AFGE v. United States

Plaintiffs are the American Federation of Government Employees, AFL-CIO; an affiliated local union representing civilian Defense Department employees at the Kirtland Air Force Base in New Mexico; and two civilian Defense Department 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 appropriations 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 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 Appropriations 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 ownership.” 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 appropriations 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 organization, 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).

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