Motion for approval of proposed consent order in DOT DBE program litigation  

On July 16, 2025, the USDOT Defendants filed their reply in support of the joint motion for entry of a consent order.

By way of background, on May 28, 2025, the Plaintiffs Mid-America Milling Company, LLC and Bagshaw Trucking, Inc., together with the U.S. Department of Transportation (DOT), jointly filed a motion seeking preliminary approval of a proposed consent order that would resolve ongoing litigation challenging the constitutionality of the DOT's Disadvantaged Business Enterprise (DBE) program as implemented under the Infrastructure Investment and Jobs Act. The motion was a result of extensive contentious litigation, including a preliminary injunction that enjoined the use of race- and gender-based presumptions in DBE contracting, and apparently several months of arm's-length settlement negotiations.

If approved, the proposed consent order would allow the DOT DBE program to continue, but only for DBEs that have not qualified through race- or sex-based presumptions, and would provide a framework for states and airport authorities to implement DBE goals in a manner consistent with constitutional requirements. The motion also addresses objections raised by Defendant-Intervenor DBEs and amici, clarifying that the fairness hearing is not a forum to relitigate the merits, but rather to assess the fairness, adequacy, and reasonableness of the settlement. Affected entities—including state and local transportation authorities, prime contractors, and DBE and non-DBE subcontractors—should closely monitor the outcome of this motion, as it will have significant implications for the administration of DBE goals on federally funded transportation projects nationwide. For further information or to discuss how this development may impact your organization, please contact attorney Michelle Kantor.