American Federation of Government Emp. v. U.S., No. 02-5142.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Randolph
• Citation: 330 F.3d 513
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Appellants, v. UNITED STATES of America, et al., Appellees.
• Docket Number: No. 02-5142.
• Decision Date: 06 June 2003

330 F.3d 513 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Appellants,
v.
UNITED STATES of America, et al., Appellees. No. 02-5142. United States Court of Appeals, District of Columbia Circuit. Argued March 13, 2003. Decided June 6, 2003.

Page 514

COPYRIGHT MATERIAL OMITTED

Page 515

COPYRIGHT MATERIAL OMITTED

Page 516

Appeal from the United States District Court for the District of Columbia (00cv00936).

Anne M. Wagner argued the cause for appellants. With her on the brief was Mark Roth.

Sarah E. Harrington, Attorney, U.S. Department of Justice, argued the cause for the federal appellees. With her on the brief was Mark L. Gross, Attorney.

Harvey A. Levin argued the cause and filed the brief for appellees Chugach Management Services Joint Venture, et al.

Before: RANDOLPH and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

Section 8014 of the Defense Appropriations Act for fiscal year 2000 granted an outsourcing preference for firms "under 51 percent Native American ownership," Pub.L. No. 106-79, § 8014(3), 113 Stat. 1212, 1234 (1999). The question is whether this preference constituted racial discrimination in violation of the Fifth Amendment's Due Process Clause.

Plaintiffs are the American Federation of Government Employees, AFL-CIO; an affiliated local union representing civilian Defense Department employees at the Kirtland Air Force Base in New Mexico; and two civilian Defense Department employees who were allegedly displaced when the Air Force, invoking § 8014(3), awarded a contract to Chugach Management Services Joint Venture in July 2000 to perform maintenance work at the base. The contract was for one year, with nine one-year options to renew. Chugach is a joint venture of Chugach Management Services, Inc., and Alutiiq Management Services, LLC. Chugach Management Services is a wholly owned subsidiary of Chugach Alaska Corporation, one of the Alaska Native Corporations established under the Alaska Native Claims Settlement Act. See 43 U.S.C. § 1606(a)(9). Alutiiq is a wholly owned subsidiary of Afognak Village Corporation, one of the village corporations formed pursuant to that legislation. See 43 U.S.C. §§ 1607, 1610(b)(1). Both Chugach Alaska Corporation and Afognak Village Corporation are federally recognized Indian tribes. 25 U.S.C. § 450b(e). Their joint venture thus qualified for special treatment under § 8014(3) of the FY 2000 appropriations act. The nature of the special treatment is as follows.

The FY 2000 appropriations act prohibited the Defense Department from using appropriated funds to pay private contractors for performing work previously done by more than ten government employees unless the Department first performed a "most efficient and cost-effective organization analysis" and certified the analysis to the House and Senate Committees on Appropriations. Department of Defense Appropriations Act, 2000, Pub.L. No. 106-79, § 8014, 113 Stat. 1212, 1234 (1999). This provision contained an exception for a "commercial or industrial type function of the Department of Defense" that was "planned to be converted to performance by a qualified firm under 51 percent Native American ownership." Id. § 8014(3), 113 Stat. 1234. A similar exception first

Page 517

appeared in the Defense Appropriations Act for fiscal year 1990; appropriations acts for fiscal years 1991 through 1999 contained similar language. See Pub.L. No. 101-165, § 9036, 103 Stat. 1112, 1137 (1989) (FY 1990); Pub.L. No. 101-511, § 8026, 104 Stat. 1856, 1880 (1990) (FY 1991); Pub.L. No. 102-172, § 8026, 105 Stat. 1150, 1177 (1991) (FY 1992); Pub.L. No. 102-396, § 9026, 106 Stat. 1876, 1906 (1992) (FY 1993); Pub.L. No. 103-139, § 8022, 107 Stat. 1418, 1442 (1993) (FY 1994); Pub.L. No. 103-335, § 8020, 108 Stat. 2599, 2621 (1994) (FY 1995); Pub.L. No. 104-61, § 8020, 109 Stat. 636, 656 (1995) (FY 1996); Pub.L. No. 104-208, § 8015, 110 Stat. 3009, 3009-91 (1996) (FY 1997); Pub.L. No. 105-56, § 8014, 111 Stat. 1203, 1223 (1997) (FY 1998); Pub.L. No. 105-262, § 8014, 112 Stat. 2279, 2300 (1998) (FY 1999).

The Chugach contract at Kirtland was the only one the Air Force awarded pursuant to § 8014(3) of the FY 2000 appropriations act, and so far as the parties know, the only such contract awarded by the Defense Department. In the next year Congress altered the language of § 8014(3), so that the exception applied not to "Native American ownership" but to "ownership by an Indian tribe, as defined in section 450b(e) of title 25, United States Code, or a Native Hawaiian organization, as defined in section 637(a)(15) of title 15, United States Code." Department of Defense Appropriations Act, 2001, Pub.L. No. 106-259, § 8014, 114 Stat. 656, 677 (2000).

In the district court, plaintiffs claimed that § 8014(3), as contained in the FY 2000 act, violated the equal protection component of the Due Process Clause and deprived them of an interest in federal employment in violation of substantive due process. The district court granted Chugach's motion to intervene as a defendant, and denied plaintiffs' motion for a preliminary injunction. Am. Fed'n of Gov't Employees v. United States, 104 F.Supp.2d 58 (D.D.C.2000). Both sides later moved for summary judgment. The court construed the statute to apply only to ownership by an Indian tribe and, applying rational basis review, found no unconstitutional discrimination. Am. Fed'n of Gov't Employees v. United States, 195 F.Supp.2d 4, 18-24 (D.D.C.2002). The court also granted summary judgment for the defendants on the substantive due process claim, finding no fundamental right to federal employment. Id. at 25.

Plaintiffs believe § 8014(3) is unconstitutional under Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2112-13, 132 L.Ed.2d 158 (1995), because "Native American" is a racial classification, and because § 8014(3) does not serve a "compelling governmental interest" and is not "narrowly tailored to further that interest." Adarand, 515 U.S. at 235, 115 S.Ct. at 2117. The statute is not "narrowly tailored" to benefit Native Americans, they say, in light of the fact that non-Indians may own as much as 49 percent of a qualifying firm. The statute does not serve a "compelling interest" because there is no evidence, no congressional findings, no record of legislative deliberations, to demonstrate that Congress thought it was acting to fulfill its historic trust responsibilities toward Indians.

For its part, the government urges us to construe § 8014(3) to avoid any constitutional doubts plaintiffs may have raised and to hold that the provision applies only to "members" of federally recognized Indian tribes and "tribal entities." The government believes these classifications are, in light of Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974), non-racial and hence constitutional so long as they rationally relate to the government's trust responsibilities toward Indian tribes. Brief for Federal

Page 518

Appellees at 15. Although there was no regulation or formal policy reflecting the government's suggested interpretation of § 8014(3), the Defense Department may have followed it in practice. The government's statement of material facts not in dispute, and an affidavit from an Air Force contracting officer, indicate that other than the Kirtland contract, the Air Force had only once before — under an earlier appropriations act — awarded a contract pursuant to a comparable provision. That contract also went to an Alaska Native Corporation.

We will begin our analysis with some winnowing. Among their prayers for relief, plaintiffs sought to enjoin the government from awarding "any contract under the preference given to 51% Native-American owned firms in § 8014 of FY 2000 Defense Appropriations Act." That fiscal year has long since passed. This particular claim for relief, which we read as referring to initial awards of contracts, is therefore moot. Plaintiffs also sought to enjoin the government from renewing "any contract granted under, or otherwise in effect due to" the preference in § 8014(3). For plaintiffs to have standing to seek such broad relief — relating not just to the renewal of the contract at Kirtland, but to the renewal of "any contract" — they must be under some real and imminent threat of harm. The Supreme Court in Adarand, 515 U.S. at 211, 115 S.Ct. at 2104-05, so held in a similar situation. But plaintiffs have not established that they are under such a threat. They have identified no other § 8014(3) contract still subject to renewal. Plaintiffs therefore lack standing to pursue this claim for relief insofar as it relates to contracts other than the one at Kirtland.

We believe the case must be narrowed in another, related respect. Although the Kirtland § 8014(3) contract was awarded to a firm wholly owned by federally recognized Indian tribes, plaintiffs want us to decide that the provision is unconstitutional because, in FY 2000, it authorized preferences not only for Indian tribes but also for firms owned by Native Americans who were not tribal members and who owned no more than 51 percent of the firm. Plaintiffs thus want to expand this case well beyond its factual context. Prudence, as reflected in a long-standing rule of constitutional adjudication, counsels otherwise. The Supreme Court summarized the rule in United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960): "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." The Court reiterated the point in Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973): "Embedded in the traditional rules governing constitutional...