Amicus Brief: Hierholzer v. Loeffler

Marty Hierholzer is a service-disabled veteran whose small business, MJL Enterprises, contracts with the federal government to provide services and supplies to military bases and VA hospitals. He has applied twice to participate in the U.S. Small Business Administration’s Section 8(a) Business Development Program, which offers set-aside federal contracts and other business development benefits to businesses owned by “socially and economically disadvantaged” individuals. Under an SBA regulation, members of certain minority racial and ethnic groups are presumed “socially disadvantaged,” while all other applicants must affirmatively prove their disadvantage. Because Hierholzer is of German and Scottish descent, he does not qualify for the presumption.

SBA denied both of his applications based on a finding that he had not sufficiently demonstrated social disadvantage, which he argued that he satisfied as a service-disabled veteran. Hierholzer sued in federal court to challenge SBA’s use of a race-based presumption under the Fifth Amendment’s Due Process Clause and the Administrative Procedure Act. The district court dismissed for lack of standing, and the Fourth Circuit affirmed.

Hierholzer is now asking the Supreme Court to take his case. The Manhattan Institute, joined by the American Civil Rights Project, has filed an amicus brief supporting his petition.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Dan Morenoff is an adjunct fellow at the Manhattan Institute and the executive director at the American Civil Rights Project.

With thanks to law school associate Rohit Goyal

Photo: ANDREY DENISYUK / Moment via Getty Images