Rothe Files Reply to DOJ/SBA/DOD’s Opposition for the Supreme Court to Review Case

By: Christine V. Williams on 07/28/2017

This week, Rothe Development, Inc. (“Rothe”), a woman owned small business who could, arguably apply for and be granted 8(a) Program status, filed its Reply to the Department of Justice’s (“DOJ”) Opposition to Rothe’s Petition for Writ of Certiorari to the U.S. Supreme Court.

In non-legalese, Rothe lost at the D.C. Circuit Court of Appeals when it challenged the facial (not the applied-regulations) Constitutionality of the 8(a) Business Development Program.  It then petitioned (writ) the U.S. Supreme Court to hear its case.  DOJ, on behalf of the Small Business Administration (“SBA”) and the Department of Defense (“DOD”) opposed that petition and supported the D.C. Circuit Court of Appeals Finding.

Pacific Legal Foundation filed in support of Rothe and against the SBA and DOD.

Recall, the D.C. Circuit Court of Appeals found that the SBA 8(a) Business Development Program was not a race based program and that Congress had considered that aspect and “jettisoned” it when creating the 8(a) Business Development Program.  The legal analysis was quite in-depth and the Court compared it to other programs, which did contain a racial basis.  If the Court found race based, which it did NOT, strict scrutiny would have been applied to examine the Constitutionality of the Program.  Strict scrutiny is the highest level of review in which a court examines the Constitutionality of a law.  In finding that the 8(a) Business Development Program, a nine year program for which a company is only eligible once, is not race based, the D.C. Circuit Court of Appeals found the statute upon which the 8(a) Program finds its basis is subject to rational review.  Rational review is the lowest level of scrutiny or review a court may apply when it examines the Constitutionality of a law.

In its Reply, the final briefing before the U.S. Supreme Court decides to hear the case, Rothe relies heavily on the dissent in the D.C. Circuit as well as the regulatory history of 1979 and 1980, which were not challenged in this case.  Rothe argues the statute much be read as a whole and, as such, is race based, as the dissent (the one judge disagreeing with the panel decision) stated.  Thus, Rothe argues the U.S. Supreme Court must decide which standard of review applies.  Recall as well that in Rothe, the trial court found that strict scrutiny applied and that the 8(a) Business Development Program survived that challenge.

There is no hard and fast timeline for granting or denying cert by the U.S. Supreme Court, but a decision may be likely in the next 6 weeks to two months.  To view the filing, please click here: Rothe Reply