The defendants have a strong argument that the preference can reasonably
be construed as narrowly tailored to serve a compelling state interest.
The court does find that the plaintiffs will suffer serious, irreparable
harm if the preliminary injunction does not issue. The harm to
plaintiffs, however, is offset by the substantial harm the defendants will
suffer if an injunction does issue. Lastly, the court concludes that
there are substantial public interests both for and against preliminary
injunctive relief, so the public interest on balance does not favor an
injunction. The court concludes that the four factors, viewed together,
do not warrant the extraordinary remedy of preliminary injunctive
Preliminarily, the court notes that the AFGE and its Locals do not
allege that they have suffered or will suffer any injury from the Air
Force awarding or renewing contracts pursuant to the section 8014
preference. Accordingly, the court finds that the union plaintiffs are
suing in a representative capacity only. Cf. United Auto. Workers v.
Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986). In other
words, wherever the court finds that the individual plaintiffs do not
have standing, the union plaintiffs will not have standing either. The
court separately considers whether the individual plaintiffs have
standing to challenge the use of section 8014 at Kirtland and whether
they have standing to challenge its use at MacDill.
1. Standing to Challenge Award of Kirtland Contract to Chugach
a. The Injury: Potential Loss of Income & Benefits
The defendants contend that the plaintiffs lack standing to challenge
its plan to award a contract to Chugach at Kirtland AFB pursuant to the
section 8014 preference. The defendants emphasize that direct conversion
will not cause the plaintiffs to become unemployed, because Chugach is
legally required to give the plaintiffs "the right of first refusal for
employment openings under the contract . . . ." See Air Force's Opposition
to Pls.' Motion for a Prelim. Injunction ("AF's Opp. to PI") at 12
(citing 48 C.F.R. § 52.207-3*fn5 and 7.305(C)); Chugach's Opp. to
PI at 3; Hobbs Decl. ¶¶ 8-9. The plaintiffs do not contest that they
will have this right of first refusal. There is no indication, however,
that the plaintiffs would be entitled to receive from Chugach the same
salary, health-care insurance, retirement plan and other benefits which
they currently enjoy as federal employees.*fn6 Indeed, the Air
Force states, "The employment terms that Chugach will offer . . . is
entirely a matter of speculation at this time." AF's Opp. to PI at 12.
Consequently, the court determines that the award of the Kirtland
contract to Chugach will not cause the plaintiffs to become unemployed
but that it may cause them to suffer a diminution in salary and benefits
compared to their federal employment. The court further finds that such
speculative future harm does not constitute the "concrete, particularized"
and "not conjectural" harm needed to satisfy the injury-in-fact element
of standing. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26,
40, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).
b. The Injury; Loss of Right to Compete for Contract
The plaintiffs next contend that they have standing because the Air
Force's direct conversion of the contracts to Chugach will deprive them
of their right to compete for the Kirtland contract — in effect,
the right to compete for continued federal employment. See Mot. for PI at
2; Reed Aff. ¶ 10; Marquez Aff. ¶ 7; Romero Aff. ¶ 6. The
plaintiffs frame the loss of the right to compete as an injury distinct
from the loss of the jobs themselves, and the court agrees this can be a
valid distinction for purposes of standing. On this score the plaintiffs
rely on Northeastern Florida Chapter of Associated and General
Contractors of America v. Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 124
L.Ed.2d 586 (1993) ("N.E. Florida Contractors") and Dynalantic Corp. v.
Department of Defense, 115 F.3d 1012, 1016 (D.C.Cir. 1997). In N.E.
Florida Contractors, an association of contractors raised an Equal
Protection challenge to a municipal ordinance which required that 10% of
the city's contracts be "set aside" for firms owned by minorities or
women. The Eleventh Circuit held that the association lacked standing
because it failed to demonstrate that any of its members would have
successfully bid for the contracts and, therefore, the association failed
to show the requisite injury. The Supreme Court reversed, holding,
When the government erects a barrier that makes it
more difficult for members of one group to obtain a
benefit than it is for members of another group, a
member of the former group seeking to challenge the
barrier need not allege that he would have obtained
the benefit but for the barrier to establish
standing. The "injury in fact" in an equal protection
case of this variety is the denial of equal treatment
resulting from the imposition of the barrier, not the
ultimate inability to obtain the benefit.
N.E. Florida Contractors, 508 U.S. at 666, 113 S.Ct. 2297. Consequently,
the Supreme Court ruled, a party challenging a set-aside program on equal
protection grounds need only show "that it is able and ready to bid on
contracts and that a discriminatory policy prevents it from doing so on
an equal basis." N.E. Florida Contractors, 508 U.S. at 666, 113 S.Ct.
2297. The D.C. Circuit employed similar reasoning in Dynalantic, when a
defense contractor challenged the race-based set-asides in section 8(a)
of the federal Small Business Act. The Circuit held that being deprived
of an opportunity to compete for the set-aside contracts (and thereby
being foreclosed from access to potential business) "clearly makes out an
injury" for standing purposes. Dynalantic, 115 F.3d at 1016.
The defendants respond that "[t]here is no reason to think . . . that
the current civilian employees have either the opportunity or the right
to band together in a unit . . . to create the equivalent of a competing
`bid' for a `contract' to perform C[ivil] E[ngineering] functions
in-house." AF's Opp. to PI at 11. Therefore, the defendants contend,
decisions holding that contractors have standing to challenge measures
which would deprive them of the opportunity to bid on a contract are
inapposite. Id. Instead, the defendants contend, this case is more like
National Maritime Union v. Commander, 824 F.2d 1228, 1230 (D.C.Cir.
1987). There, the court found that labor unions lacked standing to void a
contract and compel new bids, because it was speculative whether the
company employing the unions members would even participate in, let alone
win, a new round of bidding. National Maritime Union, 824 F.2d at
The plaintiffs have the more persuasive argument on this issue. It is
true that the plaintiffs, as individual employees and not contractors,
would not have formally submitted a bid for the Kirtland
civil-engineering work. Nonetheless, absent the section 8014 preference,
the Air Force would have assessed the cost and efficiency of the
"in-house bid" and compared it to the cost and efficiency of the private
contractors' bids. This is significant because the in-house bid is
essentially the "bid" of the plaintiffs and the other government
employees who are currently performing the work. Thus, but for the
section 8014 preference, the Air Force would have given equal
consideration to the functional equivalent of the plaintiffs' "bid." So
far as the record discloses, it was only the Air Force's use of the
section 8014 preference which caused it not to calculate and consider the
in-house bid. In short, it would be elevating form over substance to deny
that the preference denied the plaintiffs the consideration they would
customarily be afforded — the right to compete, on a level playing
field, to keep their jobs. Thus, the court rules that the loss of the
plaintiffs' right to compete for the Kirtland contract constitutes the
personal, concrete, particularized and imminent injury required to
establish standing. See Cortez III Service Corp. v. NASA, 950 F. Supp. 357,
360 (D.D.C. 1996) (small business had standing to challenge decision by
NASA and Small Business Administration to consider only disadvantaged
businesses for contract rather than allowing full and open competition
c. The Injury: Loss of Right to Continued Federal Employment
Absent Just Cause for Removal
In addition, the plaintiffs advance another theory of standing which
the court finds meritorious. The plaintiffs contend, correctly, that
federal employees have a constitutionally protected property interest in
their employment. See Arnett v. Kennedy, 416 U.S. 134, 164-67, 94 S.Ct.
1633, 40 L.Ed.2d 15 (1974); Board of Regents of State Colleges v. Roth,
408 U.S. 564, 578, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
Correspondingly, federal employees have a right to continued federal
employment absent just cause for their removal. See Stone v. FDIC,
179 F.3d 1368, 1375 (Fed.Cir. 1999). The defendants do not deny that
direct conversion of the Kirtland work will cause the plaintiffs to lose
their current federal positions. The court views this undisputed fact in
light of the plaintiffs' complaint, the gravamen of which is that the
section 8014 preference is a racial classification which cannot withstand
strict scrutiny. If the plaintiffs are right about this, the Air Force's
award of the Kirtland work to Chugach will deprive the plaintiffs of
continued employment on the basis of an unconstitutional provision, which
is not "just cause." The defendants might argue that the plaintiffs will
not suffer any personal injury because the direct conversion will not
cause the plaintiffs to become unemployed. Such an argument misses the
point. The plaintiffs do not have, or claim to have, a constitutionally
protected interest in employment per se. Rather, they have an interest in
continued federal employment, absent good cause for their removal. The
direct conversion will undoubtedly deprive the plaintiffs of that
Lastly, the plaintiffs' standing is not dependent on their ability to
show that they are likely to win the contract if the Air Force gives the
in-house bid equal consideration
rather than applying the section 8014 preference. The Supreme Court's
pronouncement on this issue bears repeating, "When the government erects a
barrier that makes it more difficult for members of one group to obtain a
benefit than it is for members of another group, a member of the former
group seeking to challenge the barrier need not allege that he would have
obtained the benefit but for the barrier to establish standing." N.E.
Florida Contractors, 508 U.S. at 666, 113 S.Ct. 2297; see aleo DIRECTV,
Inc. v. FCC, 110 F.3d 816, 829 (D.C.Cir. 1997).
For these reasons, the court holds that such deprivation of the
plaintiffs' fundamental right to continued employment (absent just cause
for removal) is a personal, concrete, particularized and certainly
imminent injury. Cf. AFGE Local 2119 v. Cohen, 171 F.3d at 466; Sussman
v. Tanoue, 39 F. Supp.2d at 24. On this basis, too, the court concludes
that the plaintiffs have standing to challenge the planned direct
conversion of Kirtland work.
2. No Standing to Challenge Renewal of Chugach's MacDill Contract
In addition to challenging the planned award of the Kirtland contract
to Chugach, the plaintiffs seek to challenge the planned renewal of
Chugach's existing contract at MacDill. In contrast to Kirtland, none of
the plaintiffs works at or has any discernible connection to MacDill.
Thus, nothing in the record provides a basis for the court to find that
the plaintiffs will personally suffer my injury if the Air Force renews
Chugach's contract at MacDill pursuant to the section 8014 preference.
See AF's Opp. to PI ("As there are no civilian employees at MacDill,
Plaintiffs would not be facing any potential job loss if the contract at
MacDill is renewed."). Accordingly, the court finds that the plaintiffs
do not have standing to challenge the Air Force's contemplated use of
section 8014 at MacDill.
For this reason, the court will deny the plaintiff's application for a
preliminary injunction as to the contract at MacDill. The court also will
dismiss the complaint to the extent that it seeks to challenge the use of
section 8014 at MacDill.
B. Likelihood of Success on the Merits
The plaintiffs contend that the section 8014 preference for
Native-American firms is a racial classification and, as such, is subject
to the rigorous "strict scrutiny" test of Equal Protection. Alternately,
the plaintiffs contend that the preference burdens a fundamental right
and so is subject to strict scrutiny on that ground, whether or not it is
a racial classification. The defendants respond that the preference is a
political classification, not a racial one, and does not burden any
fundamental right. Consequently, the defendants contend, the preference
is subject only to the deferential rational-basis test.
For the reasons which follow, the court is likely to conclude that the
section 8014 preference is subject to strict scrutiny because it burdens
a fundamental right, as the plaintiffs allege.*fn7 However, the court
is also likely to conclude that the preference can reasonably be
construed so as to save it from constitutional infirmity. Specifically,
the preference can reasonably be construed as (1) narrowly tailored (2)
to serve the compelling federal governmental interest in assisting
economically disadvantaged Native-American enterprises. In short, the
current record suggests that the defendants are likely to prevail on the
merits. Therefore, although this is not an "open-and-shut" case, the
plaintiffs have not met their burden to show a substantial likelihood of
success on the merits. Cf. Washington Post Co. v. Turner, 708 F. Supp. 405,
416 (D.D.C. 1989) (denying application for preliminary injunction where,
inter alia, "although plaintiff's . . . may have some merit, plaintiff
has not demonstrated the requisite likelihood of success" on the
1. Is the Preference Subject to Strict Scrutiny or
a. The Section 8014 Preference
Section 8014(3) purports to authorize the armed forces to bypass
customary cost-comparison and competitive-bidding procedures to award
certain types of defense contracts directly to firms which have at least
"51 percent Native American ownership." Section 8014 does not define who
qualifies as a "Native American" for purposes of this preference, nor
does it incorporate or refer to any provision which defines the term. On
its face, the preference is not limited to firms whose owners are members
of or affiliated with Native
American tribes or Alaska Native Corporations.
b. Alaska Natives and Alaska Native Corporations
In 1971, Congress enacted the Alaska Native Claims Settlement Act
("ANCSA") to settle the aboriginal claims of Alaska Natives to the land
and resources of the State of Alaska. See 43 U.S.C. § 1601 et seq.
ANCSA required the Secretary of the Interior to divide Alaska into twelve
regions, and the Natives of each region were required to form for-profit
corporations under Alaska law. See 43 U.S.C. § 1606 (a), (d). Each
Native Alaskan "enrolled" in a region received 100 shares of the Regional
Corporation. Chugach Alaska Corporation, the parent of defendant Chugach
Management Services, Inc., is the Regional Corporation for south-central
Alaska. See 43 U.S.C. § 1606 (a)(9); Hobbs Decl. ¶ 2 (Chugach's
Opp. to PI, Ex.). Through ANCSA, Congress deposited nearly $1 billion into
the Alaska Native Fund for distribution among the Regional Corporations.
See 43 U.S.C. § 1605; Doyon v. Bristol Bay Native Corp., 569 F.2d 491,
494-95 (9th Cir.), cert. den., 439 U.S. 954, 99 S.Ct. 352, 58 L.Ed.2d 345
(1978). ANCSA also conveyed title to 40 million acres of federal land to
the Regional Corporations, distributed according to their enrollment of
shareholders. See 43 U.S.C. § 1611, 1613(h). Only Native Alaskans
can sit on the board of an Alaska Native Corporation ("ANC"), and until
1991 shares were not alienable except among Native Alaskans. See
43 U.S.C. § 1606 (f). The purpose of this system is to foster
self-determination and financial independence among the Alaska Natives.
See H.R. Conf. Rep. 92-746, 92d Cong., 1st Sess., 37, repr. in
1971 U.S.C.C.A.N. 2247, 2250; City of Angoon v. Marsh, 749 F.2d 1413, 1414
(9th Cir. 1984).
ANCs are Considered to be Economically Disadvantaged Minority
In 1988, Congress amended ANCSA to provide that any Native Corporation
whose stock is majority-owned by Native Alaskans or their descendants
"shall be considered to be a corporation owned and controlled by Natives
and [shall be considered to be] a minority business enterprise . . . ."
See 43 U.S.C. § 1626 (e)(1). The amendment made the same provision
for subsidiaries, joint ventures and partnerships of a Native
Corporation, such as the Chugach defendants here. See 43 U.S.C. § 1626
(e)(2). Chugach contends, "By adding this provision to ANCSA, Congress
made federal contracting preferences part of the consideration of the
complex settlement of Alaskan Natives' aboriginal claims."*fn8 Chugach's
Opp. to PI at 19. The court reads these provisions only as rendering ANCs
eligible for whatever preferences legislatures choose to accord
minorities or minority-owned businesses. On their own, they do not appear
to establish any preference in favor of ANGs.
In 1992, Congress further amended ANCSA to provide that ANCs are also
to be considered "economically disadvantaged." See Pub.L. 102-415, §
10, 106 Stat 2115 (Oct. 14, 1992). Chugach emphasizes Congress'
declaration of its intent to render ANCs eligible for federal programs
for economically disadvantaged minority contractors. A House of
Representatives Report stated,
The section would further clarify that Alaska Native
Corporations and their subsidiary companies are
minority and economically disadvantaged business
enterprises for the purposes of qualifying for
participation in the federal contracting and
subcontracting programs, the largest of which include
. . . [the Small Business Administration's "section
8(a)" program]*fn9 and the Department of Defense
Small and Disadvantaged Business Program.
H.R.Rep. No. 102-673, 138 Cong. Rec. 1450, 1456 (1992). Like the 1988
amendment, the court considers the 1991 amendment merely to render ANCs
eligible for preferences which legislatures may choose to establish in
favor of economically disadvantaged or minority individuals or firms. The
1991 amendment itself does not appear to establish any preference for
ANCs or Native Americans.
Lastly for our purposes, ANCSA clarifies that "Notwithstanding any
other provision of the law, Alaska Natives shall remain eligible for all
Federal Indian programs on the same basis as other Native Americans."
43 U.S.C. § 1626 (d).
In light of the United States' unique guardian-ward relationship with
the American Indians and its agreements with the Alaska Natives, the
Because § 8014(e) effects the preference Native
American entities enjoy under ANCSA . . ., it is
logically limited to those Native-American-owned firms
that qualify under those programs. The most obvious of
these are Alaska Native Corporations, which Congress
has deemed to be disadvantaged for the express purpose
of making them eligible for contract preference as
part of the ANCSA settlement. * * * Because §
8014(3) is integrally tied to . . . ANCSA § 1626 . . .
it cannot be read as a racial preference, . . . .
Instead, § 8014(3) is part of and limited by a
larger scheme and purpose, to create a preference in
favor of Native American entities (which include
Native corporations . . .) set up to further their
social and economic self-determination.
Chugach Opp. to PI at 25. The defendants urge the court to "construe
§ 8014 to limit it to this situation." Chugach Opp. to PI at 25-26.
As outlined below, the court is inclined to adopt the limiting
construction of the section 8014 preference which is urged by the
2. Strict Scrutiny of Section 8014 Preference
a. Is Preference Narrowly Tailored to Further the Interest in Assisting
Disadvantaged Native-American Enterprises?
The strict-scrutiny test enables the judiciary to "`smoke out'
illegitimate uses of race by ensuring that the legislative body is
pursuing a goal important enough to warrant use of a highly suspect tool."
City of Richmond v. IA. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102
L.Ed.2d 854 (1989) (invalidating city program which set aside percentage
of government-construction contracts for minorities). At this juncture it
appears likely that the court will find that section 8014's nominally
unqualified preference for Native Americans can reasonably be construed
to withstand strict scrutiny.
i. Construction of Section § 8014 Preference
The defendants urge that the court can and should construe the section
8014 preference so as to avoid any serious question of constitutional
infirmity. The court agrees that there is a long-standing rule that
courts should construe challenged enactments so as to avoid
constitutional infirmity whenever reasonably possible. At this juncture
the court is also inclined to agree with the defendants that it can
reasonably construe the section 8014 preference to save it from
The Air Force contends, "Even if the term `Native American' in §
8014 arguably could be construed to include persons or entities who are
not affiliated with Indian tribes or Alaska Native Corporations, this
Court must assume that Congress intended for its legislation to steer
clear of the more serious constitutional issues that
might be implicated by a broader interpretation." AF's Opp. to PI at 31
(citation omitted). Specifically, the Air Force urges the court to
"assume that § 8014 would only be applied to `Indians' who are
affiliated with recognized tribal entities or to A[laska] N[ative]
C[orporation]s." Id. The Air Force emphasizes that it has only used the
section 8014 preference twice, both times in favor of the Chugach
defendants, which are owned by an Alaska Native Corporation. Id. and Ex.
3, Decl. of Vincent A. Gasaway dated May 17, 2000 ("There are no other
instances where this provision, or the same provision in earlier
appropriations acts, has been used by the Air Force to conduct A-76 direct
It is well settled that "where a statute is susceptible of two
constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are avoided,
[the proper course by the court] is to adopt the latter." Jones v. U.S.,
526 U.S. 227, 239, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); see also
Waterview Management Co. v. FDIC, 105 F.3d 696, 701 (D.C.Cir. 1997). The
plaintiffs have presented no ground for departing from this established
rule of jurisprudence, and the court discerns none.
ii. Narrowly Tailored to Further Compelling Interest in
Fulfilling Obligations to Disadvantaged Indians?
Applying this canon of construction, the court concludes that it is
likely to decide that the section 8014 preference is constitutional.
First, although the preference on its face is not restricted to
enterprises which are owned by tribal members or affiliated with
Native-American tribes, it has never been used to favor an enterprise
which was hot owned by or affiliated with a tribal entity. Rather, it
appears that the armed forces have used the section 8014 preference only
twice — both times to benefit Chugach, which is an Alaska Native
Corporation. According to the federal legislation which created and
defines Alaska Native Corporations ("ANCs"), ANCs are to be considered
"economically disadvantaged" enterprises as a matter of law. Thus, as
applied, the preference has been used only to favor an economically
disadvantaged Native-American enterprise. In so doing, the preference
serves to benefit a disadvantaged Native-American business both directly
and indirectly. By affording the Native-American enterprise opportunities
it otherwise might not have had, the preference reasonably can be
expected to improve the enterprise's skills and business connections.
Also important from a contractor's perspective, use of the preference to
give Chugach contracts will give Chugach a "track record", a good
reputation and a reference which it may use in bidding for other
contracts — perhaps contracts in the private sector, where the
preference does not apply. See S.Rep. No. 149, 106th Cong., 1st Sess.
(Sept. 8, 1999) (noting that the "lack of a vigorous private sector [is]
a major impediment to Native American economic progress"). The revenues,
experience and opportunities which accrue to Chugach from the use of the
preference will tend to improve both its material circumstances and its
prospects for the future. Cf. Pierce, 694 F.2d at 1170 ("One of the most
serious problems on the Indian reservations is the inadequate
availability of the financial resources to permit Indian people to
develop their own resources and potential") (quoting H.R.Rep. No.
93-907, 93d Cong., 2d Sess., at 607).
As the Ninth Circuit has held in upholding a Native-American
preference, "encouraging and assisting Indian-owned businesses helps
develop . . . leadership and furthers the government's trust obligations
to help the Indians develop economic self-sufficiency." Pierce, 694 F.2d
at 1170. It is logical that the section 8014 preference be used to favor
an Alaska Native Corporation, then, because ANCs were created precisely
to promote economic development and self-sufficiency among Alaska Native
Americans. See Koniag, Inc. v. Koncor Forest Resource, 39 F.3d 991,
996-97 (9th Cir. 1994) (unlike other corporations, ANCs are vehicles for
ensuring self-determination for Alaska Natives and for fulfilling the
federal government's trust obligations to Native Americans in Alaska).
Thus, the court could reasonably conclude that the section 8014
preference, as applied, furthers the compelling federal interest in
encouraging economic development and self-sufficiency among the Native
Americans, enabling Native Americans to better compete in the economic
mainstream and better provide for their own needs and wants. See, e.g.,
43 U.S.C. § 1606 (r) (Congress "expressly authorized and confirmed"
the use of revenues generated by the ANCs' activities "to promote the
health, education or welfare of shareholders."). More broadly, the
preference furthers the federal government's compelling interest in
fulfilling its trust obligations to the Alaska Native-American tribes
— an interest and obligation which arises from the unique
guardian-ward relationship which exists between the government and the
The court could also reasonably conclude that the preference, as
applied, is narrowly tailored to serve that compelling interest. See Blunt
v. SEC, 61 F.3d 938, 944 (D.C.Cir. 1995) (court inquires whether "the
recited harms are real, not merely conjectural, and . . . the
[challenged] regulation will in fact alleviate these harms in a direct
and material way"). The preference has never been used to benefit an
enterprise which is owned by someone who is of the Native-American race
but does not hold tribal membership or affiliation. Nor has the
preference been used to benefit Native-American enterprises generally
without regard to their economic and social circumstances. To the
contrary, the preference has in practice benefitted only an economically
disadvantaged Native-American business. Such a measure directs the
financial resources and social benefits flowing from the preference to
the place where Congress determined those benefits are most sorely
needed: disadvantaged Native-American enterprises. See 43 U.S.C. § 1602
(b) (Act which created Alaska Native Corporations and defined them as
disadvantaged enterprises was enacted "in conformity with the real
economic and social needs of Natives").
In short, if the section 8014 preference is construed as it has been
applied, it is likely to pass strict scrutiny. That, in turn, would
prevent the plaintiffs from mounting a successful facial challenge to the
preference. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct.
2095, 95 L.Ed.2d 697 (1987) ("the challenger must establish that no set
of circumstances exists under which the Act would be valid"); see, e.g.,
James Madison, Ltd. v. Ludwig, 82 F.3d 1085, 1100 (D.C.Cir. 1996) (where
plaintiff could not establish that statutory provision had been
unconstitutionally applied in his case, his facial challenge to the
statute would be futile); Chemical Waste Management v. EPA, 56 F.3d 1434
(D.C.Cir. 1995). Thus the plaintiffs have not made a "substantial
indication" of success on the merits, let alone shown a "substantial
likelihood," so they fail to meet the first of the four criteria for
preliminary injunctive relief.
C. Irreparable Harm and the Balance of Harms
1. Irreparable Harm to Plaintiffs in Absence of Preliminary
a. Loss of Income and Benefits
The plaintiffs contend, plausibly, that they will suffer irreparable
harm if the court does not enjoin the Air Force from awarding contracts
to Native-American firms pursuant to the section 8014 preference.
Specifically, the plaintiffs explain that they will lose their positions
as federal employees, depriving them not just of their income but also of
their health insurance, retirement annuities and other benefits. See
Pls.' Mot. for PI at 15-16. The court recognizes that a temporary loss of
income which can later be rectified, ordinarily does not constitute
irreparable harm for
purposes of preliminary injunctive relief. There are cases, however, "in
which the circumstances surrounding an employee's discharge, together
with the resultant effect on the employee, may so far depart from the
normal situation that irreparable injury might be found." Sampson v.
Murray, 415 U.S. 61, 92 n. 68, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); see,
e.g., Robinson v. D.C., 1997 WL 607450 (D.D.C. 1997) (granting
preliminary injunction against termination of police officer); Truck
Drivers, et at v. Almarc Mfg., 553 F. Supp. 1170, 1173 (N.D.Ill. 1982)
(potential mortgage foreclosure and "serious difficulty in sustaining the
needs of everyday life" were irreparable injury); Gonzalez v. Chasen,
506 F. Supp. 990, 999 (D.P.R. 1980) (loss of health-care coverage and
employee's status as sole wage earner were circumstances constituting
In this case, beyond the serious harm occasioned whenever an employee
is terminated, the plaintiffs present evidence that Ms. Marquez is the
sole wage-earner in her household, which includes her disabled husband,
see Marquez Aff. ¶ 9. Similarly, while plaintiff Reed could apply for
"discontinued-service" retirement, that would entail a permanent
reduction in her annuity which might not be reversible even if the court
ultimately declares the section 8014 preference unconstitutional and she
regains her position. See Reed Aff. ¶ 20.
Moreover, the plaintiffs present a persuasive argument that if the
injunction does not issue but the court ultimately invalidates the
section 8014 preference, they might be precluded from suing the federal
government to recoup pay and benefits they lost before the court so
ruled. Cf. Haley v. Pataki, 883 F. Supp. 816, 823 (N.D.N.Y.), app. dis.,
60 F.3d 137, 139 (2d Cir. 1995) (finding irreparable harm to employees
whom Governor refused to pay because legislature failed to pass budget,
because Eleventh Amendment would bar employees from later federal suit to
recoup pay lost). This is because the Back Pay Act, 5 U.S.C. § 5596
(b)(1)(A), entities federal employees to recoup back pay only when they
have been "affected by an unjustified or unwarranted personnel action."
Here, if the preliminary injunction does not issue, the Air Force will be
awarding contracts to Chugach (effectively eliminating plaintiffs'
positions as federal employees) in reliance on specific Congressional
authorization to do so. Even if the court ultimately held that section
8014 is unconstitutional, there is a substantial risk that a court would
find that the Air Force's action was not "unjustified or unwarranted"
when taken. In Jankowitz v. United States, 209 Ct.Cl. 489, 533 F.2d 538
(1976), for instance, the federal government suspended an employee
indefinitely, pursuant to a statutory provision authorizing such action
where there is reason to believe the employee has committed a felony,
5 U.S.C. § 7513. When the employee was acquitted of the felony
charge, the employer reinstated him with back pay from the time of his
acquittal. The employee sought back pay for the period between his
suspension and his acquittal/reinstatement, on the ground that his
acquittal showed he should not have been suspended. The court rejected
the employee's claim, holding that the suspension was lawful when imposed
and the acquittal did not retroactively render the suspension
"unjustified or unwarranted" within the meaning of the Back Pay Act
Likewise here, even if the court eventually invalidates the Air Force's
use of the section 8014 preference to contract out the plaintiffs' jobs,
a court could well conclude that the Air Force's action was neither
"unjustified" nor "unwarranted" when taken, in light of the Air Force's
understanding of its seemingly clear authority under the law at that
b. Loss of Right to Continued Federal Employment Absent Just
Cause for Removal
For these reasons, the court rules that the plaintiffs have adequately
demonstrated that they would suffer serious and irreparable harm if the
court denied their request for a preliminary injunction.