NISH v. Rumsfeld

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 14 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
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

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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

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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

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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

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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.

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 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).

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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

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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.

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.

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 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

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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

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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

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.”).

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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 be

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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

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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

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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

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“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

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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

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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

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“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. §

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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

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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.

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