shaw whenever you're ready may it please the court willy shelf of the united states the question presented is whether a contract for tasks like dishwashing and mopping floors a contract operate a cafeteria within the meaning of the randolph sheppard act now under the plain meaning of the word operate the answer is clearly no the answer the army operates these cafeterias plans the menu orders the food manages inventory prepares and serves the food and performs headcount and collects payment the contractor here or the contract under this proposal performs only those discrete custodial services that army regulations specifically prohibit soldiers from joining us now congress could have drafted a much broader statute could have drafted a statute that gives preference to any blind vendor who performs any services pertaining to a cafeteria but it didn't do that congress said operate a vending facility and it is a cardinal rule of statutory interpretation that congress means what it says the pale majority largely accepted this version and then the district court ruled against you correct that's right that's correct and they're there am i correct that there's a pending case in the th circuit that has the flip the panel ruled against you but the district or judge ellis ruled in your favor i think that's correct in that's been are you involved in that case no no i'm not involved in this case of attorney who originally placed this case is on leave so i'm on or going in her place that case briefs were submitted no oral argument were waiting for the four circuit will that's right no argument has been scheduled as far as i'm aware and i just want to add that plaintiff's interpretation has no principle limit now just as every tough exterior needs sanitation services to safely serve food every cafeteria also needs to keep food cold so a contract to provide and maintain refrigeration units for a cafeteria or to maintain the vent hoods that allow safe preparation of the food that would also constitute operating a cafeteria within the meaning of the randolph sheppard act yet no one would argue that the mental sheppard act covers all of these discrete services in our interpretation of the word operate is supported by both text dictionary definitions  and by the president of both the supreme court and this court so for example i would point the court to the supreme court's decision and best foods in which it says that the word operate ordinarily means to conduct the affairs of or to  that is a circle a case is there a case or maybe i should ask you what is your best case that expounds upon the meaning of the word operate closer to something such as this statute i'm not aware i think that i'm not aware of any there are some district court cases and court of federal claims cases that have considered sort of the precise question of the meaning of the term operate within the statute but i'm not aware of any court of appeals precedent or supreme court precedent that that does so but i i would submit that there's no reason to not rely on the interpretation that the supreme court relied on in  bestfoods notwithstanding that it obviously pertains to a different statute you know it relies on the dictionary definition of operate in a sort of organizational sense that clearly would also obtain here in the case you cited from our circuit nature's way that had to do with operating a tugboat that's right it just seems very distant then how you operate a vending machine i'm not really i guess to fly a two difficulties were thirty one was the plane meaning operation means the working of and the people who provide the food don't seem to be any more or less essential than the people who remove and clean up the food right but the i think the point is that it cannot be that the case and it cannot be the case that anyone who is essential to the overall working of the cafeteria is operating the cafeteria so it can't be for example that the person who you know again maintains the refrigerator's or does the pest control all of which are essential  are also considered to operate the cafeteria and so that's your your strongest argument that that what's the limit to their argument but but in many ways the interpretation that the government's offering is the much more stark one it's either in or out in terms of you either manage it and provide food or you aren't covered is that i guess what i get confused about is what's the determined to rule for you is that the managerial level or is it the providing of who which of the two is it i think both of those are tensional criteria this court could rely on but here we're arguing most i think the easiest way to resolve this case is to rely on the management aspect of it and that is there a sense of the word operate that is you know clearly  expounded on by again by dictionary definitions by but if it were management level then it wouldn't include the people who are cooking right the the army manages in all circumstances right and not i don't know that i would say that a line cook is operating the cafeteria the army is operating the army is responsible for the overall operations and management that doesn't just mean there will never be blind vendors because you've got army personnel that manage and your rule says that only managers are governed by the randall shepherd act therefore really what we mean is nobody is going to get these priority contracts i don't think that's correct your honor i would actually point out that in a full food service contract it's quite clear under the army's regulations and actually in the actual full food service contract that's in the record that the contractor is responsible for management of the operation of the cutter and not withstanding obviously that in any contract the you know the contracting agency will maintain a level of supervision over the contract as a whole but in terms of the specific activities that a full food service vendor is required to provide and i think refer you directly to the army's regulations and these are in the record at the record on appeal at page one hundred and eighty two those are army regulations that define a full food service contract as contracts that cover those activities that a company that comprise the full operation of an army dining facility it includes but is not limited to requisitioning receiving storing preparing and serving of food also included is the performance of related administrative custodial always serving food wow how can that not con giving people the trays and giving them the silverware that seems to me we do use the district's word that's entire group the serving i guess again i want to distinguish between something that's in ted rall to the operation  to the performance of what a cafeteria needs to do and the supervision to management and in the sense contemplated by best foods of that cafeteria itself so someone who is you know determining what food will be served is determining what food will be ordered will you know i actually have an influence on the quality of the food that is someone who is managing a cafeteria someone who is doing a single descry or a set of discrete tasks that have been carved out from the overall ads we saw i the appeals panel the districts of the appeals panel was contrary to law was that he didn't allow for flexibility case by case analysis we look and see is this discreet pulling the chairs in opening the doors those are covered or is this sort of essential to providing food those are covered why don't they i do not i don't i don't think that we have any problem with the case by case analysis you know i think it makes sense for the court to look at the actual activities that are contemplated by the contract and determine whether that content that means those activities constitute operating a cafeteria within the meaning of the act in operating equals managing that's the bottom line from your guess and managing and clearly if you if you think of the term manager contemplates the exercise of discretion over me a meaningful part the contract in q two what was what was the purpose behind it you know it's not entirely clear from the record what the purpose of that was i think there's some indication that in there was a belief that the army should do so to comply with the competition and contracting act which you know has various provisions that discourage the bundling of different contracts into one in a way that would make it difficult for example for small business to bid on those contracts but it's not that it is not entirely clear from the record why the army did so then that's the splitting of the contracts need to be justified by the secretary that is an issue that the plaintiffs did argue before the arbitration panel now the arbitration panel never board on that question and the district court did not pass on it either so we do not disagree with the plaintiffs that even if the if this court ordered three with the government that it would be appropriate to remain and or direct the district court to remain on the case to the arbitration panel to consider that question in the st instance thank you wouldn't you wouldn't object to that we don't object to that  that they split it up to limited and isn't that a preliminary issue to whether the contracts covered almost i noticed in the in the district court easters of virginia addressed both issues right i must i'm not sure that i would characterize  as the threshold and the other is not i mean i think they're both questions of compliance with the randolph separate act there's both you know there was a question of whether the army has complied with the requirement to give a preference to a blind vendor that o and there's a question as to whether the army was required to submit this division of the contracts to the secretary of education in advance and those are those are sort of two distinct requirements you answer judging the hard question earlier there isn't a circuit out there that has really pronounced on this on the meaning of the word operate in this debt you know not that i'm aware of yet these this pressure point system applies to pretty much all federal government the sillies correct so this will a very consequential well i should just point out that it is true that the rental shop productive plies across the federal government but the particular type of situation that we have here as far as i'm aware is unique to the military  that it is as far as i'm aware the military is the only portion only part of the government that has these types of contracts where you know soldiers will are responsible for performing the bulk of the tasks relating to the cafeteria including management and food service but what happens because our you know article three court house cafeterias is it all preference that's covered all of them are governed because they don't do it the way the army doesn't write i don't i don't i don't i'm not aware of that sort of precise details of how article three cafeterias work but i think the general model is that the cafeteria is contractor operated so when the government solicits a contract to operate a cafeteria they they solicit all the functions that would be included in the st aerials of the whole thing is given to them exactly the much less as much like in the full food service contract in the army regulations it's only worth just climbs question is why is the military doing it differently than every federal government property well i think there is an important reason why the military does it this way which is that they want this to orders to be able to have the responsibility to manage and prepare the food in the cafeteria there are no soldiers who go to school for this type of thing for you you know who are trained in this and in particular i think at fort bliss there have been many soldiers that were have been returning from some of broad and and the reason why why not get congress to exempt them if everyone else has interpreted the statute differently and the military wants to deal with the returning service people which is commendable you probably should go back and get congress to clarify i'm not aware of a well i should just say that there have often been discussions regarding legislative proposals i don't i'm not aware of the details of those proposals but i would just i want to dispute the characterization that other portions of the other parts of the government interpret the  shepard act differently i think all the you know the government as a whole agrees that we're a contractor is responsible for managing the entire cafeteria and operating the entire cafeteria that that is a contract that subject to the randall shepard act the question is in this unique type of situation which only exists in the military where soldiers perform the bulk of the operation and management of the capped at the cafeteria but they hire a   operate is different depending on what statutory context it's used i guess i'm going back full circle to our are you can you mention the case of the best foods case i'm looking at the statute here and under purpose  says the purpose of this chapter to empower individuals with disabilities to maximize employment economic self sufficiency and so on some plectrum to to maximize opportunities subsection four to increase employment opportunities and employment outcomes for individuals with disabilities would that give us some insight as to you so the word operate in this context or is it the government's position that all we need to do is go to the webster's or we'll take your pick black whichever it is common use of the word operate and it would remain consistent mansour and i would certainly agree that congress ought to provide opportunities to blind vendors but it didn't didn't seek to do so a class all possible types of services that the government needs and in fact there are statutes that do that for example the javits wagner day act which is  referenced in the briefs also provides a preference for the blind and severely disabled but that's a much broader statute that covers all types of goods and services including the dining facility attendant services covered here but also many other types of goods and services so congress yes it did seek to provide these types of opportunities but it sought to do so within a discreetly limited category of functions which is operating a vending facility and i please the court and peter know all of them represent the state of texas in all of its efforts to enlarge economic opportunities for the blind the army's relatively new policy of narrowly construing the application of the round of sheppard to exclude all d f a contracts to the detriment of the texas blind vendor in this case was for the stated purpose in the record of helping small businesses as to why you had to have amendments in one thousand nine hundred and seventy four to the randolph sheppard act in here was the explanation it said that the one thousand nine hundred and seventy four amendments were required because contrary to the spirit of the act which strives to encourage the establishment and growth of blind entrepreneurs certain agencies construed the act narrowly to the detriment of blind vendors specifically minority enterprises were given preference over blind vendors in contravention of the intent of the and specifically commanders of military installations are singularly insensitive to the need to develop the program and what's important is to remain these types of abuses which is what happened here congress directed the secretary of education review and determine the propriety of such federal agency limitations on the operation of a blind ending facility and that determination is binding and one hundred and seven b that is binding even on insensitive commanders of military installations the secretary of education has now refused and determine capricious and therefore isn't it fair to think well it was rational to say that the verb operate means run the show and therefore there managerial limitation is a rational interpretation of that verb i don't think so in the district court didn't think so he said they didn't really find any facts they don't care about the facts they just said d f a the rental shop or that doesn't apply to deify contracts and that's an issue of law to district court addressed that didn't know and your rule would say you have to do what the dissent the panel the sent did no in others he isn't he just set up here he doesn't mind a case by assists of each contract and yet the district courts said that's what hadn't been done it's right that had not been done and we agree with the district court that it takes a case by case analysis of each contract to determine that and then what's your for decades the army the navy the air force everybody with an apartment offense as operating these contracts jointly with the military installation having the overall responsibility and then a civilian contractor doing various levels of service this is applied to both those full food service contracts and the d f a contracts and the department of defense makes clear that in a contract in fact that occurred at fort bliss where it's predominately a d f a contract but let's say there's unlimited food preparation that's the only difference between it in a pure d f a contract and that has the management responsibilities of the d pillars is not and that really doesn't make a lot of sense so i didn't hear him say even the potato peeler is would be covered i thought it really had to be supervisory level only in in in the i think it's pa contingency for a potato peeler it will be treated as subject to the end of shepard so it's never been about providing all the services i think the district court got it right is a look at what services are provided and in that regard if you look on page seven hundred and seventy two the department of defense says there are two types of military dining facilities contracts not refrigeration not bug spray two types of military is in this direction the food handling is no more essential to it than making sure that the that the pot in which you cook is clean or the tables are clean in fact all of these employees  contract have to have the food handling certification because they are charged with the same things that the cooks are making sure the troops get fed clean nutritious food  and so i think what i'd like to focus on is that level of executive order function that's what we think the testers we agree the act is not defined operate the congressional directives are not clear looked at the secretary's opinion on this exact issue and i've recently said that i was going to use a case that was not cited in the brief and that's the nation's bank of north carolina versus variable annuities life reasonable construction of a regulatory statute adopted by the agency charged with the enforcement not just the administration but charge of the enforcement of that statute and the secretary of education as i was with the contr is charged with reviewing and determining whether a limitation on the uptake on the operation of a cafeteria contract like the one we have here has been justified by the army her determination and her letter that the army's narrow interpretation of the act exclude the priority of the randall sheppard act from d f a contracts like the one in four lists was a violation of the act should be given chevron deference according to the nation's bank and that's because congress said and this is on page i think that this is sort of inviting a more difficult issue i think the concern is that just from the from advocacy standpoint it's difficult to file a twenty a j letter saying a new development as to a case that precedes the date of your brief but you found it you thought it was relevant here's my question to you i thought the district court here in denying the rule fifty nine motion said i'm not relying on chevron or skidmore deference at all that's not what i'm doing here i'm just finding it's ambiguous and when i look around at the various cans of construction i conclude it has to be case by case it can't be this managerial rule or not i thought that just didn't leave the district courts that it was how did you interpret the panel's dissent for me i had a hard time decipher it if it's in your favor but was did the panel dissenter agree is that the district's logic or how do you interpret the i had a little trouble with the p he took the position that he was not going to give any credence to the secretary's letter ok and then he said i agree that basically what the army said you've got to manage the whole thing even though also in that case sheppard case but once we take out the tate appealing it's not a random it was that clean even with that he basically said i'm not worried about that and there was an interesting interchange where he chewed out the d o j lawyer for suggesting that he should not give great weight to the secretary of education because she had weighed in on the exact issue and he said i want you to take this which is that the verb operate means essentially run the show and therefore whether yet a potato peeler sounds pretty low down that's not running the show was the potato peeler in your saying to us is irrelevant whether it be a little bit of food in or food out the army does all have always does have overall management so this is that the act only applies to a nd level management well as the case that was cited by the government in this case and i cited in our brief it's the ernst and young case which talks about joint operations so you can be say to operate something if you jointly operated and on page seven dollars of the transcript that's where the department of defense describes how all of these contracts are jointly operated by the military and by the civilian contra and so the i think it's reve applies to these d f a contracts and the purpose of the rental shepherd i think you pointed this out is to enlarge economic opportunities for the blind it's not to look for ways to get rid of the blind manager so what happened in this case there were transcript the only reason given to divide that contract into was to get rid of the buy manager on for the contracts that was the only reason given and to make sure that they got rid of the blind manager those contracts previous sturrock lee hadn't been predominantly d f a with some potato peelings and to get rid of the blind manager they scrub the contracts clean of the potato peelings to make sure that they can say well under our interpretation when a shepherd doesn't abide the f a we don't care what kind of management you have there is no overriding statute and flexibility if it truly is returning troops from afghanistan and so congress similarly as said there are certain tasks which we're not going to have troops do and so there's always a civilian contractor to do basically those sanitation to has retained appeal it can go on either side and go with the sanitation task or without but that's why that's why they're always joint operations half of the work is being done and not is done done in managed so the contract is full of the management of this after the contract the performance work statement states this contract includes all functions tasks and responsibilities normally performed by a food service  ration it is for the management of this operation the performance work statement contains a requirement that the contractor hire management and supervisory personnel to manage it their operations of the cafeteria contract the army people who testified russell campbell testified he was the army sustainment command food program manager he testified that services in a d f a contract cover a portion of the operation of a cafeteria and the d f a services are an inherent part of the operation of a cafeteria that's why these are classified as dining facilities contract point something else out what the army did was cut off its nose despite the blinds and so the unrefuted testimony at the hearing was that dividing this one contract into operate means this high level supervision and so you want to respond to his that those cases that he's urging us to follow yes there are for instance the parents versus reid's ca also supreme court also says look you can join the operate something so yes operate does require a high level of supervision which we have here i just read from the performance works that it requires a high level of supervision on both sides of the cafeteria contract it requires it from the army when they're managing the cooking and from the contractor when they're managing sanitation is cleaning all the place all the other things so we're not disputing that requires a high level supervision and the transcript is provides that high level of supervision which was required in this dining facilities contract so so again the threshold question seems to me why did they split the contracts because if they keep sub splitting at some point they can just they can write a contract for bug spray and you wouldn't claim that that fits into randall shepherd correct or not nor do i think bug spray is part of the contract i think of as i know it's not but my point is i guess i'm back to isn't this why they did it and the limiting issue preliminary to us deciding the vast question of what is operating they said why they didn't they did it to get rid of the blind  that's why they did it but he just stood up and said they did it to accommodate returning troops that don't have enough tasks to do but he didn't say to you a page in the record the records said why they did it i ask can you think of any other reason to do this other than and i didn't say to get rid of the blinder i said to give other contractors an opportunity at a contract for which the blind in there can't even bid in the answer was yes i translated that to get rid of the buying bender because inventor can't even bid on the d of a contract they made into small business set aside it could be even bid as it's not subject to the rent of shipping it so they did it for the purpose of getting rid of the mind and even though the record is clear that it cost them more money top thank you i think it's important to clear up some confusion that may have arisen from the briefs and in particular to the citation to department of defense inspector general report that sort of generalize about how dining facility contracts work now the term dining facility attendant is use or mess attendant is used across different branches of the military and it can mean different things in different branches and i think that's why the i g report says some things that actually are actually true about the particular contracts at issue here or about the military regulations so i would strongly encourage the court to look to the specific solicitation at issue here and to the performance work statement and look at the actual activities that are described and also to the army regulations which are quite clear that the full food service contractor in fact does exercise management does you know decides what's going to be on the menu decides how much food there should be ordered to science how much my inventory to be maintained and so forth it actually has all of those management responsibilities which it d f a contractor in the army does not either under the army's regulations or under the terms of the salute specific solicitation here now opposing counsel has signed it to some general provisions that talk about management or about you know you need to have a supervisor and i just want to carefully distinguish between managing a cafeteria and managing the contractors own performance of the tasks that they are required to do a refrigeration maintenance contractor needs to manage their employees to make sure that they show up on time and do the things that they're supposed to do that doesn't mean that the refrigeration maintenance contractor is operating the cafeteria so but this statute doesn't just apply to the cafeterias it applies explicitly the vending machines and those are all over the place right that's why we have a manager would it not include wouldn't the date the person who stocks the vending machine be covered by the act yes i know yes i think i think of it in the typical beneficial manager that's just  say that the person who is in charge of them machine is responsible for managing that vending machine it's a much smaller responsibility than managing a cafeteria but someone still has to decide you know what goes in the vending machine how much are you going to charge  equivalent types of decisions obviously taken at a much lower level that doesn't mean that someone who is hired merely to wipe the glass of the vending machine is now operating that vending machine as opposed to the person who actually is the one who  there are no such tiny miniscule contracts this is an artificial distinction because the cup that normally doesn't have bug spray contracts they just have these big single contracts but a big single contract to operate the entire cafeteria would be comfort under the randolph sheppard act the problem is when you carve out discreet support services that does not come within the meaning of the term operate a cafeteria so again someone who is responsible for maintaining the vent hood right that that is there or contractors who do those sorts of things that would not constitute operating in cafeterias i would i would also strongly strongly dispute the opposing councils characterization of the army as trying to kick out the blind vendor clearly the blind vendor continues continues to be able to operate the to fulfill it food service facilities on the base and the fact that there are other statutory preferences and acted by congress for different types of business kick out a blind vendor or to have some sort of animus towards have a record cite that the reason they had to subdivide was because comedy returning troops unfortunately i don't have the citation here but there are some e mails in the in the court and this is cited in our briefs this issue came up in the source america litigation in the district court where the district court asked the d o j to ask the secretary of education for her position and what the department reported in that case is that attendant services at fort riley the department of education through general counsel carlos genies advised the department of justice that apart from this litigation the department of education has not adopted any position on those matters and more specifically the secretar