The plaintiffs and the federal government seek a 90-day stay in Mid-America Milling Company v. United States Department of Transportation, Case No. 3:23-cv-00072, “to permit [the federal government] the opportunity to consider [its] litigating position in this case and the Parties an opportunity to explore settlement.” The proposed 90-day stay would not affect the current injunction against the use of the rebuttable presumption of social disadvantage in the Department of Transportation’s Disadvantaged Business Enterprise program for DOT-funded contracts the plaintiffs had bid on.
In Mid-America, the plaintiffs have challenged the DOT’s use of a rebuttable presumption when the department determines whether an individual is socially disadvantaged for purposes of the DBE Program. They argue the DOT’s use of a rebuttable presumption—that businesses owned by women and certain races and ethnicities are socially disadvantaged—is unconstitutional disparate treatment on the basis of race and sex.
Last September 23, the Mid-America court issued a preliminary injunction that enjoins the DOT from mandating the use of race- and gender-based rebuttable presumptions for U.S. Department of Transportation contracts subject to DBE goals upon which the plaintiffs had bid. The court limited its ruling to the plaintiffs in that case, rather than order a nationwide injunction. It barred the use of the rebuttable presumption only for contracts for which the plaintiffs had bid.
The Trump Administration has issued a variety of executive orders that commit to “protect[ing] the civil rights of all Americans … from discrimination based on race, color, religion, sex, or national origin” and require all federal agencies (including the defendant U.S. DOT) to assess agency “activities,” “programs,” “policies,” “regulations,” and “litigating positions” to ensure “align[ment]” with “the policy of equal dignity and respect.” See Exec. Order No. 14,173 (Jan. 21, 2025), 90 Fed. Reg. 8633 (Jan. 31, 2025); Exec. Order No. 14,151 (Jan. 20, 2025), 90 Fed. Reg. 8339 (Jan. 29, 2025). The plaintiff and federal government seek a 90-day stay so as to permit the latter to determine what position or action it wishes to take in the litigation in response to the executive orders.
As of February 11, a motion to intervene is pending in Mid-America. The motion was filed by a group of business associations who believe the preliminary injunction, combined with recent executive orders issued by President Trump that ban federal government “diversity, equity, and inclusion” initiatives, could have much greater consequences. The proposed intervenor-defendants include 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. These intervenors will likely oppose any stay of the case.
