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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 Justice, 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 outsourcing 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 constituted racial discrimination in violation of the Fifth Amendment’s Due Process Clause.

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
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 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).

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 discrimination. 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 substantive due process claim, finding no fundamental right to

federal employment. Id. at 25.

Plaintiffs believe § 8014(3) is unconstitutional under Adarand 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 interest.’’ Adarand, 515 U.S. at 235. The statute is not ‘‘narrowly 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 findings, 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 Morton v. Mancari, 417 U.S. 535, 551 (1974), non-racial and hence

constitutional so long as they rationally relate to the government’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 interpretation of § 8014(3), the Defense Department may have

followed it in practice. The government’s statement of material 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 government 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 contract’’ – 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 preferences 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 summarized 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 Americans’’ 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 subsections, 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 Washington 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 constitutional 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 Constructions, 85 GEO. L.J. 1945 (1997). This is the practice the

government asks us to follow in this case: when ‘‘an otherwise 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 contrary 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 nonadjudication – is likely to become one of evisceration and tergiversation.’’ HENRY J. FRIENDLY, BENCHMARKS 211–12 (1967).

Judge Friendly’s formulation captures an important qualification to the saving-construction doctrine – namely, that

the constitutional doubt must be ‘‘real.’’ Hypothetical applications of a statute, or to be more precise, hypothetical applications of § 8014(3), must be likely. Otherwise the constitutional doubt raised by legal arguments about those

hypothetical applications cannot be considered real. Without this qualification, the courts would risk giving advisory

and unnecessary statutory interpretations, based on judicial

expressions of doubts regarding the constitutionality of statutes as applied to situations that may never arise. For

these reasons, and because we believe the only issue properly before us is the validity of a preference for Indian tribes,

we decline the government’s request for a narrowing interpretation 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 Americans, Hispanic Americans, Native Americans, Asian Pacific

Americans, and other minorities’’ were presumed to be socially 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 classifications.’’ 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 recognized 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 residing 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 preference in terms similar to those used in judging equal protection attacks on other economic legislation. See United States

R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 174–76 (1980); Williamson 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 legislative 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 classifications 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 governmental 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 commerce 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 constitutional 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 directed 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 scrutiny, that ‘‘Congress did not hold hearings, make findings, or

otherwise generate a strong record’’ regarding any ‘‘socioeconomic hardships suffered by Native Americans’’; that the

statute ‘‘contains no language defining its purpose or otherwise 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 reasons for enacting a statute.’’ Fritz, 449 U.S. at 179. The

Constitution grants Congress discretion to regulate its internal 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 deliberations 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) (plurality 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 interests 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 fundamental. In fact, the Supreme Court has said that its decisions ‘‘give no support to the proposition that a right of
13

government employment per se is fundamental,’’ Massachusetts 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 employment.’’ 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 judgment for the federal defendants and the intervenordefendants is therefore

Affirmed.