Opinions / Panel Activity

Yesterday, the Federal Circuit decided Veterans4You, Inc. v. United States, a veterans case we have been following because it attracted an amicus brief. Judge Clevenger authored a unanimous panel opinion reversing the Court of Federal Claim’s conclusion that the “printing mandate” of 44 U.S.C. § 501 applied to a solicitation at issue in the case and obligated Veterans Affairs to route the solicitation through Government Publishing Office. The Federal Circuit agreed with Veterans4You’s argument that, instead, § 501 applies only to the production of written or graphic published materials. According to the Federal Circuit, because the solicited goods at issue in this case did not fall within this category of materials, they do not fall within the printing mandate. This is our opinion summary.

In this case, Veterans4You argued two separate points for reversal. First, Veterans4You asserted 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. Second, Veterans4You challenged the constitutionality of § 501’s printing mandate as applied to the facts of this case. In particular, Veterans4You advanced the argument that the printing mandate violates the separation of powers between the legislative and executive branches mandated by the Constitution.

As mentioned, Judge Clevenger authored the unanimous opinion. He was joined by Judges Lourie and Chen.

Judge Clevenger explained the background of this case:

Two statutory provisions are central to this appeal. The first is the so-called “Rule of Two,” which establishes a contracting preference of the Department of Veterans Affairs (“VA”) for Veteran Owned Small Businesses (VOSBs) and Service Disabled Veteran Owned Small Businesses. Appellant Veterans4You is a certified SDVOSB. . . The second statutory provision at issue is the “printing mandate,” codified at 44 U.S.C. § 501. This section requires that “[a]ll printing, binding, and blank-book work for Congress, the Executive Office, the Judiciary, other than the Supreme Court of the United States, and every executive department, independent office and establishment of the Government, shall be done at the Government Publishing Office [“GPO”][.]”

This appeal arises from the following facts, . . . The VA maintains a suicide prevention Crisis Line. As relevant here, the VA sought to procure cable gun locks with information about the Crisis Line imprinted on the lock body and on a label attached to the cable of the lock, as well as an accompanying double-sided wallet card with additional information about the Crisis Line. On January 31, 2019, VA submitted a SF-1 requisition form to the GPO to procure the imprinted and labeled cable lock along with the printed wallet card. On February 21, 2019, Veterans4You filed a bid protest with the Government Accountability Office (“GAO”) on the basis that the solicitation issued by GPO did not give preference to VOSBs or SDVOSBs.

The court began by looking to the constitutional question presented by Veterans4You.

The court first found that “the constitutionality of the printing mandate, to the extent that it impacts our statutory interpretation of the printing mandate by way of the doctrine of constitutional avoidance, is such an issue” that may be considered even though it was not at issue below. As a result, the court considered Veterans4You’s argument that “invocation of the printing mandate . . . violates constitutional provisions of separation of powers.”

The court then concluded that “the canon of constitutional avoidance counsels us to construe the printing mandate narrowly and avoid its application to the procurement at issue here.” According to the court, “[t]he canon of constitutional avoidance provides that ‘[w]hen a serious doubt is raised about the constitutionality of an act of Congress,’ courts should ‘first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.'”

Applying the canon to this case, the court found that “§ 501—in particular, the statutory term ‘printing’—is susceptible of more than one plausible construction.” Further, the court held that “the printing mandate in 44 U.S.C. § 501 applies only to the production of written or graphic published materials.” Thus, the court concluded, “the solicitation at issue here does not involve ‘printing’ within the meaning of 44 U.S.C. § 501.”

The court explained that its holding was supported by two reasons. First, the court found that “this scope of the term ‘printing’ is consistent with the broader context of the term’s usage in the statute, as well as with dictionary definitions of ‘printing.'” The court understood “printing” to “encompass the production of written and graphic published materials, just as the terms ‘binding’ and ‘blank-book work’ do.” Notably, the court indicated it was persuaded by the argument of amicus curiae Kingdomware Technologies that the context of the statutory language supports its construction of the term printing. Second, the court found “this scope of the printing mandate comports with the historical functions and activities of the GPO, which evidence a nearly universal focus on the production of written or graphic published materials.”

Finally, the court addressed the parties’ arguments concerning § 8127 of the Veterans Benefits Act of 2006 (38 U.S.C. § 8127), the statutory provision containing the so-called Rule of Two. In this regard, the court found that, “[b]ecause we reverse the Court of Federal Claims’ determination that the goods sought under the solicitation fall within the printing mandate, we do not reach the question of whether VA was in compliance with its obligations under § 8127(i).” Additionally, the court also did not “reach the issue of whether VA could permissibly route solicitations like this one through GPO as a matter of discretion, rather than as a matter of legal obligation under the printing mandate.”

As a result of its analysis, the Federal Circuit reversed the judgment of the Court of Federal Claims and remanded the case for further proceedings consistent with the Federal Circuit’s opinion.