State of Okl. ex rel. Dept. of Human Services v. Weinberger

• Decision Date: 19 October 1983
• Docket Number: No. 83-1258,83-1258
• Citation: 741 F.2d 290
• Parties: STATE OF OKLAHOMA, ex rel. DEPARTMENT OF HUMAN SERVICES, Plaintiff-Appellant, v. Casper WEINBERGER, as Secretary of the United States Department of Defense, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 290

741 F.2d 290

STATE OF OKLAHOMA, ex rel. DEPARTMENT OF HUMAN SERVICES Plaintiff-Appellant, v. Casper WEINBERGER, as Secretary of the United States Department of Defense, Defendant-Appellee.

No. 83-1258.

United States Court of Appeals Tenth Circuit.

Oct. 19, 1983.

Russell D. Hall, Asst. Gen. Counsel, Legal Div., Dept. of Human Services, Oklahoma City, Okl., for plaintiff-appellant.

William S. Price, U.S. Atty. and Roger Griffith, Asst. U.S. Atty., Oklahoma City, Okl., Bernard Marcak, Dept. of the Air Force, Randolph AFB, Tex., and Charles G. Symmonds, Associate Gen. Counsel, Army and Air Force Exchange Service, Dallas, Tex., for defendant-appellee.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

The Department of Human Services of the State of Oklahoma (DHS) appeals from a memorandum opinion and order granting summary judgment in favor of Casper Weinberger, as Secretary of the United States Department of Defense (DOD). The single issue presented to the district court, 582 F.Supp. 293, and raised on appeal is whether the statutory exemption from vending machine income sharing under the Randolph-Sheppard Act (Act), 20 U.S.C.A. Secs. 107-107f, applies to all machines of the military exchanges or only to those machines physically located inside an exchange store.

At the outset, we note that summary judgment is proper when, as here, neither party contends that a genuine issue exists as to any material fact and none is present. Ruhs v. Pacific Power & Light, 671 F.2d 1268 (10th Cir.1982). Similarly, the questions of statutory construction and legislative history raised herein present legal questions properly resolved by summary judgment. Union Pacific Land Resources Corporation v. Moench Investment Company, Ltd., 696 F.2d 88 (10th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1776, 76 L.Ed.2d 348.

A brief review of the uncontested facts is in order. Under the Act as enacted in 1936, blind persons were authorized to operate the vending facilities on federal property. As a result of limited growth within the blind vendor program, precipitated in part by the escalating use of automatic vending machines, the Act was amended in 1974. The amendments, in addition to affording blind persons a priority in the operation of vending facilities, also provided that income from vending machines on federal property be shared in specified percentages with blind vendors or state blind vendor licensing agencies similar to DHS. The amendments did provide, however, that income from certain vending machines was to be exempt from the income sharing requirements.

Specifically, 20 U.S.C.A. Sec. 107d-3(d) provided:

Income from vending machines in certain areas excepted

(d) Subsections (a) and (b)(1) of this section shall not apply to income from vending machines within retail sales outlets under the control of exchange or ship's stores systems authorized by Title 10, or to income from vending machines operated by the Veterans Canteen Service, or to income from vending machines not in direct competition with a blind facility at individual locations, installations, or facilities on Federal property the total of which at such individual locations, installations, or facilities does not exceed $3000 annually.

The Department of Health, Education and Welfare (HEW) (now the Department of Education), as the principal agency designated for carrying out the Act's provisions, issued a regulation. 45 C.F.R. Sec. 1369.32(i), interpreting the income sharing exception as applying to "income from vending machines within operated retail outlets under the control of post exchange or ships store systems...." DOD, in issuing its regulation 32 C.F.R. Sec. 260.3(i)(3)(i), interpreted the income sharing exception as not applying to "Income from vending machines operated by or for the military exchange or ships' stores systems."

DHS initiated the action herein after DOD refused DHS's request for distribution of vending machine income from Vance Air Force Base, Altus Air Force Base, Fort Sill Army Base and Tinker Air Force Base, all DOD installations located in Oklahoma. Within its action, DHS sought a declaration that the DOD regulation was void, an injunction against its continued enforcement, a writ of mandamus compelling the Secretary of Defense to replace the contested regulation, an accounting of vending machine income due, and an order that DOD pay all future income sharing revenue as it accrues.

After reviewing the authorities, briefs, numerous exhibits and documentary evidence submitted by the parties, the district court concluded that the DOD regulation was not contrary to the income sharing exception set forth in 20 U.S.C.A. Sec. 107d-3(d) "and therefore the motion of the defendant [DOD] should be granted." [R. Vol. I at p. 151]. In so doing, the court accepted DOD's argument that the exception was ambiguous as evidenced by HEW's differing interpretations in its initial "draft regulation for a broad exception of income from vending machines under the control of post exchange or ships' stores systems ... to the final regulation--that simply exempts income from vending machines within operated retail sales outlets under the control of post exchange or ships' stores systems." [R. Vol. I at p. 152].

As set forth, supra, the sole issue on appeal is whether the court...