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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2003 Decided February 21, 2003
No. 01-5417
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, ET AL.,
APPELLANTS
v.
DONALD H. RUMSFELD, SECRETARY OF THE
UNITED STATES DEPARTMENT OF DEFENSE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv03001)
Sandra Sue Adams-Choate argued the cause for appel-
lants. With her on the briefs was Mark Roth. Charles A.
Hobbie entered an appearance.
Joel E. Wilson, Special Assistant United States Attorney,
argued the cause for appellees. With him on the brief were
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Roscoe C. Howard, Jr., United States Attorney, and R. Craig
Lawrence, Assistant United States Attorney. Thomas M.
Ray, Assistant United States Attorney, entered an appear-
ance.
Before: EDWARDS and SENTELLE, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: Appellants American Federation
of Government Employees, AFL-CIO, et al., appeal from a
judgment of the District Court dismissing their claims that
the Redstone Arsenal Army installation has failed to adhere
to instructions, directives, and regulations promulgated by
the Department of Defense (‘‘DOD’’), Department of the
Army (‘‘Army’’), and Office of Personnel Management
(‘‘OPM’’), pursuant to the Occupational Safety and Health Act
(‘‘OSHA’’), 29 U.S.C. §§ 651-678. The District Court held
that appellants lacked standing, and that their claims were
not ripe for review. See Am. Fed’n of Gov’t Employees v.
Rumsfeld, No. 00-3001 (D.D.C. Oct. 25, 2001), Joint Appendix
(‘‘J.A.’’) 7. Appellees also urge that appellants’ claims are
precluded by the Civil Service Reform Act, Pub. L. No.
95–454, 92 Stat. 1111 (codified in scattered sections of 5
U.S.C.). Because we hold that appellants’ action fails for
want of prudential standing, we do not reach the ripeness and
statutory preclusion issues.
I. BACKGROUND
A. Statutory and Regulatory Background
OSHA requires heads of federal agencies to ‘‘establish and
maintain an effective and comprehensive safety and health
program.’’ 29 U.S.C. § 668(a). In compliance with this
statutory provision, DOD, Army, and OPM have implemented
various directives, instructions, and regulations. For exam-
ple, DOD Directive 1000.3, J.A. 33-36, mandates, inter alia,
that the military service components, including the Depart-
ment of the Army, implement ‘‘[c]omprehensive programs TTT
to TTT [p]rotect DoD personnel from accidental death, injury,
3
or occupational illness,’’ id. § 3.1, J.A. 34. Pursuant to this
directive, DOD has issued Instruction 6055.1, J.A. 59-103,
which establishes the Department’s occupational safety and
health program. The safety and health program applies to ‘‘all
DoD personnel and operations worldwide during peacetime
and military deployments.’’ Id. § 2.2, J.A. 60.
Instruction 6055.6 of DOD’s program outlines policies relat-
ed to fire prevention and suppression, training, fire appara-
tus, fire administration, emergency medical response, rescue,
and hazardous emergency response. See J.A. 37-58. The
policies mandate that fire departments on military installa-
tions ‘‘shall be prepared TTT to respond TTT to emergencies
involving facilities, structures, aircraft, transportation equip-
ment, hazardous materials, and both natural and man-made
disasters (including acts of terrorism).’’ Id. § E2.5.2, J.A. 46.
In particular, the Instruction requires that every installation
complete a comprehensive analysis of all structures located
within its boundaries in order to assess how much ‘‘fire flow’’
(water pumped at x gallons per minute) is necessary to
mitigate damages and loss. Id. § E2.5.6, J.A. 47. The
installation must then gather and examine data relating to the
time and distance required for a single piece of apparatus to
respond to a fire or other emergency at each structure on the
installation. Id. § E2.5.3, J.A. 46. Based on this analysis,
the installation determines the number and location of fire
companies needed to comply with DOD’s directive and in-
structions to insure that individuals are adequately protected
from fire and other emergencies.
Army Regulation (‘‘AR’’) 420-90 was issued by Army to
implement DOD Instruction 6055.6. See J.A. 105-36. The
provisions of AR 420-90 are substantively the same as those
in DOD Instruction 6055.6 with respect to the issues raised
by appellants.
Also at issue in this case are regulations promulgated by
OPM concerning the appointment of nonpermanent employ-
ees (‘‘term employees’’) by agencies. See 5 C.F.R. § 316.301-
.304; 5 C.F.R. § 316.401-.403. These regulations were pro-
mulgated pursuant to 5 U.S.C. §§ 3301-3302.
4
B. Procedural History
Appellants are unincorporated labor unions and individuals
who are employed at Redstone Arsenal, an Army installation
located near Huntsville, Alabama. Redstone Arsenal consists
of more than 12 million square feet of buildings. Its tenant,
the National Aeronautics and Space Administration’s Mar-
shall Space Flight Center, occupies an additional four million
square feet of building space. Appellants assert that many of
the structures at Redstone Arsenal are deemed extra hazard-
ous because they house numerous fuels, hydraulic fluid, mo-
torized missile launchers, explosives, radiation hazards, and a
variety of hazardous and/or explosive chemicals.
Appellants allege that Redstone Arsenal is not in compli-
ance with the applicable health and safety instructions, di-
rectives, and regulations. In particular, they argue that
Redstone Arsenal has failed to comply with the risk analysis
mandated by DOD Instruction 6055.6 and AR 420-90. Appel-
lants contend that Redstone Arsenal’s risk analysis concluded
that the installation needed five fire companies, and that five
companies require 55 firefighters plus additional administra-
tive and supervisory staff. Redstone Arsenal currently main-
tains only three fire companies, and appellants claim that
those three companies are not fully staffed.
Additionally, some of the firefighter positions are staffed by
term employees, many of whom appellants allege do not meet
the basic requirements for federal firefighters employed by
DOD. Appellants claim that this use of term employees is
contrary to the intent of OPM’s regulations. They contend
that ‘‘[w]hen a portion of the team is employed for a limited
period of time and the make-up of the team thereby is
constantly changing, not only is its effectiveness diminished
but the permanent firefighter employees are at risk in the
performance of their jobTTTT’’ Br. of Appellants at 5.
Because of these perceived regulatory violations, the Amer-
ican Federation of Government Employees, Local 1858, filed
an Unfair Labor Practice Charge against Redstone Arsenal
on June 4, 1998. On February 26, 1999, the Regional Di-
rector of the Federal Labor Relations Authority (‘‘FLRA’’)
5
declined to issue a complaint. The union appealed to the
FLRA and, on June 29, 1999, the FLRA affirmed the Region-
al Director’s decision.
Thereafter, appellants brought suit in District Court. They
sought an order requiring appellees at Redstone Arsenal to
comply with DOD Instruction 6055.6 and AR 420-90, and
directing the Army to staff Redstone Arsenal’s fire depart-
ment with permanent, rather than term, employees. Appel-
lees moved to dismiss, and the District Court granted their
motion on October 26, 2001. The court held that appellants
lacked standing and that, in any event, the case was not ripe
for review. See Am. Fed’n of Gov’t Employees, No. 00-3001,
J.A. 7. This appeal followed.
II. ANALYSIS
Because appellants lack prudential standing, we affirm the
judgment of the District Court. We review the dismissal of
appellants’ claims de novo, Sloan v. United States Dep’t of
Housing & Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001),
and ‘‘ ‘accept as true all material allegations in the com-
plaint.’ ’’ Action for Children’s Television v. FCC, 59 F.3d
1249, 1258 (D.C. Cir. 1995) (quoting Metro. Washington Air-
ports Auth. v. Citizens for the Abatement of Aircraft Noise,
Inc., 501 U.S. 252, 264 (1991)).
The Supreme Court has enunciated two principal forms of
standing: ‘‘Article III (case or controversy)’’ and ‘‘pruden-
tial.’’ See Mudd v. White, 309 F.3d 819, 823 (D.C. Cir. 2002)
(explaining the separate categories of constitutional and pru-
dential requirements). Prudential standing, unlike Article III
standing, is ‘‘based not on the Constitution, but instead on
prudent judicial administration.’’ ERWIN CHEMERINSKY, FEDER-
AL JURISDICTION 60 (3d ed. 1999).
In Mudd, we recently explained the differences
between these standing doctrines:
[Article III standing], which is jurisdictional and
cannot be modified by Congress, entails three re-
quirements:
6
First, the plaintiff must have suffered an
‘‘injury in fact’’—an invasion of a legally pro-
tected interest which is (a) concrete and particu-
larized, and (b) ‘‘actual or imminent, not ‘conjec-
tural’ or ‘hypothetical.’ ’’ Second, there must be
a causal connection between the injury and the
conduct complained of—the injury has to be
‘‘fairly TTT trace[able] to the challenged action
of the defendant, and not TTT th[e] result [of]
the independent action of some third party not
before the court.’’ Third, it must be ‘‘likely,’’ as
opposed to merely ‘‘speculative,’’ that the injury
will be ‘‘redressed by a favorable decision.’’
The party invoking federal jurisdiction bears
the burden of establishing these elements.
Since they are not mere pleading requirements
but rather an indispensable part of the plain-
tiff’s case, each element must be supported in
the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the
successive stages of the litigation.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,
112 S. Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (cita-
tions omitted).
Prudential standing ‘‘denies a right of review if
the plaintiff’s interests are so marginally related to
or inconsistent with the purposes implicit in the
statute that it cannot reasonably be assumed that
Congress intended to permit the suit.’’ Clarke v.
Sec. Indus. Ass’n, 479 U.S. 388, 399, 107 S. Ct. 750,
757, 93 L.Ed.2d 757 (1987). The Court has amplified
the doctrine, as follows:
In addition to the immutable requirements of
Article III, ‘‘the federal judiciary has also ad-
hered to a set of prudential principles that bear
on the question of standing.’’ Like their consti-
tutional counterparts, these ‘‘judicially self-
7
imposed limits on the exercise of federal juris-
diction’’ are ‘‘founded in concern about the prop-
er—and properly limited—role of the courts in
a democratic society’’; but unlike their constitu-
tional counterparts, they can be modified or
abrogated by Congress. Numbered among
these prudential requirements is the doctrine of
particular concern in this case: that a plaintiff’s
grievance must arguably fall within the zone of
interests protected or regulated by the statuto-
ry provision or constitutional guarantee invoked
in the suit.
Bennett v. Spear, 520 U.S. 154, 162, 117 S. Ct. 1154,
1161, 137 L.Ed.2d 281 (1997) (citations omitted).
Mudd, 309 F.3d at 823.
Appellants have an insurmountable hurdle with respect to
their OSHA claims: their claims, resting on 29 U.S.C. § 668,
are not ‘‘arguably within the zone of interests to be protected
or regulated by the statute TTT in question.’’ Ass’n of Data
Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970).
Because Congress has neither modified nor eliminated the
‘‘zone of interests’’ requirement with respect to claims arising
under § 668, ‘‘appellant[s] must show that [their] asserted
interest is among the group of claims that is envisioned by
the relevant statute.’’ Mudd, 309 F.3d at 824; see also
Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 870-
71 (D.C. Cir. 2001). ‘‘[They] fail[ ] this test if [their] interests
are so marginally related to or inconsistent with the implicit
purposes in the statute ‘that it cannot reasonably be assumed
that Congress intended to permit the suit.’ ’’ Mudd, 309 F.3d
at 824 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. at 399).
Here, it cannot reasonably be inferred that Congress intend-
ed to permit this law suit under OSHA, because appellants
have no basis upon which to rest a private right of action
under OSHA. See Mudd, 309 F.3d at 824 (finding that the
plaintiff lacked prudential standing because he had no private
cause of action under the relevant statute).
OSHA provides:
8
Nothing in this chapter shall be construed to super-
sede or in any manner affect any workmen’s com-
pensation law or to enlarge or diminish or affect in
any manner the common law or statutory rights,
duties, or liabilities of employers and employees
under any law with respect to injuries, diseases, or
death of employees arising out of, or in the course
of, employment.
29 U.S.C. § 653(b)(4) (emphasis added). Pursuant to this
provision, it is now well established that ‘‘OSHA violations do
not themselves constitute a private cause of action for
breach.’’ Crane v. Conoco, Inc., 41 F.3d 547, 553 (9th Cir.
1994); see also United Steelworkers of Am. v. Marshall, 647
F.2d 1189, 1235-36 (D.C. Cir. 1980); Ries v. Nat’l R.R.
Passenger Corp., 960 F.2d 1156, 1164 (3d Cir. 1992); Jeter v.
St. Regis Paper Co., 507 F.2d 973, 976-77 (5th Cir. 1975);
Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323, 1323 (4th Cir.
1974) (per curiam); Russell v. Bartley, 494 F.2d 334, 336 (6th
Cir. 1974). Moreover, this court has affirmed a judgment
rejecting private rights of action under OSHA against federal
employers. See Fed. Employees for Non-Smokers’ Rights v.
United States, 446 F. Supp. 181, 183 (D.D.C. 1978), aff’d, 598
F.2d 310 (D.C. Cir. 1979). The District Court’s opinion in
that case offered reasoning that is perfectly on point here:
[T]he enforcement scheme of the OSH Act further
indicates the congressional intent not to allow em-
ployees to bring an action against a federal agency
as an employer. The Act establishes an elaborate
enforcement procedure in 29 U.S.C. § 659 that the
Secretary of Labor may use against an ‘‘employer.’’
However, the term ‘‘employer’’ does not include the
United States. 29 U.S.C. § 652(5). Therefore, al-
though 29 U.S.C. § 668(a) does require federal agen-
cies to ‘‘provide safe and healthful places and condi-
tions of employment,’’ the Act confers no authority
upon the Secretary to take enforcement action
against federal agencies. The reason for this is that
the federal agency area is one ‘‘in which ordinary
enforcement and penalty provisions are hardly appli-
9
cable.’’ H.R. Rep. No. 90-1720, 90th Cong., 2d Sess.
20 (1968). If Congress did not intend the Secretary
of Labor to enforce the OSH Act against federal
agencies, then, a fortiori, Congress did not intend
private litigants to enforce the OSH Act against
federal agencies. Accordingly, the Court finds that
the OSH Act does not create a private right of action
against federal agencies.
446 F. Supp. at 183.
Nor does 5 U.S.C. §§ 3301-3302, pursuant to which the
OPM regulations were enacted, place appellants within ‘‘the
group of claims that is envisioned by [a] relevant statute.’’
There is simply no reason to believe that Congress intended
that federal employees who have been hired and treated
lawfully would be entitled to sue over the procedures used to
hire coworkers. The plain language of these statutory provi-
sions does not at all suggest such a cause of action. See id.
§ 3301 (providing that the President may ‘‘prescribe such
regulations for the admission of individuals into the civil
service in the executive branch as will best promote the
efficiency of that service’’); § 3302 (authorizing the President
to ‘‘prescribe rules governing the competitive service’’). In
short, appellants have failed to demonstrate that Congress,
through 5 U.S.C. §§ 3301-3302, or any other statutory enact-
ment, intended to confer rights on federal employees autho-
rizing them to contest decisions regarding the appointment of
term employees. The cited statutory provisions were merely
intended to facilitate the streamlining of the civil service
appointment system, not to protect individual employees from
comparatively less well trained and less experienced term
employees.
Appellants try to overcome the legal hurdles to standing by
arguing that this suit arises under § 702 of the Administra-
tive Procedure Act, see 5 U.S.C. § 702, not OSHA or 5 U.S.C.
§§ 3301-3302. Section 702 provides standing to ‘‘[a] person
suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of
a relevant statute.’’ Appellants argue that this provision
10
allows them to sue appellees for violations of DOD Instruction
6055.6, AR 420-90, and the OPM regulations governing term
employees. This argument fails, because appellants have no
private right of action under the ‘‘relevant statute,’’ i.e.,
OSHA. As we noted in National Federation of Government
Employees v. Cheney, 883 F.2d 1038 (1989):
The issue is not whether appellants’ interests are
within the zone of interest of [an] OMB Circular TTT;
section 702 clearly requires that the party seeking
relief be ‘‘legal[ly] wrong[ed] TTT, or adversely af-
fected or aggrieved TTT within the meaning of a
relevant statute.’’ 5 U.S.C. § 702 (emphasis added).
The Circular is not a statute, see, e.g., Ketler, Feder-
al Employee Challenges to Contracting Out: Is
There a Viable Forum?, 111 MILITARY L.REV. 103,
110 (1986) (‘‘Circular A-76 promulgates executive
branch managerial policy’’), and, although promul-
gated pursuant to congressional authority, the Cir-
cular itself cannot grant standing.
Id. at 1043. The instructions, directives, and regulations at
issue here are not statutes, and thus cannot confer standing
upon appellants.
III. CONCLUSION
For the foregoing reasons, the judgment of the District
Court is affirmed.