Goodwill Serv. v. Cohen
| Decision Date | 06 December 2000 |
| Docket Number | No. 00-1632,RANDOLPH-SHEPPARD,00-1632 |
| Citation | 247 F.3d 197 |
| Parties | (4th Cir. 2001) NISH; GOODWILL SERVICES, INCORPORATED, Plaintiffs-Appellants, v. WILLIAM S. COHEN, Secretary of Defense; LOUIS CALDERA, Secretary of the Army, Defendants-Appellees, VENDORS OF AMERICA; AMERICAN COUNCIL OF THE BLIND; NATIONAL EDUCATIONAL AND LEGAL SERVICES FOR THE BLIND; VIRGINIA FACILITIES VENDORS; NATIONAL FEDERATION OF THE BLIND; STATE OF TEXAS, ex rel Texas Commission for the Blind; STATE OF OKLAHOMA, ex rel Oklahoma Department of Rehabilitation Services, Intervenors-Appellees. Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge.
COUNSEL: ARGUED: John S. Pachter, SMITH, PACHTER, MCWHORTER & D'AMBROSIO, P.L.C., Vienna, Virginia, for Appellants. Jeffrica Jenkins Lee, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees Cohen, et al.; Andrew David Freeman, BROWN, GOLDSTEIN & LEVY, L.L.P., Baltimore, Maryland, for Appellees Randolph-Sheppard, et al. ON BRIEF: Joseph C. Luman, Christopher Wheeler, LUMAN, LANGE & WHEELER, Washington, D.C., for Appellants. David W. Ogden, Assistant Attorney General, Helen F. Fahey, United States Attorney, William Kanter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees Cohen, et al. John P. Rowley, III, Christopher P. Yukins, David S. Black, HOLLAND & KNIGHT, L.L.P., Falls Church, Virginia; Peter A. Nolan, SHEINFELD, MALEY & KAY, P.C., Austin, Texas, for Appellees Randolph-Sheppard, et al.
Before TRAXLER and KING, Circuit Judges, and Terrence W. BOYLE, Chief United States District Judge for the Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge King wrote the opinion, in which Judge Traxler and Chief Judge Boyle concurred.
In this action arising in the Eastern District of Virginia, plaintiffs NISH and Goodwill Services, Incorporated (collectively "NISH"), appeal the district court's award of summary judgment to Secretary of Defense Cohen and Secretary of the Army Caldera ("Secretaries"), the defendants below. NISH sought a declaratory judgment with respect to the proper interpretation of the Randolph-Sheppard Act ("RS Act"), particularly its applicability to the operation of military mess hall facilities at Fort Lee, Virginia. The district court concluded that the RS Act applies to the operation of such facilities, and therefore NISH was not entitled to negotiate the contract for mess hall services at Fort Lee. For the reasons set forth below, we affirm.
The RS Act, 20 U.S.C. S 107, was enacted in 1936 to enlarge economic opportunities of the blind, by giving blind persons priority to operate vending facilities on federal property. This appeal focuses on a 1974 amendment to the RS Act, by which the term"vending stand" in S 107e(7) was changed to "vending facility," and by which the statutory definition of vending facility was set forth as including "automatic vending machines, cafeterias, snack bars, cart services, shelters, [and] counters[.]" Id. S 107e(7). In this appeal, we specifically deal with the meaning of the statutory term "cafeterias," and we must decide whether that term encompasses military mess hall facilities.
The factual predicate for this litigation is straightforward. NISH is a nonprofit agency designated in the Code of Federal Regulations, see 41 C.F.R. S 51-3.1, to represent other nonprofit agencies employing the severely disabled in the production of items and services for purchase by government agencies under the Javits-Wagner-O'Day Act, 41 U.S.C SS 46-48c ("JWOD Act").1 In November 1998, NISH expressed interest in an anticipated replacement contract for mess hall services at Fort Lee. Subsequently, on June 30, 1999, before NISH had made a formal proposal on the Fort Lee contract, the Virginia Agency for the Blind contacted officials at Fort Lee to convey its interest in bidding for the same contract, in accordance with the provisions of the RS Act. At the time the competing interests became apparent, Fort Lee's mess hall services contract had not been placed upon the "procurement list" mandated by S 47(a) of the JWOD Act.
In an effort to reconcile application of the RS Act with the provisions of the JWOD Act, the contracting officer responsible for food service operations at Fort Lee ("Contracting Officer") sought assistance and advice from various sources, including Fort Lee's legal staff, the Army's Training and Doctrine Command ("TRADOC"), and the Army's Office of the Principal Assistant Responsible for Contracting. In addition, the Contracting Officer consulted a November 12, 1998 memorandum prepared by the General Counsel of the Department of Defense ("DOD"), as well as a March 22, 1999 memorandum from the Deputy Assistant Secretary of the Army for Procurement. These memoranda discuss and analyze the applicability of the RS Act to DOD military dining facilities, and they also address the application of Army Regulation 210-25, which implements the RS Act within the Army.
Using these guideposts, the Contracting Officer determined that the mess hall facilities at Fort Lee were "cafeterias" under the terms of the RS Act, specifically 20 U.S.C. S 107e(7), primarily because they were "prepared food serving lines with table seating facilities." Decl. of Terry A. Hyatt (Contracting Officer) (Feb. 16, 2000), J.A. 349. Having concluded that the RS Act applied to Fort Lee's food service requirements, the Contracting Officer then ascertained that it was inappropriate to negotiate an acquisition contract with NISH to provide mess hall services at Fort Lee. After being informed of the Contracting Officer's final decision, NISH commenced this proceeding in the district court, seeking, inter alia, a declaration that the RS Act does not apply to contracts to provide military mess hall services. From the adverse ruling below, NISH takes this appeal. We possess jurisdiction pursuant to 28 U.S.C. S 1291.
NISH contends that the JWOD Act -and not the RS Act -applies to and controls the award of the mess hall services contract at Fort Lee. The JWOD Act governs, according to NISH, because a third statute -the Competition in Contracting Act -precludes application of the RS Act in this instance. A brief overview of all three statutes is therefore in order.
The RS Act was enacted by Congress with the purpose of providing employment opportunities and encouraging the economic selfsufficiency of blind persons. 20 U.S.C. S 107; see Committee of Blind Vendors v. District of Columbia, 28 F.3d 130, 131 (D.C. Cir. 1994). As we have noted, the RS Act was amended in 1974, effectively establishing a cooperative federal-state program that gives contracting priority to blind persons operating vending facilities on federal property. See Committee of Blind Vendors, 28 F.3d at 130 (citing S 107(a)(b)).
The 1974 amendment directs the Department of Education ("DOE") to promulgate regulations to ensure that, whenever feasible, one or more vending facilities are established on all federal properties, and that priority in their operation is given to licensed blind persons. See 20 U.S.C. S 107(b). The Secretary of DOE is authorized to oversee implementation of the RS Act through the Commissioner of the Rehabilitative Services Administration ("Commissioner"). Id. S 107d-3(e). Among the duties assigned to the Secretary of DOE is the designation of State Licensing Agencies ("SLAs"), which are authorized to issue licenses to blind citizens for the operation of vending facilities on federal property for the sale of newspapers, magazines, tobacco products, foods, beverages, and other items. Id. S 107a(a)(5). The Virginia Agency for the Blind, as well as the various intervenors in this litigation, are SLAs designated by the Secretary of DOE to participate in contracts under the RS Act.
The JWOD Act was enacted in 1971, and it established an independent federal agency now known as the Committee for Purchase from People Who Are Blind or Severely Disabled ("Committee"). See supra note 1. The primary objective of the Committee is to provide training and employment opportunities for persons who are blind or have severe disabilities. See Barrier Indus., Inc. v. Eckard, 584 F.2d 1074, 1076 (D.C. Cir. 1978). The Committee is required to publish the procurement list, consisting of commodities and services that it considers suitable for purchase by the government from qualified nonprofit agencies for the blind and disabled. See 41 U.S.C. S 47(a)(1). The procurement list is generally a mandatory procurement source for the federal government, i.e., a government agency wishing to obtain a commodity or service listed by the Committee is required to obtain the item from the qualified agency at the price established by the Committee. See id. S 48. The JWOD Act offers a "sheltered" environment, permitting individuals with disabilities to work for entities such as plaintiff Goodwill Services. By comparison, the RS Act takes a slightly different tack by encouraging blind persons to be entrepreneurial and to run their own businesses.
NISH's position on appeal, however, hinges primarily upon a third statute, the Competition in Contracting Act, 10 U.S.C. S 2304 ("CICA"). CICA, enacted in 1994, requires that the military use "full and open competition" when contracting for "property or services[,]" except "in the case of procurement procedures otherwise expressly authorized by statute[.]" Id. S 2304(a)(1). The JWOD Act, for example, embodies procurement procedures explicitly exempted by CICA. See id. S 2304(f)(2)(D). NISH maintains that, because the RS Act does not specifically encompass military mess hall facilities, and does not authorize "procurement," its auspices do not...
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