Amicus Curiae Brief — Kingdomware Techs., Inc. v. United States, 135 S. Ct. 2857 (2015) (No. 14-916)

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AUG 25 2015

OFFICE OF THE CLERK

No. 14-916

In the Supreme Court of the Hnited States

KINGDOMWARE TECHNOLOGIES, INC..,

PETITIONER

UNITED STATES OF AMERICA,

RESPONDENT

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FEDERAL CIRCUIT

BRIEF FOR THE AMERICAN LEGION

AS AMICUS CURIAE

SUPPORTING PETITIONER

LINDA T. COBERLY ANDREW C. NICHOLS

Winston & Strawn LLP Counsel of Record

35 W. Wacker Drive STEFFEN N. JOHNSON

Chicago, IL 60601 EIMERIC REIG-PLESSIS

(212) 558-5600 Winston & Strawn LLP

1700 K Street, N.W.

Washington, DC 20006

(202) 282-5000

anichols@winston.com

Counsel for Amicus Curiae

QUESTION PRESENTED

The Veterans Benefits, Health Care, and Infor-

mation Technology Act of 2006 provides that con-

tracting officers at the Department of Veterans Af-

fairs “shall award” contracts on the basis of competi-

tion restricted to small businesses owned by veterans

whenever there is a “reasonable expectation” that two

or more such businesses will bid for the contract at “a

fair and reasonable price that offers best value to the

United States.” 38 U.S.C. §8127(d). Citing the Act’s

prefatory clause, however, the Federal Circuit limited

the application of this mandate to situations in which

the Department believes that applying it is necessary

to meet the goals that the Department establishes for

contracting with veteran-owned small businesses.

The question presented is:

Whether the Federal Circuit erred in construing

38 U.S.C. §8127(d)’s mandatory set-aside restricting

competition for Department of Veterans Affairs’ con-

tracts to veteran-owned small businesses as discre-

tionary.

‘i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................ccsssssessseeseees

INTRODUCTION AND INTEREST OF

tierce nnitchinncencsctntmensmeninesneessrecseees

I. The decision below violates this Court’s “long

applied” rule that statutes must be construed

“for the benefit of the veteran.”...........................

Il. Under settled precedent, prefatory clauses

cannot trump operative statutory language. .....

IlI.The decision below is contrary to Congress's

intent of maximizing economic opportunities

for our Nation’s veteranB.......................-cccsscceeeees

A. The VA’s persistent refusal to obey

Congress's command diverts from

veterans up to $10 billion every year. ...........

B. Confirming Kingdomware’s plain reading

of the statute, Congress strove to

overcome the VA’s recalcitrance by

strengthening the law three times.................

TTT instrinteneiitiieniteiniseneiadliiiinndicemipmitimammipieatin

..14

TABLE OF AUTHORITIES

Page(s)

CASES

Ass'n of Am. R.R. v. Costle,

562 F.2d 1310 (D.C. Cir. 1977) ...............ccccceeeees 19

Atl. Richfield Co. v. United States,

764 F.2d 837 (Fed. Cir. 1985).....................ccc0000 19

Boone v. Lightner,

TCE EN Oe 7, 10, 13

Brown v. Gardner,

gy Ee 6, 8, 10-13

Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc.,

Se RR TT cscs iciciiceticiiinmeicibinnniipiinmntiemeins 5

City of Joliet, Ill. v. New West, L.P.,

562 F.3d 830 (7th Cir. 2009) ................ccseseereeeees 20

CMS Contract Mgmt. Servs. v. United States,

745 F.3d 1379 (Fed. Cir. 2014).....................0000. 20

Coffy v. Republic Steel Corp.,

LL Cee 7,13

Crawford v. Burke,

Er eee 24

District of Columbia v. Heller,

ee 6, 16-17

Escoe v. Zerbst,

nna 15

Fishgold v. Sullivan Drydock & Repair Corp.,

re 8, 13

Florentine v. Church of Our Lady of Mt. Carmel,

340 F.2d 239 (2d Cir. 1966).............cccceeseccccesseees 19

Hawaii v. Office of Haw. Affairs,

TTC 6-7, 17

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) ...................... 6-7, 9, 11, 13-14

Hooper v. Bernalillo Cnty. Assessor,

| TTA SED 13-14

In re Aldevra,

2011 WL 4826148 (Comp. Gen. Oct. 11, 2011)......

sii eaueiiltepasiphaniininatibatesanerianieeepeitciidiaitaaeaaiieaeiall 4, 20

In re Aldevra,

2012 WL 860813 (Comp. Gen. Mar. 14, 2012) .. 20

Jurgensen v. Fairfax Cnty., Va.,

745 F.2d 868 (4th Cir. 1984) .............ccccccccceeeeeees 19

King v. St. Vincent’s Hosp.,

8 5, 7-8, 10, 13

Kingdomware Techs.—Reconsideration,

2012 WL 6463498 (Comp. Gen. Dec. 13, 2012) .....

spciataiaetnatitaiaitiaiiasiauataiaaa estate tetaeaiaicimaaiiaitaaiatimaneed 22

Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach,

TEER een ne N ae 15

Lopez v. Davis,

TN TE 15

Mach Mining, LLC v. E.E.O.C.,

I: I iccrcninsnienstinasiisintenietienton 15

Nat Wildlife Found. v. Marsh,

721 F.2d 767 (11th Cir. 1983) .....................220++ 19

Parish Oil Co. v. Dillon Cos.,

523 F.3d 1244 (10th Cir. 2008) ..............ccceeeeeee 19

Regan v. Taxation with Representation,

8 ECE 7,13

Russello v. United States,

LL ea ee 24

Scialabba v. Cuellar de Osorio,

a ee ae 17

Shinseki v. Sanders,

TR ERR EE 13

United States v. Rodgers,

oni rnesinnatnniniiniaataiciiatel 24

United States v. White,

2012 WL 4513489 (S.D.N.Y. Oct. 2, 2012) ...10-11

Util. Air Regulatory Grp. v. EPA,

es I TT cnccirrnnsncensecniicnnsesmcnsnseutens 18

White v. United States,

543 F.3d 1330 (Fed. Cir. 2008).....................00000 19

Yazoo & M.V.R. Co. v. Thomas,

a CT dicnuticcnnscsnsvcsccstninsndinnssesdnneeian 18

STATUTORY PROVISIONS

15 U.S.C.

iT ineaaetaineeneniinpaniinieceininemrimeasitiiaimmiatinaitiaalimmmiaalid 2

ETT Re Nera ENT een NTO 3, 23

38 U.S.C.

iT siinsasepdinnneninsenitiaaninensenidnetibiaeianssibdeieeniiieiinusiinis 12

ST cp pep eanendanntestnsnemeanesnmmanmieeiis 3-5, 8, 12, 15, 24

Pub. L. No. 106-50, 113 Stat. 233 2.0.0.0... cece eeceeeeeee 2

Pub. L. No. 108-183, 117 Stat. 26611 ......................0. 2

OTHER AUTHORITIES

ee ED ccncapenseterseneesccssessemmmnennen 6, 10

GAO Report to Congress, 2012 WL 5510908 (Comp.

es a te SI circcnncctincsnensniccninectnenmennnsenes 4, 21

Miller, Kathleen, Dispute Simmers Between VA and

Veteran-Owned Businesses, Wash. Post, 2011

WLNR 23483727 (Nov. 14, 2011).................00006. 22

Scalia, A. & Garner, B., Reading Law (2012)......... 16

Sedgwick, T., A Treatise on the Rules which Govern

the Interpretation and Construction of Statutory

and Constitutional Law (2d ed. 1874)............... 18

Sherman, P., Paved with Good Intentions: Obstacles

to Meeting Federal Contracting Goals for Service-

Disabled Veteran-Owned Small Businesses,

36 Pub. Cont. L.J. 125 (2006)................... 2, 14, 23

Small Business Administration, Veteran-owned

Businesses and their Owners—Data from the

Census Bureau’s Survey of Business Owners (Mar.

ITT incninetccala ined iiertintabaieaamasenabeanitananganbinienaiite 21

Sutherland Statutes & Statutory Constr. (7th ed.

ST iia sipieeaenbtiaianallintninditinieinebinneaeneanmeniieuneines 18

Williams, J.T., Veterans First? VA Should Give Vet

Contracting Program Priority, 47-WTR

Procurement Law. (2012)...............cccccccccccscssesees 22

INTRODUCTION AND INTEREST OF

AMICUS CURIAE’

In a decision that eviscerates the rights of 2.5 mil-

lion veteran-owned businesses to participate in an

important government contract program, a divided

panel of the Federal Circuit violated this Court’s

precedent and Congress’s command that veterans

“shall” participate in the program. That word was

chosen carefully. It was enacted in a third revision

directed specifically to the U.S. Department of Veter-

ans Affairs (“VA”) after it failed to heed Congress’s

first two enactments, which were permissive. Rever-

sal is needed because the Federal Circuit’s decision

flouts two of this Court’s critical canons of statutory

construction—one of which is specially tailored to

veterans—and contravenes the expressly stated in-

tent of Congress. In the process, the court below

snuffed out the rights of veterans to contracts esti-

mated at up to $10 billion per year.

These rights could hardly be more important to

the American Legion’s three million members. Char-

tered by Congress in 1919, the American Legion is a

community-service organization that routinely assists

veterans in matters involving the VA. Among other

services, the American Legion helps veterans transi-

tion to the civilian economy. This is the same critical

transition that Congress sought to ease with the

statutory rights here, which have now been destroyed

by the VA and the majority below.

* The parties have consented to the filing of this brief, and their

letters of consent are on file with the Clerk. See R. 37.3(a). No

counsel for any party has authored this brief in whole or in part,

and no person or entity, other than amicus and its counsel, has

made a monetary contribution intended to fund the preparation

or submission of this brief. See R. 37.6.

STATEMENT

1. This case involves the third of three attempts

by Congress to compel federal agencies to favor vet-

erans in awarding government contracts. In its first

attempt, the Veterans Entrepreneurship and Small

Business Development Act (the “1999 Act”), Congress

set an annual goal that at least three percent of

contracts be awarded to service-disabled veteran-

owned small businesses, and required that agencies

falling short of this goal “justiffy]” their failure. 15

U.S.C. §644(g), (h). As Congress explained, it had

“done too little to assist veterans, particularly

service-disabled veterans, in playing a greater role in

the economy *** by forming and expanding small

business enterprises.” Pub. L. No. 106-50 §101(3).

Although the vote was unanimous, some groups,

including the American Legion, expressed concern

that it did not go far enough. See P. Sherman, Paved

with Good Intentions: Obstacles to Meeting Federal

Contracting Goals for Service-Disabled Veteran-

Owned Small Businesses, 36 Pub. Cont. L.J. 125, 130

(2006).

The American Legion proved to be right. It

quickly became clear that the 1999 Act was a failure,

as agencies fell far short of the three percent goal.

Pet. App. 4a. In fact, from 2001 to 2002, the

percentage of contracts awarded to service-disabled

veteran-owned businesses fell—from 0.22 percent to a

mere 0.12 percent. Sherman, supra, at 131.

2. In response to the 1999 Act’s failure, Congress

passed the Veterans Benefits Act of 2003 (the “2003

Act”), which gave agencies substantial flexibility to

favor veterans. The 2003 Act provided that an agen-

cy “may award” a contract while restricting competi-

tion to service-disabled veteran-owned businesses.

15 U.S.C. §657f(b) (emphasis added). The only stipu-

lation was what is known as the “Rule of Two”’—

namely, that the agency have “a reasonable expecta-

tion that not less than 2 [such businesses] will submit

offers and that the award can be made at a fair mar-

ket price.” Ibid. This flexible approach failed, too.

By 2005, service-disabled veteran-owned businesses

were receiving barely a half percent of contracts. Pet.

App. 5a.

3. Determined to solve the problem, Congress re-

turned to the drawing board in 2006, this time draft-

ing a law (i)with mandatory provisions,

(ii) benefiting all veteran-owned small businesses,

and (iii) focusing on the VA, which should “set the

example among government agencies.” Pet. App. 5a-

6a, 16a. The result was the Veterans Benefits,

Health Care, and Information Technology Act of 2006

(the “2006 Act”), which, with certain exceptions,

requires the VA to award contracts to veteran-owned

small businesses whenever the Rule of Two is met:

Except as provided in subsections (b) and (c), for

purposes of meeting the goals under subsection

(a), and in accordance with this section, a

contracting officer of the [VA] shall award

contracts on the basis of competition restricted to

small business concerns owned and controlled by

veterans if the contracting officer has a

reasonable expectation that two or more small

business concerns owned and controlled by

veterans will submit offers[.]

38 U.S.C. §8127(d) (emphasis added). By contrast,

the exceptions in subsections (b) and (c) are

discretionary, providing that the VA “may use” other

procedures or “may award” contracts to other busi-

nesses (assuming certain conditions apply). Id.

§§8127(b), (c) (emphasis added).

4. Despite the command that the VA “shall” set

aside contracts where the Rule of Two is met, the VA

refused. Between 2011 and 2012, the Government

Accountability Office (“GAO”) sustained 18 bid

protests on the ground that the VA awarded contracts

to non-veterans without applying the Rule of Two.

GAO Report to Congress, 2012 WL 5510908, at *1

(Comp. Gen. Nov. 13, 2012). In sustaining the pro-

tests, the GAO held that the law’s set-aside is “une-

quivocal” and that “nothing in the [2006] Act ***

provides the agency with discretion” to defy it. In re

Aldevra, 2011 WL 4826148, at *2 (Comp. Gen. Oct.

11, 2011). Undeterred, the VA announced that it

would continue to treat the set-aside as optional.

GAO Report to Congress, 2012 WL 5510908, at *4.

5. One of the contractors affected by the VA’s in-

transigence is petitioner, Kingdomware Technologies,

a service-disabled veteran-owned small business.

Pet. App. 2a. In 2012, the VA awarded a contract for

an emergency notification system, a product offered

by Kingdomware, to a non-veteran vendor. Id. at 9a-

10a. Kingdomware filed a protest with the GAO,

showing that §8127(d) required the VA to examine

whether the contract should have been set aside for

veteran-owned small businesses. Ibid.

The GAC agreed with Kingdomware, but the VA

refused to fuilow the GAO’s recommendations. Id. at

10a. Unable to obtain relief, Kingdomware filed a

complaint in the U.S. Court of Federal Claims (id. at

lla), which found the statute “ambiguous” and de-

ferred to the VA’s interpretation as “reasonable” un-

der Chevron, U.S.A., Inc. v. Natural Res. Def. Coun-

cil, Inc., 467 U.S. 837, 843-844 (1984).

6. A divided panel of the Federal Circuit affirmed,

but without finding §8127(d) ambiguous. Rather, the

majority held that the statute’s prefatory clause—‘“for

purposes of meeting the goals under subsection (a)”—

“unambiguously” grants the VA “discretion” to pass

over veteran-owned small businesses when it decides

that it can meet its goals. Pet. App. 15a, 17a-20a

(Clevenger, J., joined by Prost, C.J.). According to the

majority, if the purpose statement did not limit the

operative clause (ordering that the VA “shall” prefer

veterans), the purpose statement would be “superflu-

ous.” Id. at 20a.

In a forceful dissent, Judge Reyna showed that the

“plain language of the 2006 Veterans Act unambigu-

ously requires” the VA to award contracts to veteran-

owned small businesses “in every acquisition” that

meets the Rule of Two. Id. at 22a. Thus, the majori-

ty was wrong “[t]o override the [law's] clear impera-

tive” by “relf[ying] on [its] prefatory language,” be-

cause “a mandate * * * cannot be limited by its pro-

logue.” Id. at 26a.

SUMMARY OF ARGUMENT

The panel majoritys reasoning violates two

controlling canons of statutory construction estab-

lished by this Court. It also flouts the statute’s plain

language, which Congress strengthened three times.

First, as we explain in Section I (infra at 7-14), it

is a “basic rule[] of statutory construction” that “pro-

visions for benefits to members of the Armed Services

are to be construed in the beneficiaries’ favor.” King

v. St. Vincent’s Hosp., 502 U.S. 215, 220-221, n.9

(1991). To be sure, the statute here is clear. “Shall”

means shall. And the VA’s own regulation confirms

this very point. But even if the purpose clause creat-

ed some doubt, and even in the face of a conflicting

regulation by the VA, any “interpretive doubt” still

would have to “be resolved in the veteran’s favor.”

Brown v. Gardner, 513 U.S. 115, 118 (1994); see also

Henderson ex rel. Henderson v. Shinseki, 562 U.S.

428, 441 (2011) (same).

Unable to contest the importance of this

“longstanding canon,” the government resorts to ar-

guing that “Section 8127 is not a benefits statute.”

Opp. 21 n.5. Yet Congress itself called the set-aside

here a “benefit” in the very name of the statute—the

“Veterans Benefits, Health Care, and Information

Technology Act of 2006.” And the VA calls it a “bene-

fit” in its own regulation. 48 C.F.R. §819.7003(d)

(‘Any [veteran-owned business] must meet the re-

quirements * * * to receive a benefit under this pro-

gram.”) (emphasis added). Thus, even if this Court’s

pro-veteran canon were limited to formally designat-

ed “benefits statutes” (as we will show, it is not), the

canon would apply here with full force.

Second, as the dissent below showed, “a prefatory

clause does not limit or expand the scope of the oper-

ative clause.” Although the dissent relied for this

point on District of Columbia v. Heller, 554 U.S. 570

(2008), which involved the Constitution, this Court

applies the principle to all “federal legislation.”

Hawaii v. Office of Haw. Affairs, 556 U.S. 163, 175

(2009). “As we recently explained in a different con-

text, ‘where the text of a clause itself indicates that it

does not have operative effect, such as “whereas”

clauses in federal legislation * * * a court has no li-

cense to make it do what it was not designed to do.”

Ibid. (quoting Heller, 554 U.S. at 578 n.3). “Rather

than focusing on the operative words,” the majority

here “directed its attention to the * * * clause[] that

preface[s]” them, leading it to a “conclusion [that] is

wrong.” 556 U.S. at 175. See Section II (infra at 14-

21).

Finally, reversal is needed to protect the express

statutory rights of millions of veteran-owned busi-

nesses. See Section III (infra at 21-24). Left uncor-

rected, the decision below will rob veterans of billions

of dollars of contracts each year—in violation of Con-

gress’s plain intent. That thwarts “[ojur country[s]

*** long standing policy of compensating veterans,”

as they “have been obliged to drop their own affairs

and take up the burdens of the nation.” Regan v.

Taxation with Representation, 461 U.S. 540, 550-551

(1983). Reversal is needed to protect the vital eco-

nomic opportunities that Congress sought to secure

three times.

ARGUMENT

I. The decision below violates this Court’s

“long applied” rule that statutes must be

construed “for the benefit of the veteran.”

The Court should reverse, first, because the deci-

sion below cannot be reconciled with this Court’s

“long applied * * * ‘canon that provisions for benefits

to members of the Armed Services are to be construed

in the beneficiaries’ favor.” Henderson, 562 U.S. at

441 (Veterans’ Judicial Review Act) (quoting King,

502 U.S. at 220-221 n.9). Under this canon, statutes

are “always to be liberally construed to protect [vet-

erans], who have been obliged to drop their own af-

fairs to take up the burdens of the nation.” Boone v.

Lightner, 319 U.S. 561, 575 (1943); Coffy v. Republic

Steel Corp., 447 U.S. 191, 196 (1980) (same). That is,

courts must adopt “as liberal a construction for the

benefit of the veteran as * * * [the statute] permits.”

Fishgold v. Sullivan Drydock & Repair Corp., 328

U.S. 275, 285 (1946).

A court’s task “is to construe the separate provi-

sions of the [statute] as parts of an organic whole and

give each as liberal a construction for the benefit of

the veteran as a harmonious interplay of the separate

provisions permits.” Ibid. Any “interpretive doubt”

must “be resolved in the veteran's favor.” Gardner,

513 U.S. at 118.

1. The decision below contradicts this “basic

rule{] of statutory construction.” King, 502 U.S. at

574 n.9. To be sure, the statute here yields no “inter-

pretive doubt.” Gardner, 513 U.S. at 118. As the dis-

sent noted, the “plain language” of the statute “un-

ambiguously requires” that the VA “shall award” con-

tracts to veteran-owned small businesses “in every

acquisition” that meets the Rule of Two. Pet. App.

22a-23a. As its only basis for rejecting that “plain

meaning,” the majority reasoned that §8127(d)’s

“purpose” clause overrides its operative clause when-

ever the VA decides that it “has met the goals set un-

der §8127(a).” Id. at 19a-20a. As Kingdomware

shows, that “reading” runs squarely into the principle

that “shall” is the language of command. Pet. Br. 29.

Further, it runs into the black-letter rule that prefa-

tory clauses must never override the plain meaning of

operative clauses. Infra at 14-21. And still further, it

collides with the very language of the surrounding

statutory clauses, which likewise state the statute’s

purpose but use the contrasting word of permission:

“may.” Pet. Br. 29-30.

But even assuming that the statute’s purpose

statement created some “interpretive doubt” (which

was the holding of the Claims Court), any such doubt

must be resolved “in the beneficiaries’ favor.” Hen-

derson, 562 U.S. at 441. The Federal Circuit’s failure

even to mention that obligation was inexcusable.

2. As its sole defense, the government asserts

that “Section 8127 is not a benefits statute; it is a

government-contracting statute.” Opp. 21 n.5. But

the government cites no authority limiting the pro-

veteran canon to “benefits statutes,” and Henderson

confirms that the canon is not so limited. And in any

event, the statute here is a benefits statute.

We start with Henderson, which required constru-

ing a statutory time-bar—specifically, by deciding

“whether a veteran’s failure to file a notice of appeal”

to the Veterans Court “within the [statutory] 120-day

period” “should be regarded as having ‘jurisdictional’

consequences.” 562 U.S. at 431. The Federal Circuit

held that it did, and thus “dismissed [a veteran’s] un-

timely appeal for lack of jurisdiction’—without “al-

low[ing] equitable tolling of the 120-day deadline,”

even though the veteran’s “illness caused his tardy

filing.” Id. at 433-434.

In reversing the Federal Circuit, this Court relied

on the pro-veteran canon: “Particularly in light of

this canon, we do not find any clear indication that

the 120-day limit was intended to carry the harsh

consequences that accompany the jurisdiction tag.”

Id. at 441. In so doing, the Court gave the 120-day

time-bar the same treatment as a “provision for bene-

fits” (ibid.), even though the time-bar itself did not

benefit veterans at all. To the contrary, if anything,

the time-bar by definition cut off benefits. Thus,

Henderson teaches that it is immaterial whether a

veterans-related statute itself provides “benefits” or

even limits them; “interpretive doubt is to be resolved

in the veteran's favor.” Gardner, 513 U.S. at 117-118;

see also King, 502 U.S. at 220 n.9 (applying canon to

statute addressing veterans’ right to reemployment

as civilians).

Regardless, the statute here plainly is a “benefits

statute,” as it mandates that the VA set aside certain

contracts for businesses owned by veterans. Indeed,

the VA’s own regulation describes the statute as

providing a “benefit”: “Any [veteran-owned business]

must meet the requirements in FAR 19.102(f) to re-

ceive a benefit under this program.” 48 C.F.R.

§819.7003(d) (emphasis added). This is common

sense. And, indeed, the set-aside was enacted as part

of the “Veterans Benefits, Health Care, and Infor-

mation Technology Act of 2006.” That name was apt,

as the set-aside exists, as do all veterans’ benefits, to

assist those “who have been obliged to drop their own

affairs to take up the burdens of the nation.” Boone,

319 U.S. at 575.)

! Notably, at least “[fjour U.S. Courts of Appeals have concluded

that government contracts that are set aside for disadvantaged

or minority-owned businesses fall within the * * * definition of

‘government benefits” in the U.S. Sentencing Guidelines. Unit-

ed States v. White, 2012 WL 4513489, at *3 (S.D.N_Y. Oct. 2,

2012) (citing United States v. Maxwell, 579 F.3d 1282, 1306

(11th Cir. 2009); United States v. Tulio, 263 F. App’x 258, 260,

263-264 (3d Cir. 2008); United States v. Bros. Constr. Co. of

Ohio, 219 F.3d 300, 317-318 (4th Cir. 2000); United States v.

Leahy, 464 F.3d 773, 790 (7th Cir. 2006)).

Following these precedents, the Southern District of New York

has held that “[t]he VA contracts set aside for small businesses

owned by veterans and service-disabled veterans fall squarely

within the definition of government benefits” because the VA's

Grasping at straws, the government insists that

“[ajeither petitioner here nor any of the judges below

relied upon the canon.” Opp. 21 n.5. Not so. As the

government itself noted in its opposition brief below,

“Kingdomware * * * contend[ed] that veterans’ legis-

lation including the 2006 Act should be liberally con-

strued for the benefit of veterans.” Resp. Ct. App. Br.

22 n.3. Although “the judges below” did not invoke

the canon, that is beside the point. The Federal Cir-

cuit majority in Henderson did not mention it, either

(see 589 F.3d 1201 (Fed. Cir. 2009)); and the dissent

here did not need to, as it found the statute “unam-

biguous[]” and “plain” and that, in fact, it “could not

be clearer.” Pet. App. 22a-23a.

3. Nor is it an answer to say that “thije] canon

would not alter the result here because * * * the VA's

interpretation *** and its own regulations would

warrant deference.” Opp. 21-22 n.5. For one thing,

as Kingdomware has shown, the VA’s own regulation

commands using the Rule of Two. Pet. Br. 46-48.

That alone should settle the issue. But even if the

government's “interpretation” had been “continuously

and consistently” preferred by the VA (Pet. App. 8a),

the pro-veteran canon would still control.

That is the lesson of Gardner, in which a veteran

began suffering pain after receiving surgery at a VA

medical facility. 513 U.S. at 116. He sought disabil-

set-aside program “is an effort to increase the opportunities for a

class of businesses specified by Congress.” Jbid. (citation omit-

ted). Although this case of course does not involve the Sentenc-

ing Guidelines, the sensible reasoning of these cases applies

here. Mandating the use of the Rule of Two is an “effort to in-

crease the opportunities for a class of businesses specified by

Congress.” Ibid. It is a benefit.

ity benefits under a statute providing compensation

for “an injury or an aggravation of an injury’ that oc-

curs ‘as the result of hospitalization, medical or sur-

gical treatment” that is not attributable to the veter-

an’s “willful misconduct.” 38 U.S.C. §1151 (1994).

Even though the veteran had committed no willful

misconduct, the VA denied his claim, citing its own

regulation interpreting the statute implicitly to cover

only injuries arising from the VA’s own “fault-or-

accident.” 513 U.S. at 117 & n.2.

In a unanimous decision, this Court held that the

VA’s interpretation “flies against the plain language

of the statutory text.” Id. at 122. In so holding, the

Court rejected the VA’s “attempt/] to reveal a fault

requirement implicit in the text” on the ground “that

fault inheres in the concept of compensable ‘injury.”

Id. at 117. While acknowledging that “injury can of

course carry a fault connotation,” the Court noted

that “it just as certainly need not do so.” Ibid. Thus,

“(t]he most * * * that the [VA] could claim on the ba-

sis of thie] term [injury] is the existence of an ambi-

guity.” Ibid. And although the VA could not “plausi-

bly make even this claim” given the statute’s “clear

answer against” it, this Court emphasized that any

“ambiguity” would be resolved by “the rule that in-

terpretive doubt is to be resolved in the veteran’s fa-

vor.” Id. at 118, 120.

This is an a fortiori case under Gardner. “Despite

the absence from the statutory language of so much

as a word about [discretion] on the part of the VA,”

the majority below adopted a contrived “interpreta-

tion{] in attempting to reveal” a grant of discretion

“implicit in” the statute’s purpose clause. Jd. at 117.

Yet given the operative clause’s command that the

VA “shall award” contracts to veterans (38 U.S.C.

§8127(d)), “no such inference can be drawn” (513 U.S.

at 117). Even if it could, however, “[t}he most” the

government “could claim on the basis of thfe] [pur-

pose clause] is the existence of an ambiguity”—which

must “be resolved in the veteran’s favor.” Id. at 117-

118. Yet the Federal Circuit did not even mention

Gardner—much leas Henderson, King, Boone, Coffy,

or Fishgold. That was reversible error. The Federal

Circuit, which has exclusive jurisdiction under the

2006 Act (Pet. 33-34), may not simply ignore this cru-

cial principle of statutory construction.

4. Nor is the pro-veteran canon a mere technicali-

ty. It reflects our Nation’s collective dedication to

care for those who put their lives at risk for the coun-

try, a commitment expressed in Congress’s labors to

strengthen the laws preferring veterans no fewer

than three times. Infra at 23-24. Simply put, the

pro-veteran canon is an expression by this Court of

“special solicitude for the veterans’ cause.” Shinseki

v. Sanders, 556 U.S. 396, 412 (2009). As “[vjeterans

have been obliged to drop their own affairs and take

up the burdens of the nation,” Congress “has a long

standing policy of compensating veterans for their

past contributions by providing them with numerous

advantages.” Regan, 461 U.S. at 550-551. As the

pro-veteran canon shows, so has this Court.

“The justification for providing a special benefit

for veterans,” moreover, “has been recognized

throughout the history of our country.” Hooper v.

Bernalillo Cnty. Assessor, 472 U.S. 612, 626 (1985)

(Stevens, J., joined by Rehnquist, J., and O’Connor,

J., dissenting). Aside from “expressing * * * gratitude

for services that often entail hardship, hazard, and

separation from family and friends, and that may be

vital to the continued security of our Nation”’—which

“itself [is] an adequate justification”’—this Court and

Congress alike have recognized “that military service

typically disrupts the normal progress of civilian

employment.” Ibid.

That indisputable fact “justifies *** benefits-

employment preferences,” like the one at issue here,

which are designed “to facilitate the reentry into

civilian society.” Ibid. As scholars have recognized,

that policy dates back to “the Revolutionary War,”

when “the Continental Congress” first established

“veterans benefit packages.” Sherman, supra, at 126.

Since then, Congress has “recognized an obligation to

provide economic assistance to its military veterans,”

much of which has “focused on assisting veterans in

reentering the workforce and starting small busi-

nesses.” Ibid.

In short, both the statute here and this Court’s

pro-veteran canon stem from these time-honored na-

tional policies. The court below ignored this “solici-

tude of Congress for veterans,” which “is of long

standing.” Henderson, 562 U.S. at 440 (quotations

omitted). This Court should reaffirm its pro-veteran

canon and reverse the judgment below.

II. Under settled precedent, prefatory clauses

cannot trump operative statutory language.

As the dissent below emphasized, this Court’s

precedents make clear that “a prefatory clause does

not limit or expand the scope of the operative clause.”

Pet. App. 26a (citation omitted). Instead, the majori-

ty held the exact opposite—namely, that if the pur-

pose statement did not limit the scope of the opera-

tive clause, the purpose statement would be “unnec-

essary,” “surplusage,” and “superfluous.” Pet. App.

19a-20a. The majority was mistaken.

1. As noted, the statute here commands that,

when conditions satisfied here are met, the VA “shall

award” contracts to veteran-owned small businesses.

38 U.S.C. §8127(d). That should have been the end of

the matter. “[S]hall” is “the language of command”

(Escoe v. Zerbst, 295 U.S. 490, 493 (1935)), and it

“creates an obligation impervious to * * * discretion”

(Lexecon Inc. v. Milberg Weiss Bershad Hynes & Ler-

ach, 523 U.S. 26, 35 (1998); accord, e.g., Lopez v. Da-

vis, 631 U.S. 230, 241 (2001) (Congress’s “use of a

mandatory ‘shall’ * * * impose[s] discretionless obli-

gations”); Mach Mining, LLC v. E.E.O.C., 135 S. Ct.

1645, 1651 (2015) (‘That language is mandatory”’—

“the word ‘shall’ admits of no discretion.”)).

Unable to deny that “shall” is “mandatory

language,” the majority read “shall” out of the stat-

ute. Adopting the government’s “interpretation,” the

court limited “shall” to situations where “the VA has

decided,” in its unbounded discretion, that it is

“necessary’ to “meet[] the [VA's] goals”—the

“purpose[]” articulated in the statute’s introductory

cleuse. Pet. App. 17a (quoting 38 U.S.C. §8127(d)).

According to the majority, this reading was required

because “each word in a statute should be given

effect.” Pet. App. 19a. As the majority reasoned, in-

terpreting “shall” as “shall” “assigns no substantive

meaning” to the statute’s stated “goals”; rather, “this

goal-setting provision is itself made superfluous.”

Pet. App. 20a. “Because [Kingdomware’s] plain

meaning interpretation *** reads the words ‘for

purposes of meeting the goals[] * * * out of the stat-

ute and makes the mandatory goal-setting statutory

provision unnecessary, it cannot stand.” Ibid.

2. In so holding, the majority inverted the proper

approach to interpreting purpose statements, as laid

down by this Court. To be sure, there is a “general

rule that every clause in a statute must have effect.”

Heller, 5654 U.S. at 578 n.3. “But where the text of a

clause itself indicates that it does not have operative

effect, * * * a court has no license to make it do what

it was not designed to do.” Ibid. For that reason, it is

a “settled principle of law” that a statute’s “prefatory

clause does not limit * * * the scope of the operative

clause.” Id. at 578 & n.3 (quotations omitted). Put

simply, “operative provisions should be given effect as

operative provisions, and prologues as prologues.”

Ibid.

By the government's lights, this fundamental

principle applies only to prefatory language “[a]t the

beginning of the statute” that “contain[s] the telltale

‘whereas’ language.” Opp. 18-19. Not so. While

“[e]xpressions of purpose are usually placed” in a

preamble, “they do not have to be.” A. Scalia & B.

Garner, Reading Law 220 (2012). Indeed, in Heller

itself, the purpose statement appeared in the same

sentence as the operative language—not in a pream-

ble—and did not use the word “whereas.” An internal

purpose statement can no more trump a clear statu-

tory command than a purpose that appears in a pre-

amble. Instead, in every case, the question is wheth-

er “the text of a clause itself indicates that it does not

have operative effect, such as ‘whereas’ clauses in

federal legislation.” Heller, 554 U.S. at 578 n.3 (em-

phasis added). Regardless of where such a clause ap-

pears, “a court has no license to make it do what it

was not designed to do.” Ibid.

For its part, the government offers no principled

reason why it should matter where a statement of

purpose appears. And there is none. The text at is-

sue here begins with the phrase, “[f/Jor purposes of

meeting the goals under subsection (a).” Because it

“announces a purpose” for what follows, that clause is

“a prefatory statement of purpose.” Heller, 554 U.S.

at 577. In other words, “the text of [the] clause itself

indicates that it does not have operative effect.” Jd.

at 578 n.3. Therefore, it has none.

Nor does this principle merely control when inter-

preting the Constitution, as in Heller. Just a year af-

ter Heller, this Court applied the same principle to a

congressional joint resolution, which it referred to as

a “statute.” Hawaii, 556 U.S. at 173. In that case,

the question was whether Congress “recognized that

the native Hawaiian people hafd] unrelinquished

claims over [certain] lands.” Jd. at 172. As did the

Federal Circuit here, the Hawaii Supreme Court held

that the answer was “clear[]” “[bjased on a plain read-

ing” of the statute’s purpose clauses. Id. at 175.

Relying on Heller, this Court rejected this reason-

ing: “As we recently explained in a different context,

‘where the text of a clause itself indicates that it does

not have operative effect * * * a court has no license

to make it do what it was not designed to do.” Ibid.

(quoting Heller, 554 U.S. at 578 n.3). “Rather than

focusing on the operative words of the law,” the lower

court in Hawai “directed its attention to the * * *

clause[] that preface[s]” them, leading it to a

“conclusion [that] is wrong.” Ibid.

So too here. As did the Hawaii Supreme Court,

the Federal Circuit ignored that the VA’s duties “de-

pend|[] entirely on the meaning of the statute’s opera-

tive provision”—and “not on” any perceived legisla-

tive purpose that may or may not “fall within the

prefatory clause.” Scialabba v. Cuellar de Osorio, 134

S. Ct. 2191, 2215 n.3 (2014) (Roberts, C.J., joined by

Scalia, J., concurring in the judgment). This is horn-

book law. As a leading treatise notes, clauses that

merely “supply reasons” cannot “confer power or

determine rights” and thus “may not be used to

create ambiguity” about “the scope or effect of a

statute.” Sutherland Statutes & Statutory Constr.

§§ 20:3, 20:12, 47.4 (7th ed. 2013). No matter how

“narrow[],” preambles “shall not restrain” a statute’s

command. T. Sedgwick, A Treatise on the Rules

which Govern the Interpretation and Construction of

Statutory and Constitutional Law 43 (2d ed. 1874).

Although emphasized by Judge Reyna in dissent

(Pet. App. 26a), the majority below did not even

mention the longstanding principle that preambles

“cannot enlarge or confer powers, nor control the

words of the act, unless they are doubtful or

ambiguous.” Yazoo & M.V.R. Co. v. Thomas, 132

U.S. 174, 188 (1889). But as this Court has

underscored, “[a]gencies exercise discretion only in

the interstices created by statutory silence or

ambiguity; they must always give effect to the

unambiguously expressed intent of Congress.” Uivzil.

Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446

(2014) (quotations omitted). Here, “the need to

rewrite clear provisions of the statute should have

alerted [the VA] that it had taken a wrong

interpretive turn.” Id. at 2446.

3. In contrast to the decision below, previous

Federal Circuit panels, as well as other circuits and

the GAO, have followed this Court’s precedent.

Indeed, until this case, the Federal Circuit itself

had recognized that “i[n] the case [of] a statute,”

Congress's “intent is best expressed in the operative

provisions,” and thus “specific operative provisions

cannot be controlled by general expressions of intent.”

Atl. Richfield Co. v. United States, 764 F.2d 837, 840

(Fed. Cir. 1985). “The operative provision[]” here

should have “controlfled] the outcome of this case”

too. Ibid. After all, “[p]refatory language does not

manufacture an ambiguity in the statute where there

is none.” White v. United States, 543 F.3d 1330, 1336

(Fed. Cir. 2008).

Other circuits, too, have held that even where a

statute’s “operative language” is “internally and

irreconcilably inconsistent with the purpose ***

stated in its introductory clause” (and here it is not),

it is still improper for a court to “depart{] from [its]

literal meaning.” Parish Oil Co. v. Dillon Cos., 523

F.3d 1244, 1249, 1253 (10th Cir. 2008) (McConnell,

J.). Notably, the “introductory clause” in Parish ap-

peared—as it does here—in the same sentence as the

statute’s “operative language,” and began with the

phrase, “[flor the purpose of.” Id. at 1247 (citation

omitted’. Yet that did not alter the conclusion that

“the operative provision’—and not “its stated pur-

pose”"—“must be given effect.” Id. at 1253, 1249.2

2 See also Ass'n of Am. R.R. v. Costle, 562 F.2d 1310, 1316 (D.C.

Cir. 1977) (‘A preamble * * * is not an operative part of the stat-

ute and it does not enlarge or confer powers on administrative

agencies or officers.”); Jurgensen v. Fairfax Cnty., Va., 745 F.2d

868, 885 (4th Cir. 1984) (same); Natl Wildlife Found. v. Marsh,

721 F.2d 767, 773 (11th Cir. 1983) (“Preambles to statutes do

not impose substantive rights, duties or obligations”; and a

statement of “the primary goal of the statute” does not alter the

scope of a “requirement [that] is statutorily imposed.”); Floren-

tine v. Church of Our Lady of Mt. Carmel, 340 F.2d 239, 241-242

(2d Cir. 1965) (what is clear from the text” of a statute “cannot

be obscured by reliance on the ambiguous general purpose

clause,” which “must accede to the operative text”).

Ultimately, what is at stake here is nothing less

than the separation of powers. By “rely[ing] on [a]

purpose clause[], rather than the concrete rules that

[Congress] selected to achieve the stated ends,” two

unelected judges “bec[a]me effective lawmakers,

bypassing the give-and-take of the legislative

process.” City of Joliet, Ill. v. New West, L.P., 562

F.3d 830, 837 (7th Cir. 2009) (Easterbrook, J.). As

the dissent below noted, by “relying entirely on

prefatory language to second-guess Congress['s]”

plain command, the majority “departied] from [its]

duty to enforce the proper interpretation of the

statute regardless of [its] policy views.” Pet. App.

22a.

The GAO likewise understood—and reaffirmed in

18 bid protests—that the phrase “for purposes of

meeting the goals under subsection (a)” merely “ex-

plains the purpose for the mandate”; it “does not cre-

ate an exception to the mandate.” Jn re Aldevra, 2012

WL 860813, at *4 (Comp. Gen. Mar. 14, 2012). Ac-

cordingly, “nothing in the [2006] Act * * * provides

the [VA] with discretion” to award a contract “with-

out first determining whether the acquisition should

be set aside” for veterans. Aldevra, 2011 WL

4826148, at *2.

The VA’s decision to defy the GAO is extraordi-

nary. In light of “the GAO’s long experience and spe-

cial expertise,” its findings in “bid protest matters”

have long been “give[n] due weight and deference,”

such that “an agency's decision to disregard a GAO

recommendation is exceedingly rare.” CMS Contract

Mgmt. Servs. v. United States, 745 F.3d 1379, 1384

(Fed. Cir. 2014) (quotations omitted). As the dissent

noted, in 15 years, agencies have declined to follow

the GAO only 10 times out of 1,099. Pet. 25a.

In sum, the decision below departs not only from

this Court’s binding precedent, but also from the

Federal Circuit's own law, as well as the sound anal-

ysis of other circuits and the GAO. The Court should

reverse.

Ill. The decision below is contrary to Con-

gress’s intent of maximizing economic op-

portunities for our Nation’s veterans.

Reversal is also needed because the decision below

wipes out a statutory benefit worth billions of dollars

per year, which Congress has tried to establish three

times. If the Court does not reverse, millions upon

millions of veterans will have no avenue left for se-

curing their rights to billions of dollars of critical

benefits from the government they risked their lives

to serve.

A. The VA’s persistent refusal to obey Con-

gress’s command diverts from veterans up

to $10 billion every year.

As official government reports show, the decision

below empowers the VA to deny the statutory rights

of nearly 2.5 million veteran-owned small

businesses.’ Indeed, as noted, between December

2011 and November 2012 alone, the GAO found that

the VA violated the 2006 Act’s mandatory set-aside

provision 18 times. GAO Report to Congress, 2012

WL 5510908, at *1. Ultimately, the GAO decided

that it would “no longer consider protests based only

on the argument that the VA must consider setting

8 Small Business Administration, Veteran-owned Businesses and

their Ownere—Data from the Census Bureau’s Survey of

Business Owners, at 1 (Mar. 2012), available at

http://www.sba.gov/sites/default/files/393tot.pdf.

aside procurements for [veterans]” because the “deci-

sion in [this case], together with the VA’s position on

the meaning of th[e] statute, effectively means that

protesters who continue to pursue these arguments

will be unable to obtain meaningful relief.” King-

domware Techs.—Reconsideration, 2012 WL

6463498, at *2 (Comp. Gen. Dec. 13, 2012).

The lost opportunities for veterans are enormous.

For example, the VA “faced substantial criticism” af-

ter it “made multiple awards to nonveteran offerors

on an unrestricted basis”—in violation of the 2006

Act—for a single “multibillion dollar” procurement.

J.T. Williams, Veterans First? VA Should Give Vet

Contracting Program Priority, 47-WTR Procurement

Law. 1, 23 (2012). Nor was this unusual. As it did in

this case, the VA routinely procures goods and ser-

vices directly through the Federal Supply Schedule

(“FSS”}—a network of large, government-wide con-

tractors with notoriously few veteran-owned small

businesses—before even considering whether to apply

the Rule of Two.

In just one year, the VA used the FSS for $3.26

billion—over one-fifth—of its $16 billion in annual

procurements. Kathleen Miller, Dispute Simmers Be-

tween VA and Veteran-Owned Businesses, Wash.

Post, 2011 WLNR 23483727 (Nov. 14, 2011). Yet a

mere 13 percent of those FSS purchases—worth $436

million—went to veteran-owned small businesses.

Ibid. Thus, the VA’s unlawful procurements from the

FSS without first conducting market research poten-

tially deprived veteran-owned small-business coa-

tractors of up to nearly $3 billion in government con-

tracts in a single year alone. Ibid. Indeed, according

to the VA itself, up to 60 percent of $18 billion in an-

nual procurements use the FSS—in which case vet-

erans are being deprived of the opportunity to com-

pete for contracts totaling $10 billion. Pet. 35.

This loss can be traced directly to the VA’s illegal

reliance on the FSS at a time when almost 2.5 million

veteran-owned small businesses stand ready to com-

pete with FSS vendors. To stop the VA from steering

billions of dollars in contracting opportunities away

from veterans, the Court should reverse.

B. Confirming Kingdomware’s plain reading

of the statute, Congress strove to over-

come the VA’s recalcitrance by strength-

ening the law three times.

Finally, Kingdomware’s plain reading of the stat-

ute is powerfully underscored by Congress’s decision

to address the issues here three times between 1999

and 2006. For years, agencies failed to heed earlier

statutes, which were merely aspirational. Supra at

2-3. “Continuing the trend started with” those stat-

utes, and focusing on the VA, Congress thus

“amend(ed] the permissive language of the set aside”

provisions for veterans “to make these practices

mandatory.” Sherman, supra, at 135. Consider the

contrasting language:

> 2003 Act: “[A] contracting officer may award

contracts on the basis of competition restricted

to small business concerns owed and

controlled by service-disabled veterans if the

contracting officer has a_ reasonable

expectation” that the Rule of Two is met. 15

U.S.C. §657f(b) (emphasis added).

> 2006 Act: “[A] contracting officer of the

Department shall award contracts on the

basis of competition restricted to small

business concerns owned and controlled by

veterans if the contracting officer has a

reasonable expectation” that the Rule of Two is

met. 38 U.S.C. §8127(d) (emphasis added).

“The evolution of these statutory provisions supplies

further evidence that Congress intended” the 2006

Act to be mandatory. Russello v. United States, 464

U.S. 16, 23 (1983). In comparing “the predecessor

statute” to the 2006 Act, the VA and the Federal Cir-

cuit should have “discernfed] Congress’s intent” from

the “crucial fact” that it “used the word ‘shall’ rather

than the word ‘may.” United States v. Rodgers, 461

U.S. 677, 706 (1983).

Instead, the VA and the Federal Circuit concluded

that Congress had enacted yet another

“discretion[ary]” law (Pet. App. 17a), ignoring that “a

change in phraseology” in statutory language “creates

a presumption of a change in intent” (Crawford v.

Burke, 195 U.S. 176, 190 (1904)). But “Congress

would not have used such different language * * *

without thereby intending a change of meaning.”

Ibid. This was Congress's third attempt to assist vet-

erans; yet the VA continues to resist the congression-

al will. This Court should restore these critical bene-

fits and thereby carry out Congress’s unambiguous

intent in passing the 2006 Act.

CONCLUSION

What is perhaps most frustrating for veterans is

that it is not clear why the VA—an agency specifical-

ly created to protect their interests—is treating the

2006 Act’s mandatory set-aside as optional. Regard-

less, in following the VA’s lead, the Federal Circuit

majority ignored—and the government here contin-

ues to ignore—the plain language of the 2006 Act,

Congress's labors that led to that language, and our

Nation’s tradition of advancing the veteran’s cause.

It also ignored this Court's binding precedent favor-

ing veterans in statutory interpretation, and empha-

sizing the primacy of operative language. In so doing,

the majority enabled the VA to deprive veterans of

billions of dollars in vital contracting opportunities.

For all of these reasons, and those stated by King-

domware and the forceful dissent below, the judg-

ment of the Federal Circuit should be reversed.

Respectfully submitted.