Yesterday, the Federal Circuit heard oral argument in Veterans4You LLC v. United States, a case we have been following because it attracted an amicus brief. In this case, Veterans4You asserts that the Department of Veterans Affairs wrongly invoked the “printing mandate” in 44 U.S.C. § 501 to route a VA procurement through the Government Publishing Office, which in turn violated the “Rule of Two” statutory preference for veteran-owned small businesses. This is our argument recap.
Sarah C. Reida argued for Veterans4You. First, she argued that allowing the gunlocks and wallet cards in this case to be considered printed materials in order to fit under the “printing mandate” would be “a broad sweeping decision that opens the door for any acquisition with a minor element of printing to be conducted via the GPO.” Second, she maintained that it was error for the Court of Federal Claims to conclude that a “Rule of Two” analysis was not required because the VA went through the GPO.
Judge Chen interrupted to ask about Reida’s opinion on what VA should do in cases where the acquisition would be mixed with printing and products like the case here. Reida responded that the inquiry should be “what that end product is as a whole.” She argued that under the government’s interpretation any supplies sought by VA could be obtained through the GPO simply by adding any minor printing element.
Judge Clevenger asked a series of questions inquiring how the court as a matter of law should reconcile Reida’s view that the products did not fall under the “printing mandate” and yet at the same time called for printing. Reida responded that VA’s initial inquiry should ask whether the product in fact qualifies as a “printing” under the printing mandate, and that VA should resolve this question by looking to the product’s purpose.
Judge Clevenger responded by pointing out that the amicus in this case said that two questions are involved here: First, is there printed matter? Second, what is the nature of what is being printed? He then asked if Reida embraced this argument. Reida responded that, in her view, there is merit to the position advanced in the amicus brief, especially with regard to the argument that just any small element of printing is not on its own enough to invoke the printing rule.
Douglas Edelschick argued for the government. He argued that this appeal focuses on superficial tension between the “Rule of Two” in Section 8127(d) and the “printing mandate,” and he argued that Congress already resolved any tension between these two by passing Section 8127(i), which loosens the “Rule of Two” when another agency is conducting a procurement for VA. He asserted that there is no support in the text of 44 U.S.C. § 501 to say that something did not qualify as printing because it was combined with a product. Furthermore, he argued, the primary purpose of the acquisition here was to send a suicide prevention message via the printing.
Judge Chen asked whether, if the court disagreed with the government’s interpretation of the alleged purpose and instead saw the product as a functional device, whether the device would still be a printing. Edelschick responded that the products in this case do qualify as printed material according to the “government printing and binding regulations” published by the Joint Committee on Printing. When asked by Judge Chen for support, Edelschick pointed to the fact that there were specific exceptions to the “printing mandate,” and he maintained that the products in the current case do not fall under the exceptions.
Judge Clevenger asked whether the GPO mandate met the requirements of the constitution. In response, Edelschick argued that constitutional avoidance demands that the constitutional issue not be decided in this case. Judge Chen, however, suggested that, to avoid the constitutional question, the court would need to read the “printing mandate” narrowly, and he asked for Edelschick’s response to that suggestion. Edelschik responded that, in his view, it is not possible in this case to interpret “printing” to not mean “printing,” and he argued that the only constitutional question is whether the legislature can order the executive to conduct its printing as required by the legislative scheme.
In rebuttal, Reida addressed the constitutionality issue by arguing that, under the doctrine of constitutional avoidance, the court has an obligation to interpret a statute in a way to avoid the constitutional issue. In this case, she asserted, that doctrine would require reading the “printing mandate” narrowly and, ultimately, finding that it was improperly invoked.
We will keep track of this case and report on its disposition.