49 C.F.R. § 26.89

Appeals to the Department

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(a)(1) Applicants and decertified firms may appeal adverse NODs to the Department.

(2) An ineligibility complainant or applicable Operating Administration (the latter by the terms of § 26.87(c)) may appeal to the Department if the certifier does not find reasonable cause to issue an NOI to decertify or affirmatively determines that the DBE remains eligible.

(3) Appellants must email appeals as directed in the certifier's decision letter within 45 days of the date of the letter. The appeal must at a minimum include a narrative that explains fully and specifically why the firm believes the decision is in error, what outcome-determinative facts the certifier did not consider, and/or what part 26 provisions the certifier misapplied.

(4) The certifier's decision remains in effect until the Department resolves the appeal or the certifier reverses itself.

(b) When it receives an appeal, the Department requests a copy of the certifier's complete administrative record including a video, audio, or transcript of any hearing, which the certifier must provide within 20 days of the Department's request. The Department may extend this time period when the certifier demonstrates good cause. The certifier must ensure that the administrative record is well organized, indexed, and paginated and the certifier must provide the appellant a copy of any supplemental information it provides to DOT.

(c)(1) The Department may accept an untimely or incomplete appeal if it determines, in its sole discretion, that doing so is in the interest of justice.

(2) The Department may dismiss non-compliant or frivolous appeals without further proceedings.

(d) The Department will avail itself of whatever remedies for noncompliance it considers appropriate.

(e) The Department decides only the issue(s) presented on appeal. It does not conduct a de novo review of the matter, assess all eligibility requirements, or hold hearings. It considers the administrative record and any additional information that it considers relevant.

(f)(1) The Department affirms the certifier's decision if it determines that the decision is consistent with applicable rules and supported by substantial evidence.

(2) The Department reverses decisions that do not meet the standard in paragraph (f)(1) of this section.

(3) The Department need not reverse if an error or omission did not result in fundamental unfairness or undue prejudice.

(4) The Department may remand the case with instructions for further action. When the Department specifies further actions, the certifier must take them without delay.

(5) The Department generally does not uphold the certifier's decision based on grounds not specified in its decision.

(6) The Department resolves appeals on the basis of facts demonstrated, and evidence presented, at the time of the certifier's decision.

(7) The Department may summarily dismiss an appeal. Reasons for doing so include, but are not limited to, non-compliance, abuse of process, appellant or certifier request, and failure to state a claim upon which relief can be granted.

(g) The Department does not issue advisory opinions.

(h) All decisions described in paragraph (f) of this section are administratively final unless they say otherwise.

(i) DOCR posts final decisions to its website, available at https://www.transportation.gov/DBEDecisions.

[89 FR 24978, Apr. 9, 2024]

Notes of Decisions

Cited in 5 cases, 2002–2018 · leading case: Chaz Constr., LLC v. Codell, 137 F. App'x 735 (6th Cir. 2005).

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Chaz Constr., LLC v. Codell, 137 F. App'x 735 (6th Cir. 2005). “600 KAR 4:010 §§ 10(10), 11(5); see also 49 C.F.R. 26.89. These remedies specifically address the deprivations alleged in this case: (1) certification of ineligible DBEs, and (2) denial of contracts to properly certified DBEs, something appropriately characterized as a decision…”

Grove, Inc. v. United States Dep't of Transp., 578 F. Supp. 2d 37 (D.D.C. 2008). · cites it 3× “49 C.F.R. § 26.89 (f). The parties disagree about the construction of these two provisions.”

Best Wood Judge Firewood & Tree Serv. v. United States Dep't of Transp., 784 F. Supp. 2d 1059 (E.D. Wis. 2011). · cites it 2× “49 C.F.R. § 26.89 (d). USDOT decides the appeal based solely on the administrative record.”

Orion Ins. Grp. v. Omwbe (9th Cir. 2018). “In addition, Taylor’s argument that USDOT violated 49 C.F.R. § 26.89 (f)(8) is now moot. B. Claims under the Equal Protection Clause and 42 U.”

Shearin Constr., Inc. v. Mineta, 232 F. Supp. 2d 608 (E.D. Va. 2002). “To qualify, an entity must establish that it *611 meets the stated requirements for “group membership or individual disadvantage, business size, ownership, and control.”

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