Constitutional Challenge Appeal to the SBA’s 8(a) Program Denied En Banc Rehearing

By: Christine V. Williams on 01/13/2017

Rothe Development, Inc.’s, appeal in the DC Circuit Court of Appeals (Rothe v. DoD and SBA) was heard by a three judge panel.  Rothe challenged the facial validity of the SBA’s 8(a) Program and lost.  There was an amicus brief filed on behalf of indigenous people, including Tribes, Alaska Natives, and Native Hawaiians.  The amicus brief distinguished between a racial classification, which is a subject to the highest and strictest standard of review-strict scrutiny, and the classification used when dealing with certain indigenous groups.  The standard for evaluating the indigenous group relationship to the Government (and dealing with the Government-such as Government contracting) is rational review, which is a much lower review standard for courts to examine decisions and relationships to determine if they pass Constitutional muster.  The points of the amicus brief could be subtly seen throughout both the majority and minority opinions and both seemed to agree with the briefing.

Once Rothe lost in the front of the three panel court of appeals, it appealed for an en banc rehearing, in which the entire DC Circuit Court of Appeals would hear the case.  Today, the decision came out, per curiam (unanimously) that Rothe’s request for a full re-hearing is denied.  Rothe may appeal to the US Supreme Court, but the Court would have to grant cert. (agree to hear) the case.  With the state of flux in the Court and the potential appointment in play, it may seem unlikely they would hear this case.