Opinion
Civil Action No. 3:99CV-721-S
August 7, 2000
MEMORANDUM OPINION
This matter is before the Court on motion of the defendants to dismiss for lack of subject matter jurisdiction. For the reasons set forth below, the defendants' motion will be granted.
FACTS
The plaintiffs are current civilian employees of Fort Knox and Fort McCoy, and the American Federation of Government Employees ("AFGE"), an international union that represents about 700,000 federal government employees. Pursuant to various federal statutes and regulations, it is the policy of the United States to rely on the private sector for goods and services "whenever proper and economical" to do so. Circular Number A-76 issued by the Office of Management and Budget in 1983 requires competitive cost comparisons between the public and private sectors in situations where the private sector performance of a given commercial type activity is permissible. Pursuant to Circular A-76, commercial activities should be performed by the entity, whether federal governmental or private, that can perform them the most economically.
Information or data which describes the organization that the government plans to use to formulate its bid in these competitions, called the Most Efficient Organization ("MEO"), is considered procurement sensitive. The plaintiffs allege that an Internet website maintained by the defendants is publically accessible and contains or will contain information on the organization and personnel found at the facilities of the Department of the Army. They allege that this website reveals a de facto MEO or a very close approximation of a de facto MEO for various workloads at Fort Knox and Fort McCoy that are now or will be subject to a Circular A-76 bid competition. The website is known as "FASCLASS," an acronym for "Fully Automated System for Classification."
The plaintiffs allege that FASCLASS compromises their ability to compete effectively with private sector bidders for the future performance of work currently being performed by federal employees because the information available could enable private contractors to calculate an organization's MEO, predict what the government's bid will be, and underbid that bid just enough to win the competition. It is undisputed that no bid, private or public, has been accepted to date by the Army under the competitive process which would affect the plaintiffs. Furthermore, the plaintiffs are currently employed by the Army, and they have suffered no reduction in workforce or loss of salary or benefits.
The plaintiffs assert their claims for relief under the Administrative Procedures Act ("APA"), 5 U.S.C. § 702. The defendants argue that this Court lacks subject matter jurisdiction because the plaintiffs have suffered no "injury-in-fact," and, thus, have no Article III standing.
DISCUSSION
For purposes of ruling on a motion to dismiss for lack of standing, a complaint must be viewed in a light most favorable to the plaintiffs; all material allegations of the complaint must be accepted as true. See Warth v. Seldin, 422 U.S. 490, 501 (1975). Plaintiffs, however, bear the burden of persuading the court that they have subject matter jurisdiction. See Rogers v. Stratton, Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986).
To establish Article III standing to sue in federal court, a plaintiff must show that (1) he or she has suffered an "injury-in-fact"; (2) there is a causal connection between the injury and the conduct complained of; and (3) the injury will likely be redressed by a favorable decision. See American Fed'n of Gov't Employees v. Clinton, 180 F.3d 727, 728 (6th Cir. 1999) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
As evidence of "injury-in-fact," the plaintiffs allege that the revelation of the MEO data on FASCLASS will cause them to lose their jobs, salary and benefits. In addition to their current employment, the plaintiffs allege harm to future employment prospects based on an anticipated loss of the opportunity to compete fairly with private contractors. Viewing all the facts in a light most favorable to the plaintiffs, we believe that these asserted injuries are too speculative to establish Article III standing.
The plaintiffs alleged injuries and arguments in this case are very similar to those recently rejected by the Sixth Circuit Court of Appeals in American Fed'n of Gov't Employees v. Clinton, 180 F.3d 727 (1999). The plaintiffs in Clinton, former and current employees of the Air Force, argued that if proper procedures had been followed, they would have had a greater chance of remaining employed. The Sixth Circuit first noted that "a plaintiff's injury must be `concrete and particularized.'" Id. at 730 (quoting Lujan, 504 U.S. at 560). Further, "the alleged injury must be `actual or imminent, not conjectural or hypothetical.'" Id. In affirming the district court's dismissal for lack of subject matter jurisdiction, the Sixth Circuit specifically held:
We find the asserted injuries too speculative, and insufficiently concrete and particularized, to establish Article III standing. If the injuries at issue are the loss or possible loss of jobs, it is difficult to show that those injuries are "caused" by the failure to follow prescribed procedures, or that they would be redressable by the relief the plaintiffs seek. . . . If the injury at issue is simply harm to the plaintiffs' employment prospects, that injury is insufficiently concrete and particularized to establish Article III standing. Numerous acts and facts may injure employment "prospects" in some unknowable and speculative fashion, but something more is needed to establish standing to sue.Id. at 731.
The plaintiffs in this case present arguably less injury than those in Clinton because none of the plaintiffs here have suffered any loss of even salary or benefits, much less employment. As noted by the defendants, even if the information alleged to be posted on FASCLASS was removed, the plaintiffs could still lose bids for projects and, thus, jobs to private contractors. On the other hand, the plaintiffs could also win the competition. Thus, because the plaintiff's alleged injuries tend to involve a potential loss of job benefits, not an actual loss, the plaintiff's have not met their burden of showing an "injury-in-fact" sufficient to survive the defendants' motion to dismiss. Moreover, the plaintiffs here also fail to show that any future injury will be caused by, or even traceable to, the alleged failure of the Army to follow procurement regulations by posting this information on FASCLASS. Thus, the plaintiffs cannot meet the third standing requirement that a favorable decision of this Court would redress their injury or any possible future injury.
AFGE brought suit in its representational capacity in this matter. "An organizational plaintiff . . . may have standing to sue on its own behalf `to vindicate whatever rights and immunities the association itself may enjoy' or, under proper conditions, to sue on behalf of its members asserting members' individual rights." Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir. 1997) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)). AFGE must show that (1) at least one of its members has standing to sue in his or her own right; (2) the interests the suit seeks to vindicate are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. See Clinton, 180 F.3d at 733 (citation omitted). Because none of the individual employees has established standing to sue, AFGE lacks standing also.
Viewing the complaint in a light most favorable to the plaintiffs, the plaintiffs' claims do not satisfy the requirements for Article III standing. The defendants' motion to dismiss for lack of subject matter jurisdiction will be granted. A separate order will be entered herein this date in accordance with this opinion.
IT IS SO ORDERED this _____ day of ____________________, 2000.
ORDER
Motion having been made by the defendant to dismiss for lack of subject matter jurisdiction, and for other reasons set forth in the memorandum opinion entered herein this date, and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the defendant's motion is GRANTED.