FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF HAWAII, Department of 

Human Services, Division of 

Vocational Rehabilitation, 

Hoopono-Services for the Blind,

Plaintiff-Appellee/

Cross-Appellant,

v.

U.S. DEPARTMENT OF EDUCATION, 

Rehabilitation Services 

Administration,

Defendant-Appellant/

Cross-Appellee,

and

UNITED STATES DEPARTMENT OF 

THE ARMY,

Defendant.

Nos. 21-16242

21-16323

D.C. No.

1:17-cv-00430-

LEK-RT

OPINION

Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted July 6, 2022

Honolulu, Hawaii
2 STATE OF HAWAII V. USDOE

Filed August 30, 2022 

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, 

and John B. Owens, Circuit Judges. 

Opinion by Judge Wardlaw 

SUMMARY*

Randolph-Sheppard Act

In an action brought by the State of Hawaii challenging 

the U.S. Department of the Army’s changes to the operation 

of its dining facilities at Schofield Barracks and Wheeler 

Army Airfield in Honolulu, Hawaii, the panel reversed the 

district court’s conclusion that the Randolph-Shepard Act 

(“RSA”) did not apply to Dining Facility Attendant (“DFA”) 

contracts, and affirmed the district court’s conclusion that 

the RSA advance review provision applied to the 

reclassification of a Schofield Barracks contract.

Ho’opono, the Hawaii state agency charged with 

protecting the rights of blind vendors under the RSA, 

asserted that the Army failed to comply with its obligations 

under RSA by failing to prioritize blind vendors in the 

bidding process for a vending facilities services contract at 

the base’s cafeteria, and by failing to obtain the Department 

of Education (“DOE”)’s approval before it limited those 

operations. An arbitration panel found in favor of the Army 

on both issues, and Ho’opono appealed the panel’s decision 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
STATE OF HAWAII V. USDOE 3

to the district court.

The Army operates each of its dining facilities under 

either the Full Food Service (FFS) model (contracting out all 

cafeteria maintenance tasks), or the DFA model (members 

of the military perform most of the tasks required to maintain 

the dining facilities). The Schofield Barracks operated under 

an FFS model for the duration of the RSA contract with 

Ho’opono from 2005 to 2016. When the Army solicited new 

contracts for Schofield’s dining facilities in 2016, it 

reclassified its dining facilities as DFA facilities. The Army 

decided against soliciting the contract under the RSA’s

requirements because the contract covered janitorial and 

custodial services only, and instead solicited the contract as 

a 100% Small Business Set-Aside, a form of contract on 

which Ho’opono is ineligible to bid. The Army did not seek 

or enjoin DOE’s permission to reclassify its dining facilities 

maintenance contract from FFS to DFA.

The parties disputed whether the RSA applied to DFA 

contracts at all. The dispute turned on whether a DFA 

contractor, who primarily performs janitorial, custodial, and 

sanitization functions, “operates” a vending facility. If a 

DFA contractor was operating a vending facility, then the 

RSA priority applied. The panel agreed with Ho’opono’s 

position that a DFA contractor operates a vending facility by 

fulfilling tasks that are integral to the operation of the dining 

hall. The panel held that the district court applied an 

incorrect standard of review to the RSA arbitration panel’s 

construction of 20 U.S.C. § 107(a) when it deferred heavily 

to the arbitration panel’s interpretation. Because the RSA 

did not delegate interpretive authority to the arbitration 

panel, the panel reviewed de novo. The panel held that the 

term “operate” was ambiguous in § 107(a). The panel held 

further that the statutory structure of the RSA supported a 
4 STATE OF HAWAII V. USDOE

broad interpretation in favor of increased opportunities for 

blind vendors, and the implementing regulations swept even 

more broadly and counseled strongly in favor of applying the 

RSA to DFA contracts. The RSA also defined “vending 

facility” in broad terms, suggesting that DFA contracts 

should fall under the RSA. The Secretary of Education has 

reached the same conclusion. The panel concluded that 

because the DFA contract for Schofield Barracks covered 

responsibilities that were integral to the cafeteria’s 

operation, the RSA applied and the Army should have given 

RSA priority to blind vendors for the DFA contract.

The panel affirmed the district court’s conclusion that the 

RSA advance review requirement applied to the Army’s 

reclassification of Schofield Barracks’ dining facilities. 

Examining the plain meaning of the statute’s unambiguous 

terms, the panel concluded that the Army triggered the 

advance review requirement when it reclassified the 

Schofield Barracks dining facilities in a way that eliminated 

Ho’opono’s eligibility to bid on the DFA contract. This 

action limited the ability of blind vendors to assert their RSA 

priority to the Schofield Barracks. Accordingly, the Army 

violated the RSA by failing to seek the Secretary’s approval. 

The panel affirmed the district court’s conclusion that the 

Army triggered the RSA advance review requirement by 

reclassifying Schofield Barracks’ dining facilities as a DFA 

facility.
STATE OF HAWAII V. USDOE 5 

COUNSEL

Laura E. Myron (argued) and Mark B. Stern, Appellate Staff; 

Judith A. Philips, Acting United States Attorney; Brian M. 

Boynton, Acting Assistant Attorney General; Civil Division, 

United States Department of Justice, Washington, D.C.; for 

Defendants-Appellants/Cross-Appellees.

Ryan W. Goellner (argued) and Matthew C. Blickensderfer, 

Frost Brown Todd LLC, Cincinatti, Ohio; Daniel F. 

Edwards, Taft Stettinius & Hollister LLP, Columbus, Ohio; 

James W. Walther and Lynne M. Youmans, Deputy 

Attorneys General; Department of the Attorney General, 

Honolulu, Hawaiʻi; for Plaintiff-Appellee/Cross-Appellant. 

Andrew D. Freeman and James O. Strawbridge, Brown 

Goldstein & Levy LLP, Baltimore, Maryland, for Amici 

Curiae National Association of Blind Merchants and 

National Council of State Agencies for the Blind. 

OPINION

WARDLAW, Circuit Judge: 

Ho’opono, the Hawaii state agency charged with 

protecting the rights of blind vendors under the RandolphSheppard Act, see 20 U.S.C. §§ 107–107f, challenges the 

United States Department of the Army’s (Army) changes to 

the operation of its dining facilities at Schofield Barracks 

and Wheeler Army Airfield in Honolulu, Hawaii. Ho’opono 

asserts that the Army failed to comply with its obligations 

under the Randolph-Sheppard Act by failing to prioritize 

blind vendors in the bidding process for a vending facilities 

services contract at the base’s cafeteria, and by failing to 
6 STATE OF HAWAII V. USDOE

obtain the Department of Education’s approval before it 

limited those operations. An arbitration panel found in favor 

of the Army on both issues, and Ho’opono appealed the 

panel’s decision to the district court. The district court 

affirmed the arbitration panel on the bidding priority issue, 

but it reversed the arbitration panel on the advance review 

issue. Unlike the district court, we conclude that blind 

vendors were entitled to priority in the bidding process for 

the Army’s 2016 vending facilities services contract, but we 

agree with the district court that the Army violated the 

Randolph-Sheppard Act by failing to seek the Department of 

Education’s approval before it limited its dining facilities’ 

operations.

I.

This case arises from the Randolph-Sheppard Act 

(RSA), see 20 U.S.C. §§ 107–107f, which Congress enacted 

in 1936 “[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 selfsupporting,” id. § 107(a). In pursuit of this aim, the RSA 

requires federal agencies to give blind individuals priority 

for “the operation of vending facilities on Federal property.” 

Id. § 107(b). The United States Department of Education 

(DOE) implements the RSA, in part by “prescrib[ing] 

regulations to establish a priority for the operation of 

cafeterias on Federal property by blind licensees.” Id. 

§ 107d-3(e); see also 34 C.F.R. §§ 395.1–395.38.

The RSA defines “vending facility” to mean “automatic 

vending machines, cafeterias, snack bars, cart services, 

shelters, counters, and such other appropriate auxiliary 

equipment as the Secretary may by regulation prescribe as 

being necessary for the sale of the articles or services 
STATE OF HAWAII V. USDOE 7

described in [20 U.S.C. § 107a(a)(5)] and which may be 

operated by blind licensees.” 20 U.S.C. § 107e(7). The 

articles and services described in § 107a(a)(5) include the 

“vending of newspapers, periodicals, confections, tobacco 

products, foods, beverages, and other articles or services 

dispensed automatically or manually and prepared on or off 

the premises . . . and including the vending or exchange of 

chances for any lottery authorized by State law and 

conducted by an agency of a State.” Id. at § 107a(a)(5).

Under the RSA, the Secretary of Education designates an 

agency for each state to act as a State Licensing Agency 

(SLA) for blind vendors within that state. Id. §§ 107a(a)(5), 

107b. The SLA bids on federal contracts for vending 

services covered under the RSA and then licenses blind 

vendors to fulfill its contracts. Id. §§ 107a(a)(5), (b), 107b. 

For the contracts concerning the operation of cafeterias, an 

SLA receives priority if its proposal falls within a 

competitive range and is ranked among proposals that have 

a reasonable chance of being selected, so long as DOE 

determines that the vendor can fulfill the contract at a 

reasonable cost and at a level of quality comparable to that 

currently provided to federal employees. 34 C.F.R. 

§ 395.33(a)–(b). When an SLA receives a contract, the blind 

vendors draw an income from the facilities’ profits and from 

funds set aside under the RSA. 20 U.S.C. §§ 107b(3), 107d3(a); 34 C.F.R. § 395.32.

Central to this appeal, the RSA also includes a “review 

requirement.” If a federal agency plans to place “[a]ny 

limitation on the placement or operation of a vending facility 

based on a finding that such placement or operation would 

adversely affect the interests of the United States,” the 

agency must provide a written justification to the Secretary 

of Education, “who shall determine whether such limitation 
8 STATE OF HAWAII V. USDOE

is justified.” 20 U.S.C. § 107(b)(2). “A determination made 

by the Secretary pursuant to this provision shall be binding 

on any department, agency, or instrumentality of the United 

States affected by such determination.” Id. The Secretary 

publishes all such determinations in the Federal Register. Id.

Congress also established a method of dispute resolution 

for RSA disputes. See id. § 107d-1. An SLA may file a 

complaint with DOE if it determines that a federal 

department has violated the RSA. Id. § 107d-1(b). DOE 

then convenes an arbitration panel consisting of three 

people: one person designated by each party, and a third 

person appointed by the first two party designees to serve as 

a chairperson. Id. § 107d-2. We treat each arbitration panel 

decision as a final agency action subject to judicial review 

under the Administrative Procedure Act (APA). See id.

§§ 107d-1(b), 107d-2(a); see also 5 U.S.C. §§ 701–706 

(provisions governing APA review).

II.

We now turn to the dispute at hand. This case concerns 

the operation of the dining halls at Schofield Barracks and 

Wheeler Army Airfield (Schofield Barracks) in Honolulu, 

Hawaii. In 2005, the Army entered into a contract with 

Ho’opono, the SLA for the State of Hawaii, for a five-year 

term under which James Theodore Chinn Jr., a blind vendor, 

provided cafeteria services at Schofield Barracks’ dining 

halls. The Army renewed this contract for five more years 

in 2010, and in 2015, it exercised its contractual right to 

extend the contract for an additional six months, leaving it in 

effect until March 2016. In 2016, however, the Army made 

several important changes to its vending contract for 

Schofield Barracks.
STATE OF HAWAII V. USDOE 9

To understand the 2016 changes to the vending services 

contract, some background on Army dining facilities 

operations is useful. The Army operates each of its dining 

facilities under one of two models: a Full Food Service (FFS) 

model or a Dining Facility Attendant (DFA) model. Under 

the FFS model, the Army contracts out all cafeteria 

maintenance tasks, including “requisitioning, receiving, 

storing, preparing, and serving of food,” and “the 

performance of related administrative, custodial, and 

sanitation functions.” The Schofield Barracks operated

under an FFS model for the duration of its RSA contract with 

Ho’opono from 2005 to 2016.

But under the DFA model, members of the military 

themselves perform the lion’s share of tasks required to 

maintain the dining facilities, including the requisition, 

receiving, storing, preparing, and serving of food, as well as 

service functions, payment services, and general 

administrative tasks. The Army’s regulations prohibit its 

members from performing certain functions “on a regularly 

detailed basis without prior approval”—the regulations call 

these prohibited functions “DFA functions.” DFA functions 

primarily consist of “janitorial and custodial duties,” such as 

“sweeping, mopping, scrubbing, trash removal, 

dishwashing, waxing, stripping, buffing, window washing, 

pot and pan cleaning, and other sanitation-related functions.” 

Thus, for facilities operated under the DFA model, the Army 

itself maintains nearly all cafeteria functions, except for the 

limited DFA functions of janitorial and custodial duties, 

which the Army contracts out to another provider.

Although the Army had operated the Schofield Barracks 

under an FFS model from 2005–2016, when it solicited new 

contracts for Schofield’s dining facilities in 2016, it 

reclassified its dining facilities as DFA facilities. According 
10 STATE OF HAWAII V. USDOE

to the Army, it switched classifications from FFS to DFA 

primarily because as combat operations in Iraq and 

Afghanistan wound down, the number of Army members 

that remained on base increased. With increased numbers of 

Army members on base, the Army determined that it could 

operate most dining facilities operations on its own and 

would therefore rely on contractors for DFA functions only.

When the Army solicited its DFA service contract in 

2016,1 then, it decided against soliciting the contract under 

the RSA’s requirements because the contract covered 

janitorial and custodial services only. The Army instead 

solicited the contract as a 100% Small Business Set-Aside, a 

form of contract on which Ho’opono is ineligible to bid. In 

doing so, the Army did not seek or obtain DOE’s permission 

to reclassify its dining facilities maintenance contract from 

FFS to DFA.

Because the Army’s reclassification suddenly rendered 

Ho’opono ineligible for the Schofield Barracks contract, 

Ho’opono objected to the reclassification and sought legal 

recourse. Ultimately, Ho’opono filed a written request to 

initiate arbitration proceedings pursuant to 20 U.S.C. 

§ 107d-2.2 At the arbitration proceedings, Ho’opono 

contended that the Army violated the RSA by soliciting DFA 

1 Initially, the Army applied the RSA priority to its 2016 solicitation, 

but it later amended its solicitation and removed the RSA priority.

2 When Ho’opono requested arbitration proceedings, it 

simultaneously filed a suit in federal court requesting an injunction 

prohibiting the Army from awarding a new contract for DFA services 

pending the resolution of the arbitration proceedings. The parties settled 

this suit upon the Army’s agreement that it would extend the terms of the 

then-in-place FFS contract until the arbitration proceedings concluded.
STATE OF HAWAII V. USDOE 11

services at Schofield Barracks,3 and that the Army violated 

the RSA advance review requirement under 20 U.S.C. 

§ 107(b).

The arbitration panel issued a split decision in July 2017, 

in which the majority ruled in favor of the Army. The panel 

majority concluded that the RSA does not apply to DFA 

contracts, reasoning that a contrary finding “would too 

greatly expand the intent of the RSA beyond its legislative 

intent of requirements of vending and dispensing of food.” 

Additionally, the arbitration panel concluded that the Army 

did not violate the RSA’s advance review requirement, 

which requires an agency to seek advance review from the 

Secretary of Education before enacting “[a]ny limitation on 

the placement or operation of a vending facility based on a 

finding that such placement or operation would adversely 

affect the interests of the United States,” 20 U.S.C. § 107(b). 

The arbitration panel reasoned that applying the advance 

review provision to the Army’s decision to reclassify a 

dining services contract from FFS to DFA would “seem to 

too heavily impact the Army’s ability to operate.”

Ho’opono then filed this action in the United States 

District Court for the District of Hawaii against DOE and the 

Army,4 seeking review of the arbitration panel decision 

3 Ho’opono also contended that the Army’s DFA solicitation 

violated the provisions prohibiting poaching in the John Warner National 

Defense Authorization Act for Fiscal Year 2007, but both sides now 

agree that these provisions are inapplicable to this appeal.

4 Although DOE’s Rehabilitation Services Administration is also a 

named defendant in this lawsuit, we refer to the defendants collectively

as “the Army,” as that is the federal entity advocating the defendants’

position on appeal. Upon judicial review, the Department of Education 

is substituted as the defendant for the Army. See 5 U.S.C. § 703 (“If no 
12 STATE OF HAWAII V. USDOE

under the APA. See 5 U.S.C. §§ 551–59, 701–06. 

Ho’opono attacked the arbitration decision on two grounds: 

first, it argued that the Army violated the RSA’s advance 

review provision by failing to seek the Secretary of 

Education’s approval for reclassifying Schofield Barracks’ 

contract as a DFA contract; and second, it argued that the 

RSA governs DFA service contracts.

Both sides moved for summary judgment, and on 

May 27, 2021, the district court partially granted and 

partially denied each summary judgment motion. The 

district court deferred to the arbitration panel’s refusal to 

apply the RSA to DFA contracts, reasoning that this 

conclusion was not arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with the law.

However, the district court ruled in favor of Ho’opono 

on the RSA advance review requirement. The district court 

construed the word “limitation” in 20 U.S.C. § 107(b) to 

mean “something that bounds, restrains, or confines.” Given 

this definition of “limitation,” the district court concluded 

that the Army placed a limitation on the Schofield Barracks 

dining facilities by soliciting a DFA contract instead of an 

FFS contract, especially because this eliminated Ho’opono’s 

opportunity to bid on the 2016–22 contract. The district 

court remanded the case to the arbitration panel with 

instructions to issue a decision consistent with its order.

The Army timely appealed the district court’s 

interpretation of the RSA advance review provision. 

Ho’opono timely cross-appealed, challenging the district 

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.”).
STATE OF HAWAII V. USDOE 13

court’s conclusion that the RSA does not govern DFA 

contracts.

III.

We review a district court’s grant or denial of summary 

judgment de novo. Bell v. Wilmott Storage Servs., 12 F.4th 

1065, 1068 (9th Cir. 2021). Generally, we review an 

arbitration panel’s decision under the RSA as a final agency 

action under the APA. 20 U.S.C. § 107d-2(a). We thus must 

overturn the arbitration panel’s decision if we find it 

“arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” 5 U.S.C. § 706(2)(A). This 

form of review includes deciding relevant questions of law, 

as well as interpreting relevant constitutional and statutory 

provisions. 5 U.S.C. § 706; see also Sauer v. U.S. Dep’t. of 

Educ., 668 F.3d 644, 650 (9th Cir. 2012). Because the RSA 

“does not delegate interpretive authority to the arbitration 

panel,” we owe no deference to the arbitration panel’s 

interpretation of the RSA or other statutes, and we review 

these interpretations de novo. Sauer, 668 F.3d at 650.

IV.

The parties dispute whether the RSA applies to DFA 

contracts at all. The RSA provides that “blind persons 

licensed under [its] provisions . . . shall be authorized to 

operate vending facilities on any Federal property,” 

20 U.S.C. § 107(a), and that “[i]n authorizing the operation 

of vending facilities on Federal property, priority shall be 

given to blind persons licensed by a State agency,” id. 

§ 107(b). Neither party disputes that the Schofield Barracks

dining facilities are “vending facilities” under the RSA. 

Thus, this dispute turns on whether a DFA contractor, who 

primarily performs janitorial, custodial, and sanitization 

functions, “operates” a vending facility. In other words, if a 
14 STATE OF HAWAII V. USDOE

DFA contractor is operating a vending facility, then the RSA 

priority applies. The Army argues that a DFA contractor 

does not operate a vending facility because a DFA contractor 

does not oversee and manage the food preparation in its 

dining halls. Ho’opono argues, however, that a DFA 

contractor operates a vending facility by fulfilling tasks that 

are integral to the operation of the dining hall. We believe 

Ho’opono has the better of the argument.

To begin, the district court applied an incorrect standard 

of review to the RSA arbitration panel’s construction of 

20 U.S.C. § 107(a). The district court deferred heavily to the 

arbitration panel’s interpretation, focusing primarily on 

whether its interpretation was arbitrary and capricious. But 

as explained above, that standard does not apply to the 

construction of statutes by RSA arbitration panels. Because 

the RSA “does not delegate interpretive authority to the 

arbitration panel,” we owe no deference to the arbitration 

panel’s interpretation of the RSA, and we review it de novo. 

Sauer, 668 F.3d at 650. Thus, the district court should have 

independently interpreted the RSA, as a matter of law.

To interpret the meaning of “operate” in § 107(a), we 

begin by determining “whether the language at issue has a 

plain and unambiguous meaning with regard to the particular 

dispute in the case.” Barnhart v. Sigmon Coal Co., 534 U.S. 

438, 450 (2002) (citation omitted). If a term is 

unambiguous, we merely apply the plain term. Id. But if we 

find a term ambiguous, “we look to the congressional intent 

revealed in the history and purposes of the statutory 

scheme.” Pit River Tribe v. Bureau of Land Mgmt., 939 F.3d 

962, 970 (9th Cir. 2019) (citation omitted). To aid in this 

task, we look to “the statutory structure, and other traditional 

aids of statutory interpretation.” Heavenly Hana LLC v. 

Hotel Union & Hotel Indus. of Haw. Pension Plan, 891 F.3d 
STATE OF HAWAII V. USDOE 15

839, 844 (9th Cir. 2018) (internal quotation marks and 

citation omitted).

The term “operate” is ambiguous in § 107(a). Neither 

the RSA itself nor the DOE regulations implementing the 

RSA define the term “operate” or “operation.” See 

20 U.S.C. § 107e; see also 34 C.F.R. §§ 395.1–395.38. We 

have yet to define “operate” within the meaning of the RSA, 

and when we have defined “operate” or “operation” in other 

contexts, our definitions have varied such that they provide 

little guidance here. See, e.g., Potts v. Cont’l Cas. Co., 

453 F.2d 276, 278 (9th Cir. 1971) (“The word ‘operated’ 

may include both the owner-lessor of the plane and the 

[employer] and its pilot.”); Lentini v. Cal. Ctr. for the Arts, 

Escondido, 370 F.3d 837, 849 (9th Cir. 2004) (defining 

“operate” based on the level of authority possessed).

Given the lack of a statutory definition, we next “consult 

common dictionary definitions” to divine the “ordinary, 

contemporary, common meaning” at the time the statute was 

enacted. Cal. All. of Child & Fam. Servs. v. Allenby, 

589 F.3d 1017, 1021 (9th Cir. 2009) (citation omitted). As 

Ho’opono details in its briefing, consulting dictionaries 

proves unhelpful here, because there are several contending 

definitions of the word “operate,” including “exercise force 

or influence,” “produce an effect,” “to exert oneself to do 

something,” and “to produce the intended or proper effect.” 

Operate, Oxford English Dictionary (1st ed. 1933). In the 

transitive sense, operate may also mean “to effect or produce 

by action or the exertion of force or influence,” “to cause or 

actuate the working of,” and “to direct the working of.” Id. 

In fact, the arbitration panel in this case split over the 

meaning of the word operate. Given the lack of statutory 

definition and the abundance of dictionary definitions, the 

meaning of operate as used in the RSA is ambiguous.
16 STATE OF HAWAII V. USDOE

The Army counters with the Supreme Court’s Bestfoods 

decision as proof that the meaning of “operate” is settled. 

See United States v. Bestfoods, 524 U.S. 51 (1998). But 

Bestfoods is distinct from this case in several pertinent ways. 

There, the Supreme Court construed the meaning of 

“operate” within the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA). 

The Supreme Court referenced a mechanical definition of 

operate as “to control the functioning of; run,” as well as an 

organizational definition as “to conduct the affairs of; 

manage.” Id. at 66 (alterations and citations omitted). The 

Court then concluded that due to CERCLA’s unique 

qualities, it would construe “operate” in the organizational 

sense for the purposes of CERCLA. Id.

In the context of the RSA, however, it appears far less 

clear that Congress intended the organizational sense of 

operate. Whereas in CERCLA the statute targeted 

“operators” in the sense of those with authority to manage a 

project, the regulations implementing the RSA target a 

broader range of workers. The DOE regulations provide that 

“[s]uch operation shall be expected to provide maximum 

employment opportunities to blind vendors to the greatest 

extent possible.” 34 C.F.R. § 395.33(a). It would run 

counter to the RSA’s sweeping and inclusive purpose to 

limit the term “operate” to include only those who “conduct 

the affairs of” or “manage” the entire operation of a dining 

facilities—clearly Congress wanted to provide jobs to blind 

vendors who “control the functioning of” and “run” dining 

facilities as well. Therefore, although the Supreme Court 

arrived at a conclusive definition of the term “operate” for 

the purposes of CERCLA, the term “operate” remains 

ambiguous for the purposes of the RSA.
STATE OF HAWAII V. USDOE 17

Given this ambiguity, we turn to our other tools of 

statutory interpretation to determine Congress’s intent. See 

Pit River Tribe, 939 F.3d at 970. And here, the statutory 

structure and implementing regulations counsel strongly in 

favor of applying the RSA to DFA contracts.

First, the statutory structure of the RSA invites us to 

interpret it broadly in favor of increased opportunities for 

blind vendors. The RSA begins by defining its own 

purposes as “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). 

The RSA’s implementing regulations sweep even more 

broadly, mandating that the operation of cafeterias at federal 

agencies “shall be expected to provide maximum 

employment opportunities to blind vendors to the greatest 

extent possible.” 34 C.F.R. § 395.33(a). In fact, the 

Secretary’s regulation requires that agencies renegotiate 

“[a]ll contracts or other existing arrangements pertaining to 

the operation of cafeterias on Federal property” to ensure 

they meet the RSA’s requirements. Id. § 395.33(c) 

(emphasis added). While DFA contracts do not address the 

entire operation of dining facilities, they certainly pertain to 

the operation of dining facilities. Thus, including DFA 

contracts under the RSA increases the range of vending 

contracts for which blind vendors will receive priority, 

furthering the RSA purposes of increasing access to jobs for 

blind vendors.

The RSA also defines “vending facility” in broad terms, 

suggesting that DFA contracts should fall under the RSA. 

The statutory definition of vending facility includes “such 

other appropriate auxiliary equipment as the Secretary [of 

Education] may by regulation prescribe as being necessary 
18 STATE OF HAWAII V. USDOE

for the sale of the articles or services . . . and which may be 

operated by blind licensees.” 20 U.S.C. § 107e(7). Pursuant 

to this provision, the Secretary has passed regulations 

including “sanitation practices” as one of the criteria by 

which agencies may evaluate SLA bids for vending facility 

contracts. 34 C.F.R. § 395.33(b). Under the RSA, then, 

sanitation duties are seen as a vital part of vending facilities 

contracts for which blind vendors should receive priority. 

As DFA contracts primarily concern sanitation and custodial 

duties, this definition of vending facilities also counsels in 

favor of applying the RSA to DFA contracts for services that 

are integral to running vending facilities.

The Fifth Circuit reached the same conclusion in a 

virtually identical circumstance, holding that blind vendors 

should receive priority under the RSA for DFA contracts. 

See Tex. Workforce Comm’n v. U.S. Dep’t of Educ., 973 F.3d 

383, 390–91 (5th Cir. 2020). There, the Army divided its 

FFS contracts at Fort Bliss, Texas, into two—the first, an 

FFS contract for which blind vendors continued to receive 

priority, and the second, a DFA contract for which only 

small businesses could bid, eliminating Texas’s SLA from 

bidding. Id. at 384–85. As here, the question turned on the 

meaning of the word “operate” in the RSA. Id. at 386. After 

concluding that the term “operate” was ambiguous for the 

purposes of the RSA, the Fifth Circuit concluded that the 

statutory context strongly supported construing the word 

operate to include DFA contracts for services that are 

integral to the operation of a dining facility. See id. at 385–

91. Although not binding, the Fifth Circuit’s conclusion is 

persuasive.

Moreover, the Secretary of Education has reached the 

same conclusion. In a letter to Representative Pete Sessions 

dated March 5, 2018, then Secretary of Education Betsy 
STATE OF HAWAII V. USDOE 19

DeVos acknowledged that there had been some dispute over 

whether the RSA applies to both FFS and DFA contracts. 

The Secretary expressed the Department’s view that the 

RSA applies to both types of cafeteria contracts, referencing 

the Oxford English Dictionary definition of the word 

“operate.” She concluded that if “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.” As the Secretary made this comment “in an 

opinion letter, not one arrived at after, for example, a formal 

adjudication or notice-and-comment rulemaking,” 

Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000), we 

treat it with Skidmore deference, following its interpretation 

to the extent it has the “power to persuade,” Skidmore v. 

Swift & Co., 323 U.S. 134, 140 (1944). For the reasons 

stated above, we find the Secretary’s broad construction of 

the RSA persuasive, lending further support to our 

conclusion that the RSA covers this DFA contract.

Therefore, we conclude that because the DFA contract 

for Schofield Barracks covered responsibilities that are 

integral to the Schofield Barracks’ cafeteria’s operation, the 

RSA applies and the Army should have given RSA priority 

to blind vendors for the DFA contract.

V.

Next, the Army contends that the RSA advance review 

requirement did not apply to its decision to list the Schofield 

Barracks food services contract as a DFA contract, while 

Ho’opono argues that the Army violated the RSA by failing 

to meet the advance review requirement. We affirm the 

district court’s conclusion that the RSA advance review 
20 STATE OF HAWAII V. USDOE

requirement applies to the Army’s reclassification of 

Schofield Barracks’ dining facilities.

The RSA advance review requirement provides: “Any 

limitation on the placement or operation of a vending facility 

based on a finding that such placement or operation would 

adversely affect the interests of the United States shall be 

fully justified in writing to the Secretary, who shall 

determine whether such limitation is justified.” 20 U.S.C. 

§ 107(b). It is undisputed that the Army did not seek 

approval from the Secretary of Education before 

reclassifying the Schofield Barracks dining facilities 

contract as a DFA contract, so this question turns on whether 

the reclassification constitutes a “limitation on the placement 

or operation of a vending facility.” Id.

Examining the plain meaning of the statute’s 

unambiguous terms, we conclude that the Army triggered 

the advance review requirement when it reclassified the 

Schofield Barracks dining facilities in a way that eliminated 

Ho’opono’s eligibility to bid on the DFA contract. See 

Ahlman v. Barnes, 20 F.4th 489, 493 (9th Cir. 2021) (“When 

the statute’s language is plain, the sole function of the courts 

is to enforce it according to its terms.” (citation omitted)). 

This action limited the ability of blind vendors to assert their 

RSA priority to the Schofield Barracks contract. Thus, the 

Army violated the RSA by failing to seek the Secretary’s 

approval.

As the statute itself provides no definition for 

“limitation,” we should begin by “consulting common 

dictionary definitions.” Allenby, 589 F.3d at 1021. At the 

time Congress enacted the RSA, the dictionary defined 

“limit” as “[t]o confine within limits, to set bounds to” and 

“to bound, restrict.” Limit, Oxford English Dictionary (1st 

ed. 1933). Obviously, by including the word “any” before 
STATE OF HAWAII V. USDOE 21

the word “limitation,” Congress clarified that all limitations 

fall within the advance review requirement. See Patel v. 

Garland, 142 S. Ct. 1614, 1622 (2022) (defining “any” to 

mean “of whatever kind,” “[a]s this Court has repeatedly 

explained [that] the word ‘any’ has an expansive meaning” 

(internal quotation marks and citations omitted)); Kansas ex 

rel. Kan. Dep’t for Child. & Fams. v. SourceAmerica, 826 F. 

App’x 272, 285–86 (4th Cir. 2020).

Under the undisputed facts of this case, the Army 

bounded, restrained, and confined the operation of its 

Schofield Barracks dining facilities in 2016. By changing 

the dining facilities contract from an FFS contract to a DFA 

contract, the Army drastically reduced the scope of services 

covered under the contract, removed the RSA priority from 

its 2016–22 contract solicitation, and designated the new 

solicitation as a “Small Business Set-Aside,” which rendered 

Ho’opono ineligible to bid on the contract. In short, the 

change to a DFA model led to fewer services and fewer 

opportunities for blind vendors under the contract—a 

textbook example of a limitation.

The Army counters that although its reclassification may 

have been a form of limitation, it nonetheless falls outside 

the advance review requirement’s scope because the 

limitation did not apply to the “placement or operation of a 

vending facility.” Ho’opono does not dispute that the 

placement of the Schofield Barracks dining facilities was 

unchanged, but asserts that the physical location is irrelevant 

in light of the change in contract from full-service operations 

to limited-service operations.

Here, a recent unpublished Fourth Circuit decision is 

illustrative. In SourceAmerica, the Fourth Circuit addressed 

the question we face: whether the military triggered the RSA 

advance review requirement by reclassifying its dining 
22 STATE OF HAWAII V. USDOE

services contract from an FFS contract to a DFA contract. 

826 F. App’x at 284. As here, this reclassification 

effectively terminated the military’s prior dining services 

contract with a blind vendor pursuant to the RSA. Id. at 284–

85. The Fourth Circuit analyzed the RSA advance review 

requirement’s use of the broad term “any limitation,” noting 

that the provision contains “no qualifiers as to the type or 

degree of limitations.” Id. at 285. Given that the 

reclassification of dining facilities “did more than just ‘limit’ 

a blind vendor’s operation of the vending facility; it 

eliminated it altogether,” the Fourth Circuit concluded that 

the military was required to obtain DOE’s approval before 

reclassifying the contract. Id. at 286. We find the Fourth 

Circuit’s reasoning persuasive and also conclude that a DFA 

reclassification is a “limitation” under the RSA advance 

review requirement.

Eighth Circuit precedent also supports our conclusion 

that a DFA reclassification limits the operation of vending 

facilities. In Minnesota Department of Jobs & Training v. 

Riley, 18 F.3d 606 (8th Cir. 1994) (Riley I), the Eighth 

Circuit held that requiring blind vendors to pay commissions 

on their vending sales triggered the RSA advance review 

requirement, as it limited the vendor’s operation of the 

dining facilities by reducing their total income. Id. at 609. 

Along similar lines, in Minnesota Department of Economic 

Security v. Riley, 107 F.3d 648 (8th Cir. 1997) (Riley II), the 

Eighth Circuit concluded that when a federal agency 

imposed a condition on an RSA vending machine contract 

that required the blind vendor to permit the agency to install 

its own competing vending machines in the same building, 

this condition constituted a limitation on operations that 

triggered the RSA advance review clause. Id. at 649–50. In 

both these cases, the Eighth Circuit concluded that 

restricting a blind vendor’s ability to draw income from a 
STATE OF HAWAII V. USDOE 23

dining services contract—whether by exacting commissions 

from the vendor or by forcing the vendor to compete with 

non-RSA vending machines—constituted a limitation on 

operations. Riley I, 18 F.3d at 609; Riley II, 107 F.3d at 650. 

Important to our inquiry here, both these cases assume that 

an agency limits operations if it limits the ability of a blind 

vendor to benefit from a services contract. Given that the 

DFA reclassification here completely eliminated 

Ho’opono’s ability to bid on the contract, the reclassification 

triggers the advance review requirement, subjecting the 

decision to DOE approval.

The Army contends that even if it did limit the operation 

of a vending facility, it did not do so “based on a finding that 

such placement or operation would adversely affect the 

interests of the United States,” 20 U.S.C. § 107(b), the third 

statutory predicate to the advance review requirement. 

However, the record of the Army’s decision-making belies 

this contention. According to the Army, it switched 

Schofield Barracks from an FFS model to a DFA model 

because “[w]ith a large number of soldiers returning to 

Schofield Barracks in 2016, they were able to resume 

operating the Schofield Barracks dining facilities, making 

the contract for Full Food Service unnecessary.” In other 

words, the Army determined that staffing its dining halls 

with its own members for non-DFA functions would be 

more favorable to its interests than continuing to contract out

all dining services under an FFS model—or conversely, 

continuing to operate under an FFS model “would adversely 

affect the interests” of the Army given that sufficient 

numbers of soldiers had returned to the base to allow the 

switch to a DFA model.

Finally, the Army emphasizes throughout its briefing 

that it possesses authority over its own operations such that 
24 STATE OF HAWAII V. USDOE

it can decide how to structure its own contracts, 

characterizing its reclassification as a “decision about how 

to employ its own personnel.” However, the Army fails to 

explain how its prerogatives in running its own organization 

trumps the legislative requirements that Congress has 

imposed on all federal agencies in the RSA. At no point has 

Congress limited the RSA so that it does not apply to 

personnel decisions within an agency’s authority—in fact, 

Congress swept broadly to include “[a]ny limitation” on a 

vending facilities operation. 20 U.S.C. § 107(b) (emphasis 

added). Indeed, the purpose of regulations like the RSA 

advance review requirement is to rein in actions that an 

agency may otherwise be free to take. And the RSA 

provides that the Army “fully justif[y]” any limitation to the 

Secretary of Education before it acts, so the Army’s 

argument here was best made to the Secretary, not in 

litigation after the limitation was imposed. Id.

Therefore, we affirm the district court’s conclusion that 

the Army triggered the RSA advance review requirement by 

reclassifying Schofield Barracks’ dining facilities as a DFA 

facility.

VI.

For the foregoing reasons, we REVERSE the district 

court’s conclusion that the RSA does not apply to DFA 

contracts, and we AFFIRM the district court’s conclusion 

that the RSA advance review provision applies to the 

reclassification of the Schofield Barracks contract.