(dissenting) .
The first section of the Act of June 30, 1936, sometimes called the Public Contracts Act, 41 U.S.C.A. § 35, requires “in any contract made and entered into by any executive department, independent establishment, or other agency or instrumentality of the United States * * * for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000,” a stipulation “that all persons employed by the contractor in the manufacture or furnishing of the materials, supplies, articles, or equipment used in the performance of the contract will be paid * * * not less than the minimum wages as determined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished under said contract.” With respect to minimum wages in the iron and steel industry, the Secretary of Labor has divided the United States into six “localities.” One “locality” comprises Ohio, Pennsylvania, Delaware, Maryland, Kentucky, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, and Maine, part of West Virginia, and the District of Columbia. The Secretary has determined the prevailing minimum wage in iron and steel, In that locality, to be 62% cents per hour. This minimum prevails in the Pittsburgh and Youngstown districts, where the great bulk of the steel production in the entire area is concentrated; but there are many plants east of the Pittsburgh district, and very few of these pay as much as 62% cents for common labor. Appellants, who have sold iron and steel products to the government in the past, operate plants in eastern Pennsylvania, Maryland, and Connecticut, and pay minimum wages which vary from 52% to 56% cents per hour. Appellants, contending that 14 States are not a “locality” and also that they were not accorded the hearing contemplated by the Act, filed in the court below a bill to compel the Secretary of Labor to withdraw the determination; to enjoin the Director of the Procurement Division of the Treasury Department, and the Secretaries of War, the Navy, the Treasury, the Interior, and the Postmaster General, individually and in their respective official capacities, from giving effect to the determination in the bidding upon and award of public contracts; and for a declaratory judgment that the determination is invalid.
Appellees point out that dictionaries recognize a broad sense of “locality”; that a narrow construction of the word, as applied to steel, would defeat the purpose of the act by enabling low-wage concerns to compete for government contracts with high-wage concerns in the same competitive area; and that it would also make the act nearly meaningless as applied to steel, because in a given neighborhood there is frequently only one steel' concern, which necessarily pays the wages which prevail *645in its own plant. This definition is from the Century Dictionary: “locality * * * Any part of space; a situation; position; particularly, a geographical place or situation ; as, a healthy locality; the locality of a mineral, plant, or animal.” I think the Secretary’s construction of the word is a tenable one in the present context. The cases make it doubtful whether we need consider that question, and they make it clear that if the construction is tenable we should not disturb it. United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 324, 23 S.Ct. 698, 47 L.Ed. 1074; State of Louisiana v. McAdoo, Secretary of the Treasury, 234 U.S. 627, 633, 34 S.Ct. 938, 58 L.Ed. 1506; Adams, Receiver v. Nagle et al., 303 U.S. 532, 542, 543, 58 S.Ct. 687, 82 L.Ed. 999.
I think that, even if the Secretary’s construction of “locality” is not tenable, appellants’ bill was properly dismissed, for several reasons.
(1) I think the suit is in substance against the United States, and therefore not maintainable without its consent. Suits which “would operate to disturb the whole revenue system of the Government” are in effect suits against the United States. Louisiana v. McAdoo, 234 U.S. 627, 632, 34 S.Ct. 938, 940, 58 L.Ed. 1506.70 So are suits which, like this one, would operate to disturb the whole contracting system of the government. It is settled that a suit to require conformity to law in the performance or cancellation of public contracts is a suit against the United States. Wells v. Roper, 246 U.S. 335, 38 S.Ct. 317, 62 L.Ed. 755; Transcontinental & Western Air, Inc., v. Farley, 2 Cir., 71 F.2d 288, certiorari denied 293 U.S. 603, 55 S.Ct. 119, 79 L.Ed. 695; United States ex rel. Shoshone Irrigation Dist. v. Ickes, 63 App.D.C. 167, 70 F.2d 771, certiorari denied 293 U.S. 571, 55 S.Ct. 82, 79 L.Ed. 670; Boeing Air Transport, Inc., v. Farley, 64 App.D.C. 162, 75 F.2d 765, certiorari denied 294 U.S. 728, 55 S.Ct. 637, 79 L.Ed. 1258. No reason appears for distinguishing in this respect a suit, like the present one, to require conformity to law in the process of entering into public contracts. Johnstown Coal & Coke Co., Inc., v. Wilson, D.C., 60 F.2d 557.
The heads of six executive departments of the government are here sued in their official capacities. “That the United States is not named on the record as a party is true. But the question whether it is in legal effect a party to the controversy is not always determined by the fact that it is not named as a party on the record, but by the effect of the judgment or decree which can here be rendered.”71 A judgment or decree in favor of the appellants will control the terms on which the United States may enter into contracts for the necessary work of the Departments of Labor, War, Navy, the Treasury, the Interior, and the Post Office. It will thereby regulate the conduct by the United States of vast activities of unquestioned constitutionality and legality. Although it will not prevent those contracts from being made and those activities from being carried on, it will prevent them from being made and carried on on certain terms. It will have a far larger effect upon the United States than the decree which was sought and refused in Wells v. Roper, supra, for that decree would have controlled only a single contract.
The appellants contend that the particular action which the Secretary of Labor has taken and the other appellees propose to take is unlawful. But it is not contended that the Secretary of Labor has no authority to make minimum wage determinations with respect to public contracts for iron and steel, or that the other appellees have no authority to make public contracts for iron and steel. The appellants, then, ask the court to regulate the discharge by the appropriate government officers of their lawful and vital function of supplying the needs of the government. This is not a case in which, if the appellants are right as to the law, the United States has no occasion to act in the premises ; there is occasion, on any view of the law, for the United States to act and for *646these appellees to act in its behalf. The appellants’ complaint is merely that appellees act illegally instead of legally. The fact that they may be acting illegally does not make the suit any the less a suit against the United States. On the contrary: if they were acting legally they could, of course, successfully defend their action on that ground, and the immunity of the United States from suit would be comparatively unimportant. It is only when, as here, the government’s representatives may be acting illegally that the rule which forbids a suit against the United States has any great significance. In most of the suits which have been decided to be suits against the United States, and therefore not maintainable without its consent, the courts have either assumed that the defendant officers were acting illegally or have refused to consider the alleged illegality of their action.72 Where, as in Wells v. Roper, the defendants have declined to deal contractually with the plaintiff on behalf of the United States, the immunity of the United States has barred the suit, however lawless the action of the defendants may have been. In Wells v. Roper the plaintiff had a contract with the United States; here, the plaintiffs hope to make contracts with the United ‘ States. The difference does not strengthen their position.
One who seeks public employment is in a different position from one who seeks private employment. In Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283, the Supreme Court held that a state statute forbidding employment of foreigners in private industry was unconstitutional; but four weeks later, in Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206, Ann.Cas.1917B, 287, it held that a state statute forbidding employment of foreigners on public works was valid. The ground was that the state could freely determine whom it would employ. The privilege of seeking employment by the sovereign is not, like the privilege of seeking private employment, a constitutional right. Private employment, if obtained, results in claims which are constitutionally entitled to enforcement; but employment by the United States, if obtained, results in no enforcible claims unless the United States chooses to allow them. It is anomalous to enforce against the sovereign, without its consent, a privilege of seeking to acquire claims against it which would themselves be unenforcible without its consent. I know of no case in which it has been held that the courts may, without congressional authorization, inquire whether officers of the United States are exceeding their authority, when the only threatened damage consists in the loss of an opportunity to make money by dealing with the United States.
There are, of course, many cases in which, without the sovereign’s consent, the action of the sovereign’s officers in its behalf has been held controllable by the courts, in apparent derogation of the sovereign’s immunity. But in those cases judicial control of the defendant officers was necessary to the protection of the plaintiff’s constitutional rights or, at least, of “rights” of a well-established character, i. e., interests to the protection of which, apart from the sovereign’s immunity, the plaintiff was clearly entitled. Examples are United States v. Lee,73 a suit to recover the plaintiff’s land, unlawfully withheld by government officers; Ex parte Young,74 which restrained state officers from enforcing confiscatory railroad rates; Waite v. Macy,75 which protected plaintiff’s right to import harmless and unforbidden tea; and American School of Magnetic Healing v. McAnnulty,76 which protected plaintiff’s right to use the mails.
(2) Statutes in regard to the making of government contracts are intended for the benefit of the government, not of contractors or bidders. American Smelting & Refining Co. v. United States, 259 U.S. 75, 78, 42 S.Ct. 420, 66 L.Ed. 833. It follows that even an actual bidder, to say nothing of a prospective bidder, cannot complain of the failure of public officers to comply with statutes in regard to the *647making of contracts. Colorado Paving Co. v. Murphy, 8 Cir., 78 F. 28, 37 L.R.A. 630, (opinion by Judge Sanborn), appeal dismissed, 166 U.S. 719, 17 S.Ct. 997, 41 L.Ed. 1188; Molloy v. City of New Rochelle, 198 N.Y. 402, 92 N.E. 94, 30 L.R.A.,N.S., 126; Talbot Paving Co. v. City of Detroit, 109 Mich. 657, 67 N.W. §79, 93 Am.St.Rep. 604; O’Brien v. Carney, D.C., 6 F.Supp. 761.77 In this aspect the case is much as if a private corporation’s agent should propose to insert in contracts a term inconsistent with his principal’s instructions, and third persons wishing to contract with the principal on the principal’s terms should thereupon ask a court to compel the agent to conform to them. The principal is the only person who can require the agent to carry out his instructions.
(3) If one of appellants were to be the sole bidder for any particular contract, the wage determination could do it no substantial harm; it would have only to pay the increased wage, and increase its bid proportionately. That, of course, is not the case. Appellants are subject to competition; and they anticipate that, if the alleged illegal determination is enforced, they will be injured by the competition of other concerns better able to pay the required wage. As they express it, “If the plaintiffs are required to pay the minimum wages fixed in the Determination, there is grave danger that they will no longer be able successfully to compete for Government contracts since large, fully integrated companies enjoying more favorable geographic locations from the standpoint of proximity 'to sources of supply for the raw materials used by them, proximity to the markets for their products and freight rate differentials should be able to underbid plaintiffs, if the plaintiffs must pay the same minimum wages as such competitors are now paying.” But there is no contention that it is illegal to pay, or to promise to pay, 62% cents per hour. Accordingly, the competition from which appellants anticipate injury will be lawful. And it is settled that one cannot complain of or prevent damage by lawful competition, even though the competition or its damaging character may be due to the action by officers of the United States which is attacked as lawless. Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374; Tennessee Electric Power Co. v. Tennessee Valley Authority] 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543; Louisiana v. McAdoo, 234 U.S. 627, 631, 34 S.Ct. 938, 58 L.Ed. 1506.
(4) While it is contended that one of appellants has lost one contract, the injury which appellants in general anticipate is too contingent to qualify as irreparable injury and support an injunction. Whatever happens ■ to the Determination, they may not choose to bid, may not be the lowest bidders if they do, may not be awarded a contract if they are the lowest bidders, and may not profit from a contract if they get one. Ames & Company v. Wallace, 1 S.Ct.D.C.,N.S., 238.78
I think the decree of the District Court dismissing the bill should be affirmed.
So of a suit “to interfere with its management and disposition of the lands or the funds” which the United States holds in trust. Morrison v. Work, 266 U.S. 481, 485, 45 S.Ct. 149, 151, 69 L.Ed. 394. So of a suit to restrain the use in a post office of leased machines which infringe plaintiff’s patent. International Postal Supply Co. v. Bruce, 194 U.S. 601, 24 S.Ct. 820, 48 L.Ed. 1134. So of a suit to set aside an order of the Interstate Commerce Commission refusing an increase of railway mail pay. United States v. Griffin, 303 U.S. 226, 238, 58 S.Ct. 601, 82 L.Ed. 764.
Louisiana v. McAdoo, 234 U.S. 627, 629, 34 S.Ct. 938, 939, 58 L.Ed. 1506.
e.g., International Postal Supply Co. v. Bruce, 194 U.S. 601, 24 S.Ct. 820, 48 L.Ed. 1134; Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506; Wells v. Roper, 246 U.S. 335, 38 S.Ct. 317, 62 L.Ed. 755; United States v. Griffin, 303 U.S. 226, 58 S.Ct. 601, 82 L.Ed. 764.
106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171.
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764.
246 U.S. 608, 38 S.Ct. 395, 62 L.Ed. 892.
187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90.
There are cases in some states to the contrary; e.g., Boren & Guckes v. Commissioners of Darke County, 21 Ohio St. 311; St. Landry Lumber Co., Ltd., v. Mayor, etc., of Town of Bunkie, 155 La. 892, 99 So. 687.
Affirmed and appeal dismissed, 65 App.D.C. 150, 81 F.2d 414.
The lack of irreparable injury is not in itself an answer to plaintiffs’ demand for a declaratory judgment. Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249, 264, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191.