our next case is again state of kansas versus source america joining me on the panel this morning is just back or via video and jets traxler is on the phone so i know that there's a an appeal in across appeal in this to the department of defense always operates the cafeterias alongside u s contractors military personnel are generally precluded for book forming many cafeteria operations  are federal agencies like the army or the one must be justified to the secretary and her determination is binding also congress provided the secretary nolan is there any limiting principle to this proposition no matter how far removed the the work might be from the actual preparation of food say for example the cafeteria operation hired an accountant or lawyer to assess in its perpetration of necessary documents taxes that kind of thing or is that also governed by this statute it would have to be for the operation of the cafeteria and the strongest evidence that these are for the contracts so yes it does have to be for the operation of some of the parts of the cafeteria some of the services of the governor d which are animals to the cafeteria all the parties urged this court to follow the supreme court's opinion in the united states and it's footnote thirteen the supreme court cites to its nations bank appended to explain that a similar delegation of authority to enforce the operation of a cafeteria deserve no less and as a supreme court stated in me at the very least considerable weight should go according to executive departments construction of a statutory s only one should have gone to the secretary of education very beginning and said look we have a line managers operating this contract we're going to take away potato in the hope so that makes this contract not subject to the rest of shepard and we know that under the randall shepard act you have to blast the scheme are they didn't do that so she didn't you are correct she didn't have the opportunity to step in at the time that the  much weight if any to give to the letter i don't think it does in this case and the reason for that is as i was just saying this is the type of letter she would have written back to the arm or to the ability to one commission and they follow who's going to eliminate an opportunity for a blind vendor last run that decision by that scheme by the secretary of education and her decision is final and binding it's not even subject to judicial review so the randall sheppard act d contemplates that the question will be asked in an answer like that given in this letter will be given to the letter such as cited this arbitration as part of her reasons or for the opinions of her letter so we know that her letter applies to this arbitration in fact the trial court monitors the department of justice lawyers that this letter is contrary to represent representations to the secretary hasn't expressed an opinion about this or treasure so in response to an order from the court to determine if the secretary meant what she appears department of education does not affirm any individual animals decision and that's loyally non answer is not you have the district for ours to dictate the secretary of education the operation of has not ruled out her interpretation i say that that target of letter is well reasoned because in many part it comports with all parties for saying what the cases the letter interprets the term army was bandaging of the books and her interpretation is also supported by the case cited by the arm on states vs this case they cite that for the proposition that the operation requires management functions necessary to aside from those performed by the military those functions of the vendor would do a supervisory administration sanitation related functions then there can be said to manage the cafeteria even if the vendor that is exactly the joint venture describe nolan you've got about thirty seconds left but before you i turn it over to your colleague i do want to ask you a question about the are standing argument you didn't say anything about it here this morning and i want to be perfectly frank i was a little bit perturbed and it appears that it was the government who pursued the statutory standing argument in the district court d and you seem to be you seem to have suggested to us that you would preserve it in your brief and i don't see anything in the record that suggests that that's what i'd like you to respond to that pdating the way that it does these contracts so in two thousand and fifteen when the previous contract expired the army decided that it would use a dining facility attendant contract that includes only janitorial and custody of all services and that is plainly not within the meaning of the randolph sheppard act which contemplates priority for the operation of vending facilities that accords with as we've noted in our brief the supreme court issue of the term operation and operate in best foods which requires some degree of management or directing the workings of the facility and as the district court recognized not just some degree of management somewhere but management or directing the overall operation of the facility that also comports with the other uses of the term in the statute where congress contemplated that the operation of such a facility would be with food of a comparable quality a reasonable cost it also contemplated that such operation would not be in direct yes ron it seems to me that at least the term a subjective multiple interpretations of just how far the scope of an operation needs to be to qualify under the contract and isn't it true that at least with respect to this contract that it contemplated for example the hiring of a project manager with an advanced degree including experience in managing a cafeteria style or multi entre operations and also a quality control manager with proven performance i mean that the contract seems to suggest by itself a level of operation that if not on all fours with the you know the why for amateurs of what you traditionally might believe to be an operation of the dining hall of lease has some aspects of are proposing and that the district court adopted does not contemplate some managerial aspects over the contractor's own employees it contemplates managerial responsibilities administrative responsibilities with regard to the facility as a whole and if you look at you know as a comparison to what the called a full food services contract where the vendor would be doing the payment the headcount the menu planning all of those kinds of thing that's the kind of management and directing the working of the facility that the statute contemplates and that the district court recognize is necessary for something to be within the random shepard act but if i could i i think perhaps your question is touching a bit on the a letter that was previously discussed and i'd like to also take an opportunity to talk about that and as we've explained in our brief it's not the kind of agency decision to which a court normally accords deference under various doctrine such a chevron but even if you assume that some level of deference is due the letter simply cannot support the interpretation that kansas is proposing before this court it  discrete tasks so as not to entail overall operation of the cafeteria and that is exact kind of contract that you have here before you today ringback it is not overall operation of the cafeteria it is discre custody all and janitorial d tasks that the vendor is performing and the army contract is performing the vast majority of the administrative supervisory and food preparation services that the cafeteria kansas has proposed rishon imports a qualifier like pertain to relate to integrate all two into the statute where it simply does not appear if i might take a few minutes to talk about the r s a review requirement as well which is the issue on which we have appealed i'd like to know that the district court's understanding of that provision is also overly broad it would bring into the secretary of education purview a decision which my friend on the other side has noted is binding on the federal agency for the question of how the army can set up its cafeteria and whether or not it can use its own soldiers in operation of the facility or not you know it's what i think as a factual matter i'd like to know that when this decision before you was made in two thousand and fifteen when the army was taking a look at its previous contract and seeking to bid out a new contract that that decision starting from scratch are canvases contending that they have some entitlement or right under the statute or the contract to continue on as a vendor in question and that simply isn't the case the question is when the army start fresh in two thousand and fifty and says we like to use our returning soldiers in the facility here rather and we'd like to support them with a dining facility attendant terms of contract for  general services whether that decision is to be made by the secretary of education and that simply isn't the kind of arbitrary and harmful limitation that congress was intending for the secretary of education to police in an acting review requirement provision and it just cannot be the case that the secretary of education would be appropriate the decision maker for whether the army can use its own that the secretary gates should be to sort of the ideal person to gauge whether or not a particular action falls within or without statute and i understand providence of the department of defense but there's no i disagree that the statute is capacious enough and that congress intended for the secretary of education to be the decision maker here and if you look at the provision in context what it does is it says that the secretary of education shall  provide regulations that are designed to assure or where feasible the placement or operation of such facilities on military property at me on federal property and then it says that any limitation  operation of a vending facility based on a finding that such placement would adversely affected or that the secretary shall be consulted with regard to those decisions and that's not the kind of decision that you have here there is no limitation on the placement or operation of the facility what you have is a decision with the army is looking at how it intends to employ its own soldiers in its own facility and it is starting from scratch in making a determination that would like to follow the army operated model and that just isn't a limitation on the kind of arbitrary and harmful limitation on the placement of the facility or the operation of the facility that congress intended to provide the secretary of education with you over simply does not contemplate that any downstream any decision with downstream impact or narrowing of a contracting opportunity would be something that the secretary of education our interpretation also accords with how the th circuit has understood the decision where looking to provisions going to limit the hours or the things that you can sell that certainly isn't possible to the kind of decision that you have in this case where the army is selecting how it's between two models and placing it soldiers in its own facilities and it simply is as you just record recognize puzzling to conclude that congress intended that decision to be made by the secretary of education and if i could just one additional thing on the contract the previous contract with regard to the record my friend on the other side has suggested that kansas previously operated the d f and there was a renegotiation with regard to the returning soldiers returning to operations in the dining facility and the army agreed to let kansas continue out the remainder of the contract on the dining facility attended services it is not fair to suggest that a similar contract was previously entered into with qantas that contains the same services under the round up jeopardizing the circumstances at issue that are different than what you have honor i appreciate that i'll try to be a little a little bit briefer i want to focus i represent source america in lakeview center both of which are a nonprofit agency source america is what's known a central nonprofit agency in the us ability one program in lakeview center inc is a nonprofit agency in the ability one program both or non profits that operate to create jobs for the significantly disabled and they operate very extensively in connection with the javits wagner day act which we haven't talked much about here today but is really quite central to this case and i i'll come back to that in a minute but there is an entirely another entire u s federal agency involved in this matter the u s ability one commission that is created by the javits wagner oday act looked at these services added these dining facility attendant services to the u s ability procurement list by notice and comment rule making a process that mr nolan elected not to proceed in or participate in this work was added to the u s ability one commission so we have effectively a federal agency who by notice and comment rule making has answered the question that these are dining facility attendant services that belong on the ability one procurement list we have a nd federal agency the department of the army who  looked at these services in has determined that these services belong on the you with ass ability one procurement list i know in this regard that mr nolan mentioned nish which was this court's decision in an earlier version what he didn't tell the court he told the court that the court nish said to defer to the department of education that's not quite right let me read the for final paragraph of nish in so far as the contracting officers decision conforms with the various governmental governmental authorities that have previously considered the issue the reasonableness of her decision is strongly indicated while the fact of consistency standing alone may not warrant an affirmation of her judgment or independent analysis confirms that her application of the r s act was both permissible and correct indeed the us army in that case the th circuit deferred to the contracting officer as to whether the work was were dining  because the process by which secretary vos is letter came into this case case is deeply troubling there was a lot of litigation regarding this matter somebody went to the secretary of education through the united states congress  and got her to give a private letter on a live piece of litigation that nobody nobody contacted the department of justice about nobody contacted me about and then they showed up nine and a half months into this litigation with a letter that didn't come out by notice and comment rule making wasn't vetted we don't know what the secretary was told we don't know what the exchanges were with the congressman all we know is that somebody went to the secretary of education without telling the department of justice without telling me despite this matter was in litigation and mr nolan and his client knew about it in got a private letter from that apart from the nd secretary which the department of justice then quite clearly in response to judge ellis his direction because judge ellis did not take this lightly judge ellis sent the department of justice back to the department of education to ask whether this was their opinion in the answer was in on a quizzical no so there is no secretary de binion about this case in this letter that mr nolan keeps relying on has no place in this case in is not something to which this court can defer indeed to the extent that it were such an opinion the court would it run straight into the u s supreme court's recent decision which says there's no deference to the secretary of an agency where they act in a way that interferes with the action of another agency and here the u s ability one commission has already said by notice and comment rule making that this d f a work is on the ability one commission there would be no death sorry judge yes when you say that the secretary interfered with the operation of the randolph sheppard act ends at the edge of the randolph sheppard act what the supreme court made very clear recently in epic is that if the secretary's opinion were to stray beyond that into say the javits wagner a day act or a compact something that another agency is done no she wouldn't have authority to do that absolutely she wouldn't but i don't think the secretary did this anyways because at the end of the day the secretary who wrote a letter back to a congressman who knows what what happened in those conversations in the department of justice has said unequivocally it is not the position is secretary in this case or otherwise there is no position of the secretary on this issue in any reference continued reference by mr nolan that there is after the department of justice has said there is not is just not fair but i want to turn very quickly if i can judge i don't i know i don't have too much time i want to make sure that i clear up a few misrepresentations in mr nolan's reply brief because they're important to the standing issue one your honor has already noticed unequivocally kansas in response to our argument on waiver based on your honors decision del webb that this is statutory standing and can be waived unequivocally on brief because they didn't make them with that said your honor i also want to point to another aspect of this argument that they didn't make a specific only as related to this adequate remedy at law argument that also it was not and not only is it not in kansas is brief that was never argued the district court the only adequate remedy of law issue that was argued to the district court was argued by the department of justice as related to the u s court of federal claims there was never an argument made about what is contained in our complaint but what they've what qantas has represented in its reply brief about our complaint is flat false let me be clear there are six different defendants in our complaint the united states department of education the department of the army the department of defense and the secretaries of each of these agencies in mr nolan has represented kansas council is represented this court that only counts seven of our brief runs to the department of the army but if you read our complaint you're going to see that count seven isn't actually a count against the department of defense related to whether the department of defense had to amend the defense federal acquisition regulation the remaining six counts quite clearly run to all defendants indeed time after time again in our complaint and noted by mr nolan we state quite clearly quite clearly that the action is brought against the united states and those paragraphs are cited some in our brief in he also appear at paragraph one hundred and eighteen of our complaint one hundred and twenty eight of our complaint one  six of our complaint one hundred and fifty three of our complaint one hundred and sixty one of our complaint stating consequently any reliance by the army on that decision in the army's failure to ward lakeview the fort riley contractor also arbitrary capricious and contra to law that appears in connection with every count of our complaint in the last thing i want to say to the court that i think is important because it's not it's not argued in kansas is brief is that the lower court ruled in our favor on two counts what we've been talking about here today primarily is count three we have not talked about count four that the court also ruled in favor of source american only few in the reason we haven't talked about it is because kansas didn't argue it in its brief that is a five fifty five b argument that the lower court addressed across three pages of its decision finding in favor of source america in lake view indeed the finding is very central to some of the things nolan said because he repeatedly argued about what happened at the arbitration well what happened at the arbitration is we tried to intervene three separate times into the arbitration twice by letter and once in person mr nolan opposed we were never able to intervene into the arbitration so when mr nolan talked about the evidence being entered it was being entered in a form where we were not present in dee carey who wrote the dissenting decision in that declared expressly that the arbitration process that mr nolan keeps referring to was under mentally unfair he recommended  vacated as unfair and he dissented vehemently not just on the substantive issues but on the way that the arbitrators conducted the hearing including by repeated excluding witnesses and not allowing participation of my clients the five hundred and fifty five the argument is unchallenged by mr nolan in his briefs and stands with that i see that my red light is on thank you and i thank you for your time today and this is not a question it's more of a statement that i was thinking about as i was hearing you all make your points and that it seems a bit ironic that the statutes of the j watt in the  a which i think congress clearly intended to be to work i don't think they intended for these taxes to work at cross purposes but intended for them to maximize opportunities for historically disadvantaged groups has instead turned this turf battle between the very agencies as to the scope of who has the authority to and which regime in which you know how far the authority reaches in terms of interpretation and the like which i find troubling education the department defense to go in the us ability one commission to go back and they actually went and they crafted a joint policy statement that the d f a work would belong to ability one the full food service operation of cafeterias r s a unfortunately one side has never abided by that line drawing and any time the d f a work is desired it is taken through this arbitration process i think you that sense also maintains responsibility to attain food some of the things which counsel for the army that we were doing and so i refer you back to the charter which is introduced at the then when this new contract what the army did was they said we're going to limit the services provided by the contractor we're going to take the opportunity and that's what they said with allow them to deny the rental ship a priority to the remaining services to take up a tent and that's exactly the type of thing which the army on page forty three should be reviewed by the secretary of education education must individually look at certain things individually to look at schemes by agencies such as ability was the army to get rid of the blinds are individually removed services alongside of it finally because the department of defense labels is a cafeteria  and then what i was going to say about one more thing after hearing and i keep coming back to the hearing because the facts really matter i think hearing i asked the contract specialists why did you remove potato peeling this type of letter from the secretary of education about the make a quick point or two with the court's indulgence with regard to the review requirement what we're talking about is a decision where the secretary the army is making after the expiration of a previous contract in which it's asking whether you know how it's going to set up a facility and it's a trend that's going to follow a model where the army does all of the food preparation all of the supervisory administrative responsibilities and a contractor provide some comports with the circuit's decision and various others and it just you know as a difficult recognizes the puzzling for the court to conclude that the secretary of education has a role in telling the army where it can and rid of the blinds and this is not the secretary of education telling the army how to what those troops historically pay the peelers were done by civilians because of iran which that's what this is thank you very much counsel thank you for your arguments in this case we would typically come down from the bench and greet you personally obviously we cannot do that here today for we appreciate  nonetheless the opportunity to be with you and to continue the important work of our court and appreciate the important role that you play in a long is to do our work so on behalf of the court my colleagues thank you very much we'll take a short recess and move on to our final