National Maritime Union of America v. Commander, Military Sealift Command
| Decision Date | 31 July 1987 |
| Docket Number | No. 86-5210,AFL-CIO,86-5210 |
| Citation | 263 U.S.App.D.C. 248,824 F.2d 1228 |
| Parties | 28 Wage & Hour Cas. (BN 305, 263 U.S.App.D.C. 248, 107 Lab.Cas. P 34,937, 34 Cont.Cas.Fed. (CCH) 75,345 NATIONAL MARITIME UNION OF AMERICA,, et al., Appellants, v. COMMANDER, MILITARY SEALIFT COMMAND, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-00089).
Joseph E. Kolick, Jr., with whom Angelo V. Arcadipane, Clay Warner, James H. Heller, Jennifer R. Levin, Washington, D.C., and Ned R. Phillips, New York City, were on joint brief, for appellants.
Charles F. Flynn, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on brief, for the federal appellee.
Coleman S. Hicks, Newman T. Halvorson, Jr. and Timothy J. O'Rourke, Washington, D.C., were on brief, for appellee, Lavino Shipping Co.
Richard Gabriele, New York City, was on brief, for appellee, Seafarers Intern. Union. James M. Altman, New York City, entered an appearance for appellee.
Joseph Dinsmore Murphy, Washington, D.C., was on brief, for appellee, District 2, Marine Engineers Beneficial Assn--AMO, AFL-CIO.
Before BORK, STARR and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge BORK.
Appellants, three labor unions, brought suit in district court to obtain a declaration that a government contract awarded by the Military Sealift Command to Lavino Shipping Company was void and to enjoin the contract's performance. The district court dismissed the suit, holding that appellants lacked standing. We agree with the district court that appellants lack standing to pursue their claim under the Service Contract Act. Without deciding whether appellants have standing to pursue their other claims, we hold for appellees on the merits of those claims.
In 1984, the Military Sealift Command ("MSC"), a unit of the Department of the Navy, was operating twelve government-owned oceanographic ships with civil service mariners of both "permanent" and "temporary" tenure. Many of these seamen were represented by appellant unions. Pursuant to regulations implementing Office of Management and Budget ("OMB") Circular A-76, which provides a framework of policies and procedures to facilitate the performance of governmental activities by private firms, the MSC undertook to compare the cost of contracting with a private firm to operate the ships and the cost of its own continued operation of the ships. It issued a solicitation requesting bids from private firms to operate the ships and in the meantime prepared its own estimate of the cost of continued government operation. This solicitation did not require the winning bidder to pay specified minimum wages and fringe benefits or otherwise to comply with the Service Contract Act (the "Act"), 41 U.S.C. Secs. 351-358 (1982).
Upon analysis of the bids from private firms, the MSC found that three bids, including those of appellee Lavino and of Marine Transport Lines, Inc. ("Marine Transport"), were competitive. Upon receipt of best and final offers from these three bidders, and upon comparison with the cost estimate for continued government operation, the MSC tentatively awarded the contract to Marine Transport. All persons directly affected by this action, including all civil service mariners and their labor representatives, were notified and given an opportunity to appeal certain issues administratively to the office of the Chief of Naval Operations. All appeals taken were denied.
But as a result of a conclusion by the government that the Act did apply to this solicitation and contract award, the MSC rescinded the tentative award, advised the three competitive bidders of the Act's applicability, requested new best and final offers from the bidders and a new cost estimate from the government and announced that a future amended solicitation would contain mandatory wage levels determined by the Labor Department in accord with the Act. In response, Marine Transport brought suit, contending that the Act did not apply to the procurement. The district court granted summary judgment to the government, holding that the decision to call for new bids was proper and that the Act did apply to the procurement insofar as the ships would operate within American territorial waters. Marine Transp. Lines, Inc. v. Lehman, 623 F.Supp. 330 (D.D.C.1985).
The solicitation as ultimately amended required the winning bidder to agree to pay, retroactively to the date of the award, wage rates and benefits to be specified by the Labor Department. The solicitation at no point provided any schedule specifying these wages and benefits because the Labor Department, without a data base for these positions, could not prepare a timely schedule.
Of the new best and final offers reflective of this and other amendments to the solicitation, Lavino's offer now was lowest, and it was awarded the contract. 1 The MSC also then announced that the government would not grant an administrative appeal from this award, since it found that all issues appealable administratively could and should have been raised in the appeal from the first tentative award to Marine Transport.
Both the government's request for bids and the ultimate contract awarded to Lavino required the winning bidder to grant government employees displaced by the contract's performance a right of first refusal to any job openings under the contract. The MSC determined that displaced permanent civil service mariners would find it unusually difficult to obtain positions elsewhere in government or in the private sector. Therefore, to avoid burdening the permanent mariners with additional competitors for job openings under the contract, the MSC decided that the contract award's condition did not require a grant of the first-refusal right to displaced temporary civil service employees.
The National Maritime Union of America, AFL-CIO, and two other unions (here referred to collectively as "the Unions") represent civil service mariners as well as employees of Marine Transport; 2 none of the appellant unions represent employees of Lavino. 3 The Unions filed suit in the district court, asking the court to enjoin performance of the contract and to require MSC to vacate the award to Lavino and resolicit the contract upon receipt of a wage determination. In the alternative, the Unions asked the court to require the MSC to grant the Unions an administrative appeal from the Lavino award and to require Lavino to grant first-refusal rights to displaced temporary civil service mariners. To support their claims for relief, the Unions asserted that the Lavino award was illegal under the Act because neither the solicitation nor the contract contained a wage determination, and that MSC's refusal to permit an appeal from the award and its decision on the first-refusal point contravened provisions of OMB Circular A-76 and its implementing regulations.
On cross-motions for summary judgment, the district court dismissed the Unions' suit for want of standing. National Maritime Union v. Commander, Military Sealift Command, 632 F.Supp. 409 (D.D.C.1986). The court held that the Unions were not within the zone of interests of the Act, since they did not represent employees of the winning bidder, whom the Act protects. Id. at 413-15. The court further held that since Circular A-76 merely represents a managerial tool that does not give rise to any protected private interest, the Unions did not have standing to bring any claim based on the Circular. Id. at 416, 417. This appeal followed.
The Unions allege injury to their members, in whose behalf they sue as representatives. 4 To attain representative standing, the Unions must show that: their members individually would have standing to bring the same claims; the interests the Unions protect by bringing the claims are germane to the Unions' purposes; and neither the claim nor the relief sought requires individual members to participate in the litigation. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). The first point, which requires an analysis of the standing of an individual union member, is discussed in detail below. 5 We here address the contention that the Unions lack standing because the employees they represent have conflicting interests in the outcome of this litigation. That contention may be seen as an attempt to add a fourth factor to those specified by Hunt or as an aspect of the third. It is unnecessary to decide the proper category for present purposes. We conclude that whatever conflict there may be among the Unions' members in this case does not deprive the Unions of associational standing.
Most of the instances of contradictory interests among the Unions' members urged upon us may not truly present a contradiction, but we will not take the time to analyze these instances because there is one example that clearly presents a conflict. This is the Unions' request that the court require Lavino to grant first refusal rights to their displaced temporary civil servant members. The very reason given by MSC for denying the right to temporary mariners is that their exercise of the right could aggravate unemployment among permanent mariners, who of course are also represented by the Unions. We therefore must decide whether the contrary interests of the temporary and permanent mariners, both of whom the Unions represent, operate to deny the Unions representative standing. 6
The lower courts disagree on the point. Compare Gillis v. United States Dep't of Health & Human Services, 759 F.2d 565, 572-73 (6th Cir.1985) () with Associated Gen....
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