National Federation of Federal Employees v. Richard B. Cheney, Secretary of Defense , 892 F.2d 98 ( 1989 )

MIKVA, Circuit Judge,

joined by WALD, Chief Judge, and HARRY T. EDWARDS, Circuit Judge, dissenting from the denial of rehearing en banc:

As I stated in my dissent in this case, I think the court has chosen to contravene the Supreme Court’s clear teachings on prudential standing. As disturbing, it has twisted a congressional mandate to suit a purpose Congress never expressed.

I am genuinely perplexed by the majority’s conclusion that the petitioners in this case lack prudential standing. The Supreme Court has stated on several occasions that the zone-of-interest test denies standing to a prospective plaintiff only if that party’s “interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987). The majority does not deny that this indisputably generous approach to prudential standing controls our decision. Yet, the court has turned a presumption in favor of judicial review into an almost irrebuttable presumption against such review.

The court acknowledges, as it must, that Congress’ obvious intent to promote efficiency and economy is furthered only by contracting out when it is less expensive than using in-house employees. See Statement Concurring in Denial of Rehearing En Banc (“Cone. St.”) at 3. Section 1223(a) of the National Defense Authorization Act for 1987 (the “Act”) specifically requires the Secretary of Defense to obtain supplies and services from the private sector “if such a source can provide such supply or service to the department at a cost that is lower ... than the cost at which the Department can provide the same supply or service.” (emphasis added). Congress’ mandate was not designed to give an unconditional preference to private contractors.

Obviously, allowing the petitioners to challenge contracting-out decisions provides a control rod that would further Congress’ interest in the economical acquisition of supplies and services. The majority tacitly acknowledges this. Nonetheless, the court inexplicably transmutes this specific congressional purpose into a nonspecific interest in the public welfare. Conc.St. at 4. Having made this unjustified leap into the realm of “generalized grievance” with no effort to explain how it crossed the intervening chasm of credulity, the court has no trouble dismissing the petitioners’ claim.

The court’s warning that allowing petitioners standing would “eviscerate the prudential standing test,” id., rings hollow. Adopting the role of floodgate attendant, the court asserts that would-be plaintiffs could claim standing to challenge any agency action because Congress always legislates to serve the public welfare and such plaintiffs “will not prevail unless their position is found to be consistent with the public welfare.” Id. This analogy is fundamentally flawed. Congress’ specific interest in ensuring that goods and services are purchased by the government at the lowest possible cost cannot plausibly be equated with some undefined concern for the common good. Additionally, petitioners are the only parties whose interests would motivate them to challenge the agency’s decision to contract out when in-house provision of goods and services is actually cheaper. See NFFE v. Cheney, 883 F.2d 1038, 1058 (D.C.Cir.1989) (Mikva, J., dissenting). Despite the majority’s contrary — though unexplained — conclusion, the petitioners’ unique position makes them “particularly suitable challenger[s] of administrative neglect ... and supports an inference that Congress would have intended eligibility.” Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 283 (D.C.Cir.1988) (per curiam), cert. denied, — U.S. -, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989).

The court’s last assault on petitioners’ claim of standing directly contravenes the Supreme Court’s standing jurisprudence. The court asserts that the Act was designed to improve the relative position of private contractors and, therefore, that the petitioners were clearly not Congress’ intended beneficiaries. This basis for objecting to petitioners’ standing is startling given the Supreme Court’s teaching in Clarke that “[t]he [zone-of-interest] test is not meant to be especially demanding; in particular, there need be no indication of Congressional purpose to benefit the would-be plaintiff.” 479 U.S. at 399-400, 107 S.Ct. at 757 (emphasis added). To the extent that the court has created an analog of “intended beneficiary” in its “systematic congruence of interests” requirement, see Conc.St. at 3, 5, it has assumed a course that has been proscribed by the Supreme Court.

In addition, the court sails into a theory of the legislative process that is unreal and unworldly. The court asserts conclusorily that the petitioners’ interests are “systematically incongruent” with Congress’ purpose in passing the Act. The majority seems to ascribe to Congress an unqualified intent to improve the position of private contractors, and assumes that this was the prime — nay, only — purpose of the Act. Congress almost never mandates a single class of “winners,” inscribing all others in the “Book of Losers”; that is not the way the legislative process works. Here, as always, Congress satisfies its pluralistic responsibilities by balancing the interests at stake. Congress required the Secretary to choose private contractors only if these contractors could provide supplies or services at a lower cost than in-house employees. Allowing in-house employees to demonstrate lower-cost capability would infringe upon no benefit that Congress intended to confer upon private contractors. Indeed, it would carry out the basic plan that Congress ordained, a plan that the majority has rewritten with a most perverse use of the standing doctrine.