The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
MEMORANDUM OPINION DENYING THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT;
GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND GRANTING THE
INTERVENOR-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This Fifth Amendment due process case comes before the court on the
parties' cross-motions for summary judgment pursuant to Federal Rule of
Civil Procedure 56(c). In a two-count amended complaint, the American
Federation of Government Employees, the American Federation of Government
Employees, Local 2263 ("AFGE"), Rose Reed ("Reed"), and Inez Marquez
("Marquez") (collectively, "the plaintiffs") allege equal protection and
substantive due process violations under the Fifth Amendment of the
Constitution. The defendants are the United States and James G. Roche, in
his official capacity as Secretary of the Air Force (collectively, "the
defendants" or "the Air Force"). The intervenor-defendants are Chugach
Management Joint Venture and Chugach Management Services, Inc.
(collectively, "the intervenor-defendants" or "Chugach"), two
corporations owned by Native Alaskans. The target of this lawsuit is
Section 8014(3) of the Fiscal Year 2000 Defense Appropriations Act,
Pub.L. No. 106-76, enacted October 25, 1999, 11 Stat. 1212, 1234
("Section 8014(3)"). Section 8014(3) allows the Air Force to bypass the
usual procedure for awarding a civil engineering contract and grant the
contract to "a qualified firm under 51 percent Native American
ownership." The plaintiffs ask this court to declare Section 8014(3)
unconstitutional because it denies the plaintiffs an equal opportunity to
compete for their jobs. After consideration of the parties' submissions
and the relevant law, this court denies the plaintiffs' motion for
summary judgment, grants the defendants' motion for summary judgment, and
grants the intervenor-defendants' motion for summary judgment.
Plaintiff Reed served as an electronic mechanic at Kirtland Air Force
Base. See id. ¶ 6. Plaintiff Marquez was a material handler at Kirtland
Air Force Base. See id. ¶ 10. Both of their positions were eliminated
when the Air Force awarded the contract for the performance of civil
engineering functions at Kirtland Air Force Base to Chugach. See id. 66
6, 10. Plaintiff AFGE is a labor organization whose members occupy
positions that are affected by application of the Section 8014(3)
exemption. See id. ¶ 3. Plaintiff AFGE Local 2263 is the exclusive
representative of the civilian employees of the Air Force Material
Command at Kirtland Air Force Base. See id. ¶ 4. Plaintiffs Reed and
Marquez allege denial of an equal opportunity to compete for their jobs
by virtue of the Air Force's use of the exemption at issue, Section
8014(3). See id. ¶¶ 7, 11, 28. Plaintiffs AFGE and AFGE Local 2263
represent the interests of their members whose constitutional rights have
allegedly been and will continue to be violated by operation of Section
8014(3). See id. ¶ 3.
On May 1, 2000, the plaintiffs filed the complaint and motion for a
preliminary injunction. On the same day, Chugach filed a motion to
intervene and this court granted that motion on May 3, 2000. See Order
dated May 3, 2000. This court issued a Memorandum Opinion on June 30,
2000 and a supplemental order on July 5, 2000, denying the plaintiffs'
motion for a preliminary injunction. See AFGE v. United States,
104 F. Supp.2d 68 (D.D.C. 2000); Order dated July 5, 2000. After seeking
leave of this court to extend the defendants' time to answer the
complaint, the defendants filed an answer on July 31, 2000. On August 7,
2001, all parties filed their respective motions for summary judgment
pursuant to Federal Rule of Civil Procedure 56(c). Those cross-motions for
summary judgment are presently before the court. For the reasons that
follow, the court denies the plaintiffs' motion for summary judgment,
grants the defendants' motion for summary judgment, and grants the
intervenor-defendants' motion for summary judgment.
1. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540
(D.C. Cir. 1995). To determine which facts are "material," a court must
look to the substantive law on which each claim rests. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one
whose resolution could establish an element of a claim or defense and,
therefore, affect the outcome of the action. See Celotex, 477 U.S. at
322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all
justifiable inferences in the nonmoving party's favor and accept the
nonmoving party's evidence as true. See Anderson, 477 U.S. at 255. A
nonmoving party, however, must establish more than "the mere existence of
a scintilla of evidence" in support of its position. See id. at 252. To
prevail on a motion for summary judgment, the moving party must show that
the nonmoving party "fail[ed] to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which
that party will bear the burden of proof at trial." See Celotex, 477
U.S. at 322. By pointing to the absence of evidence proffered by the
nonmoving party, a moving party may succeed on summary judgment. See id.
In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.
Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather,
the nonmoving party must present specific facts that would enable a
reasonable jury to find in its favor. See Greene, 164 F.3d at 675. If the
evidence "is merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50 (internal
2. Legal Standard for Standing
Article III of the Constitution limits the jurisdiction of United
States courts to "cases" or "controversies." See U.S. CONST. ART. III,
§ 2, cl. 1. Article III's prerequisites reflect the "common
understanding of what it takes to make a justiciable case." Steel Co.
v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998). Consequently, in
order for this court to have jurisdiction over a case, each plaintiff
must have standing to bring their claim. See Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992).
An individual must satisfy a three-prong test to establish standing.
See id. First, the individual must have suffered some injury in fact
— an invasion of a legally protected interest that is concrete and
particularized and actual or imminent. See id. at 560; M.D. Pharmaceutical
Inc. v. Drug Enforcement Admin., 133 F.3d 8, 11 (D.C. Cir. 1998)
(concluding that current manufacturer had standing to seek review of
actions taken by the DEA). In some cases, a plaintiff may be injured when
the "discriminatory classification prevent[s] the plaintiff from
competing on an equal footing." Northeastern Fla. Chapter, Associated
Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 667 (1993)
(holding that when the government erects a barrier, in order to establish
standing, a group seeking to challenge the barrier need not allege they
would have attained the benefit but for the barrier); Regents of the
University of California v. Bakke, 438 U.S. 265, 281 (holding that an
applicant need not show that he would have attained the seat in admitted
class in order to have standing).
In contrast, other courts have found that when seeking retrospective
relief, the alleged injury is the "actual denial of the benefit rather
than the inability to have competed for the benefit on an equal footing."
Saunders v. White, 2002 WL 338744 *6, 2002 U.S. Dist. LEXIS 3573 *14
(D.D.C. 2002) (citing Yeager v. General Motors Corp., 265 F.3d 389, 395
(6th Cir. 2001); Comfort v. Lynn School Committee, 150 F. Supp.2d 285,
299-301 (D.Mass. 2001); Sims v. Ware, 1999 WL 637226 at *2 (N.D. Texas
Aug, 20, 1999)).
Second, the injury must be fairly traceable to the governmental conduct
alleged. See Warth v. Seldin, 422 U.S. 490, 504 (1975) (finding lack of
standing where city residents failed to show a causal relationship
between town's zoning practices and alleged injury); National Maritime
Union v. Commander, Military Sealift Command, 824 F.2d 1228 (D.C. Cir.
1987) (holding that the plaintiff failed the second and third prongs of
standing). A plaintiff will not have standing if this court must accept a
speculative inference or assumption to link the alleged injury to the
challenged action. See id.; Andrx Pharm., Inc. v. Bovail Corp. Int'l,
256 F.3d 799, 815 (D.C. Cir. 2001) (declaring that the potential
manufacturer's damages were not too speculative assuming it could claim
its intent and preparedness to enter the market); Advanced Mgmt. Tech.
v. Federal Aviation Auth., 211 F.3d 633, 637 (D.C. Cir. 2000) (holding
that a contractor lacked standing on the theory of reputational injury).
Third, the plaintiff must prove that the alleged injury is likely to be
redressed by a favorable decision of this court. See Lujan, 504 U.S. at
561; Tozzi v. U.S. Dep't of Health and Human Servs., 271 F.3d 301 (D.C.
Cir. 2001) (recognizing that upgrade classification change from
"reasonably anticipated" to "known" carcinogen caused some economic
injury that could be redressed by reversing the classification).
ii. Organizational or Representational Standing
An organization has standing only if it meets a separate three-prong
test. See Truckers United for Safety v. Mead, 251 F.3d 183 (D.C. Cir.
2001) (holding that a motor carriers' association has standing to sue on
behalf of its members for Department of Transportation's alleged abuses
of agency authority). Such standing exists where the organization's
members (1) would have standing to sue in their own right, (2) the
interests that the organization seeks to protect are germane to its
purposes, and finally, (3) neither the claims asserted nor the relief
requested requires the participation of each of the organization's
individual members. See id.; Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000); Hunt v. Washington
State Apple Comm'n, 432 U.S. 333, 342-43 (1977) (agreeing with the
district court's determination that a commission has standing to assert
the claims of apple growers and dealers in its ...