FILED
United States Court of Appeals
Tenth Circuit
NOV 14 2003
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
NISH; RCI, Inc.,
Plaintiffs - Appellants,
No. 02-2089
vs.
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-01-1075-WJ/WWD)
John S. Pachter, Smith, Pachter, McWhorter & Allen, P.L.C.,
Vienna, Virginia, (and Douglas G. Schneebeck, Modrall,
Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico,
on the briefs), for Plaintiffs - Appellants NISH and RCI, Inc.
Also on the briefs, Patrick D. Allen, Yenson, Lynn, Allen &
Wosick, P.C., Albuquerque, New Mexico, for Plaintiff -
Appellant RCI, Inc.
Andrew D. Freeman, Brown, Goldstein & Levy, L.L.P., Baltimore,
Maryland, 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, D.C., for Federal
Appellees.
Peter A. Nolan, Winstead, Sechrest & Minick, P.C., Austin,
Texas, for Amicus Curiae, National Council of State Agencies
for the Blind.
Before KELLY, HOLLOWAY, and HARTZ, Circuit Judges.
KELLY, 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
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 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 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (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 withing 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. National Resources Defense Council, Inc., 467 U.S.
837 (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 question at
issue. If the intent of Congress is clear that is the end
of the matter . . . . [I]f the statute is silent or
ambiguous with respect to the specific issue, the question
for the court is whether the agency's answer is based on a
permissible construction of the statute." Id. at 842-43;
see United States v. Haggar Apparel Co., 526 U.S. 380, 392
(2001); Seneca-Cayuga Tribe of Okla. v. Nat'l Indian
Gaming Comm'n, 327 F.3d 1019, 1037 (10th Cir. 2003).
The Court in Chevron stressed that the power of a court to
review agency interpretation of the statute is not a
license for the court to impose its own policy or
logistical preferences for those of the agency. "We have
long recognized that considerable weight should be
accorded to an executive department's construction of a
statutory scheme it is entrusted to administer, and the
principle of deference to administrative interpretations
has been consistently followed by this Court." Chevron,
467 U.S. at 844 (footnote and internal quotation marks
omitted). Though a reviewing court may find an agency
interpretation imprudent or a poor policy choice, if it
derives from a reasonable construction of the statute, the
court is bound to respect it.
Plaintiffs claim that the district court short-circuited
the Chevron analysis by deferring to the agency
interpretation without a proper determination of clear
congressional intent. The face of the statute, Plaintiffs
claim, indicates a clear congressional intent to limit
application of the RS Act to vending facilities. At oral
argument, Plaintiffs urged us to adopt a definition
requiring such facilities to be "place[s] where a private
individual runs a business selling goods and services to
the public for profit." According to Plaintiffs, because
mess halls do not sell goods or services to the general
public but simply serve to fulfill the military function
of supplying meals to troops, they are not vending
facilities within this definition.(1) Therefore, there is
no need to proceed to the second step of the Chevron
analysis.
In support of this position, Plaintiffs offer several
arguments. First, they argue that in reading the statute
we should employ the two related canons of statutory
interpretation known as ejusdem generis and noscitur a
sociis. The former holds that when general words follow
specific words in a statute the meaning of the general
words should be limited by the content and meaning of the
specific words. See Circuit City Stores, Inc. v. Adams,
532 U.S. 105, 114-15 (2001).
Noscitur a sociis is also used to limit the disruptive
potential of overly broad or general terms in a statute.
See Jarecki v. G.D. Searle Co., 367 U.S. 303, 307 (1961).
("The maxim noscitur a sociis . . . is often wisely
applied where a word is capable of many meanings in order
to avoid the giving of unintended breadth to the Acts of
Congress."); 2A Singer, Statutes and Statutory
Construction 47:16 (2000) ("If the legislative intent or
meaning of a statute is not clear, the meaning of doubtful
words may be determined by reference to their relationship
with other associated words and phrases.").
Employment of these interpretive aids is necessary,
Plaintiffs claim, in order to give effect to the clearly
expressed intention of Congress to limit application of
the RS Act to self-sustaining concessions. Specifically,
Plaintiffs point to various portions of legislative
history to demonstrate that in passing the 1974 Amendments
to the RS Act, Congress did not intend to authorize the
expenditure of funds for anything more than administrative
costs. Plaintiffs also cite various agency
interpretations appearing to support the idea that
Congress intended to limit the scope of the RS Act to
self-sustaining concessions. Accordingly, Plaintiffs claim
that in construing the RS Act, the term "cafeterias" must
be subordinated to the term "vending facilities," and thus
only those cafeterias which are in fact vending facilities
may come within the purview of the statute.
Ejusdem generis and noscitur a sociis, however, while
useful tools in statutory interpretation, are not
necessarily deemed conclusive. Circuit City, 532 U.S. at
115. As a general rule, statutory language is to be
interpreted according to the common meaning of the terms
employed. "Our analysis of statutory construction `must
begin with the language of the statute itself,'" Bread
Political Action Comm. v. Fed. Election Comm'n, 455 U.S.
577, 580 (quoting Dawson Chem. Co. v. Rohm & Haas Co., 448
U.S. 176, 187 (1980), and "`[absent] a clearly expressed
legislative intention to the contrary, that language must
ordinarily be regarded as conclusive.'" Id. (quoting
Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447
U.S. 102, 108 (1980)). "The rule [of ejusdem generis] is
one well established and frequently invoked, but it is,
after all, a rule of construction, to be resorted to only
as an aid to the ascertainment of the meaning of doubtful
words and phrases, and not to control or limit their
meaning contrary to the true intent." Mason v. United
States, 260 U.S. 545, 554 (1923);
Singer supra, at 47:16.
In order to invoke these aids, we must first find in the
statute a patent ambiguity requiring clarification. Here
there is no such ambiguity on the face of the statute.
Nor do we find compelling NISH's reference to the
legislative history of the RS Act. Although there is
conflicting evidence regarding congressional intent,
Plaintiffs' evidence fails to demonstrate that the clear
intention of Congress is contrary to that expressed in the
plain language of the statute.(2) See Russello v. United
States, 464 U.S. 16, 25 (1983). We must therefore be
guided by that language. "Vending facilities" is clearly
defined as including "cafeterias," thus there is no need
to resort to either of these techniques to determine
whether a given "cafeteria" falls within the definition of
"vending facilities."
Second, application of ejusdem generis will not yield the
result Plaintiffs seek. In this statute, the more
specific term is "cafeteria," the more general-- "vending
facility." Because ejusdem generis is only to be applied
to determine the scope of a general word that follows a
specific term, that canon has no relevance here. In other
words, since the structure of the statute demonstrates a
clear congressional intent to include cafeterias within
the broader term "vending facilities," there is no need to
resort to ejusdem generis or noscitur a sociis to glean
the proper scope of the term. See United States v.
Turkette, 452 U.S. 576, 582 (1981).
Plaintiffs' second argument on Chevron deference relies
upon Whitman v. American Trucking Assn's, 531 U.S. 457
(2001), for the proposition that in order for agency rules
to merit deference, the agency "must show a textual
commitment of authority, . . . that textual commitment
must be a clear one." Id. at 468. Plaintiffs claim that
the RS Act does not grant the DOE authority to regulate
military mess halls, and that Congress would not delegate
such vast authority without an express announcement of
intent. "[Congress] does not, one might say, hide
elephants in mouseholes." Id. The Supreme Court has
refused to defer to agency interpretations when those
interpretations had an effect clearly unintended by
Congress, not the case here. In FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120 (2000), the Court was called
upon to determine whether a statute granting the FDA
authority to refuse approval to any drug it determined to
harmful to the public health implicitly delegated to the
FDA the authority to outlaw tobacco products. Answering
in the negative, the Court explained that "we must be
guided to a degree by common sense as to the manner in
which Congress is likely to delegate a policy decision of
such economic and political magnitude to an administrative
agency." Id. at 133.
Likewise, in MCI Telecommunications Inc. v. AT&T, 512 U.S. 218
(1994) the Court confronted the question whether a statutory
grant of authority to the FCC allowing it to "modify" any
aspect of 47 U.S.C. 203 included the authority to waive the
tariff filing requirement for non-dominant long distance
carriers. The Court found that such power was not delegated to
the FCC within the delegation of power to "modify" any aspect
of the statute. The Court explained "[i]t is highly unlikely
that Congress would leave the determination of whether an
industry will be entirely, or even substantially,
rate-regulated to agency discretion and even more unlikely that
it would achieve that through such a subtle device as
permission to `modify' rate-filing requirements." MCI, 512
U.S. at 231.
Plaintiffs seek to apply the same rationale here, arguing
that Congress cannot be read as having granted the DOE the
authority to change the operational structure of the
nation's military mess halls through the simple inclusion
of the word "cafeterias" in a statute. We disagree.
First, we do not believe that the ramifications of
bringing military mess halls within the purview of the RS
Act are so apparent that we may impute to Congress an
intention not to delegate this authority. Agency action
giving blind vendors a priority in the operation of
military mess halls cannot be equated with agency action
purporting to outlaw tobacco products. We simply do not
see the elephant in the mousehole. Neither did the Fourth
Circuit in NISH v. Cohen, 247 F.3d 197 (4th Cir. 2001) nor
the Federal Circuit in Southfork Systems, Inc. v. United
States, 141 F.3d 1124 (Fed. Cir. 1998).
We are not persuaded that the legislative history on this
question indicates clear Congressional intent to exempt
military mess halls from the application of the statute.
The legislative history suggests that Congress was aware
of the potential application of the cafeteria provision to
military mess halls. The testimony of Lt. Gen. Leo Benade
during the hearings regarding the proposed 1974 amendments
to the RS Act raised the issue. In the course of that
testimony, Gen. Benade informed Congress of the DOD's
understanding that the cafeteria provision would apply to
military mess halls. Hearings Before the Subcomm. on the
Handicapped of the Senate Comm. on Labor and Public
Welfare, S. 2581, 93rd Cong. 100 (1973). Congress
apparently was aware of this message as it exempted from
the provisions of the RS Act certain vending machine
income that would otherwise be subject to blind vendor
priority. See 20 U.S.C. 107d-3(d).
Further, we must impute to Congress a recognition of the
competing interests implicated by this decision. In
sanctioning the application of the RS Act to military mess
halls Congress presumably realized both the costs and the
benefits of this action, and made a choice in favor of the
beneficiaries of the RS Act.
We cannot say with certainty that Congress intended a
result contrary to that reached by a straightforward
application of the statute. See Miller v. Comm'r of
Internal Revenue, 836 F.2d 1274, 1283 (10th Cir. 1988) (".
. . the candle of legislative history does not burn
brightly for us, but that does not mean we must travel in
the dark, for the words of the statute provide the
illumination we need."). Neither the language of the RS
Act, nor the supporting legislative history provide
evidence of clear congressional intent to exclude mess
halls from the definition of cafeterias as used in that
statute. The resulting ambiguity regarding applicability
of the statute to military mess halls requires us to
proceed to the second prong of the Chevron test.
As the district court correctly noted "Defendants'
interpretation of the RSA as applying to contracts for
mess hall services, standing alone, is entitled to no
particular deference because Defendants are not charged by
Congress with the responsibility or authority to interpret
and implement the RSA." NISH, 188 F. Supp. 2d at 1325.
In making their determination, however, Defendants also
relied upon a memorandum issued by the Commissioner, as
well as the definition of
"cafeteria" promulgated by the DOE. Because the DOE is
the entity charged with implementation of the RS Act, its
determination is owed full Chevron deference. See Chevron
467 U.S. at 842. The memorandum issued by the
Commissioner is owed similar deference as it constitutes
an agency's interpretation of its own regulation. Outside
the context of litigation such interpretations are
"controlling unless plainly erroneous or inconsistent with
the regulation." Auer v. Robbins, 519 U.S. 452, 461 (1997)
(internal quotation marks omitted). Likewise, because the
Air Force relied on the DOE interpretations of the RS Act,
that decision is owed deference equal to that owed to the
DOE interpretations.
We hold that the Air Force based its decision on
legitimate statutory interpretation by the DOE that would
be entitled to deference. Next, we review that
interpretation to determine whether it is "arbitrary,
capricious, or manifestly contrary to the statute."
Chevron, 467 U.S. at 844; Sternberg v. Secretary of Health
and Human Servs., 299 F.3d 1201, 1205 (10th Cir. 2002).
Our first inquiry is whether the interpretation complies
with the plain meaning of the statutory language. See
MCI, 512 U.S. at 225-28 (refusing to defer to agency
action when that action did not fall within the dictionary
definition of the statutory term "modify").
DOE-promulgated definitions define a cafeteria in terms of
the method of food service and available seating
facilities. See 34 C.F.R. 395.1(d) (defining "cafeteria"
as "a food dispensing facility
capable of providing a broad variety of prepared foods and
beverages . . . primarily through the use of a line where
the customer serves himself from displayed selections. . .
. [t]able or booth seating facilities are always
provided."). This definition is consistent with the
dictionary definition that defines a cafeteria as "a
restaurant in which the customers serve themselves or are
served at a counter and take the food to tables to eat."
Webster's Ninth New Collegiate Dictionary 195 (1991).
DOE's interpretation of the term "cafeteria" is therefore
facially reasonable.
Second, in determining whether an agency's interpretation
of a statute is reasonable, the Supreme Court teaches that
"[i]f [the agency's] choice represents a reasonable
accommodation of conflicting policies that were committed
to the agency's care by the statute, we should not disturb
it unless it appears from the statute or its legislative
history that the accommodation is not one that Congress
would have sanctioned." Chevron, 476 U.S. at 845. The
Court in Chevron also directs us to consider whether the
statute in question delegates authority to an agency
because of its specialized understanding of the underlying
policy considerations. Id. at 843-44. Presumably because
of his expertise in the area, the Commissioner has been
entrusted with execution and management of this statutory
scheme. See 20 U.S.C. 107. He in turn promulgated
regulations that, in his expert opinion, would help blind
citizens obtain remunerative employment and obtain
higher levels of self-sufficiency, while paying due heed
to the interests of the federal government. Such
delegation to agency expertise is an additional factor
weighing in favor of deference. Babbit v. Sweet Home
Chapter of Cmtys. for a Great Or., 515 U.S. 687, 703-04
(1995); NLRB v. Okla. Fixture Co., 332 F.3d 1284, 1287
(10th Cir. 2003) (en banc). Attempting to comply with
these rules, the Air Force determined that military mess
halls fit within the definition of "cafeteria" as
established by the DOE and the Commissioner. Because we
find no convincing evidence that Congress would not have
sanctioned this interpretation, we afford it deference.
Because we find both the Air Force and DOE determinations
deserving of deference under the standard set forth in
Chevron, we need not reach the question whether such
determinations would otherwise be deserving of deference
under the standard established in United States v. Mead
Corp., 533 U.S. 218 (2001).
B. Application of the Competition in Contracting Act.
Plaintiffs' second argument is that the RS Act may not
apply to military mess halls because the RS Act does not
contain an exemption from the procurement provision of the
Competition in Contracting Act (CICA). This provision
requires the government to procure all goods and services
through an open process of competitive bidding. See
Krygoski Const. Co. v. United States, 94 F.3d 1537,
1542-43 (Fed. Cir. 1996). In pertinent part, the CICA
states
"except in the case of procurement procedures otherwise
expressly authorized by statute, the head of an agency in
conducting a procurement for property or services-- (A)
shall obtain full and open competition through the use of
competitive procedures." 10 U.S.C. 2304 (a)(1). That
statute defines procurement by reference to the definition
employed in 41 U.S.C. 403, which itself states "[t]he
term `procurement' includes all stages of the process for
acquiring property or services beginning with the process
of determining a need for property or services and ending
with competition and closeout." 41 U.S.C. 403.
Plaintiffs correctly note that obtaining mess hall
services constitutes procurement under these statutory
definitions. They further argue, however, that unlike the
JWOD Act, see 10 U.S.C. 2304(f)(2)(D), the RS Act does
not contain an exception to the competition requirement of
the CICA. Therefore, mess hall services cannot be
obtained under the RS Act without violating the CICA. In
support of their position, Plaintiffs urge us to adopt a
narrow reading of the RS Act, claiming that the
authorization of vending facilities on federal property is
not "procurement" because it does not involve the
acquisition of property or services. Under this
construction, vending facilities provide goods and
services to the general public, not to the federal
government.
We disagree. The definition of "procurement" contained in
41 U.S.C. 403 is sufficiently broad to encompass the award
of the cafeteria contract authorized by the RS Act in this
case. Indeed, the RS Act authorizes the Commissioner to
"establish a priority for the operation of cafeterias on
Federal property by blind licensees . . . whether by
contract or otherwise." 20 U.S.C. 107 d-3(e). We read
this language as authorizing an exception to the open
competition requirement of the CICA. See NISH v. Cohen,
247 F.3d 197, 204 (4th Cir. 2001) ("[A]doption of the
contrary position that the RS Act is not a procurement
statute pursuant to CICA would require a misreading and
misapplication of both statutes.")
Our determination that the RS Act is applicable to
military mess halls creates an apparent conflict between
the RS Act and JWOD Act, since they are both applicable to
contracts for military mess halls. Although there are
plausible scenarios in which the two statutory schemes
could co-exist in a sort of symbiotic relationship (i.e.,
an RS Act licensee obtains products and labor through a
JWOD non-profit agency) we must nevertheless determine
which one must take precedence. It is a general maxim of
statutory interpretation that a statute of specific
intention takes precedence over one of general intention.
See Morales v. Trans World Airlines, 504 U.S. 374, 384
(1992); Sierra Club-Black Hills Group v. United States
Forest Serv., 259 F.3d 1281, 1287 (10th Cir. 2001). Here
the RS Act prescribes a priority for blind vendors in the
operation of cafeterias on federal property, whereas the
JWOD is a more general procurement statute. We find,
therefore, that to the extent a conflict exists between
these two statutes, the RS Act must control.
C. Plaintiffs' Motion to Supplement the Record
Finally, pursuant to Fed. R. App. P. 27, Plaintiffs move
to supplement the record on appeal with the Brief for the
Federal Respondents in the Supreme Court in National Park
Hospitality Ass'n v. United States Department of the
Interior, __ U.S.__, 123 S. Ct. 2026 (2003) (No. 02-196).
Aside from the fact that this brief deals with a different
issue entirely, it was not before the district court and
we deny the motion to supplement. We would also note that
Fed. R. App. P. 30, dealing with Appendices, is applicable
to this appeal and specifically excludes items such as
memoranda of law. We would also point out that to the
extent Plaintiffs are attempting to suggest some type of
judicial estoppel, the Tenth Circuit has rejected that
concept. United States v. 162 MegaMania Gambling Devices,
231 F.3d 713, 726 (10th Cir. 2000).
AFFIRMED. The motion to supplement the record is denied.
(1) Although mess halls do not provide meals to the general
public, they do in fact sell meals on a cash basis to military
personnel living off base who are provided a periodic stipend
for living expenses.
(2) The text of the RS Act demonstrates congressional
awareness of applicable exceptions to the general provisions of
the statute. 20 U.S.C. 107d-3(d) provides an exception to the
provision of 20 U.S.C. 107d-3(a) that "income obtained from
vending machines shall accrue (1) to the blind licensee
operating a vending facility on such property." It explains
that those provisions "shall not apply to income from vending
machines within retail sales outlets under the control of
exchange or ships' stores systems . . . or to income from
vending machines operated by the Veterans Canteen Service." 20
U.S.C. 107d-3(a). See Russello v. United States, 464 U.S. 16,
23 (1983) ("[Where] Congress includes particular language in
one section of a statute but omits it in another Section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.").