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March 29, 2002


The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.



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.


A. Factual Background

On June 11, 2001, the plaintiffs filed an amended complaint alleging that the defendants violated the plaintiffs' equal protection and due process guarantees. See Am. Compl. ¶¶ 34, 36. These claims arose out of the Air Force's award of a civil engineering contract pursuant to Section 8014(3). See id. ¶ 28. Under the statute, the Air Force cannot contract out work performed by more than 10 federal civilian employees until a most efficient and cost-effective organization ("MEO") analysis is completed and certified to Congress. See id. ¶ 17. There are three enumerated exemptions to the required MEO analysis, one of which forms the basis of the plaintiffs' claim herein. See id. ¶ 29. The exemption at issue abrogates the requirement of the MEO analysis when the Air Force converts an activity or function to performance by a qualified firm under "Native American ownership." See § 8014(3); Am. Compl. ¶ 27. Pursuant to the exemption, the Air Force awarded a contract to two such firms, the intervenor-defendants. See Am. Compl. ¶ 31.

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.

B. Procedural History

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.


A. Legal Standards

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 citations omitted).

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).

i. Individual Standing

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 ...

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