ACR Project and Manhattan Institute File Amicus Brief Supporting Petition for Cert in Challenge to Discriminatory SBA Program

The ACR Project, joined by Manhattan Institute, filed an amicus brief at the Supreme Court.  We ask the court to free plaintiffs challenging the Small Business Administration’s racially discriminatory presumptions from the Fourth Circuit’s standing trap.  You can see the full brief, below.

Marty Hierholzer (a service-disabled veteran who owns a business) twice applied to the SBA’s Section 8(a) Business Development Program.  The 8(a) program provides government contracts and other opportunities to small businesses owned by the socially disadvantaged.  The program presumes such status for those of some races (not including Hierholzer’s) while requiring others to prove it.  Both times, the SBA rejected Hierholzer’s application.

The Fourth Circuit threw out Hierholzer’s equal protection challenge for lack of standing.  It held that because he wasn’t economically disadvantaged, he wouldn’t have qualified for the 8(a) program anyway. Hierholzer has asked the Supremer Court to correct that ruling.  Our brief explains why they should take the case and do so.

A short version focuses on how the Fourth Circuit mischaracterized Hierhozer’s situation to deny injury, deny that the discriminatory presumption caused that injury, and deny that the harm so caused would be redressable through litigation.  We make these arguments at pages 3-10 of our brief.

The shortest (at pages 11-13) observes that the Fourth Circuit’s rule means no one, ever, may challenge the discriminatory presumption.  In a pure catch-22, it denies standing to anyone who hasn’t proven their economic disadvantage despite lacking the benefit of the presumption, while knowing that anyone who does prove that disadvantage qualifies for the program and definitionally remains unaffected by the presumption, so still lacks standing.

That can’t be the law.