States District Court for the Eastern District of Kentucky, where several non-DBE firms are challenging the constitutionality of the program. Last fall, an injunction was entered against the program in certain states for certain projects. You can read my prior blogs on the litigation here, here, and here.
This article will serve as an update to the status of a collation of organizations and DBEs (the National Association of Minority Contractors; Women First National Legislative Committee; Airport Minority Advisory Council; Women Construction Owners & Executives, Illinois Chapter; Atlantic Meridian Contracting Corp.; and Upstate Steel, Inc.) that have sought to intervene in the litigation to protect the program.
On January 27, 2025, the federal government responded to the DBE Coalition’s Motion to Intervene, stating that it took no position on the motion.
On January 31, 2025, Central Seal Company and Charbon Contracting, LLC filed an opposition to the DBE Coalition’s motion. These two companies are also seeking to intervene, as they want to reap the benefits of the injunction against the DBE program. Their opposition claims that the federal government has the sole authority to litigate a defense of government programs. They also argue that the DBE Intervenors have no standing because the plaintiffs in the underlying case have no cause of action against the DBE Coalition members. Finally, they argue that the DBE Coalition members have not been injured.
On February 5, 2025, the plaintiffs (Mid-America Milling and Bagshaw Trucking) also filed an opposition to the motion. Their main argument was the untimeliness of the motion, arguing that it was premature to say that the government will not adequately defend the program. They also argued that discovery was already underway.
However, on February 10, 2025, the plaintiffs and government filed a joint motion to stay (i.e., pause) the proceedings, citing President Trump’s executive orders and the need for the parties to “consider their litigation positions” and explore settlement.
Also on February 10, 2025, the DBE Coalition filed a reply brief, noting that the two oppositions to the motion actual prove the necessity for the DBE Coalition to intervene. They argue that the oppositions argue out of both sides of their mouth- first saying that it was too early to know if the DOT would change its position, while also arguing that it was too late because the preliminary injunction was already entered and discovery was underway. The DBE Coalition argued that these arguments were unpersuasive, citing the executive orders as well as the joint motion to stay that mentioned exploring settlement. If the current parties settle the case, then the DBE Coalition will have lost the opportunity to defend the program.
On February 11, 2025, the DBE Coalition filed a response to the motion to stay, asking that the stay be only for the deadlines set in the court’s scheduling order, and asking the court to make a ruling on the DBE Coalition’s Motion to Intervene.
The court has yet to say whether or not it will grant the motion to stay, and has not yet ruled on either Motion to Intervene. In the meantime, the DBE program continues. Stay tuned for further updates.
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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