Nish v. Cohen

• Decision Date: 25 April 2000
• Docket Number: Civil Action No. 99-1632-A.
• Citation: 95 F.Supp.2d 497
• Court: U.S. District Court — Eastern District of Virginia
• Parties: NISH and Goodwill Services, Inc., Plaintiffs, v. William S. COHEN, Secretary of Defense, et al., Defendants.

95 F.Supp.2d 497

NISH and Goodwill Services, Inc., Plaintiffs, v. William S. COHEN, Secretary of Defense, et al., Defendants.

Civil Action No. 99-1632-A.

United States District Court, E.D. Virginia, Alexandria Division.

April 25, 2000.

John S. Pachter, Vienna, VA, for Plaintiffs.

Andrew D. Freeman, Baltimore, MD, for Intervenors.

John A. Drennan, for Defendants.

MEMORANDUM OPINION AND ORDER

LEE, District Judge.

This case involves interpretation of the Randolph-Sheppard Act ("R-S Act" or "Act") and its applicability to appropriated fund contracts for cafeteria and military mess hall services. See 20 U.S.C.A. §§ 107-107f (West 2000). The issue for the Court is whether the inclusion of the term "cafeteria" in the 1974 Amendments to the R-S Act created a priority for blind vendors to operate military mess halls and a corresponding exception to government procurement law that normally requires government agencies to acquire goods and services through full and open competition. The matter is currently before the Court on cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure ("FRCP") 56. Plaintiffs NISH and Goodwill Services, Inc. ("Plaintiffs"), in their motion, insist that neither the R-S Act nor its 1974 Amendments intended the inclusion of procurement programs for the operation of military mess halls; interpretation as such, Plaintiffs claim, violates the Competition in Contracting Act ("CIC Act"). In contrast, Defendants Department of Defense ("DOD") and Department of the Army ("DOA", collectively "Defendants"), along with Intervenors,¹ contend that the R-S Act's priority for blind vendors applies to all cafeterias on federal property, including military mess halls. For the reasons stated below, the Court holds that, as a matter of law, addition of the term "cafeteria" to the R-S Act, when viewed in conjunction with corresponding regulations and available case law, supports the R-S Act's coverage of the military mess hall services at Fort Lee, Virginia.

I. BACKGROUND

The R-S Act is a federal statute designed to ensure that the maximum number of vending facilities are operated by licensed blind individuals on federal and other property. The R-S Act and its implementing regulations require that one or more vending facilities owned or operated by blind entrepreneurs be established on each federal property. See id. § 107(b)(2); 34 C.F.R. § 395.30(a) (1999). The extension of the Act in 1974 to include military dining facilities created, among other things, an opportunity for blind business owners to develop managerial and entrepreneurial skills.

In the present case, Plaintiffs seek a declaratory judgment that the Act does not apply to contracts for the operation of military mess hall services at Fort Lee, Virginia. The United States DOD and DOA are the named Defendants in the suit. Additionally, seven individual groups have intervened on behalf of, and in support of, Defendants. See supra note 1.

The government property at the center of the dispute between the parties is Fort Lee, Virginia. In November 1998, Defendant NISH expressed interest in the anticipated replacement contract for the facility. At that time, Fort Lee's food service contracts had not been placed upon the Javits-Wagner-O'Day Act's ("JWOD Act") procurement list. See generally 41 U.S.C.A. §§ 46-48c (West 1987 & Supp. 1999). Subsequently, in June 1999, before Fort Lee had issued a bid solicitation or received a dining facilities proposal from NISH, the Virginia Agency for the Blind contacted officials at the facility to express its interest in bidding for the food services contract at issue under the R-S Act.

With this backdrop, and in an effort to reconcile the application of the R-S Act with the JWOD Act, the contracting officer responsible for providing food service operations at Fort Lee sought assistance from Fort Lee's legal staff, the Army's Training and Doctrine Command ("TRO-DOC"), and the Office of the Principal Assistant Responsible for Contracting. In addition, the officer consulted a November 12, 1998 memorandum from the General Counsel of DOD addressing the applicability of the R-S Act to DOD military dining facilities, along with Army Regulation 210-25, regarding implementation of the R-S Act. Using these guideposts, the officer determined that the Fort Lee dining facilities were "cafeterias" for purposes of the R-S Act, well within the Act's ambit. Having found that the R-S Act was applicable to Fort Lee's food service requirement, she decided that a negotiated acquisition with NISH was inappropriate. Consequently, NISH filed the present claim in federal court.

II. STANDARD FOR SUMMARY JUDGMENT

Under FRCP 56, a court should grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c).

Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The opposing party may not rest upon the mere allegations or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial. See FED. R. CIV. P. 56(e).

The mere existence of some alleged factual dispute between the parties, however, will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id. at 248, 106 S.Ct. 2505. As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. See id.

In determining whether a party is entitled to summary judgment, the record is viewed in the light most favorable to the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

III. DISCUSSION

Having reviewed the facts in this matter in light of the standard for summary judgment under the FRCP, the Court finds this case ripe for judgment as a matter of law.² Combining an adherence to traditional rules of statutory construction with duly promulgated regulations and overwhelming governmental support for Defendants' and Intervenors' position, the Court holds that the R-S Act encompasses the military mess hall services at Fort Lee as "cafeterias" on eligible federal property.

A. Standard of Review for Plaintiffs' Claims

Plaintiffs' claims in this matter are governed by the standard for judicial review of administrative actions set forth in the Administrative Procedure Act ("APA"). See 5 U.S.C.A. § 706 (West 1996). The APA provides that agency action may be set aside only if it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law—or if the action failed to meet statutory, procedural, or constitutional requirements. See id.

Where a statute is silent or ambiguous regarding a specific issue, a reviewing court considers whether the agency's interpretation is based on a permissible construction of the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Accordingly, the agency's interpretation of the statute is afforded great deference by the courts and need not be the very best interpretation—so long as it is reasonable. Cf. Randolph-Sheppard Vendors of America, Inc. v. Harris, 628 F.2d 1364, 1367-68 (D.C.Cir.1980) ("We may not change or declare illegal a rational scheme prescribed by the expert agency specifically commissioned to devise it"). Moreover, an assessment of the wisdom of the agency's policy choices is a matter generally outside the purview of the judiciary.³ See Chevron, 467 U.S. at 866, 104 S.Ct. 2778; Harris, 628 F.2d at 1366.

With this standard of review in mind, the Court turns to the overwhelming evidence in the record supporting Defendants' and Intervenors' position that the R-S Act's coverage of "cafeterias" on eligible federal property encompasses military dining facilities or mess halls such as those at Fort Lee—in addition to concessions and other "vending facilities."⁴

B. Statutes and Regulations in Question

1. The Randolph-Sheppard Act

The R-S Act, 20 U.S.C.A. §§ 107-107f (West 2000), was enacted in 1936 to provide employment opportunities for the blind, and to encourage the economic self-sufficiency of blind individuals. See Committee of Blind Vendors v. District of Columbia, 28 F.3d 130, 131 (D.C.Cir.1994) (citing 20 U.S.C. § 107(a)). In 1974, Congress amended the Act in order to expand economic opportunities for the blind, effectively establishing a cooperative federal-state program that gives contracting priority to blind persons operating vending facilities on federal property. See id. (citing 20 U.S.C. § 107(a)-(b)). The 1974 Amendments direct the Secretary of the Department of Education ("Secretary", "DOE") to prescribe regulations to ensure that adequate priority is given to licensed blind persons and that, whenever feasible, one or more vending facilities are established on all federal property. See 20 U.S.C.A. § 107(b).

The Secretary of DOE oversees implementation of the Act via the Commissioner of the Rehabilitative Services Administration ("Commissioner"). Among the duties assigned to the Secretary is the designation of State Licensing Agencies ("SLA") to issue licenses to blind citizens for operating vending facilities on federal property for the vending of newspapers, magazines, tobacco products, foods, beverages, and other items. See id. § 107a(a)(5). The term "vending facility" is defined by the...