Nish v. Rumsfeld, No. 02-2089.

CourtU.S. Court of Appeals — Tenth Circuit
Writing for the CourtPaul Kelly, Jr.
Citation348 F.3d 1263
PartiesNISH; RCI, Inc., Plaintiffs-Appellants, v. Donald H. RUMSFELD, Secretary of Defense; James G. Roche, Secretary of the Air Force, Defendants-Appellees, and New Mexico Commission for the Blind; Robert Vick, Defendants-Intervenors-Appellees. National Council of State Agencies for the Blind, Amicus Curiae.
Docket NumberNo. 02-2089.
Decision Date14 November 2003
348 F.3d 1263
NISH; RCI, Inc., Plaintiffs-Appellants,
v.
Donald H. RUMSFELD, Secretary of Defense; James G. Roche, Secretary of the Air Force, Defendants-Appellees, and
New Mexico Commission for the Blind; Robert Vick, Defendants-Intervenors-Appellees.
National Council of State Agencies for the Blind, Amicus Curiae.
No. 02-2089.
United States Court of Appeals, Tenth Circuit.
November 14, 2003.

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John S. Pachter, Smith, Pachter, McWhorter & Allen, P.L.C., Vienna, VA (and Douglas G. Schneebeck, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, on the briefs), for Plaintiffs-Appellants NISH and RCI, Inc. Also on the briefs, Patrick D. Allen, Yenson, Lynn, Allen & Wosick, P.C., Albuquerque, NM, for Plaintiff-Appellant RCI, Inc.

Andrew D. Freeman, Brown, Goldstein & Levy, L.L.P., Baltimore, MD, for Intervenor-Defendants—New Mexico Appellees.

Jeffrica Jenkins Lee, Appellant Staff (Robert D. McCallum, Jr., Assistant Attorney General, David C. Iglesias, United States Attorney, and William Kanter, Appellant Staff, on the brief), Department of Justice, Washington, DC, for Federal Appellees.

Peter A. Nolan, Winstead, Sechrest & Minick, P.C., Austin, TX, for Amicus Curiae, National Council of State Agencies for the Blind.

Before KELLY, HOLLOWAY, and HARTZ, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.


Plaintiffs RCI (Realizing Confidence & Independence) and NISH appeal from the district court's grant of summary judgment to Defendants, Secretary of Defense Donald Rumsfeld and Secretary of the Air Force James G. Roche ("Secretaries"), and Intervenors New Mexico Commission for the Blind ("NMCB"), and Robert Vick, a licensed blind vendor. NISH v. Rumsfeld, 188 F.Supp.2d 1321 (D.N.M.2002). Plaintiffs are non-profit agencies representing the blind and severely handicapped, which pursuant to the Javits-Wagner-O'Day Act ("JWOD Act"), have preferred status in the provision of goods and services to the federal government. Plaintiffs had a contract with the Air Force to provide full food services at Kirtland Air Force Base, New Mexico ("KAFB") for one year, with four additional "option" years. Following the completion of the one-year contract, the Air Force informed Plaintiffs of its determination that the provisions of the Randolph-Sheppard Act ("RS Act") apply to the mess hall contract, and therefore blind vendors must be given priority. In accordance with the RS Act, the mess hall contract was then awarded to NMCB, the state licensing agency ("SLA"), with Mr. Vick as the manager.

Plaintiffs filed suit seeking declaratory and injunctive relief. They sought to enjoin the Air Force from applying the cafeteria priority provision of the RS Act to the mess hall services. They also sought a declaratory judgment that the RS Act (1) applies only to vending facility concessions and may not be applied to procurement contracts for military mess halls; (2) confers no authority on the Department of Education to regulate military procurement through application to military mess halls; and (3) does not constitute an exception

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to the open competition requirements of the Competition in Contracting Act ("CICA"). On cross-motions for summary judgment, the district court held that the provisions of the RS Act applied to the award of the contract, and therefore granted summary judgment in favor of the Secretaries and the Intervenors, and denied it to the Plaintiffs.

On appeal, Plaintiffs contend that (1) the interpretation of the RS Act by the Department of Education (DOE) is not entitled to deference, (2) the RS Act does not apply here because the KAFB mess hall is not a "vending facility," (3) and RS does not qualify under CICA as an exception to the requirement for full and open competition. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Background

A. Statutory Overview

The two statutory schemes at issue in this case are the Randolph-Sheppard Act, 20 U.S.C. §§ 107-107f and the Javits-Wagner-O'Day Act, 41 U.S.C. §§ 46-48c. Though employing slightly different approaches, both statutes are designed with the express purpose of providing opportunities for remunerative employment to blind or severely handicapped members of the community. The RS Act provides that blind vendors shall have priority to operate vending facilities on federal property when such facilities are deemed necessary or desirable by the department or agency controlling the property on which the facility is to be located. 20 U.S.C. § 107. The 1974 Amendments extend this prescription to ensure that "wherever feasible, one or more vending facilities are established on all federal property to the extent that any such facility ... would not adversely affect the interests of the United States." Id. § 107(b)(2). The RS Act defines vending facilities as "automatic vending machines, cafeterias, snack bars, cart services, shelters... and such other appropriate auxiliary equipment ... necessary for the sale of ... articles or services." Id. § 107e(7). The statute vests the Department of Education, in the person of the Commissioner of Rehabilitative Services ("Commissioner"), with the authority to promulgate rules and regulations, giving force and effect to the provisions of the statute, including the authority to designate State licensing agencies (SLAs), which are authorized to license blind individuals to operate vending facilities on federal property. See Id. § 107a(6). The RS Act defines federal property to include "any building, land, or other real property owned, leased, or occupied by any department, agency or instrumentality of the United States (including the Department of Defense and the United States Postal Service)." Id. § 107e(3).

The JWOD Act establishes the Committee for Purchase from People who are Blind or Severely Disabled (the Committee). 41 U.S.C. § 46. "The primary objective of the Committee is to provide training and employment opportunities for persons who are blind or have severe disabilities." NISH v. Cohen, 247 F.3d 197, 201 (4th Cir.2001). Under the JWOD Act, the Committee is charged with creating and maintaining a "procurement list" of goods or services offered for sale by any qualifying non-profit agency for the blind or the severely handicapped. 41 U.S.C. § 47(a). The Committee is further charged with determining a market price for such goods or services, and promulgating other regulations governing the sale and delivery of such items. Id. § 47(d). Pursuant to the statute, any government agency determining a need for any goods or services on the procurement list must afford priority to a qualifying non-profit agency. Id. § 47(d)(2).

B. Kirtland Mess Hall Contract

Prior to October 1, 2000, the mess hall at Kirtland Air Force base was operated

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directly by the military and was staffed primarily by government employees. Certain auxiliary services, however, such as cleaning and busing, were not provided by military personnel, but by civilian workers under contract. In this case, because these services were on the procurement list promulgated by the Committee, they were contracted to Plaintiff RCI, a qualified non-profit agency, in compliance with the provisions of JWOD. In October 2000, however, the Air Force decided to contract out the entire mess hall operation. Only well after this decision was made and the contracting process had already progressed to advanced stages did the Air Force determine the applicability of the RS Act to this contract. This determination was based on the DOE definition of the term "cafeteria" as well as on memoranda from the Commissioner and from the Department of Defense General Counsel's Office, both expressing the view that the provisions of the RS Act apply to military mess halls.

On September 20, 2001, Selrico Services, Inc. submitted a bid under the RS Act on behalf of the NMCB for the provision of mess hall services to begin upon expiration of the one-year contract with RCI. This bid was accepted and the contract for mess hall services was subsequently awarded to Intervenors NMCB. Plaintiff NISH, the central non-profit agency designated by the Committee pursuant to 41 U.S.C. § 47(c), joins RCI in bringing this appeal challenging the determination by the Air Force that the mess hall at Kirtland Air Force base constitutes a vending facility and, as such, is subject to the terms of the RS Act.

Discussion

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On an appeal from cross-motions for summary judgment, we construe all factual inferences in favor of the party against whom summary judgment was obtained. Pirkheim v. First Unum Life Ins., 229 F.3d 1008, 1010 (10th Cir.2000). We review the district court's order on cross-motions for summary judgment de novo. McGraw v. Prudential Ins. Co. of Am. 137 F.3d 1253, 1256-57 (10th Cir.1998).

A. Military Mess Halls are Vending Facilities and Chevron Deference

We first address Plaintiffs' contentions that military mess halls are not vending facilities within the meaning of the RS Act, and the subsequent contention that interpretive rulings issued by the DOE relating to mess halls are not entitled to deference. Because we believe the latter is dependent upon the success of the former, we deal with them together.

Plaintiffs argue that the DOE's views on the meaning of RS Act are not entitled to deference. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Court set forth a two-prong test for determining whether an agency interpretation is entitled to deference. "First, always, is the question whether Congress has directly spoken to the precise...

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  • WildEarth Guardians v. U.S. Fish & Wildlife Serv., Nos. 12–1508
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 17 Abril 2015
    ...established the agency, they are mistaken in assuming that Chevron is always limited to such circumstances. See NISH v. Rumsfeld, 348 F.3d 1263, 1267–72 (10th Cir.2003) (applying Chevron to the Department of Education's interpretation of an act that was not its organic statute). On a simila......
  • Medical Center Pharmacy v. Mukasey, No. 06-51583.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 18 Julio 2008
    ...collective bargaining with civilian employees), cert. dismissed, ___ U.S. ___, 128 S.Ct. 1183, 169 L.Ed.2d 959 (2008); NISH v. Rumsfeld, 348 F.3d 1263, 1269 (10th Cir.2003) (holding that "[w]e simply do not see the elephant in the mousehole" where the military claimed statutory authority to......
  • State v. Wilson, No. 2015-0404
    • United States
    • Supreme Court of New Hampshire
    • 25 Abril 2017
    ...illustration, not limitation." The State's contentions have some support in case law outside New Hampshire. See, e.g., NISH v. Rumsfeld, 348 F.3d 1263, 1268 (10th Cir. 2003) ("Because ejusdem generis is only to be applied to determine the scope of a general word that follows a specific term......
  • State v. Sourceamerica, No. 16-3228.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 31 Octubre 2017
    ...vendors in the operation of cafeterias on federal properly, whereas the JWOD is a more general procurement statute." NISH v. Rumsfeld , 348 F.3d 1263, 1272 (10th Cir. 2003) ; accord NISH v. Cohen , 247 F.3d 197, 205 (4th Cir. 2001) (similar).But in 2006, Congress passed § 848 of the Nationa......
  • Request a trial to view additional results
22 cases
  • WildEarth Guardians v. U.S. Fish & Wildlife Serv., Nos. 12–1508
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 17 Abril 2015
    ...established the agency, they are mistaken in assuming that Chevron is always limited to such circumstances. See NISH v. Rumsfeld, 348 F.3d 1263, 1267–72 (10th Cir.2003) (applying Chevron to the Department of Education's interpretation of an act that was not its organic statute). On a simila......
  • Medical Center Pharmacy v. Mukasey, No. 06-51583.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 18 Julio 2008
    ...collective bargaining with civilian employees), cert. dismissed, ___ U.S. ___, 128 S.Ct. 1183, 169 L.Ed.2d 959 (2008); NISH v. Rumsfeld, 348 F.3d 1263, 1269 (10th Cir.2003) (holding that "[w]e simply do not see the elephant in the mousehole" where the military claimed statutory authority to......
  • State v. Wilson, No. 2015-0404
    • United States
    • Supreme Court of New Hampshire
    • 25 Abril 2017
    ...illustration, not limitation." The State's contentions have some support in case law outside New Hampshire. See, e.g., NISH v. Rumsfeld, 348 F.3d 1263, 1268 (10th Cir. 2003) ("Because ejusdem generis is only to be applied to determine the scope of a general word that follows a specific term......
  • State v. Sourceamerica, No. 16-3228.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 31 Octubre 2017
    ...vendors in the operation of cafeterias on federal properly, whereas the JWOD is a more general procurement statute." NISH v. Rumsfeld , 348 F.3d 1263, 1272 (10th Cir. 2003) ; accord NISH v. Cohen , 247 F.3d 197, 205 (4th Cir. 2001) (similar).But in 2006, Congress passed § 848 of the Nationa......
  • Request a trial to view additional results

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