*1 v. HOSPITALITY ASSOCIATION PARK NATIONAL OF THE INTERIOR DEPARTMENT et al. 27,May 2003 Decided March Argued 02-196.
No. *2 Thomas, J., delivered the opinion of Court, in which Rehnquist, J.,C. Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Ste- J., filed an opinion concurring in the judgment, post, p. 812. vens, J., filed a dissenting opinion, in which O’Connor, Breyer, J., joined, post, p. 817. Kenneth S. Getter argued cause for petitioner. With him on the briefs were Richard B. Katskee and David M. Gossett. Robert R. Gasaway and Ashley C. Parrish filed briefs for Xanterra Parks & Resorts, LLC, respondent under this Court’s Rule 12.6, urging reversal. John P. Elwood argued the cause the federal respond-
ents. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, and Barbara C. Biddle.
Justice Thomas delivered the opinion of the Court. Petitioner, a nonprofit trade association that represents concessioners doing business in the national parks, chal- lenges National Park (NPS) Service regulation that pur- (CDA), Disputes ports the Contract Act of 1978 to render seq., inapplicable 601 et 41 U. S. to concession C. Stat. controversy yet that the not We conclude contracts. resolution. I governing disputes arising out establishes rules The CDA provides of certain Government contracts.1 The statute disputes agency’s first be con- submitted to an these §605. tracting A dissatis- officer. Government contractor contracting may with the decision seek fied officer’s review the United or either from States Court of Federal Claims agency. an board in §§606, from administrative See 609(a). 607(d), may appealed Either then be decision *3 Appeals Court of for the Federal United States Circuit.2 § §607(g). 1295; 28 S. C. 41 See U. U. S. C. Congress charged “promote 1916 and
Since has NPS regulate the use of the Federal as national areas known parks,” scenery “conserve the and the natural and historic objects “provide [their] and wild life and therein,” enjoyment [in that] way unimpaired a will leave them for the enjoyment generations.” of future An Act To establish a § Service, National Park 39 Stat. U. S. 1. To make C. parks public, enjoyable visits to national more for the Con gress “grant privileges, per leases, authorized NPS to and mits for the land for use of the accommodation of visitors.”
1 602(a) § Title 41 provides: U. S. C. herein,
“Unless otherwise specifically provided chapter applies express any (including or contract those of implied nonappropriated 28) in fund sections 1346 1491 of activities described and title entered into by an for— executive agency “(1) procurement of property, other than real property being; “(2) services; the procurement of “(3) construction, alteration, the procurement of repair or maintenance or, of real property; “(4) the disposal personal property.” 2The a provides CDA also contractor is entitled to prevailing pre § 611. judgment interest.
§3, 39 “privileges, Stat. 535. Such permits” leases, and have become parks embodied in national concession contracts. specific
The governing rules parks national concession con changed tracts have over Congress time. In 1998,however, enacted the National Parks Management Omnibus Act of (1998 Act), (codi Act or Pub. 105-391, 112 L. Stat. 3497 exceptions fied with §§5951-5966), certain in 16 U. S. C. es tablishing comprehensive a new and management concession program parks. for national The Act authorizes the Secretary of the Interior to regulations enact implementing provisions, the Act’s 5965.
NPS, to Secretary which the delegated has authority her under the began Act, promptly rulemaking proceeding implement the Act. After notice reg- comment, final ulations were April issued in 2000. 65 Reg. Fed. (2000) (codified 51). pt. 36 CFR regulations The define the term “concession contract” as follows: (or contract)
“A concession contract
means
binding
agreement
written
between the Director and a conces-
sioner ....
Concession contracts are not contracts
within
meaning
(the
of 41
seq.
601C.
et
Con-
Act)
Disputes
tract
and are
procurement
not service or
contracts within
meaning
regulations
statutes,
or
policies
apply only
to federal service contracts or
types
other
procurement
federal
actions.”3 36 CFR
*4
(2002).
§51.3
Through
provision
position
NPS took a
respect
with
ato longstanding controversy with
Department
the
of Interi-
(IBCA).
or’s Board of
Appeals
Contract
Beginning in 1989,
the IBCA ruled that NPS concession
subject
contracts were
to the CDA, see
Enterprises,
R R &
¶
89-2 B. C. A., 21708,
pp.
(1989),
109145-109147
subsequent
and
attempts by NPS
to convince the IBCA
proved
otherwise
unavailing, National
ease
For
of reference,
throughout
this opinion we will refer to the sec
ond sentence quoted in
§
the text
51.3.
as
¶
pp.
A.,
135096-
Inc.,
27104,
94-3 B. C.
Concessions,
Park
(1994).
II
validity
challenged
in the District
of 51.3
Petitioner
Resorts, L. L. C.
of
District Columbia.
for the
Court
Amfac
Supp.
54, 80-82
Dept.
Interior, 142 F.
2d
v. United States
of
applying
upheld
regulation,
Court
The District
principle
Natural
of Chevron U.S. A. Inc. v.
the deference
(1984). The
Council, Inc., 467
Resources Defense
ambiguous
it
on whether
the CDA
court concluded
interpreta
contracts
found
applies
concession
NPS’
Supp.
at
2d,
F.
80-82.
the CDA reasonable.
tion of
Appeals for the
of
Cir
District
Columbia
The Court
grounds.
Resorts,
on different
affirmed, albeit
cuit
Amfac
Dept.
F. 3d
Interior, 282
L. L.
v. United States
C.
(2002). Recognizing that
“does not administer
NPS
authority
may
interpretative
not have
[CDA], and thus
placed no reliance Chevron
provisions,” the court
on
its
over
finding
“agree[d]”
reading
simply
CDA,
with NPS’
but
both the
and the 1998Act.
reading
with
CDA
consistent
whether
certiorari
granted
We
to consider
3d,
282 F.
at 835.
applies
between
and concession-
to contracts
NPS
the CDA
(2002). Because
parks.
III prevent designed “to justiciability Ripeness is a doctrine adjudication, premature through courts, avoidance disagreements over entangling themselves abstract from agencies protect the from policies, and also administrative decision has until an administrative judicial interference way by the concrete and its effects felt in formalized been *5 808 parties.”
challenging
Abbott
Gardner,
Laboratories v.
(1967);
136,
U. S.
Forestry
accord,
Assn.,
Ohio
Inc.
(1998).
Club,
v.
ripeness
Sierra
Determining whether ju- administrative action is (1) requires dicial review us to evaluate the fitness of the (2) judicial issues for decision hardship parties of withholding court Laboratories, consideration. Abbott supra, [a at 149. statutory provision “Absent providing for judicial immediate regulation review], a ordinarily is not con- type sidered the ‘ripe’ action review [Administrative under (APA)] Procedure Act until the scope of controversy has been manage- reduced to more proportions, able components and its factual out, fleshed some concrete applying action to the claim- ant's situation in a fashion that harms or threatens to harm (The major him. exception, of course, is a substantive rule practical as which requires matter plaintiff adjust .)” his conduct immediately. Lujan . . v. National Wildlife Federation, 497 U. S. Under the facts now us, before we ripe. conclude case is not We turn first hardship inquiry. The federal re- spondents concede that, because delegated has no NPS rule- making authority under the challenged CDA, the portion §51.3 cannot be a legislative regulation with the force of law. See Brief for Respondents Federal 15, n. Supplemental 6; Brief for Respondents Federal They 6. though, note, “agencies may interpretive issue rules ‘to public advise the agency’s construction of the statutes and rules which *6 n. 6 Respondents 15, Federal for it administersBrief S. Hospital, U. Guernsey 514 Memorial (quoting v. Shalala (1995) added)), characterize and seek to (emphasis 99 § interpretive rule. an 51.3 as such Hospital, Guernsey Memorial disagree. Unlike
We guideline was interpretative issuing the the where regu- and administering the relevant statutes responsible for the CDA. empowered to administer not lations, NPS agency con- with rests applying the CDA task of Rather, the well appeals, as of contract and boards tracting officers Appeals for of Claims, the Court of Court as the Federal Moreover, ultimately, this Court. Circuit, and, the Federal arrange- proper authority regarding the any CDA, the under Fed- belongs to the Administrator agency boards ment of 607(h)(“Pursuant § Policy. 41 U. S. C. See Procurement eral Pro- of Federal authority under Office conferred §401 seq.], the Adminis- [41 et S. C. Policy Act U. curement necessary or may as be directed, is authorized trator chapter, issue to provisions of this carry out the desirable to establishment, respect criteria for to guidelines with .”)(cid:127) Con- agency boards .. procedures of functions, and “gen- § nothing than a more to be 51.3 consider sequently, we public designed inform the policy” statement] of eral application the CDA. proper on views of NPS’ 553(b)(3)(A). § C. U. S. § effects “adverse light, does not create 51.3 in this
Viewed required previously we have strictly which legal kind,” aof Inc., Forestry Assn., hardship. Ohio showing plan at issue Forest Service like at Just S., 733. U. any- anyone do “do[es] not command Forestry, 51.3 Ohio grant, do[es] [it] not doing anything; from thing refrain or to power, or au- legal license, modify any formal withhold, or anyone any civil or subject criminal do[es] [it] thority; not obligations.” legal rights or create[s] it] no liability; [and Ibid. §51.3
Moreover, does not affect a concessioner’s primary conduct. Toilet Assn., Goods Inc. Gardner, v. 387 S. 158, U. (1967); Ohio Forestry supra, Assn., at 733-734. Unlike regulation at issue in Abbott Laboratories, which re quired drug manufacturers change the labels, adver promotional tisements, and they materials marketing used in prescription drugs pain on penalties, criminal and civil see 387 S.,U. at 152-153, the here leaves a con- cessioner free to conduct its business itas sees fit. See also Gardner v. (1967) Toilet Assn., Inc., Goods *7 (regulations governing conditions for use of color addi tives drugs, foods, and cosmetics were “self-executing” and had “an immediate and substantial impact upon the respondents”).
We have previously challenges found that regulations § similar to 51.3 ripe were not for lack of showing a of hard- ship. In Toilet Goods Assn., for example, the Pood and Drug (FDA) Administration regulation issued a requiring producers of color provide additives to employees FDA with access to all manufacturing processes, facilities, and formu- lae. 387 S., at U. 161-162. We concluded the case was not judicial review because the impact regulation of the could not “be said to be immediately by felt subject those it in conducting their day-to-day affairs” and “no irremedia- bl[y] adverse consequences flow[ed] from requiring a later challenge.” Id., at 164. Indeed, the regulation FDA was §51.3 more onerous than because comply failure to with it resulted in suspension producer’s of certification and, consequently, production. could affect id., See at 165, and n. 2. Here, contrast, concessioners practical suffer no §51.3. harm as a result All does is an- position nounce the NPS will take respect with disputes arising out of concession contracts. While it informs the public of NPS’ view that concessioners are not entitled to take advantage provisions of the of the nothing CDA, in the following proce- regulation prevents from concessioners dispute once a a concession dures set forth in the over CDA actually appears that, notwithstand- arises. And it contract § quite willing apply ing has been the CDA 51.3,the IBCA Concessions, (IBCA concession contracts. Watch Hill to certain 2001) pp. ¶ Inc., A., 31298, 01-1 B. C. subject (concluding was to the CDA that concession contract 51.3). contrary language despite delaying resolution of Petitioner contends applicability will in real harm because the vel issue result into is one of the factors a takes non of the CDA concessioner preparing its bid for contracts. account when NPS concession Supplemental Petitioner’s ar- See Brief for Petitioner 4-6. uncertainty gument appears that mere to the valid- to be as hardship purposes ity legal rule constitutes analysis. persuaded. ripeness are not If we were to We petitioner’s logic, courts would soon overwhelmed follow be requests essentially advisory opin- with for what would be priced business be ions because most transactions could portion accurately existing legal more if even a small un- petitioner short, In failed certainties were resolved.4 has *8 the challenged only Petitioner its not complaint *9 Stevens, in the concurring judgment. Petitioner seeks this Court’s resolution of straightfor- legal question ward whether the Disputes Contract of Act (CDA), seq., applies to 601 et concession 41 U. C.S. Though this Park Service. contracts with the National appropriate question be for this one otherwise is that would my petitioner has not view satisfied decide, to in Court injury alleging requirement of sufficient in- the threshold allegations injury jurisdiction. If of federal-court such voke any present, not raise however, this case would were designed ripeness that the doctrine was avoid. concerns M provides significant protections pri- certain The CDA agencies. parties contracting with federal It author- vate disputed pay- decision, review a izes de novo of contractor’s prejudgment dispute agency if with the ment of interest expedited procedures favor, in the and resolved contractor’s §§607-612. resolving disputes. The value to minor protections quantified has not been contractors these protections unquestionably significant. case, but the are in 1978, Ever since enactment of the CDA the National apply Park has Service insisted that the statute does not operate restaurants, to contracts with who concessionaires lodges, gift shops parks. g., Lodg- See, the national e. ing ap- Respondents view, of Federal 1. In its the statute plies involving procurement to Government contracts goods agrees pay or services that the for, not Government to licenses issued concessionaires who Government goods public. sell and services to the After the enactment Management of the Parks National Omnibus Act of regulation §§5951-5966, U. S. C. the Park Service issued a §51.3 restating position. 36 CFR There is nothing agency’sposition. tentative or inconclusive about the promulgation The indicated that the interpretation had determined that a clear statement of its potential of the CDA would be useful to concessionaires bid- ding for future Park view, contracts. Under the Service’s
nearly 600 concession contracts in 131 parks national fall out- of side Lodging the CDA. Respondents Federal 6. Petitioner is a trade association whose par- members are to ties such contracts and periodically negotiations enter into for future They contracts. undisputedly are interested knowing disputes whether that are sure to arise under some of those contracts will be pursuant resolved pro- to the CDA cedures or procedures the less favorable that will apply if the Park Service is valid.
II In ourleading discussing case “ripeness the doctrine” we explained question that the a controversy whether “ripe” is judicial resolution has a aspect, “twofold requiring us to evaluate both the fitness of the judicial issues for decision hardship the parties of withholding court consid eration.” Abbott Laboratories v. Gardner, 387 aspects Both inquiry involve the ex ercise of judgment, rather than application of a black- letter rule.
The aspect first is important the more and it is satisfied this case. The applies CDA any express implied or con- tract procurement for the property, services, or construc- 602(a). tion. 41 U. S. C. In the view of the Park Service, procurement a contract is one obligates the Government pay goods and services that it receives, whereas con- cession contracts authorize parties third provide services park area visitors. Petitioner, on other argues hand, that provide contracts performance for the of services that discharge public duty though even the Government pay does not the concessionaires. Whichever may view bet- ter reflect the Congress intent of the that enacted CDA, it is perfectly clear question of statutory interpreta- tion is as “fit” for today decision as it will ever be. Even if may there be marginal a few cases in appli- which the cability of the may depend CDA on unique regula- facts, is either contracts tion’s blanket exclusion of concession interpretation The or of the statute. correct an incorrect my judgment, fully argued and, in issue has been briefed and ripe for is decision. inquiry aspect ripeness clear and
The second less *11 important. further less If there were reason believe that clarify development legal question, or of the facts would the agency’s apt modified, or view was tentative to be the hardship jus- only strong showing parties a would tify prompt probably it case, In this is correct a decision. delayed hardship is mini- that the associated with a decision hand, mal. the other as the Park Service’s decision On promulgate regulation eliminating demonstrates, the uncertainty applicable present dispute about the resolution parties. procedures provide will a benefit for all interested alleged injury arising petitioner If had sufficient from position, our I would favor the exercise of Park Service’s case for decision. Because discretion to consider the injury petitioner allegation absent, however, is such an adjudicated. standing not have to have this claim does h-I H-i controversy, litigant To an Article III case or a establish “standing.” he must establish that has Whitmore v. Arkan (1990). standing, “plaintiff sas, To have U. S. injury fairly allege personal must traceable to defend allegedly likely to be ant’s unlawful conduct and redressed by requested Wright, 737, relief.” Allen v. 468 U. S. (1984); requirement specifically applies parties This chal lenging validity regulations. of administrative See Si Morton, erra Club v. complaint petitioner
In the Court, filed in the District al- leged dispute that the resolution of the its merits of over the validity regulation important, of the Park was Service but it allege failed the existence of the had any injury caused to it or to its members:
“The applicability of the CDA to concession contracts important to concessioners because NPS concession contracts are lengthy duration, require often signifi- upfront cant financial commitments, by their terms provide with broad unilateral discretion to many alter aspects of those contracts over time. The unlawful decision exempt the NPS to itself from the CDA great is thus of importance to the contract solicita- process.” tion App. 22. argument,
At oral counsel reiterated that the resolution of question “important” was and that concessionaires “need to know now, in deciding terms of whether to bid on certain contracts, rights what their are under those con- tracts.” Arg. Tr. of Oral 7-8. argument, After when asked to brief the ripeness, issue of petitioner stated that its mem- bers “need to know dispute arises —and fact, be- before deciding whether to bid aon concessions fore contract —what *12 procedural apply mechanisms will to disputes,” contractual that and prices “the at which ‘compete concessioners for Government contract business’ directly would be affected.” Supplemental (citations Brief for omitted). Petitioner 1, 5 It is fair to infer from the record us, before peti- however, that tioner’s members have bid on, and been awarded, numerous contracts having without the benefit of a definitive answer important legal question that complaint their has identified. in complaint
Neither its in the District Court nor in its briefing argument or before petitioner Court has identi- specific fied a incident in which the Park Service’s caused a concessionaire to refuse to bid on contract, to mod- ify its bid, or any to suffer specific other injury. Rather, petitioner has entirely focused on importance knowing of whether the Park position Service’s is valid. itWhile is no important doubt petitioner and its members to know as possible much as about the future of their business trans- importance actions, does not necessarily injury. establish may have suffered well petitioner’s of members Though some regulation, nei- injury from the Park Service’s sort of some complaint in the allegations of the evidence nor the ther any specific injury redressed that would be identifies record Accord- case. decision on the merits of the by a favorable standing pursue claim. no its has ingly, petitioner judgment. reason, I concur in the Court’s For this joins, with whom O’Connor Breyer, Justice Justice dissenting. Park majority, petitioner National I believe that
Like legal pursue its standing has here Hospitality Association procedures set dispute namely, resolution claim, (CDA), Disputes 41 U. S. C. Act of the Contract forth in park contracts.. seq., apply national concession 601 et question is majority, I believe that the unlike the But, our consideration. petitioner agree with I cannot Stevens Justice its mem- bring standing suit on behalf Article III lacks (opinion page concur- ante, and this at 815-816 bers. See my Park the National Service’s ring judgment). view, In pro- to exclude the CDA’s contract” of “concession definition (a regulation about which in the tections definition embodied (2002)) §51.3 peti- causes complains, petitioner see 36 CFR Lujan “injury in fact.” v. tioner and its members Defenders (1992) (discussing require- 504 Wildlife, redressability); see “injury fact,” causation, ments Advertising Apple Comm’n, Washington State also Hunt v. (association’s (1977) standing in- based on 432 U. S. *13 member). jury ato parties petitioner’s are many members thing,
For one potential park concession contracts. for, well bidders to, as as (listing Respondents 590 concession Lodging for Federal likely will find that parks). Those members contracts resolving disputes And in such the contracts. arise under regulation, following disputes, its will re- Service, the Park ject the concessioners’ significant entitlement to the protec- tions or advantages financial provides. the CDA See §§ S.U. C. 605-612; ante, at 813-814 (STEVENS, J., concur- ring judgment). In the present circumstances here, that injury, kind though a future one, is likely concrete and to occur.
For thing, another the challenged Park Service interpreta tion present causes a injury. If the CDA does not apply to concession disagreements, contract as the Park Service regulation declares, then petitioner’s some of members must plan higher now for implementation contract costs. Given agency’s regulation, bidders will likely be forced pay more to obtain, or to retain, a concession they contract than believe the contract is worth. That is petitioner what ar gues. Supplemental Brief for Petitioner 4-6. See also App. Supplemental Brief for Petitioner 3a-4a. Certain general allegations in the underlying complaints support this claim. e.g., See, App. 20-22, ¶¶35, 61-67; Amfac Resorts, L. L. C. Complaint in (DC), No. pp. 1:00CV02838 ¶8 4-5, (available in Clerk of file); Court’s case id., at 31-33, ¶¶ 102- 111. Cf. Resorts, L. L. C. v. United Dept. States Amfac (CADC Interior, 282 2002). F. 818, 3d And several un contested circumstances indicate that allegations such are likely prove true. First, as the record petitioner makes clear, has a wide- spread membership, and many of its members regularly bid on contracts that, through cross-references to the Park Serv- regulation, ice embody the Park interpretation. Service’s g., See, e. App. 69, 80; Lodging for Respondents Federal 14, 25. See also Standard Concession Contract, 65 Reg. Fed. (2000); Simplified Concession Contracts, id., at 44898, 44899-44900, 44910, 44912. Second, related contract are similarly solicitations widespread and recurring, involving numerous bidders. Third, investigation, after congressional relevant committee found that “way poten- tial contractors view the disputes-resolving system influ-
819 prices compete they whether, and at what how, enees p. government Rep. 95-1118, contract business.” S. No. (1978). provides prevailing Fourth, the a contractor CDA proce- prejudgment expedited interest, and with authorizes 607(f), §§ 608, factors dures. 41 611. These are U. S. C. costly inapplicability of the to suc- the CDA more that make Rep. ante, at 2-4; No. at 95-1118, cessful bidders. See S. concurring judgment). in J., 813-814 (Stevens, petitioner’s clear make members These circumstances likely monetary in a concrete either now or harm, will suffer showing a sufficient the future. Such here is foreseeable satisfy standing requirements. And Constitution’s injuries, monetary present and the threatened future — injuries potential to a or actual contractual relation- harm, ship, injuries arguably protec- fall within the and CDA’s satisfy “prudential” standing scope tive sufficient —are requirements Akins, v. as well. Federal Election Comm’n (1998); Processing 19-20 Association Data 11, Organizations, Camp, 150, Inc. v. 397 U. S. Service (1970). Broadcasting System, Columbia Inc. v. United
Cf. (1942). 421-422 States, 407, 316 U. S. (primarily this threat of immediate concrete harm
Given costs), bidding form of increased this case is also judicial explains in Parts review. As Justice Stevens presents legal opinion, I II his the case now issue— applicability of the to concession contracts —that is CDA purely legal That fit for determination. issue is demanding only ordinary judicial for its one, resolution use interpretive techniques. (opinion ante, at con- See curring judgment). action, The relevant administrative agency’s e., i. definition of “concession contract” under Management Parks Omnibus Act of National §§ has been Labora- 5951-5966, “formalized,” U. S. C. Abbott Gardner, tories v. S. It is embodied 387 U. interpretive regulation public in an issued notice and after Department pursuant to Interior’s comment and delegation formal to the National Park Service of its own *15 granted statutorily rulemaking authority, §5965; ante, at (Unlike 806-807. majority, apply I would regula- to the legal tion the “interpretive label “general rule,” not state- ment policy,” (internal ante, at quotation marks and alteration omitted), though I agree with the majority that, because the Park Service does not administer the CDA, see ibid., we owe deference.) its conclusion less The Park Serv- ice’sinterpretation is definite and conclusive, not tentative or likely to change; as majority concedes, the Park Service’s determination constitutes “final action” within the meaning of the Administrative Procedure Ante, Act. at 812 (internal quotation omitted). marks
The only open question concerns the nature of the harm that refusing judicial at review this time petition- will cause er’s members. See Abbott supra, Laboratories, at 149. The fact that concessioners can legal raise question at a later time, specific after a contractual dispute arises, see ante, at 812, against militates finding ripe. this case So too precedential does a present concern: Will review set prece- a dent that premature leads to challenges in other cases where agency interpretations may be less formal, less final, or less well suited judicial immediate determination? See ante, at 811-812. But the fact of particularized (and immediate not to
tally reparable) injury during the bidding process offsets the first of these considerations. And the second is more than by offset a related congressional statute specifies prospective bidders for Government contracts can obtain immediate relief from agency determinations that unlawfully precisely threaten this kind of harm. See § 1491(b)(1) U. S. C. (allowing prospective object, bidder to for instance, to “solicitation a Federal agency for bids ... for a proposed contract” and permitting review of related allegation , of “any . . violation of statute or connection procurement with a proposed or a procurement”). Nash, Schooner, O’Brien, S. K. The Govern & See also R. (2d 1998). ed. This Reference Book ment Contracts potential complain pro a a authorizes bidder to statute that, view, unlawful, term posed the bidder’s contractual formally incorporates regulation that em say, it because specific, allegedly requirement. unlawful, remedial bodies (excerpts complaint petitioner’s ¶¶ 114-116 App. 25, from Cf. claim); App. Supplemental making just this for Peti Brief (same). so, e., i. pres being ¶¶ That 2a, tioner being present injury injury in such a case identical ent convincing prudential reason to here, I can find no at issue Administrative Procedure Act review. withhold given congressional policy, na- sum, In concrete *16 injury by petitioner, nature final ture of the asserted and the post- good issue, I action at see no reason pone the issue for this review. I would find Court’s the Court And I would affirm the decision of consideration. primarily set forth Appeals for the reasons merits, on the opinion supplemented in its here the Government. as notes Thus, peti but also two NPS in late 2000. specific prospectuses issued ripe, tioner even if the first is not the latter two are argues, challenge 1491(b)(1). Act, § S. C. Supple reviewable under the Tucker 28 U. See not certiorari mental for Petitioner 6-8. Petitioner did seek review Brief issues; on these we decline to consider them. See this Court’s accordingly, 14.1(a); Escondido, 519, Rule Yee v. 503 U. S. 535-536 Breyer’s Similarly, Justice reliance on the Tucker Act to show that Gardner, the of Laboratories v. 387 U. S. hardship requirement Abbott (1967), satisfied, (dissenting opinion), has been at post, see statute” authorizes misplaced. The fact that one “immedi- “congressional determinations,” judicial ate agency relief from at types post, [certain of] 820, says “immediate review” is nothing judicial about whether advisable challenges brought against of actions based types agency other on a statute. different deferring judicial demonstrate that review will result in real hardship. We consider next whether the issue in this case is fit for review. Although question presented purely here is “a § legal one” and 51.8 constitutes “final action” within § meaning § of 10 of APA, 5 U. S. C. Abbott Labo ratories, supra, at 149, we nevertheless believe that further development factual “significantly would ability advance our legal to deal with presented,” issues Duke Power Co. v. Carolina Study Environmental Group, Inc., 438 (1978); Forestry accord, Ohio Assn., Inc., S., 523 U. at 736- 737; supra, Toilet Assn., Goods at 163. While federal respondents generally argue that NPS was correct to con clude that the CDA does not cover they concession contracts, acknowledge that types certain of concession might contracts come under the language broad of the CDA. Brief for Fed Respondents eral Similarly, 33-34. petitioner while re spondent Xanterra Parks & Resorts, present LLC, a facial challenge rely 51.3, specific both on characteristics of cer types tain of support concession contracts to positions. their Brief See for Petitioner 21-23, Respondent 36; Brief for Xanterra Resorts, Parks & light LLC, 20, 22. In of the fore going, we conclude question resolution of the presented here should dispute await a concrete par about a ticular concession contract.
Notes
[*]
[*]
[*] For the reasons above, stated judgment we vacate the the Court Appeals insofar as it addressed validity § 51.3 and remand the case with instructions to dismiss the case with respect to this issue. It is so ordered. Justice