OCTOBER TERM, 2002
Syllabus
NATIONAL PARK HOSPITALITY ASSOCIATION
v.
DEPARTMENT OF THE INTERIOR ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 02-196. Argued March 4, 2003-Decided May 27, 2003
The Contract Disputes Act of 1978 (CDA) establishes rules
governing disputes arising out of certain Government contracts.
After Congress enacted the National Parks Omnibus Management Act of
1998, establishing a comprehensive concession management program
for national parks, the National Park Service (NPS) issued
implementing regulations including 36 CFR § 51.3, which purports to
render the CDA inapplicable to concession contracts. Petitioner
concessioners' association challenged § 51.3's validity. The
District Court upheld the regulation, concluding that the CDA is
ambiguous on whether it applies to concession contracts and finding
NPS' interpretation reasonable under
Chevron U. S.
A.
Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837.
The District of Columbia Circuit affirmed, placing no reliance on
Chevron, but finding NPS' reading of the CDA consistent with
both the CDA and the 1998 Act.
Held: The controversy is not yet ripe for judicial
resolution. Determining whether administrative action is ripe
requires evaluation of (1) the issues' fitness for judicial
decision and (2) the hardship to the parties of withholding court
consideration.
Abbott Laboratories v.
Gardner, 387 U.
S. 136, 149. Regarding the hardship inquiry, the federal
respondents concede that, because NPS has no delegated rulemaking
authority under the CDA, § 51.3 is not a legislative regulation
with the force of law. And their assertion that § 51.3 is an
interpretative regulation advising the public of the agency's
construction of the statutes and rules
which it administers
is incorrect, as NPS is not empowered to administer the CDA. That
task rests with agency contracting officers and boards of contract
appeals, as well as the federal courts; and any authority regarding
the agency boards' proper arrangement belongs to the Administrator
for Federal Procurement Policy. Consequently, § 51.3 is nothing
more than a general policy statement designed to inform the public
of NPS' views on the CDA's proper application. Thus, § 51.3 does
not create "adverse effects of a strictly legal kind," which are
required for a hardship showing.
Ohio Forestry Assn., Inc.
v.
Sierra Club, 523 U. S. 726, 733. Moreover, § 51.3 does
not affect a concessioner's primary conduct,
e. g.,
Toilet Goods Assn., Inc. v.
Gardner, 387 U. S. 158, 164,
804
as it leaves the concessioner free to conduct its business as it
sees fit. Moreover, nothing in the regulation prevents
concessioners from following the procedures set forth in the CDA
once a dispute over a concession contract actually arises. This
Court has previously found that challenges to regulations similar
to § 51.3 were not ripe for lack of a hardship showing. See,
e. g., id., at 161-162. Petitioner's contention that
delaying judicial resolution of the issue will cause real harm
because the CDA's applicability
vel non is a factor taken
into account by a concessioner preparing its bids is unpersuasive.
Mere uncertainty as to the validity of a legal rule does not
constitute a hardship for purposes of the ripeness analysis. As to
whether the issue here is fit for review, further factual
development would "significantly advance [this Court's] ability to
deal with the legal issues presented,"
Duke Power Co. v.
Carolina Environmental Study Group, Inc., 438 U. S. 59, 82, even
though the question is "purely legal" and § 51.3 constitutes "final
agency action" under the Administrative Procedure Act,
Abbott
Laboratories, supra, at 149. Judicial resolution of the
question presented here should await a concrete dispute about a
particular concession contract. Pp. 807-812.
282 F.3d
818, vacated and remanded.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, and GINSBURG, JJ.,
joined. STEVENS, J., filed an opinion concurring in the judgment,
post, p. 812. BREYER, J., filed a dissenting opinion, in
which O'CONNOR, J., joined,
post, p. 817.
Kenneth S.
Geller argued the 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 for the federal respondents.
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, challenges a National Park Service
(NPS) regulation that pur-
805
ports to render the Contract Disputes Act of 1978
(CDA),
92 Stat. 2383, 41 U. S. C. § 601
et seq., inapplicable
to concession contracts. We conclude that the controversy is not
yet ripe for judicial resolution.
I
The
CDA establishes rules governing disputes arising out
of certain Government contracts.1 The statute provides that these
disputes first be submitted to an agency's contracting officer. §
605. A Government contractor dissatisfied with the contracting
officer's decision may seek review either from the United States
Court of Federal Claims or from an administrative board in the
agency. See §§ 606, 607(d), 609(a). Either decision may then be
appealed to the United States Court of Appeals for the Federal
Circuit.2 See 28 U. S. C. § 1295; 41 U. S. C. § 607(g).
Since 1916 Congress has charged NPS to "promote and regulate the
use of the Federal areas known as national parks," "conserve the
scenery and the natural and historic objects and the wild life
therein," and "provide for [their] enjoyment [in a way that] will
leave them unimpaired for the enjoyment of future generations." An
Act To establish a National Park Service, 39 Stat. 535,16 U. S. C.
§ 1. To make visits to national parks more enjoyable for the
public, Congress authorized NPS to "grant privileges, leases, and
permits for the use of land for the accommodation of visitors."
1 Title 41 U. S. C. § 602(a) provides:
"Unless otherwise specifically provided herein, this chapter
applies to any express or implied contract (including those of the
nonappropriated fund activities described in sections 1346 and 1491
of title 28) entered into by an executive agency for-
"(1) the procurement of property, other than real property in
being; "(2) the procurement of services;
"(3) the procurement of construction, alteration, repair or
maintenance of real property; or,
"(4) the disposal of personal property."
2 The CDA also provides that a prevailing contractor is entitled
to prejudgment interest. § 611.
806
§ 3, 39 Stat. 535. Such "privileges, leases, and permits" have
become embodied in national parks concession contracts.
The specific rules governing national parks concession contracts
have changed over time. In 1998, however, Congress enacted the
National Parks Omnibus Management Act of 1998 (1998 Act or Act),
Pub. L. 105-391, 112 Stat. 3497 (codified with certain exceptions
in 16 U. S. C. §§ 5951-5966), establishing a new and comprehensive
concession management program for national parks. The 1998 Act
authorizes the Secretary of the Interior to enact regulations
implementing the Act's provisions, § 5965.
NPS, to which the Secretary has delegated her authority under
the 1998 Act, promptly began a rulemaking proceeding to implement
the Act. After notice and comment, final regulations were issued in
April 2000. 65 Fed. Reg. 20630 (2000) (codified in 36 CFR pt. 51).
The regulations define the term "concession contract" as
follows:
"A concession contract (or contract) means a binding
written agreement between the Director and a concessioner ....
Concession contracts are not contracts within the meaning of 41 U.
S. C. 601 et seq. (the Contract Disputes Act) and are not
service or procurement contracts within the meaning of statutes,
regulations or policies that apply only to federal service
contracts or other types of federal procurement actions." 3 36 CFR
§ 51.3 (2002).
Through this provision NPS took a position with respect to a
longstanding controversy with the Department of Interior's Board of
Contract Appeals (IBCA). Beginning in 1989, the IBCA ruled that NPS
concession contracts
were subject to the
CDA, see
R &
R Enterprises, 89-2 B. C. A., ~ 21708, pp.
109145-109147 (1989), and subsequent attempts by NPS to convince
the IBCA otherwise proved unavailing,
National
3 For ease of reference, throughout this opinion we will refer
to the second sentence quoted in the text as § 51.3.
807
Park Concessions, Inc., 94-3 B. C. A., ~ 27104, pp.
135096135098 (1994).
II
Petitioner challenged the validity of § 51.3 in the District
Court for the District of Columbia.
Amfac Resorts, L. L. C.
v.
United States Dept. of Interior, 142 F. Supp. 2d 54,
80-82 (2001). The District Court upheld the regulation, applying
the deference principle of
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The
court concluded that the
CDA is ambiguous on whether it
applies to concession contracts and found NPS' interpretation of
the
CDA reasonable. 142 F. Supp. 2d, at 80-82.
The Court of Appeals for the District of Columbia Circuit
affirmed, albeit on different grounds.
Amfac Resorts, L. L.
C. v.
United States Dept. of Interior, 282
F.3d 818, 834-835 (2002). Recognizing that NPS "does not
administer the
[CDA], and thus may not have interpretative
authority over its provisions," the court placed no reliance on
Chevron but simply "agree[d]" with NPS' reading of the
CDA, finding that reading consistent with both the
CDA and the 1998 Act. 282 F. 3d, at 835. We granted
certiorari to consider whether the
CDA applies to contracts
between NPS and concessioners in the national parks. 537 U. S. 1018
(2002). Because petitioner has brought a facial challenge to the
regulation and is not litigating any concrete dispute with NPS, we
asked the parties to provide supplemental briefing on whether the
case is ripe for judicial action. Tr. of Oral Arg.62.
III
Ripeness is a justiciability doctrine designed "to prevent the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial
interference until an administrative decision has been formalized
and its effects felt in a concrete way by the
808
challenging parties."
Abbott Laboratories v.
Gardner,
387 U. S. 136, 148-149 (1967); accord,
Ohio Forestry Assn.,
Inc. v.
Sierra Club, 523 U. S. 726, 732-733
(1998). The ripeness doctrine is "drawn both from Article III
limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction,"
Reno v.
Catholic
Social Services, Inc., 509 U. S. 43, 57, n. 18 (1993)
(citations omitted), but, even in a case raising only prudential
concerns, the question of ripeness may be considered on a court's
own motion.
Ibid. (citing
Regional Rail Reorganization
Act Cases, 419 U.
S. 102, 138 (1974)).
Determining whether administrative action is ripe for judicial
review requires us to evaluate (1) the fitness of the issues for
judicial decision and (2) the hardship to the parties of
withholding court consideration.
Abbott Laboratories, supra,
at 149. "Absent [a statutory provision providing for immediate
judicial review], a regulation is not ordinarily considered the
type of agency action 'ripe' for judicial review under the
[Administrative Procedure Act (APA)] until the scope of the
controversy has been reduced to more manageable proportions, and
its factual components fleshed out, by some concrete action
applying the regulation to the claimant's situation in a fashion
that harms or threatens to harm him. (The major exception, of
course, is a substantive rule which as a practical matter requires
the plaintiff to adjust his conduct immediately .... )"
Lujan v.
National Wildlife Federation, 497 U. S. 871, 891
(1990). Under the facts now before us, we conclude this case is not
ripe.
We turn first to the hardship inquiry. The federal respondents
concede that, because NPS has no delegated rulemaking authority
under the
CDA, the challenged portion of § 51.3 cannot be a
legislative regulation with the force of law. See Brief for Federal
Respondents 15, n. 6; Supplemental Brief for Federal Respondents 6.
They note, though, that "agencies may issue interpretive rules 'to
advise the public of the agency's construction of the statutes and
rules
which
809
it administers,'" Brief for Federal Respondents 15, n. 6
(quoting
Shalala v.
Guernsey Memorial Hospital,
514 U. S. 87, 99
(1995) (emphasis added)), and seek to characterize § 51.3 as such
an interpretive rule.
We disagree. Unlike in
Guernsey Memorial Hospital, where
the agency issuing the interpretative guideline was responsible for
administering the relevant statutes and regulations, NPS is not
empowered to administer the
CDA. Rather, the task of
applying the
CDA rests with agency contracting officers and
boards of contract appeals, as well as the Federal Court of Claims,
the Court of Appeals for the Federal Circuit, and, ultimately, this
Court. Moreover, under the
CDA, any authority regarding the
proper arrangement of agency boards belongs to the Administrator
for Federal Procurement Policy. See 41 U. S. C. § 607(h) ("Pursuant
to the authority conferred under the Office of Federal Procurement
Policy Act [41 U. S. C. § 401
et seq.], the Administrator is
authorized and directed, as may be necessary or desirable to carry
out the provisions of this chapter, to issue guidelines with
respect to criteria for the establishment, functions, and
procedures of the agency boards ... "). Consequently, we consider §
51.3 to be nothing more than a "general statemen[t] of policy"
designed to inform the public of NPS' views on the proper
application of the
CDA. 5 U. S. C. § 553(b)(3)(A).
Viewed in this light, § 51.3 does not create "adverse effects of
a strictly legal kind," which we have previously required for a
showing of hardship.
Ohio Forestry Assn., Inc., 523 U. S.,
at 733. Just like the Forest Service plan at issue in
Ohio
Forestry, § 51.3 "do[es] not command anyone to do anything or
to refrain from doing anything; [it] do[es] not grant, withhold, or
modify any formal legal license, power, or authority; [it] do[es]
not subject anyone to any civil or criminal liability; [and it]
create[s] no legal rights or obligations."
Ibid.
810
Moreover, § 51.3 does not affect a concessioner's primary
conduct.
Toilet Goods Assn., Inc. v.
Gardner,
387 U. S. 158,
164 (1967);
Ohio Forestry Assn., supra, at 733-734. Unlike
the regulation at issue in
Abbott Laboratories, which
required drug manufacturers to change the labels, advertisements,
and promotional materials they used in marketing prescription drugs
on pain of criminal and civil penalties, see 387 U. S., at 152-153,
the regulation here leaves a concessioner free to conduct its
business as it sees fit. See also
Gardner v.
Toilet Goods
Assn., Inc., 387
U. S. 167, 171 (1967) (regulations governing conditions for use
of color additives in foods, drugs, and cosmetics were
"self-executing" and had "an immediate and substantial impact upon
the respondents").
We have previously found that challenges to regulations similar
to § 51.3 were not ripe for lack of a showing of hardship. In
Toilet Goods Assn., for example, the Food and Drug
Administration (FDA) issued a regulation requiring producers of
color additives to provide FDA employees with access to all
manufacturing facilities, processes, and formulae. 387 U. S., at
161-162. We concluded the case was not ripe for judicial review
because the impact of the regulation could not "be said to be felt
immediately by those subject to it in conducting their day-to-day
affairs" and "no irremediabl[y] adverse consequences tlow[ed] from
requiring a later challenge."
Id., at 164. Indeed, the FDA
regulation was more onerous than § 51.3 because failure to comply
with it resulted in the suspension of the producer's certification
and, consequently, could affect production. See
id., at 165,
and n. 2. Here, by contrast, concessioners suffer no practical harm
as a result of § 51.3. All the regulation does is announce the
position NPS will take with respect to disputes arising out of
concession contracts. While it informs the public of NPS' view that
concessioners are not entitled to take advantage of the provisions
of the
CDA, nothing in the
811
regulation prevents concessioners from following the procedures
set forth in the
CDA once a dispute over a concession
contract actually arises. And it appears that, notwithstanding §
51.3, the IBCA has been quite willing to apply the
CDA to
certain concession contracts.
Watch Hill Concessions, Inc.,
01-1 B. C. A., ~ 31298, pp. 154520-154521 (IBCA 2001) (concluding
that concession contract was subject to the
CDA despite the
contrary language in § 51.3).
Petitioner contends that delaying judicial resolution of this
issue will result in real harm because the applicability
vel
non of the
CDA is one of the factors a concessioner takes
into account when preparing its bid for NPS concession contracts.
See Supplemental Brief for Petitioner 4-6. Petitioner's argument
appears to be that mere uncertainty as to the validity of a legal
rule constitutes a hardship for purposes of the ripeness analysis.
We are not persuaded. If we were to follow petitioner's logic,
courts would soon be overwhelmed with requests for what essentially
would be advisory opinions because most business transactions could
be priced more accurately if even a small portion of existing legal
uncertainties were resolved.4 In short, petitioner has failed
4 Petitioner notes that its complaint challenged not only the
regulation but also two specific prospectuses issued by NPS in late
2000. Thus, petitioner argues, even if the first challenge is not
ripe, the latter two are reviewable under the Tucker Act, 28 U. S.
C. § 1491(b)(1). See Supplemental Brief for Petitioner 6-8.
Petitioner did not seek certiorari review on these issues;
accordingly, we decline to consider them. See this Court's Rule
14.1(a);
Yee v.
Escondido, 503 U. S. 519, 535-536
(1992).
Similarly, JUSTICE BREYER'S reliance on the Tucker Act to show
that the hardship requirement of
Abbott Laboratories v.
Gardner, 387
U. S. 136 (1967), has been satisfied, see
post, at
820-821 (dissenting opinion), is misplaced. The fact that one
"congressional statute" authorizes "immediate judicial relief from
[certain types of] agency determinations,"
post, at 820,
says nothing about whether "immediate judicial review" is advisable
for challenges brought against other types of agency actions based
on a
different statute.
812
STEVENS, J., concurring in judgment
to demonstrate that deferring judicial review will result in
real hardship.
We consider next whether the issue in this case is fit for
review. Although the question presented here is "a purely legal
one" and § 51.3 constitutes "final agency action" within the
meaning of § 10 of the APA, 5 U. S. C. § 704,
Abbott
Laboratories, supra, at 149, we nevertheless believe that
further factual development would "significantly advance our
ability to deal with the legal issues presented,"
Duke Power
Co. v.
Carolina Environmental Study Group, Inc.,
438 U. S. 59, 82
(1978); accord,
Ohio Forestry Assn., Inc., 523 U. S., at
736
737; Toilet Goods Assn., supra, at 163. While the federal
respondents generally argue that NPS was correct to conclude that
the
CDA does not cover concession contracts, they
acknowledge that certain types of concession contracts might come
under the broad language of the
CDA. Brief for Federal
Respondents 33-34. Similarly, while petitioner and respondent
Xanterra Parks & Resorts, LLC, present a facial challenge to §
51.3, both rely on specific characteristics of certain types of
concession contracts to support their positions. See Brief for
Petitioner 21-23, 36; Brief for Respondent Xanterra Parks &
Resorts, LLC, 20, 22. In light of the foregoing, we conclude that
judicial resolution of the question presented here should await a
concrete dispute about a particular concession contract.
***
For the reasons stated above, we vacate the judgment of the
Court of Appeals insofar as it addressed the validity of § 51.3 and
remand the case with instructions to dismiss the case with respect
to this issue.
It is so ordered.
JUSTICE STEVENS, concurring in the judgment.
Petitioner seeks this Court's resolution of the straightforward
legal question whether the Contract Disputes Act of
813
1978 (CDA), 41 U. S. C. § 601
et seq., applies to
concession contracts with the National Park Service. Though this
question is one that would otherwise be appropriate for this Court
to decide, in my view petitioner has not satisfied the threshold
requirement of alleging sufficient injury to invoke federal-court
jurisdiction. If such allegations of injury were present, however,
this case would not raise any of the concerns that the ripeness
doctrine was designed to avoid.
I
The
CDA provides certain significant protections for
private parties contracting with federal agencies. It authorizes
de novo review of a contractor's disputed decision, payment
of prejudgment interest if a dispute with the agency is resolved in
the contractor's favor, and expedited procedures for resolving
minor disputes. §§ 607-612. The value to contractors of these
protections has not been quantified in this case, but the
protections are unquestionably significant.
Ever since the enactment of the
CDA in 1978, the National
Park Service has insisted that the statute does not apply to
contracts with concessionaires who operate restaurants, lodges, and
gift shops in the national parks. See,
e. g., Lodging
of Federal Respondents 1. In its view, the statute applies to
Government contracts involving the procurement of goods or services
that the Government agrees to pay for, not to licenses issued by
the Government to concessionaires who sell goods and services to
the public. After the enactment of the National Parks Omnibus
Management Act of 1998, 16 U. S. C. §§ 5951-5966, the Park Service
issued a regulation restating that position. 36 CFR § 51.3 (2002).
There is nothing tentative or inconclusive about the agency's
position. The promulgation of the regulation indicated that the
agency had determined that a clear statement of its interpretation
of the
CDA would be useful to potential concessionaires
bidding for future contracts. Under the Park Service's view,
814
STEVENS, J., concurring in judgment
nearly 600 concession contracts in 131 national parks fall
outside of the
CDA. Lodging of Federal Respondents 6.
Petitioner is a trade association whose members are parties to
such contracts and periodically enter into negotiations for future
contracts. They are undisputedly interested in knowing whether
disputes that are sure to arise under some of those contracts will
be resolved pursuant to the
CDA procedures or the less
favorable procedures that will apply if the Park Service regulation
is valid.
II
In our leading case discussing the "ripeness doctrine" we
explained that the question whether a controversy is "ripe" for
judicial resolution has a "twofold aspect, requiring us to evaluate
both the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration."
Abbott Laboratories v.
Gardner, 387 U. S. 136, 148-149
(1967). Both aspects of the inquiry involve the exercise of
judgment, rather than the application of a blackletter rule.
The first aspect is the more important and it is satisfied in
this case. The
CDA applies to any express or implied
contract for the procurement of property, services, or
construction. 41 U. S. C. § 602(a). In the view of the Park
Service, a procurement contract is one that obligates the
Government to pay for goods and services that it receives, whereas
concession contracts authorize third parties to provide services to
park area visitors. Petitioner, on the other hand, argues that the
contracts provide for the performance of services that discharge a
public duty even though the Government does not pay the
concessionaires. Whichever view may better reflect the intent of
the Congress that enacted the
CDA, it is perfectly clear
that this question of statutory interpretation is as "fit" for
judicial decision today as it will ever be. Even if there may be a
few marginal cases in which the applicability of the
CDA may
depend on unique facts, the regula-
815
tion's blanket exclusion of concession contracts is either a
correct or an incorrect interpretation of the statute. The issue
has been fully briefed and argued and, in my judgment, is ripe for
decision.
The second aspect of the ripeness inquiry is less clear and less
important. If there were reason to believe that further development
of the facts would clarify the legal question, or that the agency's
view was tentative or apt to be modified, only a strong showing of
hardship to the parties would justify a prompt decision. In this
case, it is probably correct that the hardship associated with a
delayed decision is minimal. On the other hand, as the Park
Service's decision to promulgate the regulation demonstrates,
eliminating the present uncertainty about the applicable dispute
resolution procedures will provide a benefit for all interested
parties. If petitioner had alleged sufficient injury arising from
the Park Service's position, I would favor the exercise of our
discretion to consider the case ripe for decision. Because such an
allegation of injury is absent, however, petitioner does not have
standing to have this claim adjudicated.
III
To establish an Article III case or controversy, a litigant must
establish that he has "standing."
Whitmore v.
Arkansas, 495
U. S. 149, 155 (1990). To have standing, a "plaintiff must
allege personal injury fairly traceable to the defendant's
allegedly unlawful conduct and likely to be redressed by the
requested relief."
Allen v.
Wright, 468 U. S. 737, 751
(1984). This requirement specifically applies to parties
challenging the validity of administrative regulations. See
Sierra Club v.
Morton, 405 U. S. 727, 735
(1972).
In the complaint filed in the District Court, petitioner alleged
that the resolution of the merits of its dispute over the validity
of the Park Service regulation was important, but it failed to
allege that the existence of the regulation had caused any injury
to it or to its members:
816
STEVENS, J., concurring in judgment
"The applicability of the CDA to concession contracts is
important to concessioners because NPS concession contracts are of
lengthy duration, often require significant upfront financial
commitments, and by their terms provide the agency with broad
unilateral discretion to alter many aspects of those contracts over
time. The unlawful decision by the NPS to exempt itself from the
CDA is thus of great importance to the contract solicitation
process." App. 22.
At oral argument, counsel reiterated that the resolution of this
question was "important" and that concessionaires "need to know
now, in terms of deciding whether to bid on certain contracts, what
their rights are under those contracts." Tr. of Oral Arg. 7-8.
After argument, when asked to brief the issue of ripeness,
petitioner stated that its members "need to know
before a
dispute arises-and in fact,
before deciding whether to bid
on a concessions contract-what procedural mechanisms will apply to
contractual disputes," and that "the prices at which concessioners
'compete for Government contract business' would be directly
affected." Supplemental Brief for Petitioner 1, 5 (citations
omitted). It is fair to infer from the record before us, however,
that petitioner's members have bid on, and been awarded, numerous
contracts without having the benefit of a definitive answer to the
important legal question that their complaint has identified.
Neither in its complaint in the District Court nor in its
briefing or argument before this Court has petitioner identified a
specific incident in which the Park Service's regulation caused a
concessionaire to refuse to bid on a contract, to modify its bid,
or to suffer any other specific injury. Rather, petitioner has
focused entirely on the importance of knowing whether the Park
Service's position is valid. While it is no doubt important for
petitioner and its members to know as much as possible about the
future of their business transactions, importance does not
necessarily establish injury.
817
Though some of petitioner's members may well have suffered some
sort of injury from the Park Service's regulation, neither the
allegations of the complaint nor the evidence in the record
identifies any specific injury that would be redressed by a
favorable decision on the merits of the case. Accordingly,
petitioner has no standing to pursue its claim.
For this reason, I concur in the Court's judgment.
JUSTICE BREYER, with whom JUSTICE O'CONNOR joins,
dissenting.
Like the majority, I believe that petitioner National Park
Hospitality Association has standing here to pursue its legal
claim, namely, that the dispute resolution procedures set forth in
the Contract Disputes Act of 1978
(CDA), 41 U. S. C. § 601
et seq., apply to national park concession contracts. But,
unlike the majority, I believe that the question is ripe for our
consideration.
I cannot agree with JUSTICE STEVENS that petitioner lacks
Article III standing to bring suit on behalf of its members. See
ante, at 815-816 and this page (opinion concurring in
judgment). In my view, the National Park Service's definition of
"concession contract" to exclude the CDA's protections (a
definition embodied in the regulation about which petitioner
complains, see 36 CFR § 51.3 (2002)) causes petitioner and its
members "injury in fact."
Lujan v.
Defenders of
Wildlife, 504 U.
S. 555, 560 (1992) (discussing requirements of "injury in
fact," causation, and redressability); see also
Hunt v.
Washington State Apple Advertising Comm'n, 432 U. S. 333, 343 (1977)
(association's standing based on injury to a member).
For one thing, many of petitioner's members are parties to, as
well as potential bidders for, park concession contracts. Lodging
for Federal Respondents 6 (listing 590 concession contracts in 131
parks). Those members will likely find that disputes arise under
the contracts. And in resolving such disputes, the Park Service,
following its regulation, will re-
818
BREYER, J., dissenting
ject the concessioners' entitlement to the significant
protections or financial advantages that the
CDA provides.
See 41 U. S. C. §§ 605-612;
ante, at 813-814 (STEVENS, J.,
concurring in judgment). In the circumstances present here, that
kind of injury, though a future one, is concrete and likely to
occur.
For another thing, the challenged Park Service interpretation
causes a present injury. If the
CDA does not apply to
concession contract disagreements, as the Park Service regulation
declares, then some of petitioner's members must plan now for
higher contract implementation costs. Given the agency's
regulation, bidders will likely be forced to pay more to obtain, or
to retain, a concession contract than they believe the contract is
worth. That is what petitioner argues. Supplemental Brief for
Petitioner 4-6. See also App. to Supplemental Brief for Petitioner
3a-4a. Certain general allegations in the underlying complaints
support this claim. See,
e. g., App. 20-22, ~~ 35,
61-67; Amfac Resorts, L. L. C. Complaint in No. 1:00CV02838
(DC), pp. 4-5, ~ 8 (available in Clerk of Court's case
file);
id., at 31-33, ~~ 102111. Cf.
Amfac Resorts, L.
L. C. v.
United States Dept. of Interior, 282 F.3d
818, 830
(CADC 2002). And several uncontested
circumstances indicate that such allegations are likely to prove
true.
First, as the record makes clear, petitioner has a widespread
membership, and many of its members regularly bid on contracts
that, through cross-references to the Park Service regulation,
embody the Park Service's interpretation. See,
e. g.,
App. 69, 80; Lodging for Federal Respondents 14, 25. See also
Standard Concession Contract, 65 Fed. Reg. 26052, 26063, 26065
(2000); Simplified Concession Contracts,
id., at 44898,
44899-44900, 44910, 44912. Second, related contract solicitations
are similarly widespread and recurring, involving numerous bidders.
Third, after investigation, the relevant congressional committee
found that the "way potential contractors view the
disputes-resolving system influ-
819
ences how, whether, and at what prices they compete for
government contract business." S. Rep. No. 95-1118, p. 4 (1978).
Fourth, the
CDA provides a prevailing contractor with
prejudgment interest, and authorizes expedited procedures. 41 U. S.
C. §§ 607(f), 608, 611. These are factors that make the
inapplicability of the
CDA more costly to successful
bidders. See S. Rep. No. 95-1118, at 2-4;
ante, at 813-814
(STEVENS, J., concurring in judgment).
These circumstances make clear that petitioner's members will
likely suffer a concrete monetary harm, either now or in the
foreseeable future. Such a showing here is sufficient to satisfy
the Constitution's standing requirements. And the threatened
injuries, present and future-monetary harm, injuries to a potential
or actual contractual relationship, and injuries that arguably fall
within the CDA's protective scope-are sufficient to satisfy
"prudential" standing requirements as well.
Federal Election
Comm'n v.
Akins, 524 U. S. 11, 19-20
(1998);
Association of Data Processing Service Organizations,
Inc. v.
Camp, 397 U. S. 150, 153
(1970). Cf.
Columbia Broadcasting System, Inc. v.
United
States, 316 U. S.
407, 421-422 (1942).
Given this threat of immediate concrete harm (primarily in the
form of increased bidding costs), this case is also ripe for
judicial review. As JUSTICE STEVENS explains in Parts I and II of
his opinion, the case now presents a legal issuethe applicability
of the
CDA to concession contracts-that is fit for judicial
determination. That issue is a purely legal one, demanding for its
resolution only use of ordinary judicial interpretive techniques.
See
ante, at 814-815 (opinion concurring in judgment). The
relevant administrative action, i.
e., the agency's
definition of "concession contract" under the National Parks
Omnibus Management Act of 1998, 16 U. S. C. §§ 5951-5966, has been
"formalized,"
Abbott Laboratories v.
Gardner,
387 U. S. 136,
148 (1967). It is embodied in an interpretive regulation issued
after notice and public comment and pursuant to the Department of
the Interior's
820
BREYER, J., dissenting
formal delegation to the National Park Service of its own
statutorily granted rulemaking authority, § 5965;
ante, at
806-807. (Unlike the majority, I would apply to the regulation the
legal label "interpretive rule," not "general statement of policy,"
ante, at 809 (internal 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 its conclusion less deference.) The Park Service's
interpretation is definite and conclusive, not tentative or likely
to change; as the majority concedes, the Park Service's
determination constitutes "final agency action" within the meaning
of the Administrative Procedure Act.
Ante, at 812 (internal
quotation marks omitted).
The only open question concerns the nature of the harm that
refusing judicial review at this time will cause petitioner's
members. See
Abbott Laboratories, supra, at 149. The fact
that concessioners can raise the legal question at a later time,
after a specific contractual dispute arises, see
ante, at
812, militates against finding this case ripe. So too does a
precedential concern: Will present review set a precedent that
leads to premature challenges in other cases where agency
interpretations may be less formal, less final, or less well suited
to immediate judicial determination? See
ante, at
811-812.
But the fact of immediate and particularized (and not totally
reparable) injury during the bidding process offsets the first of
these considerations. And the second is more than offset by a
related congressional statute that specifies that prospective
bidders for Government contracts can obtain immediate judicial
relief from agency determinations that unlawfully threaten
precisely this kind of harm. See 28 U. S. C. § 1491(b)(1) (allowing
prospective bidder to object, for instance, to "solicitation by a
Federal agency for bids ... for a proposed contract" and permitting
review of related allegation of "any ... violation of statute or
regulation in connection with a procurement or a proposed
procurement").
821
See also R. Nash, S. Schooner, & K. O'Brien, The Government
Contracts Reference Book 308, 423 (2d ed. 1998). This statute
authorizes a potential bidder to complain of a proposed contractual
term that, in the bidder's view, is unlawful, say, because it
formally incorporates a regulation that embodies a specific,
allegedly unlawful, remedial requirement. Cf. App. 25, ~~ 114-116
(excerpts from petitioner's complaint making just this claim); App.
to Supplemental Brief for Petitioner 2a, ~~ 121-122 (same). That
being so, i.
e., the present injury in such a case being
identical to the present injury at issue here, I can find no
convincing prudential reason to withhold Administrative Procedure
Act review.
In sum, given this congressional policy, the concrete nature of
the injury asserted by petitioner, and the final nature of the
agency action at issue, I see no good reason to postpone review. I
would find the issue ripe for this Court's consideration. And I
would affirm the decision of the Court of Appeals on the merits,
primarily for the reasons set forth in its opinion as supplemented
here by the Government.
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