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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 2003 Decided June 6, 2003
No. 02-5142
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL–CIO, ET AL.,
APPELLANTS
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(00cv00936)
Anne M. Wagner argued the cause for appellants. With
her on the brief was Mark Roth.
Sarah E. Harrington, Attorney, U.S. Department of Jus-
tice, argued the cause for the federal appellees. With her on
the brief was Mark L. Gross, Attorney.
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
Harvey A. Levin argued the cause and filed the brief for
appellees Chugach Management Services Joint Venture, et al.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Section 8014 of the Defense
Appropriations Act for fiscal year 2000 granted an outsourc-
ing preference for firms ‘‘under 51 percent Native American
ownership,’’ Pub. L. No. 106–79, § 8014(3), 113 Stat. 1212,
1234 (1999). The question is whether this preference consti-
tuted racial discrimination in violation of the Fifth Amend-
ment’s Due Process Clause.
Plaintiffs are the American Federation of Government Em-
ployees, AFL–CIO; an affiliated local union representing
civilian Defense Department employees at the Kirtland Air
Force Base in New Mexico; and two civilian Defense Depart-
ment employees who were allegedly displaced when the Air
Force, invoking § 8014(3), awarded a contract to Chugach
Management Services Joint Venture in July 2000 to perform
maintenance work at the base. The contract was for one
year, with nine one-year options to renew. Chugach is a joint
venture of Chugach Management Services, Inc., and Alutiiq
Management Services, LLC. Chugach Management Services
is a wholly owned subsidiary of Chugach Alaska Corporation,
one of the Alaska Native Corporations established under the
Alaska Native Claims Settlement Act. See 43 U.S.C.
§ 1606(a)(9). Alutiiq is a wholly owned subsidiary of Afognak
Village Corporation, one of the village corporations formed
pursuant to that legislation. See 43 U.S.C. §§ 1607,
1610(b)(1). Both Chugach Alaska Corporation and Afognak
Village Corporation are federally recognized Indian tribes.
25 U.S.C. § 450b(e). Their joint venture thus qualified for
special treatment under § 8014(3) of the FY 2000 appropria-
tions act. The nature of the special treatment is as follows.
The FY 2000 appropriations act prohibited the Defense
Department from using appropriated funds to pay private
contractors for performing work previously done by more
3
than ten government employees unless the Department first
performed a ‘‘most efficient and cost-effective organization
analysis’’ and certified the analysis to the House and Senate
Committees on Appropriations. Department of Defense Ap-
propriations Act, 2000, Pub. L. No. 106–79, § 8014, 113 Stat.
1212, 1234 (1999). This provision contained an exception for a
‘‘commercial or industrial type function of the Department of
Defense’’ that was ‘‘planned to be converted to performance
by a qualified firm under 51 percent Native American owner-
ship.’’ Id. § 8014(3), 113 Stat. 1234. A similar exception first
appeared in the Defense Appropriations Act for fiscal year
1990; appropriations acts for fiscal years 1991 through 1999
contained similar language. See Pub. L. No. 101–165, § 9036,
103 Stat. 1112, 1137 (1989) (FY 1990); Pub. L. No. 101–511,
§ 8026, 104 Stat. 1856, 1880 (1990) (FY 1991); Pub. L. No.
102–172, § 8026, 105 Stat. 1150, 1177 (1991) (FY 1992); Pub.
L. No. 102–396, § 9026, 106 Stat. 1876, 1906 (1992) (FY 1993);
Pub. L. No. 103–139, § 8022, 107 Stat. 1418, 1442 (1993) (FY
1994); Pub. L. No. 103–335, § 8020, 108 Stat. 2599, 2621
(1994) (FY 1995); Pub. L. No. 104–61, § 8020, 109 Stat. 636,
656 (1995) (FY 1996); Pub. L. No. 104–208, § 8015, 110 Stat.
3009, 3009–91 (1996) (FY 1997); Pub. L. No. 105–56, § 8014,
111 Stat. 1203, 1223 (1997) (FY 1998); Pub. L. No. 105–262,
§ 8014, 112 Stat. 2279, 2300 (1998) (FY 1999).
The Chugach contract at Kirtland was the only one the Air
Force awarded pursuant to § 8014(3) of the FY 2000 appro-
priations act, and so far as the parties know, the only such
contract awarded by the Defense Department. In the next
year Congress altered the language of § 8014(3), so that the
exception applied not to ‘‘Native American ownership’’ but to
‘‘ownership by an Indian tribe, as defined in section 450b(e) of
title 25, United States Code, or a Native Hawaiian organiza-
tion, as defined in section 637(a)(15) of title 15, United States
Code.’’ Department of Defense Appropriations Act, 2001,
Pub. L. No. 106–259, § 8014, 114 Stat. 656, 677 (2000).
In the district court, plaintiffs claimed that § 8014(3), as
contained in the FY 2000 act, violated the equal protection
component of the Due Process Clause and deprived them of
an interest in federal employment in violation of substantive
4
due process. The district court granted Chugach’s motion to
intervene as a defendant, and denied plaintiffs’ motion for a
preliminary injunction. Am. Fed’n of Gov’t Employees v.
United States, 104 F. Supp. 2d 58 (D.D.C. 2000). Both sides
later moved for summary judgment. The court construed the
statute to apply only to ownership by an Indian tribe and,
applying rational basis review, found no unconstitutional dis-
crimination. Am. Fed’n of Gov’t Employees v. United States,
195 F. Supp. 2d 4, 18–24 (D.D.C. 2002). The court also
granted summary judgment for the defendants on the sub-
stantive due process claim, finding no fundamental right to
federal employment. Id. at 25.
Plaintiffs believe § 8014(3) is unconstitutional under Ada-
rand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995),
because ‘‘Native American’’ is a racial classification, and
because § 8014(3) does not serve a ‘‘compelling governmental
interest’’ and is not ‘‘narrowly tailored to further that inter-
est.’’ Adarand, 515 U.S. at 235. The statute is not ‘‘narrow-
ly tailored’’ to benefit Native Americans, they say, in light of
the fact that non-Indians may own as much as 49 percent of a
qualifying firm. The statute does not serve a ‘‘compelling
interest’’ because there is no evidence, no congressional find-
ings, no record of legislative deliberations, to demonstrate
that Congress thought it was acting to fulfill its historic trust
responsibilities toward Indians.
For its part, the government urges us to construe § 8014(3)
to avoid any constitutional doubts plaintiffs may have raised
and to hold that the provision applies only to ‘‘members’’ of
federally recognized Indian tribes and ‘‘tribal entities.’’ The
government believes these classifications are, in light of Mor-
ton v. Mancari, 417 U.S. 535, 551 (1974), non-racial and hence
constitutional so long as they rationally relate to the govern-
ment’s trust responsibilities toward Indian tribes. Brief for
Federal Appellees at 15. Although there was no regulation
or formal policy reflecting the government’s suggested inter-
pretation of § 8014(3), the Defense Department may have
followed it in practice. The government’s statement of mate-
rial facts not in dispute, and an affidavit from an Air Force
contracting officer, indicate that other than the Kirtland
5
contract, the Air Force had only once before – under an
earlier appropriations act – awarded a contract pursuant to a
comparable provision. That contract also went to an Alaska
Native Corporation.
We will begin our analysis with some winnowing. Among
their prayers for relief, plaintiffs sought to enjoin the govern-
ment from awarding ‘‘any contract under the preference
given to 51% Native-American owned firms in § 8014 of FY
2000 Defense Appropriations Act.’’ That fiscal year has long
since passed. This particular claim for relief, which we read
as referring to initial awards of contracts, is therefore moot.
Plaintiffs also sought to enjoin the government from renewing
‘‘any contract granted under, or otherwise in effect due to’’
the preference in § 8014(3). For plaintiffs to have standing
to seek such broad relief – relating not just to the renewal of
the contract at Kirtland, but to the renewal of ‘‘any con-
tract’’ – they must be under some real and imminent threat of
harm. The Supreme Court in Adarand, 515 U.S. at 211, so
held in a similar situation. But plaintiffs have not established
that they are under such a threat. They have identified no
other § 8014(3) contract still subject to renewal. Plaintiffs
therefore lack standing to pursue this claim for relief insofar
as it relates to contracts other than the one at Kirtland.
We believe the case must be narrowed in another, related
respect. Although the Kirtland § 8014(3) contract was
awarded to a firm wholly owned by federally recognized
Indian tribes, plaintiffs want us to decide that the provision is
unconstitutional because, in FY 2000, it authorized prefer-
ences not only for Indian tribes but also for firms owned by
Native Americans who were not tribal members and who
owned no more than 51 percent of the firm. Plaintiffs thus
want to expand this case well beyond its factual context.
Prudence, as reflected in a longstanding rule of constitutional
adjudication, counsels otherwise. The Supreme Court sum-
marized the rule in United States v. Raines, 362 U.S. 17, 21
(1960): ‘‘one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons
or other situations in which its application might be unconsti-
6
tutional.’’ The Court reiterated the point in Broadrick v.
Oklahoma, 413 U.S. 601, 610 (1973): ‘‘Embedded in the
traditional rules governing constitutional adjudication is the
principle that a person to whom a statute may constitutionally
be applied will not be heard to challenge that statute on the
ground that it may conceivably be applied unconstitutionally
to others, in other situations not before the Court.’’ These
passages, we believe, describe plaintiffs’ arguments in this
case. The only relief they are possibly entitled to receive, for
reasons already mentioned, is specific to Kirtland. Yet they
spend almost all their time objecting to § 8014(3)’s preference
in favor of non-tribal Native American firms.
To put the matter somewhat differently, the ‘‘Native Amer-
icans’’ preference in § 8104(3) breaks down into at least three
possible classifications: (1) federally recognized Indian tribes,
(2) members of federally recognized Indian tribes, and (3) all
others who might be deemed Native Americans. If these
three classifications had been set forth as separate subsec-
tions, and if we had a case involving only a preference
granted under (1), we would normally confine our decision to
the validity of that provision and apply rational basis review.
We say ‘‘normally’’ because the situation might be different if
the injured party were claiming that Congress, in enacting
(1), had some illegitimate purpose in mind, compare Washing-
ton v. Davis, 426 U.S. 229 (1976), or that Congress would not
have enacted (1) unless the other subsections were included in
the statute. But plaintiffs here have made no such claims.
Nor have they offered anything to suggest that there were
any other § 8014(3) contracts awarded in FY 2000, or that
any contract went to the type of Native American firm they
imagine, or that they were thereby adversely affected. We
will therefore limit our decision to the facts of this case. The
only question properly before us is whether the government
violated the equal protection component of the Due Process
Clause when it invoked § 8014(3) to grant a contract to a firm
wholly owned by Indian tribes.
Our approach is, we believe, not only faithful to Article III
of the Constitution, but also consistent with the Court’s
admonition in Raines that federal courts should avoid ‘‘pre-
7
mature interpretations of statutes in areas where their consti-
tutional application might be cloudy.’’ Raines, 362 U.S. at 22.
In saying this, the Court had in mind another doctrine of
constitutional adjudication. For many years, the Court has
followed a practice of construing federal statutes to avoid
serious doubts about the statutes’ constitutionality without
the saving constructions. See Adrian Vermeule, Saving Con-
structions, 85 GEO. L.J. 1945 (1997). This is the practice the
government asks us to follow in this case: when ‘‘an other-
wise acceptable construction of a statute would raise serious
constitutional problems, [a court] will construe the statute to
avoid such problems unless such construction is plainly con-
trary to the intent of Congress.’’ Edward J. DeBartolo Corp.
v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485
U.S. 568, 575 (1988). Judge Friendly believed the doctrine
had to be confined to cases in which ‘‘the doubt is exceedingly
real. Otherwise this rule, whether it be denominated one of
statutory interpretation or, more accurately, of constitutional
adjudication – still more accurately, of constitutional nonadju-
dication – is likely to become one of evisceration and tergiver-
sation.’’ HENRY J. FRIENDLY, BENCHMARKS 211–12 (1967).
Judge Friendly’s formulation captures an important quali-
fication to the saving-construction doctrine – namely, that
the constitutional doubt must be ‘‘real.’’ Hypothetical appli-
cations of a statute, or to be more precise, hypothetical ap-
plications of § 8014(3), must be likely. Otherwise the con-
stitutional doubt raised by legal arguments about those
hypothetical applications cannot be considered real. With-
out this qualification, the courts would risk giving advisory
and unnecessary statutory interpretations, based on judicial
expressions of doubts regarding the constitutionality of stat-
utes as applied to situations that may never arise. For
these reasons, and because we believe the only issue proper-
ly before us is the validity of a preference for Indian tribes,
we decline the government’s request for a narrowing inter-
pretation of § 8014(3).
What we have written thus far is consistent with the
Supreme Court’s disposition in Adarand. Under federal law,
some prime contractors received additional compensation if
8
they hired as subcontractors firms owned by individuals who
were socially and economically disadvantaged. ‘‘Black Ameri-
cans, Hispanic Americans, Native Americans, Asian Pacific
Americans, and other minorities’’ were presumed to be social-
ly and economically disadvantaged. 515 U.S. at 205. A
subcontractor sued after a prime contractor rejected its low
bid in favor of a firm in one of these racial categories. Which
racial category did not matter. Adarand wished to bid on
government contracts in the future; the preference would
therefore injure it no matter which of the listed minority
groups owned the competing firm. The Court therefore did
not focus on the Native American classification. Even if it
had, and even if it had limited the preference to Indian tribes,
we very much doubt that the doctrine of severability could
have been stretched to save this small part of the law. See,
e.g., United States v. Nat’l Treasury Employees Union, 513
U.S. 454, 479 & n.26 (1995).
With respect to the question properly before us, only a few
general principles of federal Indian law need to be mentioned.
Congress has the power ‘‘[t]o regulate Commerce TTT with
the Indian Tribes,’’ U.S. CONST. art. I, § 8, cl. 3. Congress
thus has the authority, exclusive of the States, to determine
which ‘‘distinctly Indian communities’’ should be recognized
as Indian tribes. United States v. Sandoval, 231 U.S. 28, 46
(1913). The ‘‘plenary power of Congress, based on a history
of treaties and the assumption of a ‘guardian-ward’ status, to
legislate on behalf of federally recognized Indian tribes TTT is
drawn both explicitly and implicitly from the Constitution
itself.’’ Mancari, 417 U.S. at 551–52. For these reasons, and
others, the Supreme Court has sustained ‘‘legislation that
singles out Indians for particular and special treatment.’’ Id.
at 554–55. The Court’s decisions ‘‘leave no doubt that federal
legislation with respect to Indian tribes, although relating to
Indians as such, is not based on impermissible racial classifi-
cations.’’ United States v. Antelope, 430 U.S. 641, 645 (1977).
Morton v. Mancari, for instance, upheld a longstanding
statutory preference for hiring members of federally recog-
nized Indian tribes to fill positions in the Department of
Interior’s Bureau of Indian Affairs. Two years after Man-
9
cari, the Court sustained as against an equal protection
challenge a court-ordered exemption from a state sales tax
for cigarettes sold on a reservation to tribal members resid-
ing on the reservation. See Moe v. Confederated Salish &
Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 479–
80 (1976). In both cases, the Court tested the special prefer-
ence in terms similar to those used in judging equal protec-
tion attacks on other economic legislation. See United States
R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 174–76 (1980); William-
son v. Lee Optical, 348 U.S. 483, 491 (1955). For legislation
regulating commerce with Indian tribes, as ‘‘long as the
special treatment can be tied rationally to the fulfillment of
Congress’ unique obligation toward the Indians, such legisla-
tive judgments will not be disturbed.’’ Mancari, 417 U.S. at
555; Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73,
85 (1977); Moe, 425 U.S. at 480. In Narragansett Indian
Tribe v. National Indian Gaming Commission, 158 F.3d
1335 (D.C. Cir. 1998), we summed up the state of the law this
way: ‘‘ordinary rational basis scrutiny applies to Indian clas-
sifications just as it does to other non-suspect classifications
under equal protection analysis.’’ Id. at 1340.
On the other hand, ‘‘all racial classifications, imposed by
whatever federal, state, or local governmental actor, must be
analyzed by a reviewing court under strict scrutiny. In other
words, such classifications are constitutional only if they are
narrowly tailored measures that further compelling govern-
mental interests.’’ Adarand, 515 U.S. at 227.
These two lines of authority may be reconciled, plaintiffs
argue, on the basis that the preference in Mancari was
limited to members of federally recognized Indian tribes,
while the preference in Adarand was not so limited, and thus
constituted – in the Court’s words in Mancari – a preference
‘‘granted to Indians TTT as a discrete racial group,’’ 417 U.S.
at 554; see United States Air Tour Ass’n v. FAA, 298 F.3d
997, 1012 n.8 (D.C. Cir. 2002); Narragansett Indian Tribe,
158 F.3d at 1340–41. That distinction aside, the Supreme
Court has made it clear enough that legislation for the benefit
of recognized Indian tribes is not to be examined in terms
applicable to suspect racial classifications. Not only in Man-
10
cari, but also in Washington v. Confederated Bands & Tribes
of Yakima Indian Nation, 439 U.S. 463, 500–01 (1979), the
Court held that ‘‘ ‘the unique legal status of Indian tribes
under federal law’ permits the Federal Government to enact
legislation singling out tribal Indians, legislation that might
otherwise be constitutionally offensive’’ (quoting Mancari, 417
U.S. at 551–52).
Despite these precedents, plaintiffs argue that § 8014(3)
should be tested by ‘‘strict scrutiny’’ rather than rational
basis review because the Supreme Court in Mancari thought
it important that the preference for tribal members there
applied only to employment in the Indian service. See Rice v.
Cayetano, 528 U.S. 495, 519–20 (2000); Williams v. Babbitt,
115 F.3d 657, 663–64 (9th Cir. 1997). Hence the Court did
not have to face what it called ‘‘the obviously more difficult
question’’ whether ‘‘a blanket exemption for Indians from all
civil service examinations’’ would be constitutional. Mancari,
417 U.S. at 554. The preference in § 8014(3), plaintiffs say, is
analogous to such a blanket exemption: it is not restricted to
Indian activities on or near reservations or Indian land; and
it does not deal with uniquely Indian interests.
Whatever the significance of the Mancari dictum – the
Court said the case would be ‘‘more difficult,’’ not that the
blanket exemption would be unconstitutional – the question
before us is not in the ‘‘difficult’’ category. The critical
consideration is Congress’ power to regulate commerce ‘‘with
the Indian Tribes.’’ While Congress may use this power to
regulate tribal members, see United States v. Holliday, 70
U.S. 407, 417 (1865), regulation of commerce with tribes is at
the heart of the Clause, particularly when the tribal com-
merce is with the federal government, as it is here. 2 THE
FOUNDERS’ CONSTITUTION 530–31 (Philip B. Kurland & Ralph
Lerner eds. 1987). When Congress exercises this constitu-
tional power it necessarily must engage in classifications that
deal with Indian tribes. Justice Scalia, when he was on our
court, put the matter this way: ‘‘in a sense the Constitution
itself establishes the rationality of the TTT classification, by
providing a separate federal power that reaches only the
present group.’’ United States v. Cohen, 733 F.2d 128, 139
11
(D.C. Cir. 1984) (en banc). He then quoted the following
passage from United States v. Antelope, 430 U.S. at 649 n.11:
the ‘‘Constitution itself provides support for legislation direct-
ed specifically at Indian tribes.’’
As to the rational basis for § 8014(3), plaintiffs say the
objective cannot be the obvious one – namely, tribal economic
development, which the Supreme Court has described as an
‘‘important federal interest[ ].’’ California v. Cabazon Band
of Mission Indians, 480 U.S. 202, 216–17 (1987). They point
to ‘‘the absence of any evidence suggesting Congress’ actual
intent with regard to § 8014.’’ Reply Brief at 18–19. By this
they apparently mean, as they said in discussing strict scruti-
ny, that ‘‘Congress did not hold hearings, make findings, or
otherwise generate a strong record’’ regarding any ‘‘socio-
economic hardships suffered by Native Americans’’; that the
statute ‘‘contains no language defining its purpose or other-
wise illuminating Congress’ intent’’; and that no one can say
what actually ‘‘motivated’’ Congress. Brief for Appellants at
21–22. But Congress is not required to ‘‘articulate its rea-
sons for enacting a statute.’’ Fritz, 449 U.S. at 179. The
Constitution grants Congress discretion to regulate its inter-
nal proceedings. Article I, § 5, cl. 2, for example, empowers
it to determine the rules of its proceedings. Incident to its
lawmaking authority, Congress has the authority to decide
whether to conduct investigations and hold hearings to gather
information. See Watkins v. United States, 354 U.S. 178, 193
(1957); McGrain v. Daugherty, 273 U.S. 135, 174–75 (1927).
And under the Constitution, Congress has broad discretion in
determining what must be published in the official record.
See Field v. Clark, 143 U.S. 649, 671 (1892). As Professor
Currie has pointed out, in the First Congress Senate deliber-
ations were not even open to the public and the House did not
provide verbatim transcripts of debates. David P. Currie,
The Constitution in Congress: The First Congress and the
Structure of Government, 1789–1791, 2 U. CHI. L. SCH.
ROUNDTABLE 161, 166 (1995). While ‘‘[e]ach House shall keep
a Journal of its Proceedings,’’ U.S. CONST. art. I, § 5, cl. 3,
there is certainly no textual basis for requiring Congress to
hold hearings, issue committee reports, or enact findings or
12
statements of purpose, see Nixon v. United States, 506 U.S.
224, 228–29 (1993), even though these might assist judicial
review and sometimes carry weight. See Bd. of Trustees of
Univ. of Ala. v. Garrett, 531 U.S. 356, 368–72 (2001); United
States v. Lopez, 514 U.S. 549, 562–63 (1995); but cf. Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664–68 (1994) (plurali-
ty opinion). If ‘‘there are plausible reasons for Congress’
action, our inquiry is at an end,’’ even if Congress did not
expressly state those reasons or act on them. Fritz, 449 U.S.
at 179; United States v. O’Brien, 391 U.S. 367, 383 (1968).
It was therefore entirely proper for the district court to
examine legislative material, generated in other contexts,
showing the need for economic development of federally
recognized tribes in Alaska. Am. Fed’n of Gov’t Employees,
195 F. Supp. 2d at 23. The United States has marshalled still
more authorities to the same effect but we see no need to go
into them. Brief for Federal Appellees at 31–36 & nn.15–22.
Plaintiffs do not really dispute the material. They say that it
cannot be considered, a claim we have just rejected. We
therefore hold that the preference in § 8014(3), by promoting
the economic development of federally recognized Indian
tribes (and thus their members), is rationally related to a
legitimate legislative purpose and thus constitutional. See
Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000).
All that remains is plaintiffs’ claim, made in one paragraph
of their brief, that § 8014(3) violates substantive due process
under the Fifth Amendment because they, or at least some of
them, have a property interest in federal employment. The
government may infringe upon fundamental property inter-
ests only if the infringement is ‘‘narrowly tailored to serve a
compelling state interest.’’ Reno v. Flores, 507 U.S. 292, 302
(1993). Absent a suspect classification or infringement of a
fundamental interest, the Fifth Amendment requires only a
rational basis. FCC v. Beach Communications, Inc., 508 U.S.
307, 313 (1993); Waters v. Rumsfeld, 320 F.3d 265, 268 (D.C.
Cir. 2003). Neither the Supreme Court nor this court has
ever recognized an interest in public employment as funda-
mental. In fact, the Supreme Court has said that its deci-
sions ‘‘give no support to the proposition that a right of
13
government employment per se is fundamental,’’ Massachu-
setts Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976) (per
curiam), a statement the Court later described as a holding
that ‘‘there is no fundamental right to government employ-
ment.’’ United Bldg. & Constr. Trades Council v. Mayor &
Council of Camden, 465 U.S. 208, 219 (1984). The right that
plaintiffs allege is thus not one ‘‘so rooted in the traditions
and conscience of our people as to be ranked as fundamental.’’
Flores, 507 U.S. at 303 (internal quotation marks omitted).
Accordingly, rational basis review applies and plaintiffs have
failed to satisfy that standard for the same reasons their
equal protection challenge fails.
The judgment of the district court granting summary judg-
ment for the federal defendants and the intervenor-
defendants is therefore
Affirmed.