NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOUNTAIN WEST HOLDING CO., INC., 

Plaintiff-Appellant, 

 v. 

THE STATE OF MONTANA; et al., 

Defendants-Appellees, 

and 

PATTI MCCUBBINS, MDT's Civil Rights 

Bureau Chief and DBE Liaison Officer; 

named only in her official capacity, 

Defendant. 

No. 14-36097 

D.C. No. 1:13-cv-00049-DLC 

MEMORANDUM *

MOUNTAIN WEST HOLDING CO., INC., 

Plaintiff-Appellee, 

 v. 

THE STATE OF MONTANA; et al., 

Defendants-Appellants, 

and 

No. 15-35003 

D.C. No. 1:13-cv-00049-DLC 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 16 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

PATTI MCCUBBINS, MDT's Civil Rights 

Bureau Chief and DBE Liaison Officer; 

named only in her official capacity, 

Defendant. 

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, Chief Judge, Presiding

Argued and Submitted March 10, 2017

Portland, Oregon

Before: LEAVY and FRIEDLAND, Circuit Judges, and BENITEZ,** District 

Judge.

Montana and its state Department of Transportation receive federal funds for 

transportation projects. As a condition of accepting those dollars, the State must 

set up a program to avoid discrimination against “small business concerns owned 

and controlled by socially and economically disadvantaged individuals.” See 

Moving Ahead for Progress in the 21st Century Act, Pub. L. No. 112–141, 

§ 1101(b)(3), 126 Stat. 405, 415 (2012). Federal law and regulations require states 

to presume that women and certain racial and ethnic minorities are economically 

and socially disadvantaged and authorizes states to set race- and gender-conscious 

contract goals in certain circumstances. See W. States Paving Co. v. Wash. State 

 

** The Honorable Roger T. Benitez, United States District Judge for the 

Southern District of California, sitting by designation.
3 

Dep’t of Transp., 407 F.3d 983, 988-90 (9th Cir. 2005). These preferred 

contractors are commonly referred to as disadvantaged business enterprises or 

“DBEs.”

Mountain West Holding Company installs signs, guardrails, and concrete 

barriers on highways in Montana. It competes to win subcontracts from prime 

contractors who have contracted with the State. It is not owned and controlled by 

women or minorities. Some of its competitors are. In this case it claims that 

Montana’s DBE goal-setting program unconstitutionally required prime 

contractors to give preference to these minority or female-owned competitors, 

which Mountain West argues was a violation of 42 U.S.C. § 1983 and Title VI of 

the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.

The district court granted summary judgment to the State, and Mountain 

West appealed. Montana also appealed the district court’s threshold determination 

that Mountain West had a private right of action under Title VI, and it appealed the 

district court’s denial of the State’s motion to strike an expert report submitted in 

support of Mountain West’s motion.

We dismiss Mountain West’s appeal as moot to the extent Mountain West 

pursues equitable remedies, affirm the district court’s determination that Mountain 

West has a private right to enforce Title VI, affirm the district court’s decision to 
4 

consider the disputed expert report, and reverse the order granting summary 

judgment to the State.

I. Mootness

Montana does not currently employ gender- or race-conscious goals, and the 

data it relied upon as justification for its previous goals are now several years old. 

Mountain West’s claims for injunctive and declaratory relief are therefore moot. 

See, e.g., Los Angeles County v. Davis, 440 U.S. 625, 631-34 (1979); Ctr. For 

Biological Diversity v. Lohn, 511 F.3d 960, 963-64 (9th Cir. 2007).

Mountain West’s Title VI claim is not moot, however. A plaintiff may seek 

damages to remedy violations of Title VI, see 42 U.S.C. § 2000d-7(a)(1)-(2);

Alexander v. Sandoval, 532 U.S. 275, 279 (2001), and Mountain West has sought 

damages. Claims for damages do not become moot even if changes to a 

challenged program make claims for prospective relief moot. See, e.g., Memphis 

Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8-9 (1978).

The appeal is therefore dismissed with respect to Mountain West’s claims 

for injunctive and declaratory relief; only the claim for damages under Title VI 

remains.1

 

1 We grant Montana’s motion to amend the caption because the Defendants whose 

presence in the caption was contested could only be sued for equitable relief, see

Papasan v. Allain, 478 U.S. 265, 278 (1986), and the equitable relief claims must 

be dismissed as moot.
5 

II. Private Rights of Action under Title VI

Reviewing de novo, we conclude for the reasons in the district court’s order

that Mountain West may state a private claim for damages against Montana under 

Title VI. See Sandoval, 532 U.S. at 279-80; Cholla Ready Mix, Inc. v. Civish, 382 

F.3d 969, 977-78 (9th Cir. 2004); Thinket Ink Info. Res., Inc. v. Sun Microsystems, 

Inc., 368 F.3d 1053, 1060 (9th Cir. 2004).

III. The Expert Report of George R. LaNoue

Montana argues that the district court incorrectly admitted the report of 

Mountain West’s expert witness, George R. LaNoue, Ph.D. Evidentiary decisions 

such as this one are reviewed for an abuse of discretion, even in the context of 

summary judgment. School Dist. No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 

1255, 1261 (9th Cir. 1993). A ruling can be reversed only if it was “manifestly 

erroneous and prejudicial.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th 

Cir. 2002).

We affirm the district court’s decision to consider the report. Although the 

report was authenticated after it was filed, the district court made a reasonable 

decision to admit and consider it, and it seems Mountain West suffered no

prejudice as a result.
6 

IV. Discrimination Under Title VI

The district court granted summary judgment to Montana on Mountain 

West’s claims for discrimination under Title VI. We review that decision de novo, 

applying the same legal standard as the district court. Animal Legal Def. Fund v. 

U.S. Food & Drug Admin., 836 F.3d 987, 988-89 (9th Cir. 2016) (en banc) (per 

curiam). Evidence is viewed in the light most favorable to the non-moving party. 

Id. Simultaneous cross-motions are considered independently under the same 

standard. See, e.g., Tulalip Tribes of Wash. v. Washington, 783 F.3d 1151, 1156 

(9th Cir. 2015).

Montana does not dispute that its program took race into account. 

Classifications based on race are permissible “only if they are narrowly tailored 

measures that further compelling governmental interests.” W. States Paving, 407 

F.3d at 990 (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 

(1995)).

2

 Montana bears the burden to justify any racial classifications. Id. In an 

as-applied challenge to a state’s DBE contracting program, “(1) the state must 

establish the presence of discrimination within its transportation contracting 

 

2 As in Western States Paving, we apply here the same test to claims of 

unconstitutional discrimination and discrimination in violation of Title VI. See

407 F.3d at 987; see also Sandoval, 532 U.S. at 281 (noting that Title VI 

“proscribes only those racial classifications that would violate the Equal Protection 

Clause of the Fifth Amendment” (citation and quotation marks omitted)).
7 

industry, and (2) the remedial program must be ‘limited to those minority groups 

that have actually suffered discrimination.’” Assoc. Gen. Contractors of Am. v. 

Cal. Dep’t of Transp., 713 F.3d 1187, 1196 (9th Cir. 2013) (quoting W. States 

Paving, 407 F.3d at 997-99). Discrimination may be inferred from “a significant 

statistical disparity between the number of qualified minority contractors willing 

and able to perform a particular service and the number of such contractors 

actually engaged by the locality or the locality’s prime contractors.” City of 

Richmond v. J.A. Croson Co., 488 U.S. 469, 509 (1989).

Here, the district court held that Montana had satisfied its burden. In 

reaching this conclusion, the district court relied on three types of evidence offered 

by Montana. First, it cited a study prepared by the D. Wilson Consulting Group

(“Wilson”), which reported disparities in professional services contract awards in 

Montana. Second, the district court noted that participation by DBEs declined 

after Montana abandoned race-conscious goals in the years following our decision 

in Western States Paving, 407 F.3d 983. Third, the district court cited anecdotes of 

a “good ol’ boys” network within the State’s contracting industry. We hold that 

summary judgment was improper in light of genuine disputes of material fact as to 

the Wilson study’s analysis, and because the second two categories of evidence 

were insufficient to prove a history of discrimination.
8 

A. The Wilson Study

Through his expert report and deposition, LeNoue testified that the Wilson 

firm relied on several questionable assumptions and an opaque methodology to 

conclude that professional services contracts were awarded on a discriminatory 

basis. See Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1270 (9th Cir. 1994) 

(explaining that conflicting expert testimony is itself “sufficient to create a genuine 

issue of disputed fact sufficient to defeat a summary judgment motion”). A few 

examples illustrate the areas in which there are disputes of fact as to whether the 

Wilson study sufficiently supported Montana’s actions:

1. Our cases require states to ascertain whether lower-than-expected 

DBE participation is attributable to factors other than race or gender. W. States 

Paving, 407 F.3d at 1000-01. LeNoue argues that the Wilson study did not explain 

whether or how Wilson accounted for a given firm’s size, age, geography, or other 

similar factors. The Wilson report’s authors were unable to explain their analysis 

in depositions for this case. Indeed, even Montana appears to have questioned the 

validity of Wilson’s statistical results.

2. Wilson relied on a telephone survey of a sample of Montana 

contractors. LeNoue argued that (a) it is unclear how Wilson selected that sample, 

(b) only a small percentage of surveyed contractors responded to questions, and 
9 

(c) it is unclear whether responsive contractors were representative of 

nonresponsive contractors. 

3. Wilson relied on very small sample sizes but did no tests for statistical 

significance, and Wilson admitted that “some of the population samples were very 

small and the result may not be significant statistically.” 

4. LaNoue argued that Wilson gave equal weight to professional services 

contracts and construction contracts, but professional services contracts composed

less than ten percent of total contract volume in the State’s transportation 

contracting industry. 

5. LaNoue argued that Montana incorrectly compared the proportion of 

available subcontractors to the proportion of prime contract dollars awarded. The 

district court did not address this criticism or explain why Wilson’s comparison 

was appropriate.

B. The Post-2005 Decline in Participation by DBEs

We are likewise unable to affirm the district court’s order in reliance on the 

decrease in DBE participation after 2005. In Western States Paving, we held that a 

decline in DBE participation after race- and gender- based preferences are halted is 

not necessarily evidence of discrimination against DBEs. See 407 F.3d at 999 (“If 

[minority groups have not suffered from discrimination], then the DBE program 

provides minorities who have not encountered discriminatory barriers with an 
10 

unconstitutional competitive advantage at the expense of both non-minorities and 

any minority groups that have actually been targeted for discrimination.”); id. at 

1001 (“The disparity between the proportion of DBE performance on contracts that 

include affirmative action components and on those without such provisions does 

not provide any evidence of discrimination against DBEs.”); see also U.S. Dep’t of 

Transp., Western States Paving Co. Case Q&A (Dec. 16, 2014) (“In calculating 

availability of DBEs, [a state’s] study should not rely on numbers that may have 

been inflated by race-conscious programs that may not have been narrowly 

tailored.”).

C. Anecdotal Evidence of Discrimination

Without a statistical basis, the State cannot rely on anecdotal evidence alone. 

Coral Const. Co. v. King Cty., 941 F.2d 910, 919 (9th Cir. 1991) (“While 

anecdotal evidence may suffice to prove individual claims of discrimination, 

rarely, if ever, can such evidence show a systemic pattern of discrimination 

necessary for the adoption of an affirmative action plan.”); see also Croson, 488 

U.S. at 509 (“[E]vidence of a pattern of individual discriminatory acts can, if 

supported by appropriate statistical proof, lend support to a local government’s 

determination that broader remedial relief is justified.”).
11 

* * *

In sum, because we must view the record in the light most favorable to 

Mountain West’s case, we conclude that it provides an inadequate basis for 

summary judgment in Montana’s favor.

V. Conclusion

We reverse and remand for the district court to conduct whatever further 

proceedings it considers most appropriate, including trial or the resumption of 

pretrial litigation. See Fed. R. Civ. P. 16(b)(4) (allowing modification of a 

scheduling order for good cause); Butler v. San Diego Dist. Attorney’s Office, 370 

F.3d 956, 964 (9th Cir. 2004) (noting that a district court had discretion to reopen 

discovery on remand given this court’s clarifications on appeal).

DISMISSED in part, REVERSED in part, and REMANDED.