Lead Opinion
Opinion for the Court filed by Circuit Judge SENTELLE.
Dissenting opinion filed by Circuit Judge MIKVA.
Appellants, the National Federation of Federal Employees and Local 273 of the National Federation of Federal Employees (collectively “appellants” or “NFFE”), contest a United States Army decision to “contract out” to private contractors the services formerly provided by government employees of the Directorate of Logistics, Fort Sill, Oklahoma. The District Court held from the bench: (1) that NFFE, pursuant to section 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 (1982), lacked standing to sue under either Office of Management and Budget (“OMB”) Circular A-76 (Revised) or section 1223(b) of the National Defense Authorization Act of 1987 (“1987 DoD Authorization Act”)
I. Background
Under OMB guidelines, government agencies must determine “whether commercial activities should be performed under contract with commercial sources or in-house using Government facilities and personnel.” OMB Circular A-76 (Revised) para. 1 (August 4, 1983) (“OMB Circular A-76”).
In response to the RFP, in May 1986, Fort Sill received eight contractor proposals, all of which were evaluated by an Army Source Selection Evaluation Board (“Evaluation Board”). As is typical in government contracting, the Evaluation Board met with officials from the eight contractors for “discussions” regarding improvements on their proposals. After these discussions, Fort Sill resolicited bids seeking the contractors’ best and final offers (“bafos”). The bafo proposals were received in July 1986.
In August, the OMB revised its policy regarding calculation of retirement costs for in-house estimates. Likewise in February 1987, the method of determining costs of a contractors’ social security and thrift plan contributions was revised. Based on these changes, TRADOC solicited a second round of bafo bids. All second round bafo proposals were audited by the Defense Contract Audit Agency.
In May of 1987, the Evaluation Board selected the proposal submitted by Northrup Worldwide Aircraft Services, Inc. (“Northrup”). In June, Fort Sill compared the selected Northrup proposal, estimated at $53.2 million over the five-year term, with the in-house MEO estimate of $61.4 million over the same period. After TRA-DOC approval of the selection, Fort Sill announced tentatively an award of the contract to Northrup, which necessarily would result in termination of in-house services.
Pursuant to federal and Army acquisition regulations and OMB Circular A-76, an administrative appeal period ran from June 10 to July 22. During the period NFFE directly and through its members
The Government Accounting Office (“GAO”), pursuant to a congressional request, also reviewed the Fort Sill contracting out decision. Based on the conclusions
Appellants then filed this suit alleging, inter alia, that Fort Sill, in its contracting out decision, violated the cost comparison procedures set forth in OMB Circular A-76 and the requirements of section 1223(b) of the 1987 DoD Authorization Act.
Appellees moved to dismiss. The District Court granted appellees’ motion from the bench, holding that (1) under section 702 of the APA and the “zone of interest test” appellants lacked standing to sue; and (2) under 5 U.S.C. § 701(a) the contracting out decision was not subject to judicial review under either the Circular or the 1987 DoD Authorization Act, as the former commits the decision to nonreviewable agency discretion and the latter fails to provide any law or ascertainable standards to apply. Transcript of Hearing, National Fed’n of Fed. Employees v. Carlucci at 2-3 (D.D.C. Aug. 10, 1988), J.A. at 8-9. On appeal, appellants seek reversal of the District Court’s decision on standing and remand for adjudication on the merits.
II. Analysis
A. APA Standing: The Zone of Interest of the Relevant Statutes.
A party must have standing to bring suit in federal court. A court may “refuse to determine the merits of a legal claim, on the ground that even though the claim may be correct the litigant advancing it is not properly situated to be entitled to its judicial determination.” 13 C. Wright, A. Miller & E. Cooper, Federal Practioe and Prooedure § 3531, at 338-39 (1984). Standing focuses on the party and not on the issues sought to be adjudicated. See Flast v. Cohen,
In the instant case, appellants assert standing under section 702 of the APA. That section provides standing to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702 (emphasis added). Section 702 and the prudential zone of interest test are intimately related — the former provides a statutory grant from Congress to an aggrieved party to contest agency action and the latter provides a judicial limitation necessary to ensure that the proper party is asserting the claim against the agency. As the Supreme Court has stated, the zone of interest test is “most usefully understood as a gloss on the meaning of [section] 702,” particularly since the “principal cases in which the ... test has been applied are those involving claims under the APA.” Clarke v. Securities Indus. Ass’n,
Thus, we are required to determine whether appellants’ interests bring them within “that class of ‘aggrieved’ persons ... entitled to judicial review of ‘agency action.’ ” Association of Data Processing,
In Clarke, the most recent and leading Supreme Court statement on the zone of interest test, Justice White, writing for the Court, explained that
[t]he zone of interest test is a guide for deciding whether, in view of Congress’ evident intent to make agency decision presumptively reviewable, a particular plaintiff should be heard to complain of a particular agency action. In cases where the plaintiff is not itself the subject of the contested ... action, the test denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the [relevant] statute that it cannot reasonably be assumed that Congress intended to permit the suit.
The Court noted that the “test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.” Id. at 399-400,
Before undertaking our zone of interest inquiry, we must address the parties’ fundamental misunderstanding of the relevant question. The issue is not whether appellants’ interests are within the zone of interest of OMB Circular A-76; section 702 clearly requires that the party seeking relief be “legally] wrong[ed] ..., or adversely affected or aggrieved ... within the meaning of a relevant statute." 5 U.S.C. § 702 (emphasis added). The Circular is not a statute, see, e.g., Ketler, Federal Employee Challenges to Contracting Out: Is There a Viable Forum?, Ill Military L.Rev. 103, 110 (1986) (“Circular A-76 promulgates executive branch managerial policy”), and, although promulgated pursuant to congressional authority, the Circular itself cannot grant standing. In Sierra Club v. Morton,
I. Budget and Accounting Act of 1921, as amended.
The first of the two statutes under which the OMB promulgated the Circular is the Budget and Accounting Act of 1921, as amended, 31 U.S.C. § 101 et seq. (“1921 Act”). We have found nothing in the 1921
Generally, in the 1921 Act Congress sought to coordinate budgeting procedures
Before enactment of the 1921 Act, each department or agency developed its own budget and submitted it to Congress, through the Secretary of the Treasury.
The 1921 Act established a two-pronged approach to this budgeting (or lack-of-budgeting) crisis. First, Congress created a Bureau of the Budget, the predecessor to the OMB, within, but quasi-independent of, the Department of the Treasury. The Bureau was to consolidate all independent budgets of departments and agencies of the United States government, eliminate duplication of services, and cut funding where services were no longer needed. The national budget of the Bureau, including an estimate of revenues for the next fiscal year, would then become the President’s budget which the President submitted as one document to Congress for revision and approval.
The second prong of the 1921 Act was the establishment of the General Accounting Office (“GAO”) to represent the legislative interest in the budgeting process. The GAO was to be directed by a Comptroller General and Assistant Comptroller General effectively replacing the Comptroller of the Treasury. The Treasury Comptroller had been seriously hampered in effectively controlling Executive branch spending since he served at the pleasure of the President. The 1921 Act also transferred all the auditors from the various departments and agencies to GAO so that auditors would not be employed by the department they were auditing.
Congress considered these two separate offices, the Bureau and the GAO, one within each political branch, as a functional and valid constitutional “check and balance” over the expenditure of funds. Representative James W. Good of Iowa, the chief sponsor of the 1921 Act, and Chairman of both the House Committee on the Budget and the House Committee on Appropriations, stated:
We provided for [a] system of checks and balances which ought to exist in every well-regulated budget plan. The President originates the budget and he transmits it to Congress. It is up to Congress to determine whether it will accept the estimates, whether it will modify them, reduce them, or enlarge them. Congress must then assume full responsibility for its acts, just as the President assumes responsibility for his when he makes the budget. After the bill has passed, then, under the execution of the law, we provide for that independent establishment in the general accounting office, an office that will be to the appropriations made by Congress what the Supreme Court is to construction of laws that are enacted by Congress....
We create this independent establishment [the GAO], answerable to Congress, an establishment that has clerks and accountants, who will go through every department of the Government. When they find waste and inefficiency, when they find duplication in the service, they will come to the committee of Con*1046 gress that has jurisdiction of appropriations and report that fact. That fact will also be communicated to the President of the United States. With that system of checks and balances it is believed this great overlapping of activities, this duplication that exists in every department of the Government, will cease, and that the Government of the United States will be placed upon a business basis....18
Throughout debate, Representative Good referred to the GAO as a “semijudicial” office, working directly for Congress to ensure that executive budgets and estimates are properly prepared.
Nothing in the legislative history of the 1921 Act suggests that Congress contemplated the protection of employment of federal employees. Indeed, Representative Good’s presentation of the 1921 Act to the 67th Congress suggests a congressional purpose inconsistent with those interests. That is, the Act would require that some federal employees be terminated under the new budgeting process.
The director of the [Bureau of the Budget] must perform his work without fear or favor. He must do it with a realization that practically every Senator ... will at some time or another be opposed to what he is doing. He must do it with a realization that at some time or another practically every Member of the House will oppose him_ Many [federal employee] offices must be abolished. Some of the men who are here performing a public service must go home, and they will have to be sent home; and when such an officeholder comes from your [congressional] district you will go down and see the [employee’s superior] officer in [sic] behalf of the man from your district whom he is discharging, and Senators will go down, and they will make strong pleas showing how this man or that man who is slated to go has been a faithful public servant and why he should be permitted to remain.
When it comes to discharging these men who must be discharged, I say to you it is going to test the backbone in a man who has to do this work; it will try the fiber of the best man that the President can secure.... We ought not to throw upon the Secretary of the Treasury this duty ... [because this] would simply create disturbance with the other members of the Cabinet whose organizations by such act he was attempting to regulate and control.20
While Representative Good made this statement during debate on whether the Bureau of the Budget should be under the Department of the Treasury or directly under the Executive Office of the President,
Appellants may have many “interests,” but for zone of interest purposes we must look to their particular interests, not to the interests amounting to generalized grievances of all citizens. See ASARCO, Inc. v. Radish, — U.S. —,
As we noted in Haitian Refugee Center, [i]f any person or organization interested in promoting ... protection of the rights created by a statute ... has an interest that falls within the zone protected or regulated by the statute ..., then the zone-of-interest test is not a test because it excludes nothing. Indeed, such a reading would mean that this court ignores the Supreme Court’s decisions that persons who have only a “generalized grievance” about the way in which government operates do not have standing.
Id. at 813 (citing Schlesinger v. Reservist Comm. to Stop the War,
Concededly, in Haitian Refugee Center, we conducted our zone of interest analysis without the benefit of the Clarke decision, but nothing in Clarke changes that analysis as it applied in Haitian Refugee Center or in the present case. Indeed, in our recent post-Clarke zone of interest decision, Hazardous Waste Treatment Council v. EPA,
In HWTC, we recognized that the Clarke analysis of the zone of interest test “ ‘denies a right of review if the plaintiffs interests are so marginally related to or inconsistent with purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’ ”
In the present case, the legislative history of the Budget and Accounting Act of 1921, as amended, leads us to conclude that Congress did not contemplate in-house federal employees and federal employee labor unions as plaintiffs. Congress carefully crafted a two-pronged checks and balances budgeting process to coordinate the United States budgeting process, eliminate duplication of services, and promote efficiency. Congress knew that some federal employees would be adversely affected and, instead of giving these employees some recourse, intentionally removed the director of the Bureau of the Budget from as much external pressure as possible so that he could make the “hard” decision to reduce the employee force where necessary. At most, federal employees’ interests are marginally related to this centralized annual budgeting process balanced between the Executive and Legislative branches. Cf Clarke,
If governmental efficiency was appellants’ interest, then they would have no greater Article III injury in fact
2. The Office of Federal Procurement Policy Act Amendments of 1979.
In addition to the 1921 Act, OMB Circular A-76 cites as authority the Office of Federal Procurement Policy Act Amendments of 1979 (“OFPPAA”), as amended, 41 U.S.C. §§ 401-424. See OMB Circular A-76 para. 3, J.A. at 12. In 1974, Congress created the Office of Federal Procurement Policy
After a thorough review of the OFPPAA and its legislative history, we have found nothing to suggest a congressional purpose more than marginally related to the interests of federal employees vis-a-vis procurement policy. Throughout the legislative history of OFPPAA and its amendments, Congress emphasized economy and efficiency in government operations. Specifically regarding “contracting out,” the Senate Committee on Governmental Affairs recognized that there had been a longstanding “executive branch policy of reliance on the private sector” to improve governmental efficiency as expressed in earlier versions of OMB Circular A-76. S.Rep. No. 144, 96th Cong., 1st Sess. 4 (1979), U.S.Code Cong. & Admin.News 1979, p. 1492. Congress specifically validated this Executive branch policy favoring the private sector in its enactment of the OF-PPAA:
The new [contracting out] policy is built on three principles:
1. Rely on the private sector. The Government’s business is not to be in business. If private sources are available, they should be looked to first to provide the commercial or industrial services needed by the Government.
2. Retain certain governmental functions in-house. Certain functions are inherently governmental in nature being so closely related to the public interest as to demand performance by Federal employees.
3. Aim for economy. Use cost comparison. When private performance is feasible and no overriding factors require in-house performance, the taxpayer deserves and expects the most economical performance and therefore rigorous comparison of contract cost versus in-house cost should be used when appropriate to decide how the work will be done.
Id. See also H.R. Rep. No. 146, 98th Cong., 1st Sess. 8-9 (1983), U.S.Code Cong. & Admin.News 1983, p. 2027 (quoting the above “government[ ] policy on contracting out” and stating that “[t]hese are wise principles, and in their applicability to all agencies they are entirely consistent with the goal that the Federal procurement system be standardized.”). The policy endorsed in the Report does not merely favor the private sector; it endorses “reliance” on the private sector. The obvious presumption is that private sector performance is more economical and efficient. Only if the goods or services required are “inherently governmental,”
Since the legislative history of the OF-PPAA endorses the Executive branch policy of reliance on the private sector and the Circular finds authority in the OFPPAA, it is difficult to conclude anything but that the interests of federal employees are inconsistent with the purposes of OFPPAA. As previously discussed, appellants’ real interest in this case is the protection of the federal jobs of its members, not efficiency in governmental operations. If appellants’ real interest in this case was governmental efficiency, they might very well be within the zone of interest of the purposes of the OFPPAA. But again in the assertion of that interest of efficiency, they have no greater claim to standing than any taxpayers. See pp. 1046-1048 supra. Their real interest of job protection flies in the face of
Because we hold that appellants’ interests are not within the zone of interest of the Budget and Accounting Act of 1921 or the OFPPAA, the statutory authority for OMB Circular A-76, appellants may not assert standing based on those statutes.
3. National Defense Authorization Act of 1987.
Appellants also assert standing under section 1223(b) of the 1987 DoD Authorization Act, 10 U.S.C. § 2304 note. That section requires the Secretary of Defense to “ensure that all costs considered [in a contracting out decision] ... are realistic and fair.” See supra note 6. Appellants contend that the legislative history of the Act, which prohibits contracting out of federal firefighter and DoD security guard positions, evidences congressional intent to provide employee standing because at least some government jobs are protected. Additionally they point out that advocates for federal employees defeated attempts by private contractors to eliminate built-in “bias” in the contracting out process favoring federal employees, such as the addition of a ten percent conversion differential which must be added to each contractor’s bid. We find appellants’ arguments unconvincing and, after reviewing the legislative history of section 1223(b), conclude that appellants’ interest is inconsistent with the statutory requirement of a “realistic and fair” cost comparison.
From our review of the legislative history, the phrase “realistic and fair” was added to the Authorization Act to protect the private government contractor in the contracting out process against undue built-in “bias” favoring in-house performance of services. In fact, the phrase was added at the behest of government contractors in protest against the ten percent conversion differential. Appellees point to, and we find convincing, the following explanation of the “realistic and fair” language found in the Senate Report on the Authorization Act.
Realistic and Fair Cost Comparisons
DOD handicaps contractors’ bidding on services and supplies during cost comparisons against retaining these functions in-house. In addition to the existing 10% [conversion] bias used to date, other handicaps are:
* Contract Administration Cost — The cost for the government to administer the contract if awarded to a private concern is added to the vendor’s bid.
* Quality and Technical Assurance Cost — Quality and technical supervision and assurance are costs added to the vendor’s bid when contracting out work.
* Excessive liability coverage required and unrealistically low costs for government agencies.
* Overhead costs computed for the government bid.
Agency cost comparison must be made more equal for determination of contracting out. Some DOD organizations have used these handicaps to their advantage in determining the cost comparison outcome. In addition to opening the door for more competition, the competitions must be conducted on an “apples to apples” basis.
S.Rep. No. 331, 99th Cong., 2d Sess. 278, reprinted in 1986 U.S. U.S.Code Cong. & Admin.News 6413, 6472. Thus the legislative history shows that the provision for a “realistic and fair” cost comparison was designed to protect the integrity of the contracting out process by resolving “handicaps” against government contractors— the apparent intended beneficiaries of section 1223(b).
Obedient to the teachings of Clarke, we must determine whether the interests of the in-house employees are only marginally related to or inconsistent with the purpose of the statute. See Clarke,
As we noted in footnote 22, supra, the dissent correctly points out our holding in HWTC that “[i]n the absence of apparent congressional intent to benefit, however, there may still be standing if some factor— some indicator that plaintiff is a peculiarly suitable challenger of administrative neglect — supports an inference that Congress would have intended eligibility.”
In Schlesinger, the Supreme Court actually indicated that the absence of other plaintiffs is not a relevant factor, rejecting “the District Court’s observation that it was not irrelevant that if respondents could not obtain judicial review of petitioners’ action, ‘then as a practical matter no one can.’ ”
Arguably, the discussion in Schlesinger occurred in the context of determining Article III rather than zone of interest standing,
In this connection, we note that the dissent turns the “intent to rely” analysis on its head, stating that “the federal employees, and therefore the Union plaintiff here, do have standing unless the statutes or their legislative histories reveal a congressional intent to preclude reliance on this particular class of plaintiffs.” Dissent at 1058. But Supreme Court precedent requires an affirmative not a negative test: “the essential inquiry is whether Congress ‘intended for [a particular] class [of plaintiffs] to be relied upon to challenge agency disregard of the law.’ ” Clarke,
B. Disappointed Bidder Standing.
Lastly, appellants assert standing equivalent to that of a “disappointed bidder” in a government contract solicitation and award. Since Scanwell Laboratories, Inc. v. Shaffer,
[TJhere is no right in [the disappointed bidder] to have the contract awarded to it in the event the district court finds illegality in the award of the contract.... Thus the essential thrust of [the disappointed bidder's] claim on the merits is to satisfy the public interest in having agencies follow the regulations which control government contracting. The public interest in preventing the granting of contracts through arbitrary or capricious action can properly be vindicated through a suit brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a “private attorney general.”
Scanwell Laboratories,
While Judge Tamm’s original language in Scanwell Laboratories is broadly phrased, apparently to include as a disappointed bidder anyone “who suffers injury as a result of the illegal activity,”
Neither appellants nor their members bid on a contract and, thus, have never placed themselves in the special relationship by which the government can bind them to the bid. Moreover, with no bid on a solicitation, it is impossible for them to be within
III. CONCLUSION
For the above stated reasons, we find that appellants lacked standing to contest the Army’s contracting out decision. We therefore find it unnecessary to determine whether administrative decisions to contract out are subject to judicial review.
Affirmed.
Notes
. Pub.L. No. 99-661, § 1223(b), 100 Stat. 3977 (codified at 10 U.S.C. § 2304 note (Supp. V 1987)).
. OMB Circular A-76 was originally issued in 1966 and subsequently was revised in 1967, 1979, and 1983. See OMB Circular A-76 (Revised) para. 4.b. (August 4, 1983). The Circular summarized a policy of the Bureau of the Budget developed in Bureau Bulletins issued in 1955, 1957, and 1960. Id. The 1983 Circular revision is the focus of this appeal.
. Most significantly, OMB Circular A-76 requires a ten percent conversion differential be added to contracting costs.
. TRADOC received, inter alia, 330 letters of concern from the NFFE and Directorate of Logistics employees and another 1,131 letters of concern from non-Directorate employees. Joint Appendix ("J.A.”) at 338-39.
.Local 273 of the NFFE also filed a collective bargaining grievance with Fort Sill. See J.A. at 508. At oral argument before this Court, appellants advised that the grievance had been withdrawn. Additionally, several union member employees filed a bid protest with the General Accounting Office under the Competition in Contracting Act, Pub.L. No. 98-369, 98 Stat. 1175 (codified in various sections of Titles 10 and 41 U.S.C., see J.A. at 512).
. Section 1223(b) provides:
For the purpose of determining whether to contract with a source in the private sector for the performance of any Department of Defense function on the basis of a comparison of the costs of procuring supplies or services from such a source with the costs of providing the same supplies or service by the Department of Defense, the Secretary of Defense shall ensure that all costs considered, including the costs of quality assurance, technical monitoring of the performance of such function, liability insurance, employee retirement and disability benefits, and all other overhead costs, are realistic and fair.
10 U.S.C. § 2304 note.
. Appellants also argued that a Northrup employee’s conflict of interest arising from his prior employment with the Army, where he allegedly had some involvement in this contracting out decision, should void the award. Because appellants failed to raise this allegation in their complaint before the District Court, the issue was not before that Court and therefore is not properly before us.
. Article III requires an actual "Case[ ]” or "Controvers[y]" for standing. U.S. Const art. Ill, § 2 cl. 1. In Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.,
. Act of June 10, 1921, ch. 18, 42 Stat. 20 (1921) (codified at 31 U.S.C. § 1 et seq.).
. Pub.L. No. 96-83, 93 Stat. 648 (1979) (codified at 41 U.S.C. § 401 et seq.).
.See supra note 6.
. We emphasize that we are here concerned with Article III standing, not standing before an Article I administrative tribunal, see, e.g., American Trucking Ass'n v. ICC,
. Professor Davis explains:
On the question whether Congress may determine who has standing, the relevant provision could be Article I, which confers upon Congress the power to create legal rights. If Congress may confer rights upon a class of persons, Congress may also confer rights to be plaintiffs.
4 K. Davis, supra, § 24:5, at 226 (emphasis in original).
We are not faced with a congressional delegation to the Executive to promulgate regulations on standing. Thus we do not address whether Congress may delegate such authority to the Executive.
. Congress has amended the Act thirteen times since its original enactment:
—Budget and Accounting Procedures Act of 1950, Pub.L. No. 784, ch. 946, title I, pt. I, §§ 101, 102, 64 Stat. 832 (1950). See H.R. Rep. No. 2556, 81st Cong., 2d Sess. 1, reprinted in 1950 U.S. Code Cong. & Admin.News 3707, 3707 (an Act "to modernize and simplify governmental accounting and auditing methods and procedures”);
—Act of July 28, 1953, Pub.L. No. 161, ch. 256, 67 Stat. 229 (1953) (to provide for a retirement annuity for the Comptroller General);
—Act of August 1, 1956, Pub.L. No. 863, ch. 814, § 1, 70 Stat. 782 (1956) ("to improve governmental budgeting and accounting methods and procedures, and for other purposes”). See also S. Rep. No. 2265, 84th Cong., 2d Sess., 1956 U.S. Code Cong. & Admin.News 3794, 3794;
—Act of August 25, 1958, Pub.L. No. 85-759, § 1, 72 Stat. 852 (1958) (an Act “to provide for improved methods of stating budget estimates and estimates for deficiency and supplemental appropriations”). S. Rep. No. 1866, 85th Cong., 2d Sess. 1, reprinted in, 1958 U.S. Code Cong. & Admin.News 3917, 3917;
—Act of July 13, 1959, Pub.L. No. 86-87, 73 Stat. 197 (1959) (an Act providing for annuities to widows and children of Comptrollers General);
—Act of July 26, 1966, Pub.L. No. 89-520, §§ 1, 2, 80 Stat. 329 (1966) (an Act providing for retirement for Comptroller Generals);
—Legislative Reorganization Act of 1970, Pub.L. No. 91-510, title II, § 221, 84 Stat. 1169 (1970). See H.R.Rep. No. 1215, 91st Cong., 2d Sess. 1, reprinted in 1970 U.S. Code Cong. & Admin.News 4417, 4417-18, 4433-34 (an Act providing, inter alia, for improved rules and open proceedings of the Congress and granting the Comptroller General the authority "to review and analyze the results of Government programs and activities");
—Act of March 2, 1974, Pub.L. No. 93-250, § 1, 88 Stat. 11 (1974). See H.R. Rep. No. 697, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin.News 2778, 2779 (to provide for the Director and Deputy Director of the Office of Management and Budget to be appointed by the President with the advice and consent of the Senate);
—Congressional Budget and Impoundment Control Act of 1974, Pub.L. No. 93-344, title VI, §§ 601-604, 88 Stat. 323, 324 (1974). See S. Conf.Rep. No. 924, 93d Cong., 2d Sess. 1, reprinted in 1974 U.S. Code Cong. & Admin.News 3591, 3591 (an Act to assure congressional budget control, provide for the congressional determination of the appropriate level of federal revenues and expenditures, provide a system of impoundment control, establish national budget priorities, and provide for the furnishing of information to Congress by the Executive branch);
—Railroad Revitalization and Regulatory Reform Act of 1976, Pub.L. Rev. No. 94-210, title III, § 311, 90 Stat. 60 (1976). See S. Rep. No. 499, 94th Cong., 2d Sess. 1, reprinted in 1976 U.S. Code Cong. & Admin.News 14, 14-15 (an Act to promote revitalization of the railroad industry in the United States);
—Comptroller General Annuity Adjustment Act of 1978, Pub.L. No. 95-512, §§ 2-4, 92 Stat. 1799, 1800 (1978);
—General Accounting Office Act, Pub.L. No. 96-226, title I, §§ 102-104(b)(l), 94 Stat. 312-315 (1980). See S.Rep. No. 570, 96th Cong., 2d Sess. 1, reprinted in 1980 U.S. Code Cong. & Admin.News 732, 732-33 (an Act to strengthen the GAO as the investigative and auditing arm of Congress and to improve budget management and expenditure control relating to the Comptroller General and the Inspector Generals of the Departments of Energy and Health and Human Services). The Act specifically amends the Budget and Accounting Act of 1921 to provide the GAO with sufficiently broad and comprehensive authority to investigate "all matters relating to the receipt and disbursement and application of public funds,” id. at 2, U.S. Code Cong, at 733; and,
—Federal Managers’ Financial Integrity Act of 1982, Pub.L. No. 97-255, § 3, 96 Stat. 815 (1982). See H.R. Rep. No. 38, 97th Cong., 1st Sess. 1, reprinted in 1982 U.S. Code Cong. & Admin.News 1885, 1885-86 (an Act to improve government internal controls of each executive agency and to require ongoing evaluations and reports under OMB guidelines).
Nothing in these amendments or in their legislative history suggests that the interests of federal employees and federal labor unions are more than marginally related to the congressional purposes behind the 1921 Act. Cf. Clarke,
. See 59 Cong.Rec. 8626 (1920) (statement of Sen. Smoot) (debate on 1920 version of Act vetoed on other grounds by President Wilson; subject matter of 1921 Act substantially unchanged).
. Id.
. See id.
. 59 Cong.Rec. 7949 (1920) (statement of Rep. Good) (emphasis added) (debate on 1920 version; subject matter of 1921 Act substantially unchanged).
. See, e.g., 59 Cong.Rec. 8610 (1920) (debate on 1920 bill); 59 Cong.Rec. 8733, 8737 (1920 App.) (extension of remarks). In 61 Cong.Rec. 982 (1921) (debate on 1921 Act), Representative Good expressed the view that the 1921 Act
provides ... for well-regulated checks and balances in the two departments. It creates the office of the comptroller general, and he must audit all accounts. We have created this office and have made it a semijudicial one. ■.. [Wjhen the committee from the bureau of the budget of the President's staff come and explain the budget, sitting right there, they are brought to face the comptroller general of the United States; and if a representative of the bureau of the budget states something that is not true, if he fails to state the whole truth, the comptroller general sits there with the Committee on Appropriations as an arm of Congress and can supply the desired information. In this way the facts will come before Congress in a way that we may eliminate duplications wherever we find them, and where we find there is an excess of employees they can be eliminated, and the service will not be injured by an injudicious cut in the appropriation.
(Emphasis added.)
. 61 Cong.Rec. 981-82 (1921) (statement of Rep. Good) (debate on 1921 Act).
. The House desired an independent Bureau of the Budget whose director reported directly to the President, lest the director be unable to cut the budget of his superior agency, the Department of the Treasury. The Senate, fearing that the Secretary of Treasury would lose control over a substantial area of his responsibility, preferred the Bureau to be an office within Treasury. A modest compromise was arranged where the Secretary of Treasury was a figurehead superior over the director of the Bureau.
.To be sure, as the dissent points out, we also held in HWTC that "[i]n the absence of apparent congressional intent to benefit, however, there may still be standing if some factor — some indicator that plaintiff is a peculiarly suitable challenger of administrative neglect — supports an inference that Congress would have intended eligibility."
. See supra note 8.
. Office of Federal Procurement Policy Act, Pub.L. No. 93-400, 88 Stat. 796 (1974).
. “A Governmental function is a function which is so intimately related to the public interest as to mandate performance by Government employees.” OMB Circular A-76 para. 6.e., J.A. at 13. These include, inter alia, criminal investigations; the management of government programs; activities related to combat and combat support; the conduct of foreign relations; the regulations of natural resources; the direction of intelligence operations; and the regulation of industry and commerce. Id. para. 6.e.l.
. The parties did not pursue this line of argument. Therefore, we are unable to hold with any degree of confidence that no such plaintiff lurks in the background, absent either a developed record or argument subjected to the searching light of adverse response.
. However, the context of the Schlesinger opinion did not require a clean delineation between the two standing questions. The quoted language occurs in discussion concerning the standing of citizen qua citizen to represent an interest characterized by the Court "as ‘undifferentiated’ from that of all other citizens."
.Indeed, if the dissent were correct, any single employee of the Defense Department threatened with a job loss or disadvantage by reason of departmental contracting out would have standing to sue.
. See Choctaw Mfg. v. United States,
. Pub.L. No. 97-164, 96 Stat. 25 (1982) ("FCIA”). FCIA established the Claims Court which assumed the jurisdiction of the Court of Claims. Congress indicated an intent to retain the disappointed bidder or Scanwell doctrine. The Report of the House Committee on the Judiciary states:
It is not the intent of the Committee to change existing caselaw as to the ability of parties to proceed in the district court pursuant to the Provisions of the Administrative Procedure Act in instances of illegal agency action. See, e.g., Scanwell Laboratories, Inc. v. Shaffer.... Therefore, ... the Committee is satisfied by clothing the Claims Court with enlarged equitable powers not to the exclusion of the district courts.
H.R. Rep. No. 312, 97th Cong., 1st Sess. 43 (1981). The Report of the Senate Committee on the Judiciary agreed:
By conferring jurisdiction upon the Claims Court to award injunctive relief in the pre-award stage of the procurement process, the Committee does not intend to alter the current state of the substantive law in this area. Specifically the Scanwell doctrine as enunciated by the D.C. Circuit Court of Appeals in 1970 is left in tact [sic].
. See, e.g., National Maritime,
. See, e.g., B.K. Instrument,
Dissenting Opinion
dissenting:
Today this court finds that government employees who stand to lose their jobs as a result of what we must assume — at this stage — to be illegal contracting out decisions are not entitled to raise their claim in court. This is not the first time that our circuit has attempted to restrict the standing of those who may sue under § 702 of the Administrative Procedure Act (“APA”). In a series of cases a few years ago, including Control Data Corp. v. Baldrige,
Originally, the zone of interest test for § 702 claims was adopted, in Association of Data Processing Service Organizations, Inc. v. Camp,
In the 19 years since the Court announced the zone of interest test for § 702 claims, it has yet to find any party before it outside that zone. It has only once found that plaintiffs, though within the zone of interests, were statutorily precluded from bringing suit, in Block v. Community Nutrition Institute,
Nonetheless, the majority today has found a way to deny standing under § 702 to the plaintiff here. That the National Federation of Federal Employees (“NFFE”) satisfies Article Ill’s standing requirements is scarcely in doubt. Its members have suffered substantial injury in fact. The Fort Sill contracting out decision led to the abolition of 401 positions. More than 200 employees were scheduled for discharge, 125 others for demotion. Nor is there a difficult question as to causality or redressability. Plaintiffs claim is that the Army artificially inflated the cost of the most efficient in-house performance of the Fort Sill functions and artificially deflated the cost of converting to using a private contractor, with the result that letting the contract to Northrup only appeared to be the least expensive means of getting the job done when actually in-house services were least expensive. If plaintiff is correct, the distortions certainly are causally related to the Army’s decision to hire Northrup. If plaintiff could pursue this matter and prove all its claims, the army decision sub judice would have to be vacated and the Army would be required to choose again the least expensive option, which would be shown to be the in-house services.
The majority neither acknowledges nor refutes this. Instead, it holds that the union and its members are not within the zone of interests of the Budget and Accounting Act of 1921 (“1921 Budget Act”), the Office of Federal Procurement Policy Act Amendments of 1979 (“OFPPAA”), or the 1987 Department of Defense Authorization Act (“1987 Authorization Act”). Its reasoning is as follows: (1) the federal employees’ real interest is in keeping their jobs; (2) the statutes at issue do not indicate any congressional interest in maintaining or enlarging federal employment— they, in fact, show an interest in reducing employment when it can save money without sacrificing governmental needs; (3) the only way the employees can assert an interest in enforcing the rules aimed at increasing government economy and efficiency is as taxpayers, and under Flast v. Cohen,
The majority’s claim — that NFFE’s members are really only interested in keeping their jobs and that this interest is either marginally related to or inconsistent with Congress’ purposes and that the members cannot assert an interest in enforcing the rules applying to contracting out decisions except as taxpayers — is wholly at odds with the Supreme Court’s reasoning and decisions in its APA zone of interest cases.
The data processing companies, in the Court’s first zone of interest case, were really only interested in keeping their profits, an interest certainly marginally related to Congress’ purposes in enacting the banking laws, but the Court held that they had standing to enforce the banking laws’ rules restricting bank activities. Data Processing,
In each of these cases, the Court understood plaintiffs’ interest as a desire to hold on to their profits. See Data Processing,
In the Supreme Court’s most recent zone of interest case, Clarke, the Court made explicit what had been implicit in both Data Processing and ICI. “The Court’s concern,” it said of the Data Processing decision, “was to ensure that the data processors’ association would be a reliable private attorney general to litigate the issues of the public interest * * *. [Although expressed in relation to Article III requirements,] the concern that the plaintiff be ‘reliable’ carries over to the ‘zone of interest’ inquiry, which seeks to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives.” Clarke,
The majority’s argument is essentially that the court should look behind the plaintiff’s asserted interest and consider its subjective interest. Under the majority’s logic, a criminal defendant, in whose house or on whose person contraband is found, would not have standing to assert a fourth amendment claim because his “real” interest is in being free of all searches and seizures, not just unreasonable ones. That is not the law of standing and never has been.
Not surprisingly, the majority cites very little authority to support its fundamental premise that the employees cannot assert an interest in having the government conform to the law in making a contracting out decision. That which it does cite is either inapposite or without legal force. The two cases cited for the proposition that “for zone of interest purposes we must look to [plaintiffs’] personal interests, not to the interests amounting to generalized grievances of all citizens,” see Majority Opinion (“Maj. Op.”) at 1048 n. 22, are not even zone of interest cases. Nor are they opinions in which the court muses on the subject of how to approach zone of interest questions. They do not, in short, support in any way the proposition for which they are cited.
The first case, ASAR CO, Inc. v. Kadish, — U.S. —,
The questions, however, are altogether different. To have standing under Article III means to have “a personal stake in the outcome.” See Richardson,
The zone of interest inquiry is at base an inquiry into Congress’ intent. See Block,
This circuit has recently had occasion to consider the precise question of how the Supreme Court’s zone of interest decisions are to be parsed as they apply to plaintiffs whom Congress was not affirmatively trying to protect. In Hazardous Waste Treatment Council v. EPA,
This court analyzed the Supreme Court’s zone of interest decisions and concluded that: “In the absence of apparent congressional intent to benefit, however, there may still be standing if some factor — some indicator that the plaintiff is a peculiarly suitable challenger of administrative neglect— supports an inference that Congress would have intended eligibility.” Id.
The [Supreme] Court may have inferred congressional approval of such challengers on the view that those whom Congress explicitly sought to benefit would make relatively unsuitable plaintiffs. For example, it is hard to picture a person or firm that could assert injury in the form of “the dangers of possible loss of public confidence in banks and the danger to the economy as a whole of speculation fueled by bank loans for investment purposes[.]”
HWTC,
HWTC’s reading of the Supreme Court’s zone of interest pronouncements is not only sensible and supportable, it is this circuit’s own recent precedent. As such, it should be the approach applied to the case at bar by the majority. It would, however, yield the opposite result. There is no evidence that Congress intended to benefit federal employees when it passed at least two of the three statutes at issue, and ambiguous evidence as to the third. Thus the question, according to HWTC, is whether there is some factor — such as that federal employees are peculiary suitable challengers of administrative misfeasance — that would support an inference that Congress would have intended that they have standing. That factor is present here.
The federal employees suffer “sharp, clear losses” whenever over-estimates of the cost of in-house performance of a government function or under-estimates of the cost of converting to private contractors results in selection of a more expensive choice to do the work than is available in-house. Though Congress has, in each of the statutes under which plaintiff claims standing, expressed a clear purpose favoring economy in the conduct of governmental affairs, no other parties are motivated to enforce any rules preventing this particular type of waste. The winning bidder can hardly be expected to challenge cost calculations when it has won. The losing bidders might sue if the winning bidder was given some advantage over them. They might also sue if the government under-estimated the cost of in-house performance or over-estimated the cost of converting to private contractors, but they have nothing to gain from errors in the opposite direction.
The only people who suffer loss if the government commits the type of errors alleged in this case, besides the employees, are taxpayers. Notwithstanding the majority’s caution, it is not difficult to come to this conclusion. The only people affected when contracting out decisions are made are the federal employees, the agency, the winning bidder, private companies who either lost or would have competed but for some failure, and the people who foot the bill — the taxpayers. The agency cannot sue itself. All of the private companies— whether the winning bidder, the losing bidders, or potential competitors — are placed in an advantageous position when the government overestimates the in-house costs and therefore would not be able to allege the harm necessary to meet Article III standing requirements. Lastly, no taxpayer, as the majority has persuasively explained, would meet the personal stake requirement of Article III in order to sue on such a claim. The displaced federal employees, on the other hand, have been harmed, and, unlike HWTC, there is no one else eligible and motivated to enforce Congress’ purpose.
Therefore, applying the law of standing consistently with Supreme Court and our own precedent, the federal employees, and therefore the union plaintiff here, do have standing unless the statutes or their legislative histories reveal a congressional intent to preclude reliance on this particular class of plaintiffs. See Clarke,
While the existence of an alternative plaintiff, affirmatively contemplated by Congress, may not always be sufficient ground to deny standing, see International Ladies’ Garment Union v. Donovan,
The 1921 Budget Act was enacted to centralize the budget process and make it more economical. This is emphasized repeatedly in its legislative history. For example, its chief sponsor, Rep. James W. Good, said in describing the evil the law was intended to remedy: “We have been talking about economy in Government affairs, and at the same time have been practicing extravagance. * * * It will be necessary to adopt a system of economy and efficiency in every department, establishment, and bureau in order that the Government of the United States may obtain what it has never obtained before in all its history, and that is a dollar’s worth of service, if possible, for every dollar expended.” 61 Cong.Rec. 980 (1921). Thus, an action brought by NFFE to assure that the Army chooses to obtain needed services by the least expensive means is wholly consistent with Congress’ purposes.
The majority contends that there is no evidence that Congress actually contemplated the “protection of employment of federal employees.” Maj. Op. at 1046. This, however, has no bearing on the question, as the Supreme Court has specifically noted that such affirmative evidence is unnecessary for a plaintiff to come within the zone of interests of a statute. Clarke,
OFPPAA, like the 1921 Budget Act, was aimed at increasing the economy and efficiency of the federal government. The majority denies standing on the ground that the statute and its legislative history do not contain evidence that NFFE’s interest is more than marginally related to Congress’ purposes — again, implicitly applying the test disapproved in Clarke. Maj. Op. at 1048. What makes NFFE’s interest more than marginally related to Congress’ purposes in enacting OFPPAA is not any explicit language in the statute or legislative
The majority also denies standing under OFPPAA on the basis of a Senate Report which it says shows that Congress favored the private sector over federal employees, presumed “that private sector performance is more economical and efficient” and called for strict review of in-house costs. Maj. Op. at 1049. The majority, however, is reading more into the report than is there. That report does indeed say that the OMB’s contracting out policy is based on three principles: reliance on the private sector, retention of functions in-house which are “inherently governmental in nature,” and choosing the most economical approach after rigorous cost comparisons of contract versus in-house costs. S.Rep. No. 144, 96th Cong., 1st Sess. 4 (1979).
Nothing in the report, nor in the amendment Congress passed, however, evinces any interest in changing the contracting out system from one of absolute neutrality between federal employees and private contractors where the lowest bid wins, see OMB Circular A-76, to one which “favors” the private sector or presumes that the private sector is more economical and efficient. If Congress wanted to establish a presumption that the private sector is always more economical than government, why did it continue to permit time-consuming, lengthy cost comparisons before each and every contracting out decision? If Congress favored the private sector, why did it not require the government to use private enterprise for every function which is not “inherently governmental in nature”? The reason Congress acquiesced in OMB’s provider-neutral' decision-making strategy is that its interest was, first and last, in saving money — an interest which NFFE’s suit is not only consistent with but promotes. Finally, neither the Senate report nor OFPPAA say anything at all about review of estimated costs, in-house or otherwise.
The 1987 Department of Defense Authorization Act was, like most authorization statutes, aimed at many things. Two sections are pertinent to this inquiry, § 1223 and § 1224. The majority’s sole focus is on § 1223(b), the 1987 Authorization Act provision under which NFFE is suing. This is inconsistent with Supreme Court precedent and results in a distorted view of Congress’ intention toward contracting out. In Data Processing, the Court looked not only to the provision under which plaintiffs sued but also to a related although wholly different act, passed decades later, to find that plaintiffs satisfied the zone of interest test. See Data Processing,
Looking no further than the 1987 Authorization Act itself, but at the immediately surrounding provisions as well as the one plaintiff sues under, it is clear that Congress’ stance throughout was neither consistently pro-federal employee nor pro-private contractor. The contracting out provisions were enacted under a section entitled “Economy and Efficiency.” Pub.L. 99-661, 100 Stat. 3976. Congress’ interest was in an economically run defense program and its statutory choices manifest a deliberate attempt to construct a purposeful balance among the interests involved. Cf. Wilderness Society v. Griles,
The legislative history cited by the majority is the Senate Report explaining the Senate’s version of § 1223(b). Maj. Op. at 1050. The Senate committee, as the majority explains, called for “realistic and fair” cost comparisons because it believed that the Department of Defense (“DOD”) was putting its thumb on the scale to maintain defense functions in-house. The Senate’s version also made no mention of the ten percent differential that, under OMB rules,
Thus, the majority’s detection of a pro-private contractor bias in the Senate committee’s report is not without foundation, although even the Senate committee continued to call for DOD to choose the lowest cost alternative rather than insisting on private contractors wherever national security permitted. See S.Rep. 331, 99th Cong., 2d Sess. 277, reprinted in 1986 U.S. Code Cong. & Admin.News 6413, 6472. However, the bill described by that Senate report did not pass in its entirety, and several of the changes worked in conference are instructive.
For example, § 1223(a), as enacted, requires the Secretary of Defense to procure 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 (after including any cost differential required by law, executive order, or regulation) than the cost at which the Department can provide the same supply or service.” 1987 Authorization Act, Pub.L. 99-661, 100 Stat. 3977 (emphasis added). This language, in particular the insistence that prescribed cost differentials be added to private contractor bids before comparing them with in-house cost estimates, was added in conference. See H.R.Conf.Rep. 1001, 99th Cong., 2d Sess. 526, reprinted in 1986 U.S.Code Cong. & Admin.News 6413, 6585. It replaced § 1233 of the 1986 law that simply required the Secretary to ensure that private contractors are used when they would be cost effective and in the best interests of national security. See id.; Pub.L. 99-145, 99 Stat. 734. It may be debatable whether this change manifests an intention to protect federal employees, as appellant argues, but it certainly shows that Congress had no preference for private contractors over federal employees, if the employees were the cheapest alternative. And it shows that Congress wanted to make sure that the scales could be tipped toward employees if this would better reflect real costs (or a policy decision).
The Senate’s tough reconversion was also changed in conference. Instead of being prohibited from converting functions back in-house unless he submitted a five-year projected comparative cost study, the Secretary was left free to return functions from private contractor to government. Congress decided to require the Secretary only to maintain data comparing the projected cost of continuing the contract to the actual cost of in-house performance and to submit such data to Congress after the first and second six months after the change. See H.R.Conf.Rep. 1001, 99th Cong., 2d Sess. 527, reprinted in 1986 U.S. Code Cong. & Admin.News 6413, 6586; Pub.L. 99-661, § 1224, 100 Stat. 3977-78. Again, while the initial Senate bill might have been interpreted as demonstrating a pro-private contractor bias, the statute as enacted shows that any such bias was eliminated before passage.
An earlier statute, in effect when the Fort Sill decision was made, sheds further light on Congress' purposes with regard to contracting out. It provided:
(a) No commercial or industrial type function of the Department of Defense that on October 1, 1980, is being performed by Department of Defense civilian employees may be converted to performance by a private contractor—
(1) to circumvent any civilian personnel ceiling; or
(2) unless the Secretary of Defense provides to the Congress in a timely manner—
(A) notification of any decision to study such commercial or industrial type function for possible performance by a private contractor;
(B) a detailed summary of a comparison of the cost of performance of such function by the Department of Defense civilian employees and by private con*1062 tractor which demonstrates that the ■performance of such function by a private contractor will result in a cost savings to the Government over the life of the contract and a certification that the entire cost comparison is available;
(C) a certification that the Government calculation for the cost of performance of such function by Department of Defense civilian employees is based on an estimate of the most efficient and cost effective organization for performance of such function by Department of Defense civilian employees; and
(D) a report, to be submitted with the certification required by subparagraph (C), showing—
(i) the potential economic effect on employees affected, and the potential economic effect on the local community and Federal Government if more than 50 employees are involved, of contracting for performance of such function; * * *
Pub.L. 96-342, tit. V, § 502, 94 Stat. 1086 (1980), as amended by Pub.L. 97-252, tit. XI, § 1112(a) (1982), 96 Stat. 747, reprinted at 10 U.S.C. § 2304 note (emphasis added).
Understood in context, Congress’ passage of § 1223(b) indicates that the words “realistic and fair” were meant literally. The Senate report makes it clear that the committee was concerned with abuses that favored in-house performance. But not only is there no indication that the Senate would have been indifferent to DOD abuses that favored private contractors, there is every indication — in both the 1987 Authorization Act as well as the 1980 one — that Congress as a whole intended to disfavor any abuse which rendered cost comparisons unreliable. Thus, NFFE’s suit, which challenges such an allegedly unreliable cost comparison, promotes Congress’ interest in choosing the most cost-effective supplier of DOD needs and is well within the zone of interests of the relevant statutory framework.
Only one circuit has addressed the question of whether federal employees have standing to challenge cost comparisons in contracting out decisions. See American Federation of Government Employees, Local 1668 v. Dunn,
Congress passed a law aimed at saving money. It established a procedure and standards for the Army to follow in seeking such savings. This court frustrates that laudable purpose by putting the procedures and standards beyond any judicial review. Because NFFE is the only party available to enforce an affirmative requirement that Congress has enacted and because nothing in any of the three statutes or their legislative histories indicates a Congressional intent to preclude NFFE’s standing, I would find that NFFE satisfies the prudential requirements for standing to bring this suit, as well as the constitutional requirements. I would also find that the Army’s decision to contract out the logistics work at Fort Sill is reviewable. The reviewability of OMB Circular A-76 is governed by our previous decisions. See Equal Employment Opportunity Commission v. FLRA,
Today’s decision is a direct rebuff to the Supreme Court’s § 702 jurisprudence. Not content to have tried and failed, this circuit again attempts to prune the APA’s broad grant of standing, with little regard for Congress’ will and with insufficient attention to the Supreme Court’s or its own precedent. The decision results in a no man’s land with no review by anybody for important parts of two statutes and a regulation adopted pursuant to two others. Congress never signalled that it intended or desired such a bizarre outcome. I respectfully dissent.