SUPREME COURT OF THE UNITED STATES
ADARAND CONSTRUCTORS, INC. v. RODNEY 
SLATER, SECRETARY OF TRANS-
PORTATION, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 99-295. Decided January 12, 2000
   PER CURIAM.
                                      I
   Congress has adopted a policy that favors contracting 
with small businesses owned and controlled by the socially 
and economically disadvantaged.  See S8(d)(1) of the Small 
Business Act, as added by S7 of Pub. L. 87-305, 75 Stat. 
667, and as amended, 15 U. S. C. S637(d)(1) (1994 ed., 
Supp. IV).  To effectuate that policy, the Intermodal Sur-
face Transportation Efficiency Act of 1991 (ISTEA), Pub. 
L. 102-240, S1003(b), 105 Stat. 1919, which is an appro-
priations measure for the Department of Transportation 
(DOT), seeks to direct 10 percent of the contracting funds 
expended on projects funded in whole or in part by the 
appropriated funds to transportation projects employing 
so-called disadvantaged business enterprises.#1   ISTEA, 
S1003(b)(1).
   To qualify for that status, the small business must be 
certified as owned and controlled by socially and economi-
cally disadvantaged individuals.  DOT does not itself 
conduct certifications, but relies on certifications from two 
main sources: the Small Business Administration, which 
certifies businesses for all types of federal procurement 
programs, and state highway agencies, which certify them 
for purposes of federally assisted highway projects.  The 
federal regulations governing these certification programs, 
see 13 CFR pt. 124 (1999) (Small Business Administra-
tion); 64 Fed. Reg. 5096-5148 (1999) (to be codified in 49 
CFR pt. 26) (DOT for state highway agencies), require that 
the certifying entity presume to be socially disadvantaged 
persons who are black, Hispanic, Asian Pacific, Subconti-
nent Asian, Native Americans, or members of other groups 
designated from time to time by the Small Business Ad-
ministration.  See 13 CFR S124.103(b); 64 Fed. Reg. 5136 
(S26.67).  State highway agencies must in addition pre-
sume that women are socially disadvantaged.  Id., at 5136 
(S26.67).  Small businesses owned and controlled by per-
sons who are not members of the preferred groups may 
also be certified, but only if they can demonstrate social 
disadvantage.  See 13 CFR S124.103(c); 64 Fed. Reg. 
5136-5137 (S26.67(d)); id., at 5147-5148 (pt. 26, subpt. D, 
App. E).  Third parties, as well as DOT, may challenge 
findings of social disadvantage.  See 13 CFR S124.1017(a); 
64 Fed. Reg. 5142 (S26.87).
                                      II
   In 1989, DOT awarded the prime contract for a federal 
highway project in Colorado to Mountain Gravel & Con-
struction Company.  The contract included a Subcontrac-
tor Compensation Clause-which the Small Business Act 
requires all federal agencies to include in their prime 
contracts, see 15 U. S. C. S637(d)-rewarding the prime 
contractor for subcontracting with disadvantaged business 
enterprises, see S637(d)(4)(E).  Petitioner, whose principal 
is a white man, submitted the low bid on a portion of the 
project, but Mountain Gravel awarded the subcontract to a 
company that had previously been certified by the Colo-
rado Department of Transportation (CDOT) as a disad-
vantaged business enterprise.
   Petitioner brought suit against various federal officials, 
alleging that the Subcontractor Compensation Clause, and 
in particular the race-based presumption that forms its 
foundation, violated petitioner's Fifth Amendment right to 
equal protection.  The Tenth Circuit, applying the so-
called intermediate scrutiny approved in some of our cases 
involving classifications on a basis other than race, see 
Mississippi Univ. for Women v. Hogan, 458 U. S. 718 
(1982); Craig v. Boren, 429 U. S. 190 (1976), upheld the 
use of the clause and the presumption.  Adarand Con-
structors, Inc. v. Peņa, 16 F. 3d 1537 (1994).  Because 
DOT's use of race-based measures should have been sub-
jected to strict scrutiny, we reversed and remanded for the 
application of that standard.  Adarand Constructors, Inc. 
v. Peņa, 515 U. S. 200, 237-239 (1995) (Adarand I).
   On remand, the District Court for the District of Colo-
rado held that the clause and the presumption failed strict 
scrutiny because they were not narrowly tailored.  Ada-
rand Constructors, Inc. v. Peņa, 965 F. Supp. 1556 (1997) 
(Adarand II).  Specifically, the court held the presumption 
that members of the enumerated racial groups are socially 
disadvantaged to be both overinclusive and underinclu-
sive, because it includes members of those groups who are 
not disadvantaged and excludes members of other groups 
who are.  Id., at 1580.  The District Court enjoined DOT 
from using the clause and its presumption.#2   Id., at 1584.
Respondents appealed to the Tenth Circuit.
   Shortly thereafter, and while respondents' appeal was 
still pending, petitioner filed a second suit in the District 
Court this time naming as defendants certain Colorado 
officials, and challenging (on the same grounds) the State's 
use of the federal guidelines in certifying disadvantaged 
business enterprises for federally assisted projects.  Ada-
rand Constructors, Inc. v. Romer, Civ. No. 97-K-1351 
(June 26, 1997).  Shortly after this suit was filed, however, 
Colorado altered its certification program in response to 
the District Court's decision in Adarand II.  Specifically, 
the State did away with the presumption of social disad-
vantage for certain minorities and women, App. to Pet. for 
Cert. 109-111, and in its place substituted a requirement 
that all applicants certify on their own account that each 
of the firm's majority owners "has experienced social 
disadvantage based upon the effects of racial, ethnic or 
gender discrimination," id., at 110.  Colorado requires no 
further showing of social disadvantage by any applicant.
   A few days after Colorado amended its certification 
procedure, the District Court held a hearing on peti-
tioner's motion for a preliminary injunction in Romer.  The 
District Court took judicial notice of its holding in Ada-
rand II that the Federal Government had discriminated 
against petitioner's owner "by the application of unconsti-
tutional rules and regulations."  Id., at 136.  As a result of 
that race-based discrimination, the District Court rea-
soned, petitioner likely was eligible for disadvantaged-
business status under Colorado's system for certifying 
businesses for federally assisted projects-the system at 
issue in Romer.  Id., at 137.  The District Court therefore 
denied petitioner's request for a preliminary injunction.  
Id., at 138.  Petitioner then requested and received disad-
vantaged-business status from CDOT.
   Meanwhile, respondents' appeal from the District 
Court's decision in Adarand II was pending before the 
Tenth Circuit.  Upon learning that CDOT had given peti-
tioner disadvantaged-business status, the Tenth Circuit 
held that the cause of action was moot, and vacated the 
District Court's judgment favorable to petitioner in Ada-
rand II.  169 F. 3d 1292, 1296-1297, 1299 (CA10 1999).  
Petitioner filed a petition for certiorari.
                                      III
   In dismissing the case as moot, the Tenth Circuit relied 
on the language of the Subcontractor Compensation 
Clause, which provides that "[a] small business concern 
will be considered a [disadvantaged business enterprise] 
after it has been certified as such by . . . any State's De-
partment of Highways/Transportation."  Id., at 1296.  
Because CDOT had certified petitioner as a disadvantaged 
business enterprise, the court reasoned, the language of 
the clause indicated that the Federal Government also had 
accepted petitioner's certification for purposes of federal 
projects.  As a result, petitioner could no longer demon-
strate " 'an invasion of a legally protected interest' that is 
sufficiently 'concrete and particularized' and 'actual or 
imminent' " to establish standing.  Arizonans for Official 
English v. Arizona, 520 U. S. 43, 64 (1997) (quoting Lujan 
v. Defenders of Wildlife, 504 U. S. 555, 560 (1992)).  Be-
cause, the court continued, petitioner could not demon-
strate such an invasion, its cause of action was moot.  169 
F. 3d, at 1296-1297.
   In so holding, the Tenth Circuit "confused mootness 
with standing," Friends of Earth, Inc. v. Laidlaw Envi-
ronmental Services (TOC), Inc., ante, at ___, (slip op., at 
19), and as a result placed the burden of proof on the 
wrong party.  If this case is moot, it is because the Federal 
Government has accepted CDOT's certification of peti-
tioner as a disadvantaged business enterprise, and has 
thereby ceased its offending conduct.  Voluntary cessation 
of challenged conduct moots a case, however, only if it is 
"absolutely clear that the allegedly wrongful behavior 
could not reasonably be expected to recur."  United States 
v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 
199, 203 (1968) (emphasis added).  And the " 'heavy bur-
den of persua[ding]' the court that the challenged conduct 
cannot reasonably be expected to start up again lies with 
the party asserting mootness."  Friends of Earth, ante, at 
____ (slip op., at 19) (emphasis added) (quoting Concen-
trated Phosphate Export Assn., supra, at 203).
   Because respondents cannot satisfy this burden, the 
Tenth Circuit's error was a crucial one.  As common sense 
would suggest, and as the Tenth Circuit itself recognized, 
DOT accepts only "valid certification[s]" from state agen-
cies.  169 F. 3d, at 1298.  As respondents concede, how-
ever, see Brief in Opposition 13-14, n. 6, DOT has yet to 
approve-as it must-CDOT's procedure for certifying 
disadvantaged business enterprises, see 64 Fed. Reg. 5129 
(1999) (49 CFR S26.21(b)(1)) ("[The State] must submit a 
[disadvantaged business enterprise] program conforming 
to this part by August 31, 1999 to the concerned operating 
administration").
   DOT has promulgated regulations outlining the proce-
dure state highway agencies must follow in certifying 
firms as disadvantaged business enterprises.  See id., at 
5096-5148 (pt. 26).  As described earlier, those regulations 
require the agency to presume that "women, Black Ameri-
cans, Hispanic Americans, Native Americans, Asian-
Pacific Americans, Subcontinent Asian Americans, or 
other minorities found to be disadvantaged by the [Small 
Business Administration]," are socially disadvantaged.  
Id., at 5136 (S26.67(a)(1)).  Before individuals not mem-
bers of those groups may be certified, the state agency 
must make individual determinations as to disadvantage.  
See id., at 5136-5137 (S26.67(d)) ("In such a proceeding, 
the applicant firm has the burden of demonstrating to [the 
state highway agency], by a preponderance of the evi-
dence, that the individuals who own and control it are 
socially and economically disadvantaged"); id., at 5147-
5148 (pt. 26, subpt. D, App. E) (providing list of "elements"
that highway agencies must consider in making individu-
alized determinations of social disadvantage).  CDOT's 
new procedure under which petitioner was certified ap-
plies no presumption in favor of minority groups, and 
accepts without investigation a firm's self-certification of 
entitlement to disadvantaged-business status.  See App. to 
Pet. for Cert. 109-111.  Given the material differences (not 
to say incompatibility) between that procedure and the 
requirements of the DOT regulations, it is not at all clear 
that CDOT's certification is a "valid certification," and 
hence not at all clear that the Subcontractor Compensa-
tion Clause requires its acceptance.
   Before the Tenth Circuit, respondents took pains to 
"expres[s] no opinion regarding the correctness of Colo-
rado's determination that [petitioner] is entitled to [disad-
vantaged-business] status."  Motion by the Federal Ap-
pellants to Dismiss Appeal as Moot and to Vacate the 
District Court Judgment in No. 97-1304, p. 3, n. 2.  In-
stead, they stated flatly that "in the event there is a third-
party challenge to [petitioner's] certification as a [disad-
vantaged business enterprise] and the decision on the 
challenge is appealed to DOT, DOT may review the deci-
sion to determine whether the certification was proper."  
Id., at 3-4, n. 2.  In addition, DOT itself has the power to 
require States to initiate proceedings to withdraw a firm's 
disadvantaged status if there is "reasonable cause to 
believe" that the firm "does not meet the eligibility crite-
ria" set forth in the federal regulations.  64 Fed. Reg. 5142 
(S26.87(c)(1)).  Given the patent incompatibility of the 
certification with the federal regulations, it is far from 
clear that these possibilities will not become reality.  
Indeed, challenges to petitioner's disadvantaged-business 
status seem quite probable now that the Tenth Circuit, by 
vacating Adarand II, has eliminated the sole basis for 
petitioner's certification in the first place.
   The Tenth Circuit dismissed these possibilities as insuf-
ficiently particular and concrete to grant standing and 
therefore "too conjectural and speculative to avoid a find-
ing of mootness."  169 F. 3d, at 1298 (internal quotation 
marks omitted).  As we recently noted in Friends of the 
Earth, however, "[t]he plain lesson of [our precedents] is 
that there are circumstances in which the prospect that a 
defendant will engage in (or resume) harmful conduct may 
be too speculative to support standing, but not too specula-
tive to overcome mootness."  Ante, at ___ (slip op., at 20).  
Because, under the circumstances of this case, it is impos-
sible to conclude that respondents have borne their burden 
of establishing that it is "absolutely clear that the alleg-
edly wrongful behavior could not reasonably be expected 
to recur," ante, at ___ (slip op., at 18), petitioner's cause of 
action remains alive.
                                      *  *  *
   It is no small matter to deprive a litigant of the rewards 
of its efforts, particularly in a case that has been litigated 
up to this Court and back down again.  Such action on 
grounds of mootness would be justified only if it were 
absolutely clear that the litigant no longer had any need of 
the judicial protection that it sought.  Because that is not 
the case here, the petition for writ of certiorari is granted, 
the judgment of the United States Court of Appeals for the 
Tenth Circuit is reversed, and the case is remanded for 
further proceedings consistent with this opinion.
It is so ordered.

   Congress recently enacted the Transportation Equity Act for the 
21st Century (TEA-21), Pub. L. 105-178, Tit. I, S1101(b), 112 Stat. 113, 
the successor appropriations measure to ISTEA.  Although the new Act 
contains similar provisions, it is technically the provisions of ISTEA 
that apply to funding obligated in prior fiscal years but not yet ex-
pended.
   Before the Tenth Circuit, the parties disagreed as to whether the 
scope of the District Court's remedial order was appropriate.  In charac-
terizing that order as we do here, we do not intend to take a position in 
that dispute.