United States Federal Circuit

In an equal-protection challenge to the requirements of 10 U.S.C. section 2323 setting a "goal" that a certain percentage of defense contracting dollars be award to entities owned and controlled by "socially and economically disadvantaged individuals," summary judgment for defendant is reversed where: 1) while considering the legislation at issue, Congress did not have a "strong basis in evidence" before it, upon which to conclude that defendant was a passive participant in racial discrimination in relevant markets across the country and that therefore race-conscious remedial measures were necessary; and 2) without such evidence there was no compelling government interest sufficient to withstand strict scrutiny of the statute, and the statute was therefore unconstitutional on its face.

Appellate Information

• Decided 11/04/2008
• Published 11/04/2008

Judges

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

Court

• United States Federal Circuit

Counsel

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


• For Appellees:
  
• 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.