Chamber of Commerce of U.S. v. Reich, 95-5135
Decision Date | 21 June 1995 |
Docket Number | No. 95-5135,95-5135 |
Citation | 57 F.3d 1099 |
Parties | 149 L.R.R.M. (BNA) 2577, 313 U.S.App.D.C. 14, 64 USLW 2016, 130 Lab.Cas. P 11,359, 40 Cont.Cas.Fed. (CCH) P 76,800 CHAMBER OF COMMERCE OF the UNITED STATES of America, et al., Appellants, v. Robert B. REICH, Secretary, United States Department of Labor, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 95cv00503).
Timothy B. Dyk, Washington, DC, argued the cause for appellants. Andrew M. Kramer, Willis J. Goldsmith, Stephen F. Smith, Stephen A. Bokat, Mona C. Zeiberg, Daniel R. Barney, Lynda S. Mounts, Daniel V. Yager, Douglas S. McDowell, and Janice S. Amundson entered their appearances for appellants.
John A. Rogovin, Attorney, U.S. Dept. of Justice, Washington, DC, argued the cause for appellee. Margaret S. Hewing and Mark B. Stern, Attorneys, U.S. Dept. of Justice, entered their appearances for appellee.
Maurice Baskin, Washington, DC, entered an appearance for amicus curiae Associated Builders and Contractors, Inc.
Before: WALD, BUCKLEY and ROGERS, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Appellants, the Chamber of Commerce of the United States and others, 1 challenge Executive Order No. 12954, 60 Fed.Reg. 13,023 (March 8, 1995) ("Order"), which authorizes the Secretary of Labor to disqualify from certain federal contracts employers who hire permanent replacement workers during a lawful strike. Appellants contend that the President had neither constitutional nor statutory authority to issue the Order and that the Order conflicts with the National Labor Relations Act, as amended, 29 U.S.C. Secs. 151-169 (1988). The district court found appellants' challenges unripe and denied their requests for declaratory and injunctive relief. Because we find no institutional interest in deferring review and appellants will suffer substantial hardship if the court postpones consideration of their claims, we reverse and remand the case to the district court.
The two-pronged test for ripeness established by the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967), requires the court to consider both the "fitness" of the issues for judicial decision and the "hardship" to the parties of withholding review. "Purely legal questions," such as those presented in the instant case, are "presumptively [fit] for judicial review." City of Houston v. HUD, 24 F.3d 1421, 1431 (D.C.Cir.1994) (quoting Better Gov't Ass'n v. Department of State, 780 F.2d 86, 92 (D.C.Cir.1986)). Despite this presumption, however, even in cases involving pure legal issues, review is inappropriate when the challenged policy is "not sufficiently 'fleshed out' " to allow the court to "see the concrete effects and implications" of its decision, American Trucking Ass'ns, Inc. v. ICC, 747 F.2d 787, 789-90 (D.C.Cir.1984), or when deferring consideration might eliminate the need for review altogether. See National Ass'n of Regulatory Util. Comm'rs v. DOE, 851 F.2d 1424, 1428-29 (D.C.Cir.1988).
The district court found both of these concerns present here. First, the court concluded that it would waste judicial resources to review the Order before the Secretary had "fleshed out" the policy in final regulations. Chamber of Commerce v. Reich, 886 F.Supp. 66, 71 (D.D.C.1995). This concern need not detain us because the Secretary has since promulgated final regulations. See Permanent Replacement of Lawfully Striking Employees by Federal Contractors, 60 Fed.Reg. 27,856 (1995) ; see also Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575-76, 30 L.Ed.2d 567 (1972) ( ).
Second, the district court observed that because the Order gives the Secretary discretion to except certain contractors from the general rule, the challenged methodology might never "make ... [a] difference," and appellants' claims of injury might prove theoretical in the context of a particular case. 886 F.Supp. at 72 (quoting National Ass'n of Regulatory Util. Comm'rs, 851 F.2d at 1429). Whether the Order and regulations result in the termination or debarment of any government contractors is irrelevant, however, for the injury alleged here is not the sanction that the Secretary might ultimately impose. Rather, appellants claim that the mere existence of the Order alters the balance of bargaining power between employers and employees by creating a disincentive for employers to hire replacement workers and thereby depriving them of a significant economic weapon in the collective bargaining process. Appellants seek to avoid this alleged "skewing" of the bargaining process through this lawsuit, and we are unpersuaded that a "concrete" prosecution by the...
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