The opinion of the court was delivered by: Urbina, District Judge.
Denying the Plaintiffs' Application for a Preliminary Injunction;
Dismissing the Complaint as to MacDill AFB for Lack of Standing
This matter comes before the court on a complaint and application for a
temporary restraining order ("TRO") filed by the American Federation of
Government Employees of the AFL-CIO ("AFGE"), AFGE Local 2263 of
Albuquerque, New Mexico and Local 153 of Tampa, Florida ("the Locals"),
Ms. Rose Reed, Ms. Inez Marquez and Mr. Daniel Romero (collectively "the
plaintiffs"). The instant controversy concerns contracts for
civil-engineering and maintenance work at the Kirtland U.S. Air Force
Base in Albuquerque, New Mexico ("Kirtland") and the MacDill U.S. Air
Force Base in Tampa, Florida ("MacDill").
The defendants are the United States and U.S. Air Force Secretary F.
Whitten Peters (collectively "the Air Force") and two corporations owned
by Native Americans, Chugach Management Joint Venture and Chugach
Management Services, Inc. (collectively "Chugach"). The Air Force plans
to award the Kirtland contract to Chugach on the basis of a federal
statute which grants preferential treatment to firms owned by Native
Americans. Similariy, in June 1999 the Air Force used the statutory
preference to award the MacDill contract to Chugach, and it plans to renew
that contract this year.
For the reasons which follow, the court will deny the plaintiffs'
application for a preliminary injunction as to both Kirtland and MacDill
Air Force Bases. In addition, the court will dismiss the complaint as to
MacDill for lack of standing. The complaint survives to the extent that
it challenges the contemplated use of the section 8014 preference at
The Plaintiffs. The individual plaintiffs are civilian Department of
Defense ("DOD") employees assigned to the 377th Civil Engineer Group
(CEG) at Kirtland AFB. The 377th CEG performs functions at Kirtland
ranging from electrical work, electronics, carpentry, heating and air
conditioning, heavy-equipment maintenance, landscaping and grounds
maintenance, fleet, metal shop and construction, refuse pick-up and
disposal, custodial services, septic-tank service and street-sweeping.
See Affidavit of Rose Reed ("Rose Aff.") ¶¶ 1, 17; Air Force's
Opposition to the Plaintiffs' Application for a Preliminary Injunction
("AF's Opp. to PI"), Ex. 2, ¶ 3 (Decl. of Col. Polly A. Peyer dated
May 15, 2000).
Kirtland Contract. The parties agree that absent section 8014, the Air
Force's decision whether to contract out work customarily would be based
on a cost/efficiency analysis and a competitive bidding process. Indeed,
in December 1998 the Air Force announced that the 377th CEG at Kirtland
AFB would undergo a study to determine whether it would be efficient and
cost-effective to contract out the base-maintenance work currently
performed by DOD employees. See Mot. for PI, Ex. 3 at 3. (The parties
refer to contracting out as "direct conversion.") The analysis was to be
conducted according to, inter alia the requirements of 10 U.S.C. § 2461
and Office of Management and Budget Circular A-76 ("Circular A-76").
As described by Circular A-76, the competitive bidding analysis would
consist of six steps: (1) the development of a performance work
statement; (2) the performance of a management study to determine the
government's "Most Efficient Organization"; (3) the development of an
estimate of an in-house cost estimate (what it would cost for the
government employees to do the job); (4) issuance of a Request for
Proposals or Invitation for Bid; (5) comparison of the in-house bid
against a private contractors' bid; and (6) an administrative appeals
process. See Mot. for PI, Ex. 2. (Circular No. A-76 Rev. Supp. Handbook,
Part I, Ch. 3, Supplement). A private contractor, such as Chugach, would
have to beat the in-house bid by at least 10% in order to win the
contract away from the government employees. Id. In response to the
announcement about the A-76 study, a team of civilian employees began to
develop the government's "Most Efficient Organization" plan in January
1999. See Reed Aff. ¶ 5.
Before the Kirtland employees made much progress on their proposal,
however, the Air Force suspended the A-76 process. The Air Force declared
its intention to forgo the customary process and instead award the
civil-engineering contracts to private firms owned by Native Americans.
The Air Force solicited capability statements from three
Native-American-owned firms and ultimately selected Chugach Alaska
Corporation ("Chugach").*fn1 See Mot. for PI, Ex. 3 at 9. On September
20, 1999, Air Force headquarters approved Kirtland's request for the
direct conversion of the civil-engineering contract. See Mot. for PI,
MacDill Contract. The Air Force also effected direct conversion of
contracts for work at MacDill AFB. The Air Force had initially performed
an A-76 analysis on MacDill's civil-engineering functions, and
twenty-four interested contractors responded. For their part, the MacDill
employees submitted their bid in an attempt to keep the work "in house."
At that juncture, the Air Force discontinued the A-76 bidding process. On
June 15, 1999, the Air Force awarded the MacDill contract to the
intervenor-defendant, Chugach Management Services Inc., a
Native-American-owned company which is a subsidiary of Chugach Alaska
Corporation. The contract will have a ten-year renewal option valued at
approximately $500 million. See Plaintiffs' Mem. in Support of Application
for a Prelim. Injunction ("Mot. for PI") at 4 n. 3.
The plaintiffs allege that the direct conversions in favor of Chugach
will cause the plaintiffs to be removed, downgraded or forced to retire
from their government positions. See Reed Aff. ¶ 18-19; Marquez Aff.
¶ 8 (Pl.'s Ex. 5); Romero Aff. ¶ 7 (Pl.'s Ex. 6).
Section 8014. As authority for this course of action the Air Force
cites section 8014(3) of the Fiscal Year 2000 Defense Appropriations
Act, Pub.L. No. 106-76, enacted October 25, 1999, 113 Stat. 1212, 1234
("the section 8014 preference"). Section 8014 generally prohibits the
armed forces from contracting out work to a private contractor without
first preparing an analysis showing that to be the "most-efficient and
cost-effective" means of getting the work done. Section 8014 provides, in
[N]one of the funds appropriated by this Act shall be
available to convert to contractor performance an
activity or function of the Department of Defense that
. . . is performed by more than 10 Department of
Defense civilian employees until a most efficient and
cost-effective organization analysis is completed on
such activity or function
Pub.L. No. 106-79, § 8014. Section 8014 makes an exception, however,
which allows the armed forces to bypass the usual efficiency/cost
analysis in favor of contracting firms which are majority-owned by Native
Americans. Section 8014 provides:
[T]his section . . . shall not apply to a commercial
or industrial type function of the Department of
Defense that . . . (3) is planned to be converted to
performance by a qualified firm under 51 percent
Native American ownership.*fn2
Id. The court will refer to this latter provision as "the section 8014
The Controversy. The plaintiffs contend that the section 8014
preference constitutes a racial preference which is subject to strict
scrutiny under the Equal Protection guarantee of the Fifth Amendment.
Alternately, the plaintiffs contend that the preference violates their
fundamental property right, as federal employees, not to be terminated
without just cause. They point out, correctly, that government measures
which burden fundamental rights are subject to strict scrutiny for Equal
Protection, just as racial classifications are. The plaintiffs further
contend, of course, that the preference cannot withstand that strict
scrutiny and thus must be stricken as unconstitutional. Specifically, the
plaintiffs contend that the preference does not serve the state interest
in redressing discrimination against Native Americans, because there is
no evidence that Congress enacted the preference in response to evidence
of specific, identifiable discrimination against Native Americans in
federal contracting. The plaintiffs further contend that the preference
is not "narrowly tailored" to serve that interest, as classifications
subject to strict scrutiny must be.
The Air Force responds that the Section 8014 preference is a political
classification, not a racial classification. Consequently, the Air Force
argues, the preference should be subject only to rational-basis
scrutiny. Under that standard, the Air Force contends, the court must
uphold the section 8014 preference unless it finds that it has no rational
relation to the government's historic interest in protecting and favoring
The judicial power of the United States courts is limited to the
resolution of "cases" or "controversies." See U.S. Const. Art. III,
§ 2, cl. 1. No justiciable case or controversy exists unless the
plaintiffs have standing to sue. The prerequisites for standing reflect
the "common understanding of what it takes to make a justiciable case."
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct.
1003, 1016, 140 L.Ed.2d 210 (1998). Namely, to establish standing under
at an irreducible minimum . . . the party who invokes
the court's authority [must] `show that he personally
has suffered some actual or threatened injury as a
result of the putatively illegal conduct of the
defendant', and that the injury `fairly can be traced
to the challenged action' and `is fairly likely to be
redressed by a favorable decision.'
Valley Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)
(footnotes and citations omitted); MD Pharmaceutical, Inc. v. DEA,
133 F.3d 8, 11 (D.C.Cir. 1998). First, the plaintiffs must show that they
have or will suffer some "`injury in fact' — an invasion of a
legally protected interest which is (a) concrete and particularized . . .
and (b) `actual or imminent, not conjectural or hypothetical.'" Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d
351 (1992). Allegations of speculative future injury do not suffice. City
of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675
(1983); see also Tenacre Foundation v. INS, 892 F. Supp. 289, 294
(D.D.C. 1995), aff'd, 78 F.3d 693 (D.C.Cir. 1996). A future injury
satisfies the "imminence" requirement only if the injury is "certainly
impending." Lujan, 504 U.S. at 565 n. 2, 112 S.Ct. 2130.
Second, to show that the alleged injury is "fairly traceable" to the
challenged action, the plaintiffs must make a "reasonable showing that
`but for' defendants' action the alleged injury" will not occur. See
Warth v. Seldin, 422 U.S. 490, 504, 95 S.Ct. 2197, 45 L.Ed.2d 343
(1975); Community Nutrition Instit. v. Block, 698 F.2d 1239, 1247
(D.C.Cir. 1983), rev'd o.g., 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270
(1984); see, e.g., Ellsworth Assocs. v. United States, 926 F. Supp. 207
(D.D.C. 1996) (contractor lacked standing to challenge constitutionality
of SBA set-aside program for "socially and economically disadvantaged"
small businesses, because its inability to compete for a contract stemmed
from fact that its eligibility had expired, not from set-asides). The
plaintiffs will be found to lack standing if the court must accept
speculative inferences and assumptions in order to connect the alleged
injury with the challenged action. See National Maritime Union v.
Commander, Military Sealift Command, 824 F.2d 1228 (D.C.Cir. 1987).
Lastly, to prove that the alleged injury is likely to be redressed by a
favorable decision, the plaintiffs must show that a favorable decision
would likely afford them relief from the injury.
B. Preliminary Injunctive Relief
A preliminary injunction may be granted only when the movant
Davenport v. International Brotherhood of Teamsters, 166 F.3d 356, 361
(D.C.Cir. 1999); see also Mova Pharmaceutical Corp. v. Shalala,
140 F.3d 1060, 1066 (D.C.Cir. 1998); World Duty Free Americas, Inc. v.
Summers, 94 F. Supp.2d 61, 64 (D.D.C. 2000); ANADAC, Inc. v. INS,
44 F. Supp.2d 306, 308 (D.D.C. 1999). These four factors are not
considered in isolation from one another, and no one factor is
necessarily dispositive as to whether preliminary injunctive relief is
warranted. See CityFed Financial Corp. v. Office of Thrift Supervision,
58 F.3d 738, 746 (D.C.Cir. 1995). Rather, the factors "interrelate on a
sliding scale and must be balanced against each other." Davenport, 166
F.3d at 361 (citing Serono Labs. v. Shalala, 158 F.3d 1313, 1317-18
(D.C.Cir. 1998)); see also WMATA v. Holiday Tours, Inc., 559 F.2d 841,
842-43 (D.C.Cir. 1977) (court "examines each requirement in light of the
others to determine whether an injunction would be proper").
In other words, a particularly strong showing on one factor may
compensate for a weak showing on one or more of the other factors. See
Serono Labs. v. Shalala, 158 F.3d 1313, 1318 (D.C.Cir. 1998). For
instance, as to the first factor, "The court is not required to find that
ultimate success by the movant is a mathematical probability, and
indeed, [the court] may grant [an injunction] even though its own
approach may be contrary to [the movants'] view of the merits. The
necessary `level' or `degree' of possibility of success will vary
according to the court's assessment of the other factors." New Mexico v.
Richardson, 39 F. Supp.2d 48, 50 (D.D.C. 1999) (quoting Holiday Tours,
559 F.2d at 843).
If the plaintiff makes a particularly weak showing on one factor,
however, the other factors may not be enough to "compensate." See Taylor
v. RTC, 56 F.3d 1497, 1506 (D.C.Cir.), amended o.g. on reh'g, 66 F.3d 1226
(D.C.Cir. 1995). It is particularly important for the plaintiffs to
demonstrate a substantial likelihood of success on the merits. If the
plaintiffs fail to make this showing, "it would take a very strong showing
with respect to the other preliminary injunction factors to turn the tide
in plaintiffs' favor." Davenport, 166 F.3d at 367 (citing Murrow
Furniture Galleries v. Thomasville Furniture Indus., 889 F.2d 524, 527
(4th Cir. 1989)); see, e.g., National Pharmaceutical Alliance v. Henney,
47 F. Supp.2d 37, 41 (D.D.C. 1999) ("Here, because the likelihood of
success is slim, plaintiffs would have to make a very substantial showing
of severe irreparable injury in order to prevail on their motion.").
Indeed, in this Circuit a "substantial indication" of likely success on
the merits is a sine qua non of preliminary injunctive relief. Absent
such a substantial indication, "there would be no justification for the
court's intrusion into the ordinary processes of administration and
judicial review." American Bankers Ass'n. v. National Credit Union
Admin., 38 F. Supp.2d 114, 141 (D.D.C. 1999) (quoting Holiday Tours, 559
F.2d at 843).
Lastly, any injunction which the court issues must be carefully
circumscribed and tailored to remedy the harm shown. See National
Treasury Employees Union v. Yeutter, 918 F.2d 968, 977 (D.C.Cir. 1990)
(citing Gulf Oil Corp. v. Brock, 778 F.2d 834, 842 (D.C.Cir. 1985)).
C. Levels of Equal Protection Review
1. Strict Scrutiny for All Racial ...