Albuquerque Indian Rights v. Manuel Lujan, Jr., in His Trust Capacity as Secretary of the Interior

49 540). reason, that inap- For we think it would be unsuccessful mediation whether gave ordinarily can up.3 propriate it We to review before statements the future conclude, on Javits’ based Chairman individual members of the Board made statement, in which this was a case dealing parties that with the in the course genuine “a manifest lack there was whether the Board concluded determine or parties will hope expectation that the have concluded that mediation should will 808, 888 agreement.” Local at an arrive Congress, presumably not be effective. IAM, (quoting F.2d 1434 mind, required with these considerations case, 537). government as the In this notify parties “in writing the Board out, might implacability IAM’s points mediatory efforts have failed” af- soften, hybrid procedure well if after refused, proffer ter its of arbitration is 45 course, a settlement between runs its added); (emphasis First it is U.S.C. § the other 11 unions comes railroads legal point Congress expected at that recognized the Board It is well about. significance to attach to Board communica- down use time alone to wear is entitled to parties concerning with the failure of tions bargainer. Brotherhood obdurate (the parties may engage in mediation self- v. Florida East Coast of Ry. & S.S. Clerks days receiving after the written help 30 Ry., 384 U.S. notification). (1966); Local 16 501 see also L.Ed.2d 1432, 1436-38; International 888 F.2d at reasons, foregoing the district For Washington Ter Elec. Workers Bhd. of court’s dismissal affirmed. (D.C.Cir.1972), Co., F.2d minal It is so ordered. denied, rt. ce 1530, L.Ed.2d 195 although possible to Accordingly, it is mean- remark as

construe the Chairman’s mediation, up we do giving he is on ex- appropriate a court to think it statements, made amine a Board member’s ALBUQUERQUE INDIAN mediation, critically. in the course of so RIGHTS, Appellant, liberally use mediators often Successful Hawaiian) (hoomalimali in as one blarney LUJAN, Jr., Trust in His Manuel Local of their mediation tools. See Secretary Capacity as at 1436-37. The Chairman’s Interior, et al. ploy. By may well have statеment been meaning the true of such inquiring as to No. 89-5181. its en- we could well undermine statement Appeals, States Court forcing Board to admit purpose

tire District of Columbia Circuit. Thus, spur negotiations. a tactic to scrutiny likely pro- Argued 1990. intrusive Oct.

long hardens dispute litigation — April Decided “ pres- artificial parties’ positions ‘the appeal to the sure and distortion’ mediatory further detracts from courts IAM, 425 F.2d (quoting Id. at

effort. Moreover, surprise that our review in this area has focused find cannot how we could we work but whether mediation could on patent solely basis of not on faith on the official bad held a of time the Board has union could the amount Board mediation statement suggested and that we have will in mediation work. mediation the future Whether not in eventually end mediation truly order the Board to we will unknowable —one work is ("a period that is a theoretical time limit is that after of mediation the chief attributes passage unreasonable") patently сompletely and atmo- produce an time alone will See, See, e.g., Local e.g., passed with no resolution. sphere conducive settlement. more 1434; IAM, F.2d at 543. F.2d at thus no F.2d at It is 1436-38. Local Deming,

Bruce S. with whom Daniel S. Press, brief, was on the Washington, D.C., appellant. Standish, Daniel J. Asst. Atty., U.S. Jay whom B. Stephens, Atty., John Bates, Craig Lawrence, and R. Asst. U.S. Attys., brief, were on the Washington, D.C., appellees. EDWARDS,

Before D.H. GINSBURG SENTELLE, Judges. Circuit Opinion for the Court filed Circuit Judge SENTELLE.

Concurring opinion filed Circuit Judge D.H. GINSBURG.

SENTELLE, Judge: Circuit appeal This arises from a motion for summary judgment granted by the United States District Court for the District of upholding Columbia Department (“Interior” “DOI”) Interior’s or refusal to hiring preference the Indian afforded by 25 U.S.C. 472 positions within the § Department’s Office of Construction Management (“OCM”).

Appellant Albuquerque Indian Rights (“AIRA”), Association organiza tion of American employed Indians at the (“OFM”), Office of Management Facilities brought alleging appellees suit violat ed 12 of the Reorganization Act § (“IRA” “Act”), (1988), 25 U.S.C. 472 § SI fied shall Indians hereafter have the failing to extend the aрpointment argues to vacancies within OCM.1 princi- positions. services such provides OCM that because community, OCM pally to the 25 U.S.C. 472 The term “Indian § subject tions should statute, defined Office” nowhere that AIRA lacks Interior contends ence. nor is it name the official of known and, in the suit alter- to this Department within or without the native, statutory interpretation de- that its the in- traditionally of Interior. DOI preference Indian nying application of the terpreted broadly “Indian the term Office” of Indian Affairs outside the Bureau “directly to include all units within DOI (“BIA”) The dis- merits deference. primarily providing and related the of interpretation of court held that DOI’s trict Indians,” applica- not limiting services to a permissible statute was the construction preference positions tion of solely the therefore, and, entitled to deference. We Department the BIA. within United States however, conclude, stand- Solicitor, Interior, of the Office of the bring this its ‍​​‌‌‌‌‌‌‌​​​​​​​‌​‌​‌‌‌​‌‌​​‌​​‌‌‌‌‌​​​‌‌‌‌​​‌​​‍members ing to suit because Opinion Memorаndum dated 13 1979 June presently no demonstrable have suffered (interpreting preference provision Indian Consequently, we affirm the dis- injury. BIA); of De- outside States claim.2 of this trict court’s dismissal Interior, partment of the Office of the So- licitor, Opinion May Memorandum dated 6 Background I. (same); Comptroller 1986 see also General Statutory Language A. The September Opinion p. Letter dated 20 give people In an effort Indian control 10. affairs, Congress adopted their own over recently DOI has reversed its earli- most Reorganization Act. Indian See Mor the statutory interpretation, er however. Mancari, 541-42, 94 ton interpret now the term “Indian chooses S.Ct. narrowly, to mean construing Office” it things, provides Act

Among other the itself, only the BIA and all units removed granted hir applicants should be Indian Scope BIA. intact from the See The of positions for ing preference when Re- Indian Under the Indian Preference provid of having primary responsibility the Act, Depart- orgаnization United States Indian to Indians or to tribes. ing services Solicitor, Interior, of Office the ment the of principal statutory language issue Opinion dated 10 Memorandum June case is set forth as follows: this ”). is this (“Scope It Indian Preference Secretary of Interior is directed the statutory appellant chal- interpretation health, age, standards of to establish lenges. character, knowledge, experience, and Background B. Factual may appointed ability for Indians who maintained, Congress established the Office now to the various hereafter, Office, Management placed Construction and Indian or supervision Assistant Sec- or services under of functions administration Budget, retary Policy, for quali- the Interior affecting Indian tribe. Such Appellant appellees appellant’s Complaint vor of on all three counts. Amended 1. Count II respect only I of the appellees seeks review to Count violated the same § asserted Comрlaint. provision by filling Amended the OCM Indian announcing position without Director’s ap Although providing hiring district court concluded and without tion cause, pursue this pellant Amended preference. Count III of the Com- Buy may district dismissal alleged appellees Court affirm the court’s plaint violated the Act, 450e(b)(2) (1988), grounds upon than those which on other when § 25 U.S.C. Chenery Corp., Design See SEC they "Support Engineer- district court relied. awarded sup- 87 L.Ed. 318 U.S. (1943); OCM technical Services” contract for Community Non- Creative engineering also port firm. The to a non-Indian (D.C.Cir.1990). Lujan, granted summary judgment in fa- Violence v. court district Administration, reports Indians, directly ly” serving who related to instead Secretary of the Interior. Act of No- term construes the “Indian Office” to mean 96-126, 27, 1979, P.L. 93 Stat. itself, vember those offices within BIA Congress reorganize directed OCM those removed intact from the BIA. See management the BIA’s facilities completely Scope Preference, J.A. at 40-53. operated auspices under the program, оf The opinion DOI Solicitor’s memorandum Management BIA’s of Facilities Office legislative history considered the (“OFM”), because of the deterioration of Act, Indian Reorganization its treatment in facilities on Indian reservations. physical courts, application and the historical Sess., Cong., No. 99th 1st Rep. H.R. at DOI. It also (1985). Although gave OCM spelled differing out reasons for with earli- responsibility physical for all facilities opinions Comptroller er issued Gen- DOI,3 specifically maintained instruct- eral and former Those Solicitor. earlier to assume full control of BIA’s ed OCM opinions opposite took the on a view related management program. OCMnow facilities involving statutory preference. issue directly supervises employees formerly su- Compare Scope (lim- Indian Preference Employment pervised positions OFM. iting application hiring preference of Indian OFM) (including subject BIA within the BIA), to Comptroller within with General However, hiring preference. to the Indian Opinion September Letter dated 20 applied hiring never the Indian Interior has (interpreting hiring preference Indian preference positions. to OCM BIA); apply Depart- outside United States AIRA, Interior, September, organiza- Solicitor, In an ment of the Office OFM, employees Opinion tion of Indian sub- Memorandum 13 June dated (same); protest claiming mitted formal that Department DOI United States of the wrongfully apply Interior, Solicitor, failing was Office Memoran- preference positions. Opinion (same); OCM AIRA al- dum dated May 472, any new, leged that under interpreta- Solicitor’s narrowed § directly provides primarily and apply pref- servic- tion fueled DOI’s refusal to or to tribes es to Indians Indian should be erence to OCM. preference. subject AIRA later brought AIRA then suit in district court who claimed to members would have asserting positions that OCM should be jobs applied with OCM OCM exer- subject preference to Indian and DOI’s preference in filling cised the Indian vacant position (as articulated in the Solicitor’s positions. actually No AIRA member ap- opinion) impermissi- memorandum was an OCM, plied job for a however. AIRA post ble hoc rationalization. DOI chal- contends that its members knew the statu- lenged standing rejected AIRA’s claim tory preference apply did not because OCM interpretation provision. AIRA’s preference omitted reference to the argued interpretation DOI further that its employment advertisements and be- warranted deference. In a memorandum lieved, therefore, it was futile for opinion (“Mem.Op.”) May issued apply

AIRA members absence of court, the district although determining preference. enjoyed suit, bring directly responded DOI never to AIRA’s granted summary judgment favor of 10, 1988, But protest. formal on June the DOI. opinion DOI Solicitor issued an which con- court district that AIRA determined cluded that did not alleged sufficient facts to warrant DOI, within OCM. position, rejects reversal of its earlier now definition of “Indian Office” as broad would have [AIRA’s members] meaning “directly primari- office gravamen been a futile effort. The 27, 1979, 96-126, operation described OCM as November P.L. 93 Stat. "provide[s] department[-]wide services.” Act complaint ‘standing’ the defen- “The term is that subsumes a plaintiff’s blend of properly applying requirements are not prudential dants constitutional Plaintiff has least two preference. considerations.” a[t]

members, true, if the claim who are is College Separa v. Americans United for by the defendants’ action of State, harmed Inc., tion Church & applying Indian to OCM 102 S.Ct.

tions. Seldin, (citing Warth U.S. 2197, 2204, Mem.Op. at 5. The district court held (1975)). requirements One of those “injury” appellant’s suffered mem- in Article III found of the Constitution bers was OCM’s refusal to utilize 'judicial which “limits the power’ of the hiring United States to the resolution of ‘eases’ granting motion for sum- and ‘controversies.’ Valley Forge Chris however, mary judgment, the district court College, tian interpretation determined that DOI’s 757. Cases or controversies need “permissible construction” of the statute. disputes individuals, limited between Mem.Op. at 11-12 (relying on Chevron however; organization empow is also Inc. v. Natural Resources U.S.A. Defense ered to suit on behalf of its members. Inc., 842-43, Council, Washington Apple Hunt v. State Adver 2781, 2778, (1984)). 81 L.Ed.2d 694 S.Ct. Comm’n, 333, 343, 432 tising U.S. 97 S.Ct. that, the stat- The court concluded 2441, 2434, (1977); 53 L.Ed.2d 383 see also clear, it ute must defer to the Jose, 1, 7, City Pennell v. San 485 U.S. interpretation. court further 849, 855, (1988); 99 108 S.Ct. L.Ed.2d 1 rejected AIRA’s contention that no defer- Brock, Automobile Workers v. 477 U.S. ence was due failed to follow because DOI 274, 282, 2523, 2528, 106 S.Ct. interpretations previous of the Act. its (1986); Humane Soc’y 228 the United The court decided that Solicitor’s “[t]he Hodel, (D.C. 45, States v. 840 F.2d 52-61 Opinion explains why departs he detail Cir.1988); Legal American Foundation v. opinions.” previous Mem.Op. at from 84, FCC, (D.C.Cir.1987). 808 F.2d 88-92 In (citation omitted). Finally, 12 Hunt, Supreme Court articulated the “to concluded that intended OCM necessary organization to thus, criteria provide oversight BIA”; pursue a claim: was that implied intent no Indian positions.

ence should be extended to OCM standing has suit an association Id. (a) of its its on behalf members when: standing would members otherwise appeals Appellant the dismissal of (b) right; sue in their own the inter- renewing put for- complaint, the claims protect germane it seeks to are ests Appellee ward below. seeks affirm- DOI (c) organization’s and nei- purpose; ance, (1) arguing: appellant claim the relief ther the asserted nor standing language, history, and that the requested requires participation hiring preference purpose and members in the lawsuit. individual provision are consistent with DOI’s statu- interpreta- tory interpretation, that this 343, Id., 97 432 U.S. at S.Ct. tion is entitled to considerable deference unquestionably AIRA meets the second this under Court Chevron. of this test. is criterion “Germaneness” pertinence” by a “mere between satisfied Analysis II. pur litigation subject organizational Appellant’s Standing A. Hodel, pose. Soc’y F.2d at Humane 840 matter, 58; accord, As a we must Hazardous Treatment threshold Waste (D.C.Cir.1988), EPA, 277, 286 appellant determine whether AIRA F.2d Council denied, 1106, 109 bring this 490 U.S. standing to action. Linda t. cer D., 616, 3157, (1989). AIRA 104 L.Ed.2d 1020 v. Richard 410 U.S. 93 S.Ct. R.S. organization of Indian that it is “an S.Ct. L.Ed.2d 536 asserts judicial of Facilities ... which

employees at the Office sense in Appellant’s Management,” power granted Brief is the Constitu- protect pref created ... “was tion to courts of the United States.” rights of its and all Indi erence members College, Complaint Appellant’s Amended ans.” (citations omitted). at 758 here, i.e., ¶ disputed 14. The interest doctrine, Accordingly, standing “the hiring preference whether III,” doctrines that cluster about Article OCM, clearly germane apply to should is O’Neill, Jagt v. Vander organizational purpose. AIRA’s addi (D.C.Cir.) (Bork, J., concurring), tion, the third apparently AIRA meets cri denied, cert. no circumstances exist that terion because (1983), designed L.Ed.2d 98 confine compel partic individual members “properly their courts to limited” function. action.4 Auto ipate See Center for Highway ‍​​‌‌‌‌‌‌‌​​​​​​​‌​‌​‌‌‌​‌‌​​‌​​‌‌‌‌‌​​​‌‌‌‌​​‌​​‍Safety v. Nat'l Safety Traffic component No more fundamental Admin., (D.C. n. 44 standing doctrine exists than re Cir.1986). quirement presently of a in demonstrable However, challenges appellant’s jury directly fact traceable to the defen respect prong first to the supposedly dant’s unlawful actions. See Specifically, the Hunt test. DOI contends Gladstone, Village Realtors v. Bell finding that the district court erred in wood, individual AIRA “would members oth- (1979); see also Center for in their erwise sue own Safety Auto v. Nat’l Highway Traffic therefore, right.” inquiry, The critical is Admin., (“It Safety 793 F.2d at cri- whether satisfies the first Hunt standing may grounded settled law that Accordingly, analysis terion. to an we turn ‘trifle,’ long on a mere so as in fact injury standing of AIRA’s members’ under Arti- Court, present.). Supreme empha is The cle III. sizing importance analy case-by-case the of Requirements Constitutional sis, has stated that “at an mini irreducible requirement standing The mum, of both requires Ill in party Art. the who “[i]n prudential] constitutional and dimen- authority [its court’s vokes the to ‘show he sions ... is founded in concern about the personally has suffered or some aсtual properly proper limited—role of the injury’ puta threatened as a result of the —and society.” Warth, in a courts democratic tively illegal conduct of the defendant.” 498, 422 U.S. at 95 S.Ct. at 2205. Forge Valley College, Christian 454 U.S. 472, Gladstone, (quoting at 102 S.Ct. at 758 requires respect This role that courts Bellwood, v. Village 441 U.S. Realtors govern- coordinate branches of the national 99, 1607). at at injury 99 S.Ct. The must be and ment decide causes that are actu- Warth, palpable,” “distinct and 422 at al, U.S. concrete “cases or The controversies.” 2206, 501, 95 at and not or Supreme S.Ct. “abstract” Court articulated the role of power “conjectural” “hypothetical.” City in judicial tripartite system our 95, 101-02, government: Lyons, v. 461 Angeles Los U.S. 1660, 1665, (1983). 103 S.Ct. 75 L.Ed.2d 675 power rights to declare the of indi- [t]he addition, In there must be a direct causal authority and to viduals measure the plaintiff’s between in connection asserted governments legitimate only ... “is in resort, necessity jury challenged last and defendant’s action. and as a in the 751, real, 737, Wright, determination of earnest and vital Allen v. 468 U.S. 104 controversy.” Otherwise, 3315, 3324, (1984) power “is S.Ct. 82 L.Ed.2d 556 court, argued ipate In the district that AIRA suit. When the found district court solely the third test necessary failed with criterion of the Hunt partic- it individual respect appellant’s for retroactive claims ipation respect the suit with those relief. AIRA elected to abandon all claims for OCM, already appellant tions filled at chose to retroactive relief if the necessary court found district pursue only prospective relief. partic- to have individual members

55 Regulatory personal injury Challenging Agency fair- Students allege (“plaintiff must 669, (SCRAP), allegedly 688, Procedures 412 U.S. 93 to the defendant’s ly traceable 2405, (1973). 2416, likely S.Ct. to be redressed No unlawful conduct relief”) (citation omitted). ideological harm mere to an interest will requested Morton, injury redressa- suffice. See Club v. requirement of “actual Sierra 727, 739, 1361, court,” v. Eastern Ken- U.S. 92 S.Ct. Simon ble 26, 39, (1972). L.Ed.2d 636 The harm Org., 426 U.S. must be tucky Rights Welfare (1976), “personal Kurtz, L.Ed.2d and concretе.” 96 S.Ct. judi- limit the federal at III to enables Article power disputes which confine cial “to those is, Although admittedly, there some am- a role consistent with federal courts to biguity defining constitutes a what “dis- powers and system separated which Gladstone, palpable” injury, tinct and Re- thought capable to be of reso-

traditionally altors, at 99 S.Ct. at process.” through Flast lution Supreme Court’s Cohen, S.Ct. body hardly extensive of case law ... 1951, 20 L.Ed.2d leaves courts at sea the law standing. legal notions, Like most short, organiza of an In a member standing concepts gained considera- standing right in her own tion establishes developing ble from case definition law. (1) by demonstrating: an actual or threat many standing question can cases generalized than a that is more injury ened chiefly by comparing be answered population at grievance shared complaint allegations particular (2) large; injury causally related to the prior’standing those made in cases. defendant; injury actions of the by judicial redressed likely which is to be 751-52, Wright, Allen v. 468 U.S. at against the defendant. Dia relief Thus, determining S.Ct. 3324-25. Charles, mond v. standing whether an individual member has (1986); Allen right, in her own we look to the extensive 751-52, 104 Wright, 468 U.S. body case law on to the 3324-25; College, alleged injuries. nature of appellant's at 758. deter 454 U.S. at To injury alleged by appellant DOI’s mine AIRA has whether hiring prefer- failure then, appeal, must first examine we OCM, supposedly prevent- ence to a failure alleged injury to AIRA’s membérs. gaining AIRA’s from members ben- AIRA, however, police preference. of that reviewing jur “must its efit court any of its has failed to that members carefully by “examin[ing] isdiction” each of assert sought applied to actually for for or otherwise plaintiff's alleged injuries compliance positions. merely AIRA they fill vacant OCM requirement personal with the Baker, members claims that several of its were Kurtz v. 829 F.2d concrete.” denied, for available (D.C.Cir.1987), “interested in OCM cert. 1138-39 Complaint for De- positions.” Amended Preliminary clаratory Judgment and plaintiff is on the The “burden ¶ Relief 12. In re- support Injunctive Permanent allege sufficient to stand facts sponse summary motion for Interior’s ing,” Presbyterian Church in the (D.C. proffered short affidavits judgment, Reagan, v. USA stating they Cir.1984), from six “would “must construe the com members but we they applied” have for OCM plaint complaining party.” in favor Warth, the Indian 2206. been advertised with 422 U.S. at rightly found that one of challenge The district court court to DOI’s To maintain a affiants, simply that action, by stating he was then, able AIRA must be to show did position “not in “interested” in an OCM been or will members “ha[ve] qualified posi- for the suggest that he was harmed chal perceptibly fact be applied.” actually have he tion or would lenged agency action.” United States Mem.Op. Law-Newark, at 4. Two other affiants also (3d 651 F.2d Cir.1981) they applied” (denying standing stated that “would have for to challenge af- provided any program firmative action position, plaintiff an but never where OCM clearly unqualified was otherwise for thеir own credentials or indicated whether ad- mission). they qualified. were otherwise J.A. at “interest,” however, 142. Mere is not suf- Furthermore, this is not a case where the standing. ficient to confer Sierra Club Cf. appeal mere fact of would allow us to as- Morton, S.Ct. at 1366 appellant’s sume that quali- members were (if organization alleges only “special an fied. See National Maritime Union v. interest” in action adverse and Commander, Military Command, Sealift allege it or its members “fail[s] (D.C.Cir.1987) 1237 n. 12 any in would be affected of their activities (“[presumably a bidder who believed that pastimes,” standing). it has no Federal significant would have no likelihood of traditionally grant courts have refused to obtaining the bid on re-solicitation would appellants who “would convert bring suit”). Here, repre- affiants are judicial process into ‘no more than a sented organization might vehicle for the vindication of the value in- regardless choose suit of its mem- bystanders.’ terests of concerned qualifiсations. Thus, bers’ affiants must College, 454 U.S. at were, fact, they state that in qualified for (quoting 102 S.Ct. at 759 United States v. positions. the OCM

SCRAP, 2415). atU.S. 93 S.Ct. at Only two of the they affiants stated that affiants, remaining Of the three one stat- qualified were otherwise and would have ed that she was “a Special- GS-11 Contract applied for an position OCM had it been ist” and “would have been interested subject hiring preference. Specialist position Contract advertised Hayes, See Affidavit of Frances D. Affida- level,” OCM at a gave GS-12/13 but no Thus, vit of Judith A. Bodo. these are the indication of whether she would have met sole AIRA possibly members who could any qualifications higher-level benefit from intervention. How- Hence, ever, tion. four of the point affiants failed to at no proceedings below affirmatively they state appellant did tender evidence that either of qualified (or others) been under these members actually ap- sort of plied for a might or that applied. OCM OCM to do so DKT Memo- Cf. would have Fund, resulted a denial of their Dev., rial Ltd. v. Agency Int’l applications. present case is distin- (D.C.Cir.1987). Although F.2d 1236 we guished from those which the courts require do not claiming standing those plaintiff’s injury have framed as the loss of alleged show that but for the illegal con- opportunity compete. See, e.g., C.C. duct of the agency, they would have re- Distributors, States, Inc. v. United position, ceived the e.g., Village Ar- (D.C.Cir.1989) (granting lington Heights v. Housing Metro. Dev. standing bidder). disappointed This Corp., 252, 260-64, 429 U.S. granted standing Court has inju- where the 560-63, 50 L.Ed.2d 450 (granting ry asserted is based on the denial of an standing plaintiff seeking housing assist- opportunity rights pursuant to exercise ance); Regents ‍​​‌‌‌‌‌‌‌​​​​​​​‌​‌​‌‌‌​‌‌​​‌​​‌‌‌‌‌​​​‌‌‌‌​​‌​​‍University of California bar, however, a statute. The case at in- Bakke, v. 280-81 n. job volves postings OCM for which no S.Ct. 2742-43 n. 57 L.Ed.2d 750 AIRA actually applica- members submitted (1978) (granting standing to unsuccessful Appellant’s tions. members entirely re- applicant), medical school we cannot find a moved themselves from by consideration standing basis for if there is no realistic positions. for OCM applying possibility competing of thosе position for a supposed to receive it once illegality partially analogous a situation at least corrected. Doherty case, Rutgers present School to that of the Supreme Cf. Heckler, Preston v. party’s failure held that Court Cf. Cir.1984) engaging (9th appellant in membership (granting standing at a club for apply membership prac discriminatory allegedly actually applied employment she for where challenge to its member his precluded position). tices Unadorned statements Ir Lodge No. ship policies. Moose in posi- AIRA members were “interested” 163, 166-67, 92 vis, S.Ct. applied” tions or “would have for Lodge Moose hiring preference at had the Indian OCM American who was de an African involved place satisfy do not been burden of Lodge restau by service the Moose nied showing any plaintiff’s members of his race. solely rant on basis “personally ... suffered some actual or Irvis had stand concluded while Court injury puta- threatened as а result of the injuries done ing to “seek redress tively illegal conduct of defendant^].” him, injuries may not seek redress for [he] College, at Lodge, 407 U.S. to others.” Moose done added).5 (emphasis at 758 S.Ct. Thus, while Irvis at 1968. S.Ct. Although “recog- the district court constitutional viola obtain relief for could applying for a two nize[d]” Lodge’s a result of the tions suffered as appellant’s members would been him, he could not sue on failure to serve “futile,” thereby supposedly providing the discriminatory Lodge’s basis of the standing, injury necessary to establish practices because he had never membership support record does not this conclusion. membership. applied for Id. personally relating AIRA never offered evidence 166-67, at 1968. “futility” applying the asserted court, granting The district Nor did OCMrefuse to consider OCM. of the two affidavits standing on the basis appellant’s employment members for be- affiants were “otherwise alleging that -apply hiring the Indian of a failure to cause applied” absent qualified” and “would have Lodge ex- Court Moose the Indian failure to OCM’s “chilling to hold that the pressly declined ence, for a determined alleged discriminatory effect” of such an AIRA members tion at OCM these standing persons on practice could confer preference ... would “without Indian membership. applied for Moose who never Mem.Op. at Al- effort.” been a futile 168, 92 at 1969. Lodge, 407 U.S. at qualified though note that “otherwise we token, By appellant’s contention the same may have to chal- non-applicants were discour- in this case that its members regula- lenge disqualifying statute or applying to because OCM aged from OCM Fund, tion, Agen- Ltd. v. DKT Memorial hiring preference refused to use (citation Dev., 810 F.2d at 1238 cy Int’l appellant from the basic not excuse does added), omitted) here have no (emphasis we concrete, personal standing requirement of regulation.” The “disqualifying statute or ap- Accordingly, we conclude harm. disqualified from were not AIRA members requisite injury pellant fails establish employment seeking obtaining or even fact, and, therefore, disqualified themselves They OCM. appeal.6 pursue this positions. the vacant actually applying for concrete, person- in a previously before the court Court the issues al one member of this 5. At least Tamm, Although Judge way. who Id. at 947. challenging party where a concluded that Court, agreed appellant in that the wrote for "pursue employment policy the matter fails to standing, he lacked Jewish American assertedly de employment” he was appellant al- that the deterrent effect reasoned itself, policy is he from terred fairly to the legedly was not traceable suffered necessary none of the elements left “with Id. at 946-47. defendants. action of federal complain actions” of in court of the panel Id. at of the dissented. The third member alleged wrongdoers. Con American Jewish J., (Robinson, dissenting). 1978) Vance, (D.C.Cir. gress J., (McGowаn, concurring). Judge McGowan injury Appellant’s to establish failure "wholly negative ac unnecessary course of to ad- that a for this court observed makes it fact redressability policy concerns gives employment “no chance and dress causation tion” prudential considerations. operative" other and thus fails to focus to be whatever ones, B. Appellant’s Merits Claims later see Department United States Interior, Solicitor, Office of the appellant Obviously, as Opinion Memorandum May dated 6 claim, litigate present we will not deter- Nonetheless, mine the on its merits. case departure might The especially proble- evaluating if were we note that we regulations matic in the area of applicable merits, pose a difficult it would task be- to American Indian affairs. Federal law agency cause of the scant record available long recognized that the United States present in the case. Should DOI choose to government, in view of “a distinctive obli- present interpretation reevaluate its of the gation of trust upon incumbent in its [it] provision, may wish to dealings dependent with and some- rulemaking process, thereby pro- [the] conduct a viding reviewing exploited” nations, court with a more in- times “has recognize formative record. While we charged itself with moral obligations of the Department’s this is the choice and not highest responsibility and trust.” Semi- ours, suggestion light we make the States, nole Nation v. United 316 U.S. genuine appellant several difficulties raises 286, 296-97, 1049, 1054, 62 S.Ct. 86 L.Ed. present litigation. (1942). Supreme Court has First, justiciable when faced with law- recognized that “overriding duty” re- suit, justify Interior would have its de- quires that Department where the of the parture past departmental interpreta- from BIA) Interior (specifically the has tradition- deciding tions of the statute. In what def- ally expressed position Congress one erence to statutory afford in- tribes, “it is essential that the terpretation, courts do “consider the con- legitimate expectation of ... Indians not be sistency agency interpreta- with which an extinguished by what amounts to an un- applied, tion has been and whether the published ad hoc determination.” Morton interpretation contemporaneous with Ruiz, 199, 236, being enactment of the statute con- 39 L.Ed.2d 270 (overturning strued.” NLRB v. United Food & Com- provide decision to certain benefits Union, mercial Workers Local 124 n. Indians “on reservation” 421 n. where tra- 98 L.Ed.2d 429 In present con- interpretation ditional had been “on or near troversy, opinion represents the Solicitor’s reservation”). past interpretations dramatic with break special The same relationship of trust preference provision. current obligation and enhanced dealing of moral opinion Solicitor’s limits the definition of could create problem a further in any fu- and, therefore, the term “Indian Office” Department’s ture review the decision to application preference, of the Indiаn narrow its units the BIA definition of terms appli- within unit which and its had been transferred intact out of the BIA hiring preference. cation of the Notably, (the currently Solicitor’s memorandum rec- certain canons of may construction ognizes only unit). one such transferred greater with force in the area of American contrast, Scope Preference. Indian law than do other canons other prior opinions Department within the areas of specifically, law. More in- DOI’s (and recognized the term therefore the terpretation may compel it to confront the preference) encompassing positions as longstanding canon that “statutes are to be Department “within the outside the BIA liberally Indians, construed in favor of the directly primarily providing related to ambiguous provisions interpreted to services to Indians.” United States De- their benefit.” Montana v. Blackfeet Interior, partment of the Office of the So- Indians, 759, 766, Tribe licitor, Opinion Memоrandum Dated 13 (1985) (ci- opinion June J.A. at 26. The 1979 omitted). tations Obviously, this is not en- consistent with earlier administrative inter- tirely consistent pretations, Comptroller strong governing with the Opin- General September ion Letter Dated principle of administrative law that where a Tribe, 471 ambiguous with re- Montana v. U.S. at is silent “statute Blackfeet issue,” 2403). the resolution specific spe- 105 S.Ct. at Based on the spect to [a] canon, left to ambiguity presumptively strength cial this we then de- question “the administering agency and interpretation to defer to the clined DOI’s agency’s the an- statute, is whether governing for the which had not fol- construction permissible on a is based swer Muscogee lowed the canon. Nation Creek Chevron, U.S. at of the statute.” at 1445 n. 8. this familiar at 2782. Under 104 S.Ct. certainly do not rule and do not in- We rule, reviewing appli- court’s the Chevron imply Department tend to that the cannot statutory tools of the “traditional cation of successfully interpretation. defend its new attempt tо an is limited construction” suggest prepare that in merely We order to whether or determine so, arise, doing justiciable case should its intent. unambiguously expressed INS Department might give the serious consid- 421, 446-48, Cardoza-Fonseca, re-examining interpretation eration to 1221-22, L.Ed.2d 434 107 S.Ct. providing process, due a forum more allow- (1987), NLRB v. Food & also opportunity input from inter- more Union, 484 U.S. at Workers Commercial parties, creating a more reviewa- ested Any further resort at 420. 108 S.Ct. record, simply adopting rather than ble in our review the canons of construction parte memorandum followed ex normally administrative decisions would employment notice. posting of an or not determining whether limited to is “rational and agency interpretation III. Conolusion the statute.” Id. consistent with reasons, foregoing at 421. For the we conclude challenge that AIRA lacks However, in area of American Indian interpretation of the Indian DOI’s law, may wish to consider Department judg- cоurt’s provision. ence The district liberality applied in rule Blackfeet ment is therefore involving native and other cases Indians principles eq Americans derives from Affirmed. rules of obligations and normative uitable

behavior, ordinary than from statu rather GINSBURG, Judge, Circuit D.H. true that at least one

tory exegesis. It is judgment: concurring in the has treated this rule our sister circuits analysis separately my I write in favor of Indians construction of liberal from that standing issue is different canons, deferring to treat other as would agree, court. I how- put forward charged with “agency [the statute’s] ever, properly AIRA was not be- that the States, Haynes United administration.” court, that reason I and for fore the district Cir.1989). However, (9th dicta re- join the court’s obiter decline that we have not. Musco it is also true garding the merits. Hodel, (Creek) 851 F.2d 1439 gee Nation v. denied, (D.C.Cir.1988),cert. Standing I. (1989), in standing issue differs My analysis of the arguably ambigu construed an which we First, I respects. in three from the court’s concerning power of an statutе ous circumstances of believe to maintain its own tribal Indian tribe “ demon- need not case an member courts, canons of we noted ‘[t]he unlawful that but for strate applicable in Indian law construction for the conduct, qualified she would be relationship be unique trust rooted ” seeks; failed to the DOI has position she Indians,’ and the tween the United States “ cri- promulgate separate are to be con and ruled that ‘[statutes there are no teria, the result Indians, with liberally in favor strued appli- potential against which a interpreted to standards ambiguous provisions Al- qualifications. her cant can measure (quoting at 1444-45 their benefit.’ Id. qualifications promulgate are plaintiff whose criteria for a though a any position impossible could not meet makes it meager that she determine so particular position putative applicant for a a rational standard whether would have standing, at least four of if might eligible agency not have been the had done so. A clearly unqual- are not so plaintiff reasonably required, the affiants here cannot in ified. standing, order to secure her to demon- eligibility pursuant strate her to ‍​​‌‌‌‌‌‌‌​​​​​​​‌​‌​‌‌‌​‌‌​​‌​​‌‌‌‌‌​​​‌‌‌‌​​‌​​‍non-exis- that, Second, I where it would be believe Heckler, tent criteria. Preston v. so, potential employee need useless to do (9th Cir.1984). in application an order to not submit challenge agency’s employ- standing to promulgate any The failure to criteria at The court policy in court. does ment clearly distinguishes all this case from contrary, but it does find that hold to the Fund, Agency DKT Memorial Ltd. v. for “AIRA never offered evidence re- the Development, International 810 F.2d 1236 ‘futility’ lating to the asserted (D.C.Cir.1987). Where, case, as in that Ct.op. at 57. Since at least one at OCM.” plaintiff challenges the one criterion that it appears to assert without contra- affiant disqualifies receiving claims it from a bene- that, from the DOI absent Indian diction fit, plain- it makes sense to ask whether the been preference, it would have futile qualified” tiff is “otherwise to receive that wanted, apply the she the court for benefit. See 810 F.2d at 1238-39. Where resolving issue is mistaken in against there are no other criteria which a against ground. her on plaintiff measured, however, may be question cannot be answered. Third, that none of the affi- I conclude eligible against suit ants was any specific Even without benefit DOI, given no- because none criteria, might be able deter- (either individually through tice particular plaintiff mine that a is so “whol- (1) representative) AIRA her of her de- as ly unqualified by any rational standards” particular position and sire to for a simply agency’s cannot view that, of her belief but for the give refusal to an Indian as the give improper failure to an Indian position. her cause of failure to receive a ence, position. qualify she would for that Preston, Consider, See 734 F.2d at 1366. example, for Indian who wants a Eligibility A. under Indian Preference surgeon tion as a but lacks medical Criteria if training; give even were to The court concludes that four affiants do preference, Indians it is that our obvious they not have do not aspirant get job. would not Pres- they eligible claim that would been open question ton court left whether a employment given if the even DOI had plaintiff meager qualifications with such (stat- Ct.op. at Indians standing, would have but cautioned that Delphi Montoya two affiants — recognition exception of even this narrow Reyna provided any Fern B. —“never require job the court to construct or indicated their own credentials whether qualification requirements.... This is a qualified”); they Ct.op. were otherwise evaluating job far different task than (stating that another affiant —Patricia qualification requirements that have Dyer “gave no indication of whether she — adopted Secretary. been It is a any qualifications” for a would have met particularly task that courts well particular position); Ct.op. (аpproving at 55 to, ordinarily suited will decline to finding Perry Pa- the district court’s perform. suggest quali- tron did “not he was fied”); (“affiants Ct.op. at 56 must n. Id. at 1366 & 7. were, fact, they qualified

state that similar, appears here The court to state positions”). the OCM possibility” “no realistic standard deter- standing, Ct.op. recognized mining the affiants’ As the Ninth Circuit a sim- action, however, application test seems to ilar the DOI’s failure to but

fil example, throughout accord There are indications demanding. For more be affidavit, AIRA’s briefs that its claim to Montoya is a Delphi ing to her upon “injury” type. based of the first ap have specialist” who would “contract (§ “provides AIRA Br. at E.g., 39-40 a spe position as “contract plied for another package rights, whole and the harm in preference been cialist” had Indian begins point caused their denial at the course, might promul place. DOI Of agency qualifica- when establishes the for different “con gate different criteria offered.”); position R.Br. tions for positions, but it is unclеar specialist” tract (“whether or members of that the court concludes upon what basis hypotheti- AIRA could have been hired a pos “no realistic Montoya have had would cal is irrelevant to the sense issues obtaining job. the desired sibility” of case, preference i.e. whether Indian should regarding said the court’s same could be apply, and whether OCM should Dyer, Patricia a “GS-11 Con treatment of processed un- therefore be advertised job “at the Specialist,” who wanted a tract preference].”). der While [Indian Preston, F.2d at level.” GS-12/13 Cf. necessity court’s discussion of the of either (concluding plaintiff employed that as showing suggests futility that medical records technician who a GS-04 injury it views the asserted as the affiants’ posi worker applied for a GS-11/12 social inability get jobs, it too confuses the Schweiker, tion, F.Supp. Preston v. injury it issue when describes the as the 1983), (D. had Alaska hiring “OCM’s refusal to utilize the Indian apply failure to Indian challenge the DOI’s 53; Ct.op. prеference.” Ct.op. at see also preference). apply (injury at 55 is the “DOFs failure to plaintiffs burden to Although it is the OCM”). hiring standing, allege support that the facts “injury” type An of the first —manifest- Presbyterian in the USA Church ed, example, as an Indian’s concern (D.C.Cir. F.2d Reagan, 738 refusing imple- Branch is the Executive (in 1984), at least these two affiants addi congressional policy ment Indians tion to those whose affidavits govern af- possible when should sufficient) alleged seem to have accepts as person if fairs —would exist even the same possi facts to establish the mere sufficient job regard- a would have been selected for received one of bility they would have Indians were accorded a less of whether question had there been an jobs Thus, plaintiff preference. a Indeed, hiring. preference in application had that her been need show in this court argue did not its briefs non-applicant would not rejected, and a standing for this any affiant lacks havе been futile need to show that would reason. matter, applied. For that for her to have applicant could sue! Futility Applying B. even a successful however, “injury” is such an too Clearly, argue that each affiant The DOI does cognizable in court. be abstract (1) ap- neither standing because she 737, 754-55, 104 Wright, Allen v. (2) position, a nor showed that plied for 3315, 3326, 82 L.Ed.2d 556 surely resulted in her applying would job, on the other to receive Failure omis- rejection. The relevance of these concrete, hand, injury not an abstract is a however, assessed, only after sions can be plaintiff A cognizable in court. and is injury that the clarifying the nature of the showing injury by could demonstrate plaintiff asserts. and been applied that she might asserting either of to accord failed rejected when “injuries”: two nor- plaintiff A her an Indian (1) apply failure to the DOI’s rejected to mally must and be positions; or to the OCM requirement can be standing, but clearly be application would inability get where an AIRA member’s waived Fund, this court In DKT Memorial job. futile. particular non-applicant recognized enjoining that a has stand- order from taking OCM such ac- “disqualifying challenge a statute or tion.” It failed to state that individual non-ap- regulation.” (named at 1238. A member of the AIRA or even un- standing, I plicant named) would also have should sought being or was foreclosed think, challenge policy, to as unlawful a job opportunity by from a reason of the promulgate such the DOI’s failure to as apply preference. DOI’s failure to Indian criteria, preference that has the ef- appears letter, far as So from that there- disqualifying rendering fect of her and her fore, simply the AIRA taking op- application pointless. portunity, organization as an dedicated to interests, advocacy of Indian to assert out, points As district court position that could benefit one or more theory standing futility used such a to find Indians. despite apply. the affiants’ failure to And Hayes appears the affidavit of Frances to sum, I filing believe that the of an allege supporting theory: facts that application by Hayes was necessary neither applied I would have for the Education & assuming application that an nor— not Coordinator, Program Facilities GM-301- by provide itself objec- notice of her (Announcement 88-128(b)), open- No. right tion—sufficient to establish her to ing August closing 1988 and date sue. adversely per- Notice that an affected September position 1988 if the objects agency’s policy son to the is the been advertised as a GM-301-13/14 un- important thing, not the form in which it der I any don’t have policies supporting comes. The conger- GS-13, time-in-grade as a so I cannot ies of related doctrines that limit qualify position. for a GS-14 power to the resolution of disputes actual appears Because one of the AIRA requires member example, plaintiff no less. For eligible to assert she was not for the give who fails to nоtice that position she wanted without application particular employment poli- of a preference, applied” but “would have if the cy arguably would harm her injury, has no available, preference had been the AIRA’s notice, since if given she had such standing upon lack of cannot be based agency might applied policy to apply. affiant’s failure to Although her. concluding the court errs in it would not have been futile for Notify C. Injury Failure to the DOI of Hayes apply, it arguably to is correct in to Individual determining Hayes injury, has no be- Although Hayes’ standing is not defeat- requesting apply cause that the DOI application ed her failure to fill out an might criteria to her not have employment, she still should not be analysis been futile. That this would tend complain in heard to district court about all arguments fold exhaustion into stand- pref- DOI’s failure to accord an Indian ing arguments shows that these doc- erence; gave neither she nor the AIRA upon trines are based a common under- notice, suit, prior instituting of her litigation is a last resort for apply particular desire for a parties that been able to resolve that, of her claim the absence of Indian their expensive differences means less preference, she qualify. would not society. Litigation polarize tends to did, referring any poten- without parties. may While that applicant, register tial protest” a “formal advantageous ideological advocacy with the director of the OCM. Its letter of cases, groups in some neither the courts protest legal arguments set out to the ef- society large nor magni- can count such required fect that the DOI is Indi- disputes anything fication of as but a mis- OCM, to the and threatened fortune. “if effort is made OCM to fill any position A prior non-Indian until this dismissal based on the lack of grievance protest resolved, might it will be notice to the DOI also be character- necessary equity. me to seek a federal court ized as a dismissal on want of based Vance, Congress court, accordingly, and the v. no reason American Jewish (D.C.Cir.1978) resolve. (McGowan, separately); concurring Reuss (D.C.Cir. Balles, 465 n.

1978) believes (“[I]f the court ..., none

plaintiff may,

theless, of the unusual circum case, dismiss for want of

stances of the

equity. American Jewish J., (McGowan, concurring separate

Vance ly).”) UNITED of America STATES as one

Whether we characterize case standing, lacks or one plaintiff which the McCRORY, Appellant. A. Keith exhaust its which it failed to administra- No. 89-3211. remedies, tive one in which there is a and the want the result rationale equity, United Appeals, States Court of power the same. “The to declare District of Columbia Circuit. rights and to of individuals measure Argued Nov. governments legit- ... authority of ‘is resort, imate in the last and as a April Decided real, necessity in the determination ear- controversy.’ nest and vital College v. Americans Separation Church 752, 758,

State, (1982)(citation omitted). In

calling upon the district court to issue an

injunction given it had the DOI no- before aggrieved

tice individual failure to

ence, opportunity to and an redress that

grievance, plaintiff here has improperly first,

treated district court as its not its

last, resort.

II. The Merits out, points

As justiciability

other doctrines of are “found- proper prop-

ed about the concern —and erly courts limited—role ‍​​‌‌‌‌‌‌‌​​​​​​​‌​‌​‌‌‌​‌‌​​‌​​‌‌‌‌‌​​​‌‌‌‌​​‌​​‍of the in a demo- Seldin, society.”

cratic Warth 498, 95 S.Ct. surpris- It is more than little court, therefore,

ing, having that the held standing, plaintiff

that the neverthe- goes provide

less an extended discus- on culminating in

sion of advice to the merits— engage rulemaking

the DOI to a—in my part, For

case not before us. I decline express any upon the of an view merits right plaintiff

issue has no to raise

Case Details

Case Name: Albuquerque Indian Rights v. Manuel Lujan, Jr., in His Trust Capacity as Secretary of the Interior

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 12, 1991

Citation: 930 F.2d 49

Docket Number: 89-5181

Court Abbreviation: D.C. Cir.