Texas Workforce Commission v. United States Dept o

Case: 19-50283 Document: 00515547117 Page: 1 Date Filed: 08/31/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-50283
Fifth Circuit
FILED
August 31, 2020
TEXAS WORKFORCE COMMISSION, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
UNITED STATES DEPARTMENT OF EDUCATION, REHABILITATION
SERVICES ADMINISTRATION,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:17-CV-26
Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.
KURT D. ENGELHARDT, Circuit Judge:
Plaintiff-Appellee Texas Workforce Commission (the Commission)
alleges that the Army 1 violated the Randolph-Sheppard Act, 20 U.S.C. § 107 et
seq., by failing to give priority to blind vendors in the bidding process for a
vending facility services contract at an Army base cafeteria. An arbitration
panel found in favor of the Army. The Commission appealed the panel’s
1 Upon judicial review, the Department of Education (the Department) is substituted
as the defendant for the Army. See 5 U.S.C. § 703 (“If no special statutory review proceeding
is applicable, the action for judicial review may be brought against the United States, the
agency by its official title, or the appropriate officer.”).
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decision to the district court. The district court granted summary judgment in
favor of the Commission and set aside the panel’s decision. We AFFIRM.
I.
Congress established the Randolph-Sheppard Act (the Act) “[f]or the
purposes of providing blind persons with remunerative employment, enlarging
the economic opportunities of the blind, and stimulating the blind to greater
efforts in striving to make themselves self-supporting . . . .” 20 U.S.C. § 107(a).
To that end, the Act gives blind persons priority in the bidding process for
contracts to operate vending facilities on federal property. Id. at § 107(b). The
Secretary of Education (the Secretary) administers the Act and prescribes its
implementing regulations. See id. at § 107a; 34 C.F.R. § 395 et seq. For these
vending facility contracts, designated state agencies, called State Licensing
Agencies (SLAs), contract with the federal government on behalf of blind
vendors. 34 C.F.R. § 395.33(b).
Here, the Texas Workforce Commission is the SLA which sought to bid
on vending facility services contracts for cafeterias at Fort Bliss, a U.S. Army
base in Texas. The Army has two types of contracts for its cafeterias: Full Food
Services (FFS) and Dining Facility Attendant (DFA) services. FFS contracts
cover activities that comprise the full operation of an Army dining facility, such
as requisitioning, receiving, storing, preparing, and serving of food. DFA
contracts cover activities required to perform janitorial and custodial duties,
such as sweeping, mopping, pot and pan cleaning, and other sanitation-related
functions.
From 2003 to 2014, six cafeterias at Fort Bliss fell under one contract
held by one blind vendor. But in late 2014 following the contract’s expiration,
the Army split the work into two separate contracts: one for FFS services and
one for DFA services. Although the Commission continued to receive bidding
2
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priority for the FFS contract, the Army set aside the DFA contract for bidding
only by small businesses, effectively excluding the Commission from the
bidding process for the DFA contract. Herein arises the dispute on appeal.
The Commission sought arbitration to challenge the Army’s solicitation
of bids for this DFA contract without applying the provisions of the Act to the
selection process. 2 The Army contends that the DFA contract is not for the
“operation” of a cafeteria; therefore, the Act does not apply, and blind vendors
need not receive priority in the bidding process. The Commission, by contrast,
asserts that the Act applies to all contracts pertaining to the operation of
cafeterias on federal property, such that the Army violated the Act when it
failed to give the Commission priority in bidding on the DFA contract. The
arbitration panel majority concluded that because “military personnel
retain[ed] responsibility for performing management operations, headcount
and cashier services, cooking, and menu planning and serving food at those
facilities,” the Army was not required to comply with the Act when soliciting
bids for DFA contracts. 3
The Commission subsequently sought judicial review of the arbitration
panel’s decision. The district court, concluding that the DFA contract at issue
is subject to the Act, granted summary judgment for the Commission and set
aside the arbitration panel’s decision. This appeal followed.
2 Under the Act, disputes between a federal agency and an SLA are resolved by a
three-person arbitration panel; each party designates a panel member, and those two panel
members choose the third member. 20 U.S.C. §§ 107d-1, 107d-2. These panel decisions are
subject to judicial review as final agency actions under the Administrative Procedure Act. Id.
at §§ 107d-1(b), 107d-2(a); see 5 U.S.C. §§ 701–06.
3 Importantly, the arbitration panel did not conduct its analysis on a case-specific
basis but instead generally concluded that DFA contracts do not fall under the Act. Moreover,
the panel majority neglected to address whether the Army, by splitting the work into two
separate contracts, placed a limitation on the operation of the vending facility without first
justifying it in writing to the Secretary, as required by the Act. See 20 U.S.C. § 107(b).
3
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II.
Under the Act, an arbitration panel’s decision is subject to review as a
final agency action under the Administrative Procedure Act. 5 U.S.C. § 706(2).
A court must set aside that action if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). We
review de novo the district court’s grant of summary judgment. Bridges v.
Empire Scaffold, LLC, 875 F.3d 222, 225 (5th Cir. 2017); see FED. R. CIV. P.
56(a).
III.
The pivotal question here is whether the DFA contract at issue is subject
to the Act; the answer turns on the meaning of “operate” 4 as it is used in the
Act. The Act authorizes “blind persons . . . to operate vending facilities on any
Federal property,” and states that “[i]n authorizing the operation of vending
facilities on Federal property, priority shall be given to blind persons licensed
by a State agency.” 20 U.S.C. § 107(a)–(b) (emphasis added).
The Army contends that “operate” means to direct or manage,
implicating a level of executive authority, and because the DFA contract here
is only for janitorial and custodial-support services, the contract is not for the
“operation” of the cafeteria and does not fall under the Act. The Commission,
by contrast, contends that the services covered by the DFA contract are
integral to the operation of the cafeteria; therefore, the Act applies, and the
Commission should have received priority in bidding on the contract. Because
neither the statute nor its implementing regulations make a distinction
between the Act’s applicability to FFS versus DFA contracts, see 20 U.S.C. §
Our discussion of the term “operate” extends to other variations of the word, i.e.
4
“operation” or “operator.”
4
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107(a)–(b); 34 C.F.R. § 395.33, in order to determine the reach of the Act, we
must first determine what it means to “operate” a vending facility.
A.
We begin our statutory interpretation by inquiring whether the meaning
of the term “operate” is ambiguous. “When the words of a statute are
unambiguous . . . judicial inquiry is complete.” Conn. Nat’l Bank v. Germain,
503 U.S. 249, 254 (1992) (internal quotation marks and citation omitted). The
Act does not define “operate” or “operation,” see 20 U.S.C. § 107e, and we do
not find that the term’s plain meaning is resolved after reviewing multiple
dictionary definitions. 5 Nevertheless, the Department contends that the
“ordinary or natural meaning” of “operate” is unambiguous based on the
Supreme Court’s and our court’s interpretation of the term in Bestfoods and
Nature’s Way Marine. See United States v. Bestfoods, 524 U.S. 51 (1998);
United States v. Nature’s Way Marine, L.L.C., 904 F.3d 416 (5th Cir. 2018).
We, however, are hesitant to rely on Bestfoods and Nature’s Way Marine for
the ordinary and natural meaning of “operate” given the contextual differences
between those cases and the instant case.
In Nature’s Way Marine, our court followed the Supreme Court’s
interpretation of “operate” in Bestfoods and held that “an ‘operator’ of a vessel
under the [statute] would include someone who directs, manages, or conducts
the affairs of the vessel.” Nature’s Way Marine, 904 F.3d at 420–21.
5 The dissenting opinion cherry-picks three dictionary definitions to support its
assertion that to “operate” a cafeteria unambiguously means to have some level of executive
control over it. But it fails to list a number of other definitions that do not implicate a
requisite level of control. For example, The Oxford English Dictionary includes a definition
for “operate” that means to “produce an effect; to act, work.” Operate, OXFORD ENGLISH
DICTIONARY (3d ed. 2004). Merriam-Webster defines it as “to perform a function” and “to put
or keep in operation.” Operate, MERRIAM-WEBSTER.COM, https://www.merriam-
webster.com/dictionary/operate (last visited Aug. 18, 2020). Moreover, even the definitions
quoted by the dissenting opinion carry alternative meanings. A review of all dictionary
definitions reveals that the term “operate” does not bear a singular, plain meaning.
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Importantly, Judge Elrod, writing for the court, noted that the statutes in
Bestfoods and Nature’s Way Marine “have common purposes and a shared
history” and the “parallel language between the two statutes is significant.”
Id. at 420. Indeed, the statute in Bestfoods “define[d] . . . ‘operator’ with the
exact same language” as the statute at issue in Nature’s Way Marine, id., so it
is unsurprising that the court in Nature’s Way Marine adopted the Bestfoods
court’s ordinary and natural meaning of the word. See United States v. Meade,
175 F.3d 215, 220 (1st Cir. 1999) (noting that the use of parallel language or
construction in different statutes may inform judicial interpretation).
However, no such commonality exists between the Act in the instant case
and either of those statutes. The shared purpose of the Bestfoods and Nature’s
Way Marine statutes centers on liability and compensation for environmental
pollution. See generally 33 U.S.C. §§ 2701–2762; 42 U.S.C. §§ 9601–9675.
Given that context, it would be fair to say the ordinary and natural meaning
of “operator” is a person who “directs, manages, or conducts” the affairs of the
facility or vessel because a level of control or responsibility is implicated when
liability is involved. But no liability is implicated by the Act here. Quite the
opposite, the Randolph-Sheppard Act was enacted to benefit blind persons by
providing them with greater employment and economic opportunities. The Act
has a “distinct, focused, and singular purpose” that is not covered by the
Bestfoods or Nature’s Way Marine statutes. See Meade, 175 F.3d at 221.
Furthermore, the word the Bestfoods and Nature’s Way Marine courts
analyzed was “operator,” but the whole term as listed in the definitions section
of both statutes is “owner or operator.” So, it is also unsurprising that the
courts interpreted “operator” to mean a person with some sort of executive
control or authority because “operator” was defined in tandem with “owner.”
By contrast, in the instant case, the Army “owns” the cafeteria, whereas the
third party managing the services contract “operates” the vending facility.
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Unlike the statutes in Bestfoods and Nature’s Way Marine, under the Act here,
the party who “operates” the vending facility cannot and should not be defined
in the same way as the “owner.”
Because of the significant contextual distinctions, we cannot
unequivocally say that “operate” carries the same meaning in a pollution
liability statute as it does in an employment opportunity statute. “[T]he
presumption of consistent usage can hardly be said to apply across the whole
corpus juris. Frequently when a court is called on to construe a statutory word
or phrase, counsel for one side will argue that it must bear the well-established
or unavoidable meaning that the same word or phrase has in a different statute
altogether. Without more, the argument does not have much force[.]” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 172
(2012). “[P]recedent teaches that the case for construing one statute in a
manner similar to another is weakest when the two have significant
differences.” Meade, 175 F.3d at 221 (referencing United States v. Granderson,
511 U.S. 39, 50–51 (1994)); cf. Walter Wheeler Cook, “Substance” and
“Procedure” in the Conflict of Laws, 42 YALE L.J. 333, 337 (1933) (“The
tendency to assume that a word which appears in two or more legal rules . . .
has and should have precisely the same scope in all of them . . . must constantly
be guarded against.”). “[T]he mere fact that the words are used in each
instance is not a sufficient reason for treating a decision on the meaning of the
words of one statute as authoritative on the construction of another statute.”
Rupert Cross, Precedent in English Law 192 (1961). Accordingly, our inquiry
into the meaning of the word “operate” should not begin and end with Bestfoods
and Nature’s Way Marine. Although we need not dismiss their interpretations
of the word entirely, further investigation is required.
A case which presents a more instructive interpretation of “operate” is
Ivy v. Williams, 781 F.3d 250 (5th Cir. 2015). In Ivy, our court was tasked with
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determining the meaning of “operations,” as it was used in the Rehabilitation
Act. Id. at 254–55. There, the plaintiffs, who were deaf individuals, brought
suit against the Texas Education Agency (TEA) to bring driver education into
compliance with the Americans with Disabilities Act and the Rehabilitation
Act. Id. at 252–53. The key question was whether the plaintiffs had been
excluded from participation in or denied the benefits of the services, programs,
or activities of the TEA. Id. at 254–55. To answer that question, our court had
to determine whether driver education is a “service, program, or activity” of
the TEA. Id. The Rehabilitation Act defined “program or activity” as “all the
operations of” a public entity. Id. at 255 (citing 29 U.S.C. § 794(b)). Judge
Clement, writing for the court, then offered the following explanation: “In the
context of interpreting this definition, we have explained that Webster’s
Dictionary broadly defines ‘operations’ as ‘the whole process of planning for
and operating a business or other organized unit,’ and defines ‘operation’ as ‘a
doing or performing esp[ecially] of action.’” Id. (citing Frame v. City of
Arlington, 657 F.3d 215, 227 (5th Cir. 2011)).
The Ivy court’s broad interpretation of “operate” is particularly
instructive here because the purposes of the Rehabilitation Act and the
Randolph-Sheppard Act are strikingly similar. The Rehabilitation Act lists
several purposes including “to empower individuals with disabilities to
maximize employment, economic self-sufficiency, independence, and inclusion
and integration into society.” 29 U.S.C. § 701(b)(1) (emphasis added). The
Randolph-Sheppard Act likewise is “[f]or the purposes of providing blind
persons with remunerative employment, enlarging the economic opportunities
of the blind, and stimulating the blind to greater efforts in striving to make
themselves self-supporting.” 20 U.S.C. § 107(a) (emphasis added). Clearly,
these two statutes have similar purposes—to give disabled persons greater
employment and economic opportunities. Accordingly, the Ivy court’s
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explanation is informative to our statutory analysis in the instant case. 6 See
Meade, 175 F.3d at 215.
Because the Bestfoods and Nature’s Way Marine courts and the Ivy court
present reasonable, yet contrasting, interpretations for the meaning of
“operate,” and the Act here provides no clear definition, we find that the term
is ambiguous.
The dissenting opinion contends that the term’s meaning is
unambiguous. However, it took eight pages to explain how it reached that
conclusion, only to concede on the last page that “other senses of operate exist.”
And we have also reviewed the dictionary definition of “ambiguous”: “capable
of being understood in two or more possible senses or ways.” Ambiguous,
MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/ambiguous
(last visited Aug. 18, 2020) (emphasis added). Indeed, it is difficult to
contemplate how the Bestfoods case could have made it to the steps of the
Supreme Court were the term’s meaning plain and unambiguous. And the
term’s ambiguity cannot be resolved by the Court’s construction in Bestfoods
and later adopted by our court in Nature’s Way Marine because the meaning
of an ambiguous term, by its very nature, changes depending on its usage.
B.
Finding that the statutory language is ambiguous, we must now
construe the meaning of “operate” based on the context in and purpose for
which it is used. See Wachovia Bank v. Schmidt, 546 U.S. 303, 318 (2006)
(finding that the word “located” is a chameleon word in that its meaning
depended on its context and purpose).
6 The dissenting opinion’s suggestion that Ivy does not support a broad interpretation
of “operate” is perplexing given that the Ivy court expressly states that the term is “broadly
define[d].” See Ivy, 781 F.3d at 255. Furthermore, that the Ivy court found driver education
fell outside the ambit of the Rehabilitation Act is neither here nor there. It is Ivy’s definition
of “operate” that is relevant to the instant case.
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Justice Scalia identified one of the fundamental principles of reading law
to be a presumption against ineffectiveness. That is, a textually permissible
interpretation that furthers rather than obstructs the document’s purpose
should be favored. Scalia & Garner, supra, at 63–65. Here, although the
meaning of “operate” is ambiguous, the purpose of the Act is not:
For the purposes of providing blind persons with remunerative
employment, enlarging the economic opportunities of the blind, and
stimulating the blind to greater efforts in striving to make
themselves self-supporting, blind persons licensed under the
provisions of this chapter shall be authorized to operate vending
facilities on any Federal property.
20 U.S.C. § 107(a) (emphasis added). We should not use the Act’s purpose to
expand the meaning of the term “operate” beyond its permissible meaning. See
Scalia & Garner, supra, at 35. But, as the district court noted, “operate” could
be fairly read as including all necessary tasks to the functioning of a cafeteria
or only those tasks which implicate a level of control or authority. Either
interpretation of the word is reasonable and permissible. A broader reading of
“operate” which includes more than only executive-level functions would
further the Act’s purpose; therefore, applying a presumption against
ineffectiveness, it is the more favorable interpretation.
Additionally, prior to 2014 when the Army split the vending facility
contract into two, the same custodial and sanitation services now at issue, as
part of the then single vending facility contract, were subject to the Act.
Accordingly, the dissent is mistaken that our interpretation of “operate”
conflicts with its ordinary usage. On the contrary, the customary application
of the Act had previously included these services that are now in a separate
DFA contract. To hold that the DFA contract now does not fall under the ambit
of the Act because it is not for the “operation” of the cafeteria is inconsistent
with the Act’s customary application to these services. See John F. Manning,
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What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70, 92–93
(2006) (“Textualists start with contextual evidence that goes to customary
usage and habits of speech . . . When contextual evidence of semantic usage
points decisively in one direction, that evidence takes priority over contextual
evidence that relates to questions of policy.”). Again, this cuts against the
dissent’s narrow interpretation of “operate.” Cf. Abramski v. United States,
573 U.S. 169, 179 (2014) (noting that we must interpret an ambiguous word
not in a vacuum but with reference to, among other things, the statute’s
historical application).
A broader interpretation of “operate” is further supported by a March 5,
2018 letter from the Secretary of Education. In her letter, which was issued
after the arbitration panel’s decision in the instant case, the Secretary notes
the existence of a dispute over the types of contracts to which the Act applies
and, in no uncertain terms, states that the Department believes the Act applies
to both FFS and DFA contracts. The Secretary then directly discusses the term
“operation” as it is used in the Act:
Nothing in the Randolph-Sheppard Act requires a vendor to
participate in every activity of the cafeteria in order to “manage”
or “direct the working of” the cafeteria. Where a vendor is
responsible for all the functions of the cafeteria aside from those
performed by military personnel—such as supervisory,
administrative, and sanitation-related functions—the vendor can
be said to “manage” the cafeteria, even if the vendor is not
preparing the food. Indeed, the cafeteria would not be able to
operate without the vendor performing those functions.
The Secretary further clarified that the Act may not apply to all DFA contracts,
such as those which are limited to discrete tasks. But the Secretary
subsequently points to an example of a DFA contract that did fall within the
Act’s applicability. In that case, concerning a DFA contract for services at a
cafeteria at Fort Riley, Kansas, the panel concluded that the Act applied to the
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DFA contract because the contract “include[d] tasks that constitute an integral
element of providing food service at a military cafeteria facility, or pertain to
the operation of a cafeteria, or tasks that without which the cafeterias would
not be able to function.” See Kan., Dep’t of Children & Family Servs. v. U.S.
Dep’t of the Army, Fort Riley, Case No. RS/15-15 (May 9, 2017),
https://www2.ed.gov/programs/rsarsp/arbitration-decisions/r-s-15-15.pdf.
Following this case cite, the Secretary concludes, “[t]he Department takes
seriously its responsibility to administer the Randolph-Sheppard Act and to
follow the congressional aim ‘to foster the expansion of the Randolph-Sheppard
program to its fullest potential.’” (emphasis added). The Secretary’s language
here favors a broader interpretation of “operate” in the context in which it is
used within the Act. Although the Secretary’s letter does not carry the force of
law, we find it presents a “reasonable interpretation” of the Act, such that it is
persuasive and is therefore “entitled to respect.” See Christensen v. Farris Cty.,
529 U.S. 576, 587 (2000). Accordingly, the district court did not err in holding
that the Act may apply to DFA contracts generally.
We now turn to the DFA contract at issue here. 7 Upon reviewing the
contract’s language and enumerated tasks, we conclude that the DFA contract
is subject to the Act. The Performance Work Statement (PWS) of the DFA
contract states that “[t]his contract includes all functions, tasks, and
responsibilities normally performed by a Food Service Operation.”
Furthermore, the contract is not limited to “discrete tasks” and instead lists
several pages of specific tasks all for the combined purpose of providing
7 Unlike the arbitration panel, we conclude that there is no bright-line rule with
respect to the Act’s applicability to DFA contracts; instead, each contract must be examined
on a case-by-case basis according to the contract’s individual particularities. Consequently,
our ruling here does not foreclose similar issues on appeal in other cases, e.g. SourceAmerica
v. U. S. Dep’t of Educ., 368 F. Supp. 3d 974 (E.D. Va. 2019), which is currently pending appeal
in the Fourth Circuit.
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sanitation-related functions, which the Secretary identified as necessary to the
operation or “manage[ment]” of a cafeteria. These tasks include, but are not
limited to, the following: providing “[c]lean and sanitized dinnerware, utensils,
and trays . . . to diners without delay 100% during” meal services; cleaning food
and beverage spills during meal services “within [five] minutes of occurrence”;
cleaning and sanitizing all food service equipment and containers; preparing,
maintaining, and cleaning dining areas and “afford[ing] each diner a clean area
to eat without delay. The dissent mistakenly suggests our opinion adopts a
meaning of the term “operate” where if you’re involved “even a little bit” in
causing something to function, you “operate” that thing. That suggestion is so
far afield from what we hold here today. We hardly see how a vendor who is
in charge of the litany of functions supra—in addition to others not enumerated
in our opinion—is involved in the cafeteria’s operation only “a little bit.” And
we, in no uncertain terms, state that the Act may not apply to other DFA
contracts, such as ones limited to a discrete task. But in the DFA contract
before us, these tasks, taken together, involve operating the cafeteria. 8
Accordingly, the district court did not err in holding that the DFA contract falls
within the terms of the Act, such that the Army violated the Act by not giving
the Commission priority in the bidding process.
For the reasons stated herein, the district court’s order granting
summary judgment in favor of the Commission and setting aside the
arbitration panel’s decision is AFFIRMED.
8 The dissent further laments that in reaching this conclusion we have applied a
definition of what it means to “operate” a cafeteria from an arbitration panel ruling on the
very same issue before us today. See Fort Riley, Case No. RS/15-15. And? Our construction
of the term’s meaning, in light of the context and purpose for which it is used in the Act,
comports with that panel’s analysis of an analogous DFA contract. The only “mystery” that
remains is why the dissenting opinion prefers a definition of “operate” pulled from cases that
have several stark statutory and factual distinctions.
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EDITH BROWN CLEMENT, Circuit Judge, dissenting:
The issue here is whether this custodial-services contract is a contract to
“operate” a cafeteria. The majority holds that it is. But that’s not how an
ordinary English speaker uses operate. And nothing about how this statute or
its implementing regulations use operate or operation suggests a different
contextual meaning. There will be cases where determining whether a contract
entails the “operation” of a cafeteria will be hard. This isn’t one of them. I
therefore respectfully dissent.
I.
The “first” and “cardinal canon” of statutory construction is that the
“legislature says in a statute what it means and means in a statute what it
says.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992). So, “[w]hen
the words of a statute are unambiguous, . . . this first canon is also the last:
‘judicial inquiry is complete.’” Id. at 254 (quoting Rubin v. United States, 449
U.S. 424, 430 (1981)). Operate and operation, as they are used in the Randolph-
Sheppard Act, have a plain, unambiguous meaning: to “operate” a cafeteria
means to have some level of executive control over it. All our usual interpretive
sources support this meaning.
U.S. Supreme Court case law supports this meaning. In United States v.
Bestfoods, 524 U.S. 51 (1998), the Court construed what “operating” a facility
meant. The Court stated that, “[i]n a mechanical sense, to ‘operate’ ordinarily
means ‘[t]o control the functioning of; run: operate a sewing machine.’ And in
the organizational sense . . . , the word ordinarily means ‘[t]o conduct the
affairs of; manage: operate a business.’” Id. at 66 (citation omitted) (quoting
AMERICAN HERITAGE DICTIONARY 1268 (3d ed. 1992)). The unanimous Court
applied the organizational sense of operate, holding that “an operator is simply
someone who directs the workings of, manages, or conducts the affairs of a
facility.” Id.
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This circuit’s case law supports this meaning. In United States v.
Nature’s Way Marine, L.L.C., 904 F.3d 416, 417–18 (5th Cir. 2018), we
construed what “operating” a vessel meant—there, the vessels were two barges
that the defendant was moving with its tugboat. We too applied the
organizational sense of operate, holding that “the ordinary and natural
meaning of an ‘operator’ of a vessel” is one “who directs, manages, or conducts
the affairs of the vessel.” Id. at 420–21.
Definitions in leading dictionaries support this meaning. The Oxford
English Dictionary defines operate to mean “to manage, to direct the operation
of.” Operate, OXFORD ENGLISH DICTIONARY (3d ed. 2004). Webster’s Third New
International Dictionary defines it to mean “to manage and put or keep in
operation whether with personal effort or not” such as “operated a grocery
store.” Operate, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1581
(2002). And, as already cited, the American Heritage Dictionary defines it to
mean “[t]o conduct the affairs of; manage: operate a business.” Operate,
AMERICAN HERITAGE DICTIONARY, supra, quoted in Bestfoods, 524 U.S. at 66. 1
The way this statute and its implementing regulations use operate and
operation supports this meaning. Section 107a(d)(2)(B)(ii) of the Act addresses
when the “operation” of a cafeteria “would be in . . . competition with” an
incumbent “restaurant or other food facility.” 20 U.S.C. § 107a(d)(2)(B)(ii). This
suggests that a vendor’s contract is for the “operation” of a cafeteria only if the
vendor has some control over directing and managing the cafeteria—to say
1 The majority claims that I selectively chose these definitions over others that support
a different sense of operate. But of the three supposedly alternative definitions that the
majority cites, two are for operate when used as an intransitive verb—operate is clearly used
as a transitive verb here—and for the third, the majority leaves out Merriam-Webster’s usage
example, which conflicts with how the majority uses operate and is the same as the example
I quote from Webster’s Third: “operated a grocery store.” In any event, the majority doesn’t
explain how these definitions support its sense of operate.
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that a vendor without executive control over the cafeteria’s food or its pricing
is in “competition” with another food facility would strain the ordinary and
natural meaning of competition. For example, it wouldn’t make sense to say
that a vendor with a contract to clean dishes at restaurant A is in competition
with restaurant B. And 34 C.F.R. § 395.33(a) states that a blind vendor gets
priority in the bidding process if its “operation” of the cafeteria is “at a
reasonable cost, with food of a high quality comparable to that currently
provided employees.” This suggests that the “operation” of a cafeteria entails
having some control over the food and its quality. Both of these uses suggest
that a vendor who “operates” a cafeteria must to some degree direct, manage,
or conduct its affairs, and likely must have some control over the food.
All these sources support that operate is used in the organizational sense
here, and no authority suggests otherwise. Our judicial inquiry into this
interpretive issue is therefore complete. All that’s left is to apply the term’s
plain meaning to the contract. This custodial-services contract is for “activities
required to perform janitorial and custodial duties within dining facilities,”
such as “sweeping, mopping, scrubbing, trash removal, dishwashing, waxing,
stripping, buffing, window washing, pot and pan cleaning, and other
sanitation-related functions.” None of these duties entail directing, managing,
or conducting the cafeteria’s affairs. Under this contract, the vendor doesn’t
order food, prepare food, serve food, determine what is served, determine how
much to serve, determine what to charge for a meal, or have any other duties
that might arguably suggest that the vendor has executive-level authority over
the cafeteria’s affairs. Thus, this contract is not for the “operation” of a
cafeteria.
The majority, however, doesn’t apply this organizational sense of
operate. It applies a “broad” sense, holding that a vendor under this contract
“operates” a cafeteria because its “tasks, taken together, involve operating the
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cafeteria.” That explanation isn’t very helpful because, like the statutory
definitions in Bestfoods and Nature’s Way, it’s circular. Cf. Bestfoods, 524 U.S.
at 66 (“Here of course we may again rue the uselessness of [the statute’s]
definition of a facility’s ‘operator’ as ‘any person . . . operating’ the facility . . . .”
(quoting 42 U.S.C. § 9601(20)(A)(ii))); Nature’s Way, 904 F.3d at 420 (“The
statute does not define ‘operating,’ offering instead only the circular definition
that an ‘owner or operator’ is ‘in the case of a vessel, any person owning [or]
operating . . . the vessel’” (quoting 33 U.S.C. § 2701(26)(A)(i))). What it means
to “operate” a cafeteria remains a mystery.
The definition that the majority appears to use is from an arbitration
panel ruling. That panel held that a contract is for the “operation” of a cafeteria
if the contract “includes tasks that constitute an integral element of providing
food service at a military cafeteria facility, . . . or tasks that without which the
cafeterias would not be able to function.” Kan., Dep’t of Children & Family
Servs. v. U.S. Dep’t of the Army, Fort Riley, Case No. RS/15-15 (May 9, 2017),
https://www2.ed.gov/programs/rsarsp/arbitration-decisions/r-s-15-15.pdf.
Circularity problems aside, this sense of operate conflicts with ordinary usage.
Mopping the floor, cleaning the kitchen, and bussing tables are tasks
that are integral to operating a restaurant. But if someone who did only those
tasks claimed that he was “operating” a restaurant, an ordinary English
speaker would think him confused, mistaken, or dishonest. Similarly, no
ordinary English speaker would say that sanitizing the butcher counter at
Whole Foods is “operating” a grocery store, that scrubbing the hull of a ship is
“operating” a vessel, or that doing custodial work at a chemical plant is
“operating” a facility. Yet that’s what the majority’s broad sense of operate
would entail. Indeed, based on this broad sense, food suppliers, electricity
providers, and plumbers—all of whom perform tasks that, without which, a
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cafeteria could not function—“operate” a cafeteria. We shouldn’t adopt a sense
of operate that so obviously conflicts with how ordinary people use the word.
The majority disagrees. It claims that this sense of operate is consistent
with ordinary usage. It reasons that, because the custodial services performed
under this contract used to be performed under a larger contract that covered
the whole vending facility, and because that contract was subject to the
Randolph-Sheppard Act, holding that this custodial-services contract isn’t for
the “operation” of a cafeteria is inconsistent with how the Act is customarily
applied to those services. I’m not sure that is an example of ordinary usage,
but the argument is flawed, nonetheless. The majority incorrectly assumes
that what is true of the whole is true of each of its parts—i.e., because someone
who performs tasks A–Z “operates” a cafeteria, someone who performs only
tasks A–D “operates” a cafeteria. Under that reasoning, a contract solely to
sweep the floor would be a contract to “operate” a cafeteria so long as the prior
contract included sweeping the floor. That obviously isn’t right. What made the
prior contract a contract to “operate” a cafeteria might have been everything
except the custodial services. This argument therefore doesn’t show that these
custodial services, by themselves, constitute the “operation” of a cafeteria or
that the majority’s broad sense of operate is consistent with ordinary usage.
The Randolph-Sheppard Act clearly uses operate in the organizational
sense. The Supreme Court, this court, and countless dictionaries confirm that
operate has a settled, plain meaning when used in this sense. This plain
meaning definitively resolves the question before us: Is this custodial-services
contract a contract to “operate” a cafeteria? No, it isn’t. Thus, the Act doesn’t
apply.
II.
The majority uses a different sense of operate because it finds an
ambiguity. It claims that (a) Ivy v. Williams, 781 F.3d 250 (5th Cir. 2015),
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supports this different, broad sense of operate, and (b) we can’t rely on
Bestfoods and Nature’s Way because there are contextual differences between
how operate is used in the statutes there and here. Both claims are wrong. We
therefore have no reason to search for a different sense of the word.
A.
The majority’s first claim is that Ivy uses a different sense of operate—a
“broad” sense. It doesn’t. In Ivy, the issue was whether the “plaintiffs ha[d]
been ‘excluded from participation in or . . . denied the benefits of the services,
programs, or activities’” of the Texas Education Agency. Id. at 255 (quoting 42
U.S.C. § 12132). To resolve that issue, we had to determine whether driver
education—the allegedly denied benefit—was an Agency service, program, or
activity under the relevant statute. Id. That statute states that “‘program or
activity’ means all of the operations of” a public entity. 29 U.S.C. § 794(b).
That’s why we cited definitions for operations—“the whole process of planning
for and operating a business or other organized unit”—and operation—“a doing
or performing esp[ecially] of action.” Ivy, 781 F.3d at 255 (quoting WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 1581 (1993)). These definitions
supposedly support the majority’s broad sense of operate.
The majority doesn’t explain how these definitions support its broad
sense of operate or how that sense squares with how operate is used in this
statute or its implementing regulations. Regardless, in Ivy we held that the
Agency did “not operate or perform driver education because it [did] not teach
driver education or contract with the schools that [did].” Id. (emphasis added).
We held this even though the Agency is in charge of licensing such schools. Id.
at 253–54. If Ivy supported the broad sense that the majority cites it for, that
case would have gone the other way. The licensing of driver-education schools
is integral to their operation—arguably more so than custodial work is to the
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operation of a cafeteria. Ivy therefore doesn’t support this broad sense of
operate. 2
B.
The majority’s second claim is that we can’t rely on Bestfoods and
Nature’s Way because of contextual differences in how the statutes in those
cases use operate. The majority correctly notes that the statutes in Bestfoods
and Nature’s Way have a shared history, common purpose, and parallel
language, and that they are about liability and compensation, not awarding
government contracts. The statutes indeed have differences, but the way they
use operate is the same. Those cases were about what it meant to “operate” a
facility or vessel; this case is about what it means to “operate” a cafeteria. The
statutes’ differences, therefore, are not differences in usage.
Nevertheless, the majority finds these differences relevant. It points out
that those statutes, unlike this one, rely on statutory definitions of an “owner
or operator” and impose liability. But it’s unclear how either point affects our
analysis. In those statutes, owner and operator are separated by the disjunctive
or, not and, so the meanings of those two words aren’t necessarily related.
Indeed, in Nature’s Way, we held the defendant liable for operating barges that
it didn’t own. 904 F.3d at 418. In any event, neither case suggested that the
word owner or the potential for liability affects what operate means.
On the liability point, the majority seems to reason that, because the
broad sense of operate wouldn’t fit with a statute that imposes liability, we
can’t infer much of anything from the sense of operate used in those statutes.
The organizational sense, on the other hand, fits those statutes “because a level
2The Supreme Court vacated and remanded Ivy with instructions to dismiss the case
as moot. Ivy v. Morath, 137 S. Ct. 414 (2016) (mem.). So even if Ivy supported a different
sense of operate, that case is no longer precedential and, therefore, is poor evidence of an
ambiguity.
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of control or responsibility is implicated when liability is involved.” I agree that
liability usually involves some level of control or responsibility, but that isn’t
why the broad sense of operate is a poor fit.
Someone can be responsible for causing an injury without having
executive-level control over the injury-causing thing. For example, consider if
the tugboat accident in Nature’s Way had been caused by the boat’s mechanic.
A mechanic undoubtedly performs tasks integral to the boat’s functioning and,
hence, the barges that the boat was moving. If the mechanic had caused the
accident by negligently repairing the boat’s engine, he would be at least partly
responsible. He wouldn’t be liable under the statute, however, because the
statute limits liability to the person “owning” or “operating” the vessel. 33
U.S.C. §§ 2702(a), 2701(32)(A). The statute in Bestfoods similarly limits
liability to the person “owning” or “operating” the facility. 42 U.S.C. § 9607(a).
The majority seems to get this causal connection backwards—those statutes
limit liability only to the person with executive-level control not because the
statutes impose liability, but because they use the word operate. Thus, these
attempts to distinguish Bestfoods and Nature’s Way fail to show that any of
these statutes use operate differently.
Ivy doesn’t support a different sense of operate and Bestfoods and
Nature’s Way don’t use operate differently than how it’s used here. The
majority’s two reasons for finding an ambiguity therefore fail to show any such
ambiguity. Operate has one clear sense here—the organizational sense—and
the majority cites no authority that calls that into doubt.
III.
To be sure, other senses of operate exist. Operate has a slightly different
meaning in, for example, the medical and mechanical contexts. But the
majority isn’t applying those senses; it’s applying what appears to be a novel
sense of operate where, if you’re involved—even a little bit—in causing
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something to function, you “operate” that thing. This seems to be an attempt
to solve a problem we don’t yet have.
That problem is that, for some contracts, determining whether the
vendor is “operating” a cafeteria will be difficult—e.g., does a vendor who is in
charge of everything in the cafeteria except preparing the food “operate” the
cafeteria? That case will be tough because we will have to determine how much
executive-level control is necessary to constitute “operating” a cafeteria. That
is, such a case will be tough not because the meaning of operate is ambiguous,
but because its application to the facts will be debatable. At the margins,
determining exactly how much executive control is required under this statute
will be a difficult line-drawing problem. But it’s a line we need not draw
because for this contract, the vendor has no executive control over the cafeteria.
That makes our job today easy. Wherever that line should be drawn, this
contract falls well below it.
* * *
Because “operating” a cafeteria entails having some level of control over
the cafeteria’s affairs, and the vendor under this custodial-services contract
has none, I would hold that the Randolph-Sheppard Act doesn’t apply to this
contract. I therefore would remand for the district court to determine in the
first instance whether the Army was required to “justify in writing to the
Secretary” its decision to split the cafeteria work into two contracts. See 20
U.S.C. § 107(b). I respectfully dissent.
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