Nish v. Rumsfeld

• Decision Date: 15 February 2002
• Docket Number: No. CIV 01-1075 WJ/WWD.,CIV 01-1075 WJ/WWD.
• Citation: 188 F.Supp.2d 1321
• Parties: NISH and RCI, Inc., Plaintiffs, v. The Honorable Donald H. RUMSFELD, Secretary of Defense and the Honorable James G. Roche, Secretary of the Air Force, Defendants.
• Court: U.S. District Court — District of New Mexico

Page 1321

188 F.Supp.2d 1321

NISH and RCI, Inc., Plaintiffs, v. The Honorable Donald H. RUMSFELD, Secretary of Defense and the Honorable James G. Roche, Secretary of the Air Force, Defendants.

No. CIV 01-1075 WJ/WWD.

United States District Court, D. New Mexico.

February 15, 2002.

Douglas G. Schneebeck, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM, John S. Pachter, Smith, Pachter, McWhorter & Allen, PLC, Vienna, VA, Patrick D. Allen, Yenson Lynn Allen & Wosick, PC, Albuquerque, NM, for Plaintiffs.

Jan E. Mitchell, U.S. Attorney's Office, District of New Mexico, Albuqerque, NM, John D. Cline, Freedman Boyd Daniels Hollander Goldberg & Cline, PA, Albuqerque, NM, Andrew D. Freeman, Shelly Marie Martin, Brown Goldstein & Levy, LLP, Baltimore, MD, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHNSON, District Judge.

THIS MATTER comes before the Court on Plaintiffs' Motion for Summary Judgment (Docket No. 7), Intervenors' Motion to Dismiss or, in the Alternative, Cross-Motion for Summary Judgment (Docket No. 13), and Defendants' Cross Motion for Summary Judgment (Docket No. 15). Also pending before the Court is Plaintiffs' Application for Temporary Restraining Order and Motion for Preliminary Injunction (Docket No. 21).

I. PROCEDURAL HISTORY

Plaintiffs are organizations that have held contracts since 1990 to provide mess hall services at Kirtland Air Force Base ("Kirtland"), New Mexico, under the Javits-Wagner-O'Day Act ("JWOD"), 41 U.S.C. §§ 46-48c. Intervenor New Mexico Commission for the Blind (NMCB) is an agency of the State of New Mexico that recently acquired the contract to provide mess hall services at Kirtland pursuant to the Randolph-Sheppard Act ("RSA"), 20 U.S.C. §§ 107 et seq. Intervenor Robert Vick is the person selected by the NMCB to provide full food services at Kirtland in accordance with the RSA. The Honorable Donald H. Rumsfeld, Secretary of Defense, and the Honorable James G. Roche, Secretary of the Air Force ("Defendants") are the officials responsible for awarding the Kirtland mess hall contract under the RSA rather than under the JWOD. Plaintiffs argue that the JWOD applies to the award of a contract to operate a mess hall on a military base and that the RSA does not apply to military mess halls. Defendants and Intervenors argue that, while both statutes apply to the award of contracts to operate mess halls on military bases, the RSA and not the JWOD governs the award of the Kirtland mess hall contract.

Plaintiffs filed an application for a temporary restraining order and preliminary injunction. By separate motion, Plaintiffs also seek summary judgment on the Complaint for Injunctive Relief and Declaratory Judgment and ask this Court to declare that the RSA (1) applies only to vending concessions, (2) does not apply to military procurement contracts for the operation of mess halls, (3) gives no authority to the United States Department of Education ("DOE")¹ to regulate military procurement by applying the RSA to mess hall contracts and (4) does not create an exception to the competitive bid requirements for procurement. Conversely, Defendants and Intervenors seek summary judgment on the basis that the RSA does apply to the award of the Kirtland contract for mess hall services. Subject matter jurisdiction of the Court over the controversy in this case was properly invoked pursuant to the Administrative Procedures Act, 5 U.S.C. § 702.

II. FACTUAL BACKGROUND

The Competition in Contracting Act ("CICA") requires that the armed forces, including the Department of Defense ("DOD") and the Department of the Air Force, procure goods and services through a full and open competitive process unless a noncompetitive procedure is authorized by statute. 10 U.S.C. §§ 2302, 2304(a)(1). The provision allowing for a noncompetitive process when authorized by statute is referred to by the parties as the CICA "savings clause."

The JWOD, originally passed in 1938,² established an independent federal agency known as the Committee for Purchase From People Who Are Blind and Severely Disabled (the "Committee"). 41 U.S.C. § 46. The Committee is responsible for identifying products and services suitable for federal procurement that can be provided by disabled persons through qualified nonprofit agencies. 41 U.S.C. § 47. The Committee is also charged with designating a central nonprofit agency to facilitate the distribution of commodities and services on the procurement list. 41 U.S.C. § 47(c). When the federal government purchases services or commodities that have been placed on the procurement list, those services or commodities must be purchased from the local qualified nonprofit agency. 41 U.S.C. § 48; 48 C.F.R. § 8.001(a)(2); 48 C.F.R. § 8.7. Plaintiff NISH is the designated central nonprofit agency selected by the Committee under the JWOD to facilitate the procurement of services from local nonprofit agencies. Plaintiff RCI, Inc. ("RCI") is the local nonprofit agency that is the mandatory sole source of the Kirland Air Force Base mess hall services under the JWOD. The parties in this case concede that the JWOD is a procurement statute that creates an exception to the competitive bidding requirements of CICA in accordance with the CICA savings clause. See 10 U.S.C. § 2304(a)(1).

The RSA was originally passed in 1936.³ It requires that a preference be given to blind persons licensed by a state agency when a federal government agency authorizes the operation of a vending facility on federal property. 20 U.S.C. § 107. Intervenor NMCB is the state licensing agency for New Mexico under the RSA. As previously noted, the RSA charges the DOE with implementation of the RSA. In 1974, Congress amended the RSA, and the term "vending stand" was changed to "vending facility" with the definition of vending facility including cafeterias. 20 U.S.C. § 107e(7). Thus, the RSA specifically applies to the operation of vending facilities, including cafeterias, on DOD property. 20 U.S.C. § 107e(3).

The DOE regulations promulgated pursuant to the RSA define a cafeteria as a "food dispensing facility capable of providing a broad variety of prepared foods and beverages (including hot meals) primarily through the use of a line where the customer serves himself from displayed selections. A cafeteria may be fully automatic or some limited waiter or waitress service may be available ... and table or booth seating facilities are always provided." 34 C.F.R. § 395.1(d). The parties do not seriously dispute whether a military mess hall can be described by the same language that defines "cafeteria" in the DOE regulations. The parties do, however, dispute whether a military mess hall is technically a "cafeteria" for purposes of the RSA. Ultimately, then, the dispute in this case centers on whether the RSA is a procurement statute that provides an exception to the competitive bidding requirements of CICA in accordance with the savings clause found in 10 U.S.C. § 2304(a)(1).

The Committee placed the mess hall services at Kirtland on the procurement list under the JWOD for several years. From 1990 until October 2000, the full food service at Kirtland was provided by government employees, and the procurement listed service provided by RCI under the JWOD was for "mess hall attendant services." In October 2000, Kirtland contracted for full food service and in February 2001, the Committee placed full food service for Kirtland on the procurement list. NMCB contacted the Kirtland contracting officer in 2000 and expressed an interest in providing full food services at Kirtland under the RSA. Notwithstanding NMCB's expressed interest, and for reasons not germane to this case, RCI was awarded a one year contract under the JWOD to provide the full food services at Kirtland. In 2001, however, NMCB responded to a solicitation for full food services at Kirtland and was awarded the contract for those services.⁴

All parties appear to concede that if the RSA does not apply to contracts for military mess hall services, then the JWOD would require Kirtland to contract with RCI for full food services at the mess hall. Defendants and Intervenors contend that the RSA does apply to military mess halls. Additionally, they argue that when a state licensing agency exercises its priority under the RSA, the RSA supercedes the JWOD and the contract must be awarded under the RSA. Conversely, Plaintiffs argue that the RSA does not apply to military mess halls and Kirtland is required under the JWOD to contract with Plaintiff RCI as the mandatory sole source for full food services at Kirtland.

III. STANDARD OF REVIEW

Summary judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is "material" if, under the governing law, it could have an effect on the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir.1999). When the parties to an action file cross motions for summary judgment, the court is entitled to assume that no evidence needs to be considered other than that filed by the parties. Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138 (10th Cir.2000). Summary judgment is not appropriate if disputes remain as to material facts. Id. When the facts underlying the case are not in dispute, questions of law are properly decided by way of summary judgment. NISH v. Cohen, 247 F.3d 197, 201 (4th Cir.2001).

The parties in this case have not conceded that there are no disputed issues of fact and the parties disagree regarding several of the finer points of the others' versions of the facts. None of these minor disparities, however, has any effect on the outcome of this case. Thus, there are no disputed issues of material fact and this case is properly decided by way of summary judgment.

IV. DISCUSSION

A. Review...