Western States Paving Co. v. Washington State Department of Transportation

We must decide whether the Transportation Equity Act for the 21st Century, which authorizes the use of race- and sex-based preferences in federally funded transportation contracts, violates equal protection, either on its face or as applied by the State of Washington.

I

Western States Paving Co. (‘Western States”) is an asphalt and paving contractor based in Vancouver, Washington. The company is owned by a white male. In July 2000, Western States submitted a bid for subcontracting work on the City of Vancouver’s “NE Burton Road Project.” The project was financed by federal transportation funds provided to the Washington State Department of Transportation (“WSDOT”) under the Transportation Equity Act for the 21st Century (“TEA-21”). In order to comply with TEA-21’s minority utilization requirements, the State mandated that the city obtain 14% minority participation on the project. 1 The prime contractor was bound by this requirement and rejected Western States’ bid in favor of a higher bid from a minority-owned firm.

In August 2000, Western States submitted a subcontracting bid on Clark County’s “Padden Parkway (East Leg)” project, which was substantially financed with TEA-21…

concurring in part dissenting in part.

I agree with the majority’s discussion of the facial constitutionality of TEA-21. However, as to its “as-applied” discussion, the majority opinion splits the circuits without persuasive support for its position. I am persuaded by the position taken by both the Sixth and Seventh Circuits, and therefore dissent in part.

The flaw that I see in the majority’s opinion is its improper reliance on .cases that are inapposite. Cases like Monterey Mechanical Co., Builders Ass’n of Greater Chicago, Drabik, O’Donnell Construction Co., and Croson concern the constitutionality of state, municipal or county race-based remedial statutes or ordinances. The statute at issue in this appeal is a national, congressionally mandated statute. The importance of this distinction was appropriately noted in Tennessee Asphalt Co. v. Farris:

Farris, 942 F.2d 969, 975 (6th Cir.1991) (quoting Milwaukee County Pavers Ass’n v. Fiedler, 922 F.2d 419, 423-24 (7th Cir.1991)) (internal quotations omitted).

The majority discounts the importance of Farris because of its reliance on Milwaukee County Pavers. Maj. Op. at 997 *1004 n.9. The majority opines that it is improper to…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WESTERN STATES PAVING CO., INC., 

Plaintiff-Appellant, v.

WASHINGTON STATE DEPARTMENT OF

TRANSPORTATION; CITY OF No. 03-35783

VANCOUVER, WASHINGTON; CLARK

COUNTY, WASHINGTON; DOUGLAS  D.C. No.

CV-00-05204-RBL

MACDONALD,

Defendants-Appellees, OPINION

UNITED STATES OF AMERICA; U.S.

DEPARTMENT OF TRANSPORTATION;

FEDERAL HIGHWAY ADMINISTRATION,

Defendants-Intervenors-Appellees.  Appeal from the United States District Court for the Western District of Washington (Tacoma) Ronald B. Leighton, District Judge, Presiding

Argued and Submitted February 11, 2005—Seattle, Washington

Filed May 9, 2005

Before: Monroe G. McKay,* Diarmuid F. O’Scannlain, and Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain; Partial Concurrence and Partial Dissent by Judge McKay

*The Honorable Monroe G. McKay, Senior United States Circuit Judge for the Tenth Circuit, sitting by designation.

5005 5008 WESTERN STATES PAVING v. WSDOT

COUNSEL

Gary E. Lofland, Lofland and Associates, Yakima, Washing- ton, argued the cause for the…