Albuquerque Indian Rights v. Lujan

• Decision Date: 12 April 1991
• Docket Number: No. 89-5181,89-5181
• Citation: 930 F.2d 49
• Parties: 56 Empl. Prac. Dec. P 40,701, 289 U.S.App.D.C. 164 ALBUQUERQUE INDIAN RIGHTS, Appellant, v. Manuel LUJAN, Jr., in His Trust Capacity as Secretary of the Interior, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 49

930 F.2d 49

56 Empl. Prac. Dec. P 40,701, 289 U.S.App.D.C. 164

ALBUQUERQUE INDIAN RIGHTS, Appellant, v. Manuel LUJAN, Jr., in His Trust Capacity as Secretary of the

Interior, et al.

No. 89-5181.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 15, 1990.

Decided April 12, 1991.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 88-02876).

Bruce S. Deming, with whom Daniel S. Press, was on the brief, Washington, D.C., for appellant.

Daniel J. Standish, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John Bates, and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, Washington, D.C., for appellees.

Before EDWARDS, D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge D.H. GINSBURG.

SENTELLE, Circuit Judge:

This appeal arises from a motion for summary judgment granted by the United States District Court for the District of Columbia upholding the Department of the Interior's ("Interior" or "DOI") refusal to apply the Indian hiring preference afforded by 25 U.S.C. Sec. 472 to positions within the Department's Office of Construction Management ("OCM").

Appellant Albuquerque Indian Rights Association ("AIRA"), an organization of American Indians employed at the Office of Facilities Management ("OFM"), brought suit alleging that appellees violated Sec. 12 of the Indian Reorganization Act ("IRA" or "Act"), 25 U.S.C. Sec. 472 (1988) by failing to extend the Indian preference to positions within OCM. ¹ AIRA argues that because OCM provides services principally to the Indian community, OCM positions should be subject to the Indian preference. Interior contends that AIRA lacks standing to bring this suit and, in the alternative, that its statutory interpretation denying application of the Indian preference outside the Bureau of Indian Affairs ("BIA") merits judicial deference. The district court held that DOI's interpretation of the statute was a permissible construction and, therefore, entitled to deference. We conclude, however, that AIRA lacks standing to bring this suit because its members have suffered no presently demonstrable injury. Consequently, we affirm the district court's dismissal of this claim. ²

I. BACKGROUND

A. The Statutory Language

In an effort to give Indian people control over their own affairs, Congress adopted the Indian Reorganization Act. See Morton v. Mancari, 417 U.S. 535, 541-42, 94 S.Ct. 2474, 2478, 41 L.Ed.2d 290 (1974). Among other things, the Act provides that Indian applicants should be granted a hiring preference when applying for positions having the primary responsibility of providing services to Indians or to Indian tribes. The principal statutory language at issue in this case is set forth as follows:

The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed to the various positions maintained, now or hereafter, by the Indian Office, in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions.

25 U.S.C. Sec. 472 (1988). The term "Indian Office" is nowhere defined in the statute, nor is it the official name of any known agency within or without the Department of the Interior. DOI has traditionally interpreted the term "Indian Office" broadly to include all units within DOI "directly and primarily related to the providing of services to Indians," not limiting application of the preference solely to positions within the BIA. United States Department of the Interior, Office of the Solicitor, Memorandum Opinion dated 13 June 1979 (interpreting Indian preference provision to apply outside of BIA); United States Department of the Interior, Office of the Solicitor, Memorandum Opinion dated 6 May 1986 (same); see also Comptroller General Opinion Letter dated 20 September 1977, p. 10.

DOI most recently has reversed its earlier statutory interpretation, however. DOI now chooses to interpret the term "Indian Office" narrowly, construing it to mean only the BIA itself, and all units removed intact from the BIA. See The Scope of Indian Preference Under the Indian Reorganization Act, United States Department of the Interior, Office of the Solicitor, Memorandum Opinion dated 10 June 1988 ("Scope of Indian Preference "). It is this statutory interpretation appellant challenges.

B. Factual Background

In 1979, Congress established the Office of Construction Management and placed it under the supervision of the Assistant Secretary of the Interior for Policy, Budget and Administration, who reports directly to the Secretary of the Interior. Act of November 27, 1979, P.L. 96-126, 93 Stat. 954, 966. Congress directed OCM to reorganize completely the BIA's facilities management program, operated under the auspices of BIA's Office of Facilities Management ("OFM"), because of the deterioration of physical facilities on Indian reservations. H.R. Rep. No. 450, 99th Cong., 1st Sess., 59 (1985). Although Congress gave OCM responsibility for all physical facilities maintained by DOI, ³ it specifically instructed OCM to assume full control of BIA's facilities management program. OCM now directly supervises employees formerly supervised by OFM. Employment positions within the BIA (including OFM) are subject to the Indian hiring preference. However, Interior has never applied the Indian hiring preference to OCM positions.

In September, 1987, AIRA, an organization of Indian employees at OFM, submitted a formal protest claiming that DOI was wrongfully failing to apply the Indian preference to OCM positions. AIRA alleged that under Sec. 472, any DOI position that directly and primarily provides services to Indians or to Indian tribes should be subject to the preference. AIRA later claimed to have members who would have applied for jobs with OCM had OCM exercised the Indian preference in filling vacant positions. No AIRA member actually applied for a job with OCM, however. AIRA contends that its members knew the statutory preference did not apply because OCM omitted any reference to the preference in its employment advertisements and believed, therefore, that it was futile for AIRA members to apply in the absence of the preference.

DOI never directly responded to AIRA's formal protest. But on June 10, 1988, the DOI Solicitor issued an opinion which concluded that the Indian preference did not apply to positions within OCM. DOI, in a reversal of its earlier position, now rejects the broad definition of "Indian Office" as meaning any office "directly and primarily" related to serving Indians, and instead construes the term "Indian Office" to mean only those offices within the BIA itself, or those removed intact from the BIA. See Scope of Indian Preference, J.A. at 40-53. The DOI Solicitor's memorandum opinion considered the legislative history of the Indian Reorganization Act, its treatment in the courts, and the historical application of the Indian preference at DOI. It also spelled out reasons for differing with earlier opinions issued by the Comptroller General and former Solicitor. Those earlier opinions took the opposite view on a related issue involving the statutory preference. Compare Scope of Indian Preference (limiting application of Indian hiring preference to within BIA), with Comptroller General Opinion Letter dated 20 September 1977 (interpreting Indian hiring preference to apply outside BIA); United States Department of the Interior, Office of the Solicitor, Memorandum Opinion dated 13 June 1979 (same); United States Department of the Interior, Office of the Solicitor, Memorandum Opinion dated 6 May 1986 (same); The Solicitor's new, narrowed interpretation fueled DOI's refusal to apply the preference to OCM.

AIRA then brought suit in district court asserting that OCM positions should be subject to Indian preference and that DOI's position (as articulated in the Solicitor's memorandum opinion) was an impermissible post hoc rationalization. DOI challenged AIRA's standing claim and rejected AIRA's interpretation of the provision. DOI further argued that its interpretation warranted deference. In a memorandum opinion ("Mem.Op.") issued May 31, 1989, the district court, although determining that AIRA enjoyed standing to bring suit, granted summary judgment in favor of DOI.

The district court determined that AIRA alleged sufficient facts to warrant standing because

[AIRA's members] applying would have been a futile effort. The gravamen of plaintiff's complaint is that the defendants are not properly applying Indian preference. Plaintiff has a[t] least two members, if the claim is true, who are harmed by the defendants' action of not applying Indian preference to OCM positions.

Mem.Op. at 5. The district court held that the "injury" suffered by appellant's members was in OCM's refusal to utilize the Indian hiring preference.

In granting the agency's motion for summary judgment, however, the district court determined that DOI's interpretation was a "permissible construction" of the statute. Mem.Op. at 11-12 (relying on Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)). The court concluded that, because the statute was not clear, it must defer to the agency's interpretation. The court further rejected AIRA's contention that no deference was due because DOI failed to follow its previous interpretations of the Act. The court decided that "[t]he Solicitor's Opinion explains in detail why he departs from the previous opinions." Mem.Op. at 12 (citation omitted). Finally, the court concluded that Congress intended OCM "to provide an oversight of the BIA"; thus, the implied intent was that no Indian preference should be...