In Re City Of Memphis

293 F.3d 345 (6th Cir. 2002)

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Nature of the Case

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Facts

Ps brought this action on January 4, 1999, challenging the use of minority preferences by D in awarding construction contracts under the City's Minority & Women Business Enterprise Procurement Program (MWBE program). Ps allege that the MWBE program violates the Fourteenth Amendment. D adopted the MWBE program in 1996 as a remedy for past discrimination and to prevent future discrimination. D relied on a disparity study covering the period from 1988 to 1992. Based on that study, D concluded that it was an active and passive participant in discrimination. In response to this lawsuit, D proposed to commission a new study that would cover the period from 1993 to 1998. D was going to use this post-enactment study as evidence to demonstrate a compelling governmental interest. The district court ruled on June 9, 1999, that D could not introduce the post-enactment study as evidence of a compelling governmental interest. The district court denied D's motion to certify an interlocutory appeal. D moved to reconsider certification. The district court certified an interlocutory appeal on December 20, 2000. The parties did not receive notice of entry of the order until after the expiration of the 10-day period for filing an application for interlocutory appeal. On January 9, 2001, the district court sua sponte entered an order granting D an additional 30 days to file the interlocutory appeal. On May 1, 2001, this court denied the application for interlocutory appeal finding that the district court could not extend the 10-day period under 28 U.S.C. § 1292(b). On May 17, 2001, D filed a motion asking the district court to vacate and reenter its certification order. On July 5, 2001, the district court vacated its December 20, 2000 order. After considering anew whether certification would achieve the ends of § 1292(b), the district court reentered its certification order. On July 12, 2001, D filed an application for permission to appeal.