OCTOBER TERM, 2002
certiorari to the united states court of appeals for the district of columbia circuit
No. 02-196. Argued March 4, 2003—Decided May 27, 2003
The Contract Disputes Act of 1978 (CDA) establishes rules governing disputes arising out of certain Government contracts. After Congress enacted the National Parks Omnibus Management Act of 1998, establishing a comprehensive concession management program for national parks, the National Park Service (NPS) issued implementing regulations including 36 CFR § 51.3, which purports to render the CDA inapplicable to concession contracts. Petitioner concessioners' association challenged § 51.3's validity. The District Court upheld the regulation, concluding that the CDA is ambiguous on whether it applies to concession contracts and finding NPS' interpretation reasonable under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. The District of Columbia Circuit affirmed, placing no reliance on Chevron, but finding NPS' reading of the CDA consistent with both the CDA and the 1998 Act.
Held: The controversy is not yet ripe for judicial resolution. Determining whether administrative action is ripe requires evaluation of (1) the issues' fitness for judicial decision and (2) the hardship to the parties of withholding court consideration. Abbott Laboratories v. Gardner, 387 U. S. 136, 149. Regarding the hardship inquiry, the federal respondents concede that, because NPS has no delegated rulemaking authority under the CDA, § 51.3 is not a legislative regulation with the force of law. And their assertion that § 51.3 is an interpretative regulation advising the public of the agency's construction of the statutes and rules which it administers is incorrect, as NPS is not empowered to administer the CDA. That task rests with agency contracting officers and boards of contract appeals, as well as the federal courts; and any authority regarding the agency boards' proper arrangement belongs to the Administrator for Federal Procurement Policy. Consequently, § 51.3 is nothing more than a general policy statement designed to inform the public of NPS' views on the CDA's proper application. Thus, § 51.3 does not create "adverse effects of a strictly legal kind," which are required for a hardship showing. Ohio Forestry Assn., Inc. v. Sierra Club, 523 U. S. 726, 733. Moreover, § 51.3 does not affect a concessioner's primary conduct, e. g., Toilet Goods Assn., Inc. v. Gardner, 387 U. S. 158, 164,
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