by Charles S.P. Hodge
On Wednesday morning, December 6, 2000, the U.S. Court of Appeals for the Fourth Circuit heard oral arguments in the case of National Industries for the Severely Disabled (NISH) et al v. Secretary of Defense et al. The case was heard in Richmond, Va., before a three-judge panel comprised of Circuit Judges William B. Traxler Jr. of South Carolina and Robert B. King of West Virginia and District Judge Terrance W. Boyle of the U.S. District Court for the Eastern District of North Carolina.
The appellant, NISH, had hired new counsel to represent it in the appellate court. John Pachter made a much stronger argument for the appellant than had been made in the trial court. He consistently and repeatedly hammered upon the distinction between a concessions statute which he claimed was the proper category for the Randolph-Sheppard Act, and a true procurement statute such as the Javits-Wagner-O’Day (JWOD) Act which this counsel argued was more appropriate to apply to the circumstance of awarding a contract to provide food services at a mess hall on a military base. While the judges all asked probing questions of Pachter, they seemed to treat him with much respect as one of the leading writers and commentators on federal government procurement law.
Unfortunately, the counsel for the federal defendants had also changed since the initial argument had been posed before the trial court. The attorney representing the Department of Justice, Jeffrica Jenkins-Lee, seemed a little unsure of the Randolph-Sheppard Act, and made a number of admissions or concessions against the interests of the federal defendants. For example, Pachter had argued and placed in the judges’ minds that one of the distinguishing characteristics of operating a mess hall on a military base under a procurement contract was that uniformed service personnel were merely given their food orders over the counter and did not have to pay any money out of their own pockets through the cash register. Jenkins-Lee was asked by Judge Boyle if she knew of any mess hall locations which were operated by a blind manager where food was given to uniformed service personnel. She answered in the negative, unaware, I presume, that a number of mess halls on military facilities are in fact operated by blind managers under the Randolph-Sheppard Act priority.
Andrew Freeman, the counsel for the National Federation of the Blind, who had been designated by direction of the court as the one counsel to represent and speak for all seven defendant party intervenors including the American Council of the Blind, was, unfortunately, only allotted five minutes to present his argument to the court. While he tried to respond to Pachter’s contentions and to set the record straight with respect to some of the misunderstandings left in the judges’ minds by Jenkins-Lee, his efforts were at best a scattered and shotgun effort to repair damage that had already been inflicted.
Following the trial court arguments, I was left with the strong impression that the defendant intervenors would win a smashing victory at the trial court level. This impression proved correct. After witnessing the arguments before the Fourth Circuit Court of Appeals, however, I am much less confident about the outcome. Although I do believe that the defendants should win on the law, the matter is far less clear cut than before the trial court. Stay tuned for the decision in this most important Randolph-Sheppard Act case which is expected to come down in March or April. We will keep you informed through the pages of “The Braille Forum.”