CASE SCHEDULED FOR ORAL ARGUMENT MARCH 13, 2003
No. 02 - 5142
_____________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________________________________
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al.,
Appellants,
v.
UNITED STATES, et al.,
Appellees.
_________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________________________
REPLY BRIEF FOR APPELLANTS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ET AL.
_________________________________________________________
Mark Roth (Bar #235473)
General Counsel
Anne M. Wagner (Bar #435728)
Assistant General Counsel
American Federation of
Government Employees, AFL-CIO
80 F Street, NW
Washington, D.C. 20001
(202) 639-6420
Counsel for Appellants
TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................1
A.
There Is No Basis Upon Which To Construe The Native American
Preference in §8014(3) As A Political Classification Subject to
Rational Basis Review .........................................................................................................1
1. §8014(3) On Its Face Employs a Race-Based Classification .........................................1
2.
There is no Merit to the Appellees’ Contention that the
Court Should Look Beyond the Face of the Statute to
Find that the Native American Preference In §8014(3)
Reflects a Political, Rather Than Racial Classification ...........................................2
a. Need To Avoid Constitutional Questions ...........................................................3
b. Post Enactment History.......................................................................................5
c. Established Agency Practice ...............................................................................6
d. Presumption of Constitutionality ........................................................................7
B.
The Supreme Court’s Decision In Morton v. Mancari Does Not
Compel The Court To View The §8014(3) Preference For Native
Americans As A Political Rather Than Racial Classification ...........................................10
C.
The Government Has Failed To Demonstrate That The §8014(3)
Native American Preference Is Narrowly Tailored To Serve A
Compelling Interest ............................................................................................................13
1. The Government Has No Compelling Interest In
Exempting Native American Firms From Federal Contracting
Requirements .............................................................................................................13
2. Assuming Arguendo That The Government Does Have A Compelling
Interest In Singling Out Native Americans For Benefits Designed To
Enhance Their Economic Welfare, This Measure Is Not The Least
Burdensome Means For Achieving That Purpose .......................................................16
D.
The §8014 Native American Preference Is Not Rationally Related
To A Legitimate Purpose ...................................................................................................18
E.
This Case Should Not Be Remanded To The District Court .............................................19
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F.
Federal Employees Have A Fundamental Property Interest
In Continued Federal Employment That Is Protected By The
Due Process Guarantee of the Fifth Amendment ..............................................................20
CONCLUSION ..............................................................................................................................21
CERTIFICATE OF SERVICE ......................................................................................................22
CERTIFICATE OF WORD COUNT
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TABLE OF AUTHORITIES
CASES:
Adarand Constructor, Inc. v. Pena, 515 U.S. 200 (1995) ..................................................... Passim
Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir. 1994) ..............................................................16
Arnett v. Kennedy, 416 U.S. 134 (1974) .......................................................................................20
Associated General Contractors of Ohio v. Drabik,
214 F.3d 730 (6th Cir.2000) .........................................................................................................15
Bass v. Board of County Commissioner, Orange County, Fla.,
256 F.3d 1095 (11th Cir. 2001) ......................................................................................................8
Board of Regents of State Colleges v. Roth,
408 U.S. 564 (1972) .....................................................................................................................20
Board of Trustees of the University of Alabama v. Garrett,
121 S.Ct. 955 (2000) .................................................................................................................9,19
Brown v. Gardner, 513 U.S. 115 (1994) ..........................................................................................2
Chevron U.S.A. v. Natural Resources Defense Council,
467 U.S. 837 (1984) .......................................................................................................................7
City of Richmond v. Croson, 488 U.S. 469 (1989) ....................................................................8,15
Coalition for Economic Equity v. Wilson, 122 F.3d 692,
702 (9th Cir. 1997) cert. denied, 522 U.S. 963 (1997) ...................................................................9
Dawavendewa v. Salt River Project Agricultural Improvement and Power,
154 F.3d 1117 (9th Cir. 1998) ......................................................................................................10
Eisenberg v. Montgomery County Public Schools, 197 F.3d 123
(4th Cir. 1999), cert. denied, 120 S.Ct. 1420 (2000) ......................................................................9
Fogg v. Ashcroft, 254 F.3d 103 (D.C. Cir. 2001). .........................................................................19
Fullilove v. Klutznick, 448 U.S. 448 (1980)..................................................................................15
Grutter v. Bollinger, 288 F.3d 773 (6th Cir. 2002).........................................................................14
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Hunt v. Cromartie, 526 U.S. 541 (1999)..........................................................................................1
Johnson v. Board of Regents of the University of Georgia,
263 F.3d 1234 (11th Cir. Aug. 27, 2001)........................................................................................8
Morton v. Mancari, 417 U.S. 535 (1974) ............................................................................. Passim
Narrangansett Indian Tribe v. National Indian Gaming,
158 F.3d 1335 (D.C. Cir. 1998) ..............................................................................................12,13
National Treasury Employees Union v. Federal Labor Relations Authority,
30 F.3d 1510 (D.C. Cir. 1994) .......................................................................................................7
O’Donnell Construction Co. v. District of Columbia,
963 F.2d 420 (D.C. Cir. 1992) .......................................................................................................8
Paraskevaides v. Four Seasons Washington,
292 F.3d 886 (D.C. Cir. 2002) .....................................................................................................19
Rice v. Cayetano, 528 U.S. 495 (2000) ............................................................................4,11,12,13
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) .............................................................................3
Rothe Development Corp. v. Department of Defense, 262 F.3d at 1327
citing Coral Construction Co. v. King County,
941 F.2d 910 (9th Cir. 1991) ............................................................................................... Passim
San Antonio Independent School District v. Rodriguez,
411 U.S. 1 (1973) ........................................................................................................................8,9
Shaw v. Hunt, 517 U.S. 899 (1996) ...............................................................................................14
Shaw v. Reno, 509 U.S. 630 (1993) ................................................................................................1
Steffan v. Perry, 41 F.3d 677 (D.C.Cir. 1994) .................................................................................9
United Building and Construction Trade Council v. Mayor of Camden,
465 U.S. 208 (1984) .....................................................................................................................20
United States Air Tour Ass’n v. FAA, 298 F.3d 997, n.8
(D.C. Cir. 2002), petition for cert. pending No. 02-931 ..............................................................10
United States v. Albertini, 472 U.S. 675 (1985) ..............................................................................4
United States v. Clark, 445 U.S. 23 (1980) .....................................................................................5
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United States v. Cooper Corp., 312 U.S. 600 (1941).......................................................................4
United States v. X-Citement Video, Inc., 513 U.S. 64 (1994).........................................................5
Williams v. Babbit, 115 F.3d 657 (9th Cir. ) cert. denied sub nom
Kawarek Reindeer Herders Assoc. v. Williams, 523 U.S. 1117 (1997) ..............................4,11,13
Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) ........................................................8
ADMINISTRATIVE CASES:
Johnson v. Board of Regents University of Georgia,
2001 WL 967756 at *12(Aug. 27, 2001) ......................................................................................8,
STATUTE AND REGULATIONS:
Alaska Native Claim Settelement Act, 43 U.S.C. §1601, et seq. ....................................................3
Indian Reorganization Act, 25 U.S.C. §461, ..................................................................................3
FY 2000 Department of Defense Appropriations,
Pub.L.No. 106-79, §8014(3) ................................................................................................ Passim
OTHER:
Mixing Bodies and Beliefs: The Predicament of Tribes, 101 Colum.L.Rev.702
(2001), Gould, Scott .......................................................................................................................4
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INTRODUCTION
In exempting only Native-American owned firms from competitive contracting
requirements, Congress embraced the type of explicit racial classification that the Supreme Court
has said automatically triggers strict scrutiny. Adarand Constructor Inc. v. Pena, 515 U.S. 200
(1995); Shaw v. Reno, 509 U.S. 630 (1993); Hunt v. Cromartie, 526 U.S. 541 (1999); City of
Richmond v. Croson, 488 U.S. 469 (1989). The appellees nevertheless urge this Court to forego
that analysis, and instead, to apply the more lenient rational basis standard on the grounds that
the challenged preference reflects a political, rather than racial classification. Brief For The
Federal Defendants-Appellees (US Br.) 8-17; Brief Of Appellees Chugach Management
Services, Inc. and Chugach Management Services Joint Venture (Chugach Br.) 14-27. They also
dispute that the Native American preference burdened the federal employees’ fundamental right
to continued employment absent removal for cause under the due process clause. US Br. 41.
Appellees are wrong on both counts.
ARGUMENT
A.
The Native American Preference in §8014(3) Is Not A Political Classification.
1. §8014(3) On Its Face Employs a Race-Based Classification
The appropriations language in dispute here states only that the Department of Defense
need not follow certain cost-comparison requirements when the commercial activity is “planned
to be converted to performance by a qualified firm under 51 percent Native American
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ownership.” Pub.L.No. 106-79, §8014(3). Courts, including the Supreme Court in Adarand,1
have consistently treated the “Native American” designation as one signifying race.
The appellees’ primary defense of this patently racial preference is that the Court must
disregard the facial breadth of the actual language and, instead, interpret the substantial benefit
conferred as being “limited to only members of federally recognized Native American tribes and
tribal entities.” US Br.15; Chugach Br. 20. However, its position rests on nothing more than
“definitional possibilities” without textual support. See Brown v. Gardner, 513 U.S. 115, 118
(1994).
2. There Is No Merit to the Appellees’ Contention That The Court Should Look
Beyond The Face of the Statute To Find that the Native American Preference
In §8014(3) Reflects A Political, Rather Than Racial Classification.
Congress plainly enacted §8014(3) pursuant to its powers of appropriation under
Article I, §9, cl. 7. Undeterred by the absence of any language or contemporaneous legislative
history,2 the government nevertheless insist that Congress enacted the provision as an exercise
of its authority under Article I, §8, cl.3 to regulate commerce with Indian tribes. See U.S. Br. 6,
1
In their principal brief, appellants cited a number of cases in which courts have recognized the
term “Native American” as designating a racial classification. Brief for Appellants 35 n. 42.
The government’s effort to dismiss these cases as irrelevant is to no avail. Rather they
demonstrate that when, as here, the term “Native American” appears outside the particular
context of Indian tribal legislation, it signifies race. The government’s attempt to distinguish
Adarand and other federal cases on the ground that they involved a regulation in which”Native
American” appeared in a “laundry list of populations” (US Br. 12) likewise misses the mark.
If the Supreme Court in Adarand and the D.C. Circuit in Lutheran Church-Missouri Synod v.
FCC, 141 F.3d 344 (D.C. Cir. 1998) had viewed the parts of the challenged statutes directed at
Native Americans, American Indians, or Alaska Natives as constitutionally sustainable
political classifications, they would have been constrained to consider, at least, the possibility
of severing out those particular preferences. But that was not the case.
2
Appellants hereby incorporate by reference arguments made in their principal brief regarding
the significance of the lack of a legislative record supporting the enactment of the Native
American exemption with regard to both the threshold issue of interpreting the scope of the
classification and the application of strict scrutiny.
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8-9, 14, 18.3 In this regard, appellees devote a substantial portion of their briefs to descriptions
of other comprehensive and documented statutory schemes wherein Congress has undertaken to
address the “unique relationship” between the federal government and Indian tribes pursuant to
Article I, §8, cl. 3. US Br. 20-26; Chugach Br. 10-11, 17-19. Rather than support their
contention that the Native American preference in §8014(3) was likewise enacted pursuant to
Congress’ constitutional powers under Art.I, §8, cl.3, however, the substantial record generated
in support of the Alaska Native Claims Settlement Act, 43 U.S.C. §1601 et seq. and the Indian
Reorganization Act, 25 U.S.C. §461 et seq , for example, only accentuate the silence surrounding
the passage of the contracting preference at issue here.
The appellees maintain that the Court should nevertheless construe the race-based
preference in §8014(3) as Indian tribal legislation (1) in order to avoid serious constitutional
questions (US Br. 15; Chugach Br. 20); (2) because Senators Stevens and Inouye declared it as
such (US Br. 16; Chugach 22-24), (3) the Air Force has only used the preference to contract with
Alaska Native Corporations (US Br. 6, 28), and (4) the presumption of constitutionality that
normally attaches to federal statutes applies here. US Br. 17, n.9. None of these reasons
withstands examination.
a. Need To Avoid Constitutional Questions
As a threshold matter, the plain language in §8014 lacks the ambiguity necessary to
justify the judicial activism sought by the appellees in this case. See Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997)(“plainness or the ambiguity of statutory language is determined by
reference to the language itself”). On the contrary, hoping to avert the fatal import of the actual
3
Chugach further claims that the preference was enacted as a means of implementing the
“ongoing political and economic deal that Congress originally made with Alaska Natives” in the
Alaska Native Claims Settlement Act (“ANCSA”), 43 U.S.C. §1601 et seq. Chugach Br.16.
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language, the government directs the Court to look beyond the confines of §8014(3), not to
reconcile a textual ambiguity, but rather, to “avoid confronting a more difficult constitutional
question” posed by the statute as enacted. U.S. Br. 15.
But it is not this Court’s function to “engraft on a statute additions” which the legislature
might or should have made. See United States v. Cooper Corp., 312 U.S. 600, 605 (1941). See
also United States v. Albertini, 472 U.S. 675, 680 (1985)(need to construe laws to avoid serious
constitutional questions is not a “license for the judiciary to rewrite language enacted by the
legislature.”). Moreover, the suggestion that the Court should, in effect, rewrite race-based
legislation in order to shield it from the scrutiny deemed essential for “smoking out” illegitimate
uses of race fundamentally contravenes Adarand, is not supported by Morton v. Mancari, and is,
simply, indefensible.
Furthermore, taking the §8014 exemption on its own terms as employing a race-based
classification in fact avoids the graver constitutional question inherent in the government’s
position, namely, whether the Supreme Court in Morton v. Mancari created a per se rule
rendering all congressional classifications involving Native Americans political with the effect of
shielding such preferences from Fifth Amendment Equal Protection claims under Adarand.4 See
Williams v. Babbit, 115 F.3d 657, 666 (9th Cir.) cert. denied sub nom Kawarek Reindeer Herders
Assoc. v. Williams, 118 S.Ct. 1795 (1997). Cf. Rice v. Cayetano, 528 U.S. 495, 520-522
(2000)(Refusing to apply Morton v. Mancari in 15th Amendment challenge to voting restriction
limited to native Hawaiians upon finding the trust elections to be that of the state, and not of a
separate quasi-sovereign).
4
See generally Scott Gould, Mixing Bodies and Beliefs: The Predicament of Tribes, 101
Colum.L.Rev. 702 (2001)
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b. Post Enactment History
Additionally, appellees contend that the revised language in subsequent appropriations
laws5 and accompanying congressional statements compel the conclusion that the Native
American reference at issue here must be construed as limited to members of federally
recognized tribes. U.S. Br. 16-17; Chugach Br. 22-24. On the contrary, if anything, the socalled clarification in the FY 2001 Defense Appropriations Act is more realistically seen as a
congressional admission that the Native-American preference in the FY 2000 Defense
Appropriations Act is constitutionally infirm.
Moreover, the post-enactment statements of Senators Stevens and Inouye reflect their
views as to the legal characterization, i.e., political or racial, of the Native American preference.
Because such judgments entail legal conclusions committed to the exclusive authority of the
court, they are not relevant here.
But even if the Court were inclined to consider the post-hoc congressional assessments of
the challenged provision, “the views of one Congress as to the meaning of an Act passed by an
earlier Congress are not ordinarily of great weight.” United States v. X-Citement Video, Inc., 513
U.S. 64, 77 n. 6 (1994)(refusing to infer from the exclusion of scienter requirement in one
provision of pornography statute intent to exclude element from another provision when two
sections enacted at different times). See also United States v. Clark, 445 U.S. 23, 33 n. 9
5
Chugach’s further contention that the passage of the Defense Appropriations Act for FY 2001
rendered this action moot is without merit. Chugach Br. 51-54. The direct conversion of the
CE functions at Kirtland AFB and the resulting 10-year renewable contract to Chugach
Management Services, JV were authorized under §8014(3) of the Defense Appropriations Act
for 2000. As such the instant challenge to the constitutionality of the Native American
preference contained therein remains viable.
-5-
(1980)(“views of some Congressmen as to the construction of a statute adopted years before by
another Congress have ‘very little, if any, significance’).
c. Established agency practice
The government further claims that “established Agency practice dictate[s] that the
8014(3) preference be interpreted to apply only to members of federally recognized Native
American tribes and tribal entities.” US Br. 6, 28. Specifically, it reasons that if the Court in
Mancari construed the hiring preference as applied by the Bureau of Indian Affairs (“BIA”),
then the Court should give similar weight to the Air Force’s interpretation because has only
invoked the facially broad Native American preference for the benefit of, in their view, federal
recognized tribes. US Br. at 28, n.13. Neither point has merit.
In Morton v. Mancari, the Supreme Court did not start or end its equal protection analysis
with the BIA’s application. Rather, it expressly noted that the preference was enacted as part of
the “sweeping” Indian Reorganization Act of 1934, the “overriding purpose of [which] was to
establish machinery whereby Indian tribes would be able to assume a greater degree of selfgovernment . . .[and to] modify the then-existing situation whereby the primarily non-Indian
staffed BIA had plenary control. . . .over the lives and destinies of the federally recognized
Indian tribes.” Id. at 542. After noting the conflicting views as to the continuing role of the
BIA, the Court indicated that the “the solution ultimately adopted was to strengthen tribal
government while continue active role of the BIA.” Id. at 543. Moreover, “one of the primary
means by which self-government would be fostered and the Bureau made more responsive was
to increase the participation of tribal Indians in the BIA operations.” .Id. Thus, the Court
determined that the statutory Indian hiring preference was limited to members of Indian tribes
-6-
not simply because the BIA applied it that way, but because an extensive review of the Indian
Reorganization Act and its history warranted that result.
That is not the case here. The §8014 preference is not part of a sweeping statutory
scheme whose overriding purpose is to promote self-government among Indian tribes. Cf.
Morton v. Mancari, 417 U.S. at 542. Rather it appears as a single isolated provision in a
Defense Appropriations Act. Nor is there anything in the legislative history of the FY 2000
Defense Appropriations Act signifying Congress’ consideration of the preference so as to justify
a limited reading as was the case in Mancari.
In any event, because BIA is the agency responsible for administering the Indian
Reorganization Act, its longstanding policy, and Congress’ acquiescence to it, would have been
particularly relevant indicia of Congress’ intent to limit the statutory preference to members of
recognized tribes. See e.g., Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S.
837, 843 (1984). Conversely, here, the Department of the Air Force has no particular expertise
with regard to the rights of Native Americans or Indian tribes. Consequently, its experience or
views with regard to the Native American contracting preference in §8014 are not relevant to the
inquiry of Congressional intent and cannot be ascribed to Congress for the purpose of declaring
the scope or meaning of §8014. See National Treasury Employees Union v. Federal Labor
Relations Authority, 30 F.3d 1510 (D.C. Cir. 1994)(no deference given to FLRA interpretation of
regulation promulgated by the Office of Personnel Management.)
d. Presumption of Constitutionality
The government insists that the “presumption of constitutionality” that normally attaches
to federal legislation requires the Court to assume that the blanket preference for Native
American firms in §8014(3) constitutes Indian tribal legislation enacted pursuant to Art. I, §8, cl.
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3. U.S. Br. 17, n.9. But the argument completely ignores that fact that statutory racial
preferences, such as that at issue here, are “presumptively invalid,” see San Antonio Independent
School District v. Rodriguez, 411 U.S. 1, 61 (1973)(Stewart, concurring), and thus obviate
judicial reliance on such deferential rules of construction.
The government’s failure to recognize the fundamentally different posture that the courts
must adopt when reviewing legislated racial measures leads it to mischaracterize the burden of
proof where, as here, such classifications are challenged as violative of equal protection. U.S.
Br. 6, 14, 17, n.9. It is beyond dispute that the proponent of a racial classification bears the
burden of demonstrating that it is narrowly tailored to serve a compelling interest. Johnson v.
Board of Regents of the University of Georgia, 263 F.3d 1234, 1244 (11th Cir. Aug. 27, 2001).
See also Bass v. Board of County Commissioner, Orange County, Fla., 256 F.3d 1095, 1116
(11th Cir. 2001)(“County concedes that, in contrast to the Title VII context, Supreme Court
precedent governing equal protection claims places the burden on a defendant to prove that an
affirmative action plan satisfies strict scrutiny.”)
In City of Richmond v. Croson, 488 U.S. 469, 505 (1989), the Supreme Court explicitly
noted that “the city [ ] failed to demonstrate a compelling interest in apportioning public
contracting opportunity on the basis of race.” It later concluded that “it is simply impossible to
say that the city has demonstrated “’a strong basis in evidence for its conclusion that remedial
action was necessary.” Id. at 510 quoting Wygant v. Jackson Board of Education, 476 U.S. 267,
277 (1986). Similarly, in O’Donnell Construction Co. v. District of Columbia, 963 F.2d 420,
424 (D.C. Cir. 1992), the D.C. Circuit clearly recognized that the government bears the burden
of demonstrating a compelling interest for employing a race-based measure. There is no doubt,
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therefore, that the government here bears the burden of demonstrating that the §8014(3) Native
American preference is narrowly tailored to serve a compelling interest.
The government therefore erroneously asserts that appellants must show that there was no
instance in which the Native American classification could be constitutionally applied. US Br.
14, 17, n.9. That standard only applies in cases where the classification does not involve a racial
classification or fundamental right. In such instances, a presumption of validity attaches to the
legislative categorization, and as a result, a challenger must negate every conceivable basis that
might support it. Steffan v. Perry, 41 F.3d 677, 684 (D.C.Cir. 1994)(Applying rational basis
review in upholding military regulations authorizing separation on the basis of homosexuality
on rational basis review). See also Board of Trustees of the University of Alabama v. Garrett,
121 S.Ct. 955, 963 (2000)(involving the treatment of the disabled, which has been held not to
involve a suspect classification.).
This rule does not apply, however, when a law, such as that at issue here, classifies
individuals based on race. See Coalition for Economic Equity v. Wilson, 122 F.3d 692, 702 (9th
Cir. 1997) cert. denied, 522 U.S. 963 (1997). Such classifications are “inherently suspect,” see
Adarand, 545 U.S. at 223-225 and “presumptively invalid” under the equal protection clause.
See San Antonio Independent School District, 411 U.S. at 61. See also Coalition for Economic
Equity v. Wilson, 122 F.3d at 702; Eisenberg v. Montgomery County Public Schools, 197 F.3d
123 (4th Cir. 1999), cert. denied, 120 S.Ct. 1420 (2000). As such, the burden rests with the
proponent, not the challenger, to justify them. See O’Donnell Construction Co., 963 F.2d at 424.
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B.
The Supreme Court’s Decision In Morton v. Mancari Does Not Compel The Court
To View The §8014(3) Preference For Native Americans As A Political Rather
Than Racial Classification.
Unlike in United States Air Tour Ass’n v. FAA, 298 F.3d 997, 1012, n.8 (D.C. Cir. 2002),
petition for cert. pending No. 02-931, and notwithstanding the government’s claims to the
contrary, appellants do not claim that Adarand effectively overruled Morton v. Mancari, 417
U.S. 535, 554 (1974). US Br. 12. They do maintain, however, that Adarand precludes the
Court from adopting the government’s reading of Morton v. Mancari as establishing a per se
rule that all classifications involving Native Americans are therefore political and thus subject to
rational basis review.6 Specifically, Morton v. Mancari stands for the principle that once a court
concludes that the legislation is directed at “members of quasi-sovereign tribal entities,” it should
apply rational basis review. But it does not dictate how the Court is to determine, in the first
instance, the character of the classification under review.
Yet, the thrust of the appellees’ position here is precisely that Morton v. Mancari compels
the Court here as a matter of statutory interpretation to construe the patently racial classification
in §8014 as Indian tribal legislation. Neither the government nor Chugach cite any case
approving such a sweeping exemption from equal protection principles. Cf., Dawavendewa v.
Salt River Project Agricultural Improvement and Power, 154 F.3d 1117, 1120 (9th Cir. 1998)
(upholding Title VII jurisdiction after rejecting claim that employment preference based on tribal
affiliation was a political classification). Moreover, because such a view raises serious
constitutional doubts, the Court should decline to adopt it. Cf. Williams v. Babbit, 115 F.3d 657,
6
Appellants hereby incorporate by reference the arguments made in their principal brief that
there is no textual support in Morton v. Mancari or subsequent Supreme Court’s decisions for the
government’s premise that all federal Native-American classifications are political.
- 10 -
666 (9th Cir. ) cert. denied sub nom Kawarek Reindeer Herders Assoc. v. Williams, 523 U.S.
1117 (1997).7
In Rice v. Cayetano, 528 U.S. 495 (2000), a Hawaiian citizen challenged a Hawaii
Constitution restriction limiting voting for trustees of a state agency devoted solely to
administering programs designed for the benefit of native Hawaiins and descendents of
inhabitants of the Hawaiian Islands in 1778. The individual challenged the restriction as a
violation of the 15th Amendment. Among the defenses offered by the state of Hawaii was that
the differential voting scheme was permissible under Morton v. Mancari. 528 U.S. at 518.
Addressing that claim, the Court first characterized Mancari and its predecessors as holding that
“various tribes retained some elements of quasi-sovereign authority,. . .[that] relates to selfgovernance.” Id. But it went on to say that sustaining Hawaii’s restrictions under Mancari
would require that the Court “accept some beginning premises not yet established” in caselaw,
Id. Among these was whether native Hawaiians have the status of organized Indian tribes and
whether Congress could in any event delegate its authority to the state. Id. Even so, the Court
categorically rejected the premise that Congress could in any event authorize a State to create a
voting scheme that excluded citizens on the basis of race.
Recognizing congressional authority to enact legislation “dedicated to the [ ]
circumstances and needs of Indian tribes,” the Court at the same time emphasized that the
Mancari decision was “confined to the authority of the BIA, an agency described as ‘sui
generis’” Rice v. Cayetano, 528 U.S.at 520. More directly, the Court declared that “it does not
follow from Mancari, however, that Congress may authorize a State to establish a voting scheme
7
In Williams v. Babbit, the Ninth Circuit refused to adopt the Interior Board of Indian Appeals
interpretation of the Reindeer Industry Act prohibiting non-natives in Alaska from owning and
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that limits the electorate for its public officials to a class of tribal Indians, to the exclusion of all
non-Indian citizens.” Id.
Although Rice v. Cayetano involved a 15th Amendment challenge, the Court’s view of
the limited scope of Mancari - and its patent hostility toward the type of bootstrapping from that
decision advocated by Hawaii - is certainly instructive here. It is also noteworthy that the
Supreme Court refused the state’s attempt to characterize the elections as tribal despite the fact
that the trustees administered programs devoted solely to native Hawaiians. Id. at 520.
Similarly here, the Court should decline the appellees’ invitation to read Morton v.
Mancari as mandating that a blanket preference for Native American be construed as limited to
members of federally recognized tribes. Moreover, contrary to the appellees’ contention (US
Br.12; Chugach Br. 14), nothing in this Court’s decision in Narrangansett Indian Tribe v.
National Indian Gaming , 158 F.3d 1335 (D.C. Cir. 1998) compels it to do otherwise. In that
case, an Indian tribe challenged a congressional amendment excluding it from the Indian Gaming
Regulatory Act, the consequence of which was to make it subject to Rhode Island’s gaming and
other laws. Narrangansett Indian Tribe, 158 F.3d at 1335. There was no question but that that
the challenged legislation was clearly directed at Indian tribes and involved tribal lands.
Instead, the tribe claimed that, in applying rational basis review, the Court should adopt a
more stringent analysis of the purported relationship between the legislation and the interest
asserted so as to allow only legislation whose purpose could be tied to the government’s unique
obligation vis-à-vis tribes. Narrangansett Indian Tribe Id. at 1340. In effect, the gravamen of the
tribe’s claim was that heightened scrutiny should be applied to equal protection claims brought
by Indian tribes challenging Indian legislation. Rejecting the argument, the Court ruled that
selling reindeer, and thereby, avoided the “grave” constitutional questions raised by broad
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“ordinary rational basis” would apply. Narrangansett Indian Tribe, 158 F.3d at 1340 citing
Morton v. Mancari.
But in so doing, the Court did not mention, much less reject, the Ninth Circuit opinions in
Williams v. Babbit or Rice v. Cayetano. Nor did it comment on whether Morton v. Mancari
should be read broadly so as to require all Native American preferences be reviewed under the
rational basis standard prescribed therein.
C.
The Government Has Failed To Demonstrate That The §8014(3) Native American
Preference Is Narrowly Tailored To Serve A Compelling Interest.
1. The Government Has No Compelling Interest In
Exempting Native American Firms From Federal Contracting
Requirements.
The government variously contends that the purpose behind the §8014 preference is to
“further Native Alaskan tribal self-government,” “to compensate Alaska Natives for their
aboriginal land titles” to “safeguard their self-determination and economic self-sufficiency” (US
Br. 17-18), “to promote the economic self-sufficiency of federally recognized Indian tribes”(US
Br. 30-31) and to “boost the economic position of federally recognized American Indian tribes.”
US Br. 37. Interestingly, it does not argue with any degree of particularity that the measure was
enacted to remedy discrimination against Native Americans in the area of Defense contracting.
Chugach similarly eschews any effort to characterize the Native-American preference as
a remedy for discrimination, dismissing it as “driv[ing] a square peg into a round hole.”
Chugach Br. 7. Rather , Chugach flatly suggests that Native Americans (apart from their
membership in Indian tribes) are entitled to the special treatment afforded by §8014 because the
history of forced dependency and deprivation suffered by Native Americans in the past is unique
Native American preferences that do not affect uniquely Indian interests. 158 F.3d at 665-666.
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and more injurious than the suffering endured by members of other racial and ethnic minorities.
Chugach Br. 32. Appellants will not presume to weigh and compare the injury suffered by
Native Americans against that endured by other racial or ethnic minorities who have also
suffered uniquely under the guise of public policy throughout the history of this country. But, to
claim that Native Americans thereby singularly enjoy an elevated status in the eyes of the law
goes against the very core of Equal Protection,
Nevertheless, the only interest that the Supreme Court has yet found to be sufficiently
compelling to justify race-based measures is remedying identifiable discrimination in a particular
industry or region where the legislature had a strong basis in evidence to conclude that the
remedial action was necessary. See Shaw v. Hunt, 517 U.S. 899, 909-910 (1996).8 The
appellees’ characterization of the purpose behind §8014(3) therefore raises the significant
question whether Congress can ever have a sufficiently compelling interest in promoting the
economic welfare of one racial group – beyond what may be an anticipated consequence of a
constitutionally permissible remedial objective - so as to overcome the constitutional aversion to
differential treatment based on race.
But even if the ostensible purpose behind §8014(3) was remedial, the fact remains that
Congress would have had to consider evidence of discrimination against Native Americans in
federal contracting at the time that it passed the preference in order for it to pass constitutional
muster. Rothe, 262 F.3d 1306, 1327 (Fed. Cir. 2001). In Rothe, after extensive analysis, the
8
The Supreme Court recently granted the petition for certiorari in Grutter v. Bollinger, 288 F.3d
773 (6th Cir.) cert. granted, 123 S.Ct. 617 (Dec. 2, 2002) upholding the University of Michigan
Law School’s consideration of race in its admissions policy on the grounds that the school had a
compelling interest in student diversity.
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Federal Circuit concluded that there is “no difference in the evidentiary burden that must
be face during litigation. . .and the evidence that a legislature must have before it enacts a racial
classification.” Id. It therefore concluded that “if the pre-authorization evidence is insufficient
to maintain the program when the program is challenged as reauthorized, the program must be
invalidated regardless of the extent of post-authorization evidence.” Id. at 1327-1328.
The Sixth Circuit expressed the same view, stating that “the state must have had a
sufficient evidentiary justification for the racially conscious statute in advance of its passage; the
time of a challenge to the statute, at trial is not the time for the state to undertake fact finding.”
Associated General Contractors of Ohio v. Drabik, 214 F.3d 730, 738 (6th Cir.2000)(Finding
racial and ethnic preferences in state construction contracting program to be unconstitutional).
Moreover, in order to meet this burden, the “state cannot rely on mere speculation, or legislative
pronouncements, of past discrimination.” Id. at 735.
Here, without any indication that Congress actually considered evidence concerning any
of these issues when it enacted the Native American contracting exemption, the §8014(3)
preference is presumptively invalid as a matter of law. See Rothe, 262 F.3d at 1326. In this
regard, the post-enactment statements of Senators Steven and Inouye issued after this provision
was enacted cannot substitute for the contemporaneous evidentiary deliberation required for
race-based measures. Id.
The government wrongly insists that Congress’ ongoing consideration of Native
American issues in the context of other legislative enactments provides the sufficient evidentiary
underpinning to support the Native American race-based measure at issue here. US Br. 31-37.
The contention ignores the clear teachings of Croson and Adarand, a disregard confirmed by its
singular reliance on Fullilove v. Klutznick, 448 U.S. 448, 502 (1980). US Br. 36. Thus, the
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evidentiary deficiency in this case cannot be rectified by the apellees’ extensive recitation of the
historical relationship between the federal government and Native Americans, particularly native
Alaskans. US Br. 16-26; Chugach Br.31-34. Rothe Development Corp. v Dept. of Defense, 262
F.3d at 1328 n. 21 (district court’s reliance on briefs and submissions from intervenor Asian
American Legal Defense and Education Fund to find compelling interest constituted postauthorization evidence). That history has unquestionably been marked by tragedy and abuse.
But, without a strong evidentiary basis upon which to conclude that Congress in fact enacted the
§8014(3) to remedy the effects of particularized discrimination directed at native Alaskans, the
Court is left to speculate as to Congress’ motive in adopting this racial preference. See Aiken v.
City of Memphis, 37 F.3d 1155 (6th Cir. 1994).
In any event, the materials submitted by the government cannot be realistically
considered as “strong” evidentiary support for need to enact the race-based preference in
§8014(3) as part of the FY 2000 appropriations. US Br. 31-35. Many of the materials are
simply statements by Indian advocates submitted in congressional hearings. US Br. 32-36, n. 1622. Some of the reports date back to 1974 (US Br. 32, n.17), many were generated in the 1980’s
and early 1990’s, long before passage of Public Law 106-79. US Br. 32 –36, n. 16-22.
Ironically, other reports appear to suggest that part of the barrier to Indian economic
development was too much involvement by the federal government. US Br. 33-34, n. 19.
2. Assuming Arguendo That The Government Does Have A Compelling
Interest In Singling Out Native Americans For Benefits Designed To
Enhance Their Economic Welfare, This Measure Is Not The Least
Burdensome Means For Achieving That Purpose.
Even if promoting the economic self-sufficiency of Native Americans was compelling,
there is simply no basis upon which to conclude that exempting majority owned Native
American firms from defense contracting requirements is tightly fitted to ensure that
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economically and socially disadvantaged Native Americans will benefit. Appellants do not
concede that the Air Force has applied the preference so as to contract only with economically
and socially disadvantaged Native Americans. But even if it did, that a racial preference might
be applied in certain instances to fulfill the intended purpose is not dispositive of the issue as to
whether the meausure itself is narrowly tailored.
The government also maintains that the one-year appropriations period means that the
measure is narrowly tailored. US Br. 38; Chugach Br. 38. But the fact that the Native American
preference repeatedly appeared in Defense Appropriations acts for eleven years dispels any
suggestion that the preference is necessarily of short duration.
The government claims that Congress found alternatives that did not single out Native
Americans to be ineffective (US Br. 39) and particularly, that previous initiatives to increase
defense contracting opportunities for Native-American owned firms did not achieve the “desired
ameliorative effects” on tribally affiliated Indians. US Br. 40. But again, the only evidence
provided to support these assertions consists of congressional reports dating from the 1980’s and
early 1990’s, most of which consist of congressional testimony given by partisan advocates. US
Br. 39-40, n. 27-28.
But even assuming that the reports are relevant to passage of §8014(3), appellants submit
that they undermine any claim that Congress settled upon a defense contracting preference as the
last resort for enhancing the economic well being of Native Americans. In fact, they reflect
divergent views as to the causes of, and remedies for, the economic plight of Native Americans
on reservations. For example, massive unemployment on Indian reservations was cited as a
primary cause of the economic and social difficulties among Native Americans.9 In the case of
9
See e.g., Report of the Task Force on Indian Economic Development (July 1986). JA 791
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federal procurement, the barriers to Indian participation were identified as arising from the
“cultural differences, geographic isolation, and the absence of experienced cadres of business
managers.”10 Education and “good jobs” for native Alaskans,11 not contracting preferences, were
identified as “the long term key” to the economic future.
The documents submitted here reflect Congress’ ongoing concern with the economic
conditions of Native Americans living on reservations or in rural Alaska. They do not, however,
manifest an interest on the part of Congress to undertake an ongoing program (outside of
ANCSA) directed at “compensating” Indians for the “loss of aboriginal title” to land. US Br. 27
In fact, what the documents demonstrate is that the problems underlying the social and
economic status of Native Americans living on reservations or in rural Alaska are very complex
and defy simple answers. Clearly, Congress has historically approached these issues, and
devised its response to them, with considerable deliberation and care, none of which was on
display in the case of the §8014 preference. Moreover, there was substantial evidence that some
of these efforts were bearing fruit. In light of all of this, there is simply no basis upon which to
conclude that Congress felt compelled to resort to the highly suspect and blunt mechanism of the
blanket race-based preference in §8014.
D. The §8014 Native American Preference Is Not Rationally Related To A Legitimate
Purpose.
As proponents of the race-based preference at issue here, appellees have failed to produce
the necessary quantum and type of evidence deemed necessary to support such a constitutionally
suspect measure. Appellants further contend, however, that the absence of any evidence
10
11
Statement of the Hon. Daniel Inouye, Hearing Before the Select Committee On Indian Affairs
(Feb. 23, 1988). JA 639.
See Testimony of Alaska Governor Tony Knowles, Joint Oversight Hearing (Nov. 16,
1995). JA 978.
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suggesting Congress’ actual intent with regard to §8014 makes it unlikely to withstand even the
most lenient rational basis review. Cf. Rothe Development Corp. v. Department of Defense, 262
F.3d at 1324 n. 17 citing Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct.
955 (2001). Moreover, even if the Court were to interpret the contracting preference as limited
to members of federally recognized tribes, there is little reason to believe that the benefit will
reach economically and socially disadvantaged tribal members. In fact, by crafting the measure
so as to require only 51% Native American ownership, Congress has substantially diluted the
potential benefit while leaving the door open for sham contracting practices.
E. This Case Should Not Be Remanded To The District Court
Upon finding that the district court erred in failing to apply the strict scrutiny analysis
mandated by Adarand, this Court should not remand the matter back to the lower court as
appellees have requested. US Br. 28-30. Doing so would be futile exercise insofar as “ ‘only
one conclusion would supportable.’” Fogg v. Ashcroft, 254 F.3d 103, 111 (D.C. Cir. 2001).
Specifically, if the Court determines that Adarand governs this case, then governing legal
principles dictate that it further conclude that the race-based measure is contrary to the Fifth
Amendment equal protection guarantee as a matter of law because there is virtually no evidence
that Congress enacted §8014(3) in response to a substantial and documented history of
discrimination in defense contracting.
Moreover, remand is unnecessary where, as here, Court’s review is de novo and all the legal
issues have been fully briefed. Cf. Paraskevaides v. Four Seasons Washington, 292 F.3d 886
(D.C. Cir. 2002). Furthermore, where, as here, the record consists of volumes of legislative
materials relating to federal Indian legislation, there is no reason to believe that remanding the
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case for further factfinding will unearth heretofore undetected congressional reports relating to
the §8014 preference. Thus, unlike in Adarand and Rothe, remand in this instance will not result
in the type of detailed factfinding that is arguably essential to meaningful appellate review.
Therefore, the appellants strongly urge the Court to consider directly the merits of their claim
that the Native American preference in §8014(3) is contrary to the equal protection guarantee of
the Fifth Amendment.
F.
Federal Employees Have A Fundamental Property Interest In Continued
Federal Employment That Is Protected By The Due Process Guarantee of the
Fifth Amendment
Appellants have never wavered from their claim that the public employees have a
constitutionally protected property interest in their employment. Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 578 (1972); Arnett v. Kennedy, 416 U.S. 134, 164-167 (1974).
While not contesting that claim, the government summarily insists that this interest does not fall
within the ambit of the substantive due process guarantee of the Fifth Amendment. US Br. at 4142. Yet, the only case cited by the government for its position is United Building and
Construction Trade Council v. Mayor of Camden, 465 U.S. 208 (1984). That case’s relevance to
the instant Fifth Amendment claim at issue here is questionable, however, insofar as it concerns
a challenge brought by a non-resident under the Privileges and Immunities Clause to a city’s
requirement that private employers with city contracts to hire city residents. Id. at 214. In any
event, the Supreme Court, in fact, deemed the opportunity to seek such employment as
sufficiently fundamental “to the livelihood of the Nation” as to bring it within the protection of
that Clause. Id.
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CONCLUSION
WHEREFORE, appellants respectfully urge this Court to reverse the district court’s
decision and order and declare the race-based preference for Native Americans in §8014(3) to be
unconstitutional.
Respectfully submitted,
_________________________________
Mark D. Roth (D.C. Bar #235473)
General Counsel
_________________________________
Anne M. Wagner (D.C. Bar #435728)
Assistant General Counsel-Litigation
American Federation of Government Employees,
AFL-CIO
80 F Street NW
Washington, D.C. 20001
(202) 639-6426
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CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing REPLY BRIEF FOR APPELLANTS were
mailed via first class mail this 24th day of January, 2003 to:
Sarah E. Harrington, Esq.
U.S. Department of Justice
Civil Rights Division, Appellate Section
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Harvey E. Levin, Esq.
Birch, Horton, Bittner and Cherot
1155 Connecticut Avenue, N.W. Suite 1200
Washington, D.C. 20036
________________________
Anne M. Wagner
American Federation of Government
Employees, AFL-CIO
80 F Street, NW
Washington, D.C. 20001
(202) 639-6425
I certify that the REPLY BRIEF FOR APPELLANTS contains a total 6,239 words and
606 lines, which is below the maximum amount of 7,000 words and 650 lines of text allowed
under D.C. Cir. Rule 32(a) and F.R.A.P. 32(a)(7)(B).
________________________
Anne M. Wagner
Assistant General Counsel
American Federation of Government
Employees, AFL-CIO
80 F Street, NW
Washington, D.C. 20001
(202) 639-6425
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