On September 23, 2024, in Mid-America Milling Company et. al. v. United States Department of Transportation, et. al., Case No. 3:23-cv-00072, the United States District Court for the Eastern District of Kentucky (the “District Court”) issued a temporary restraining order enjoining the DOT from mandating the use of race- and gender-based rebuttable presumptions for United States Department of Transportation contracts impacted by DBE goals upon which the Plaintiffs bid in connection with the DOT’s Disadvantaged Business Enterprise program (the “DBE Program”).

On January 20, 2025, President Trump issued Executive Order 14151, titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” which directed federal agencies to “terminate . . . all ‘equity action plans,’ ‘equity’ actions, initiatives, or programs, [and] ‘equity-related’ grants or contracts.” In response to the election of President Trump and his issuance of Executive Orders, group of various advocacy groups, trade organizations, and businesses that rely on the DBE Program moved to intervene in Mid-America, as they were concerned that the new administration would not vigorously defend the DBE Program.

On May 21, 2025, the District Court granted the intervenors’ motion, finding that they had the ability to intervene as a matter of right.

Under Federal Civil Rule 24, a party may intervene as a matter of right where it “claims an interest relating to the property or transaction that is subject to the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest” so long as the intervention is timely and “existing parties [do not] adequately represent” the absentee’s interest(s). The District Court found that:

• • The intervenors’ motion was timely because “Plaintiffs sought to intervene only days after the Executive Orders were passed, and both Plaintiffs and Intervenor DBEs appear to agree that the federal government had otherwise ‘vindicated the [DBE] program in court’ for decades. [R. 67 at pg. 3; R. 57 at pg. 4] (noting that “every federal court of appeals to consider the question has found the DOT DBE program constitutional”). Thus, it was not until the EOs were signed and the Defendants’ position on the DBE program materially changed that Intervenor DBEs ‘knew or should have known of their interest in the case,’ Jansen, 904 F.2d at 340, and any attempt to intervene before the EOs were signed would have likely been considered premature.”
  • Any prejudice to the other parties in the case from granting the motion to intervene would be minimal given that the intervenors “acted promptly in seeking to intervene as soon as they knew they had an interest in this case” and that they are not injecting new issues in the litigation.
  • The intervenors have a substantial interest in the case because they rely heavily on the DBE Program to obtain contracts, and the intervenors allege that “without [the DBE Program] they would be unable to obtain due to the alleged ‘pervasive discrimination’ within their respective industries.”
  • The intervenors’ interests could be impaired if their motion were denied because “[t]his case effectively turns on the constitutionality of the DBE program. As Intervenor DBEs allege, the upshot of any unfavorable ruling on the DBE program would result in them no longer having access to contracts for their respective transportation businesses (or the businesses of their members).”
  • The current administration may not adequately represent the intervenors’ interests because “while Defendants have thus far litigated this case forcefully, the changing of the guard in Washington suggests that Defendants will likely take a far different stance regarding the constitutionality of the DBE program going forward…. Because Defendants are considering a change in position that would result in their not defending the constitutionality of the DBE program, it necessarily follows that Defendants cannot be said to adequately represent Intervenor DBEs in this matter.”

Based on these determinations, the District Court granted the intervenors’ motion.

This decision may be indicative of what we may see in other challenges to federal programs, where courts recognize that this current administration may elect not to defend a statutorily authorized program from a constitutional challenge, leaving it to trade associations and impacted entities and individuals to intervene and take up the mantle of defending the federal program.

This article summarizes aspects of the law. This article does not constitute legal advice. For legal advice regarding your situation, you should contact an attorney.