United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
the National Federation of the Blind
(“Plaintiff”), an advocacy organization, brought
this action against the U.S. AbilityOne Commission (the
“Commission”) to challenge its selection of the
American Foundation for the Blind (“AFB”), for a
role assisting with administration of the agency's
federal contracting program for non-profit employers of
persons who are blind or have other significant disabilities.
Naming the Commission, its executive director, and its chair
(collectively, “Defendants”), Plaintiff alleges
that the selection of AFB violated the Administrative
Procedure Act, 5 U.S.C. § 551 et seq. Pending
before the Court are Plaintiff's Motion for Preliminary
Injunction, ECF No. 17, and Defendants' Motion to
Dismiss, or Alternatively, for Summary Judgment, ECF No. 24.
A hearing on the motions was held on September 26, 2019. ECF
No. 37. For the reasons that follow, the Court will deny
Plaintiff's motion and grant summary judgment to
Defendants on all claims.
challenges the selection of AFB for a role assisting the
Commission in administering a program designed to increase
employment of persons who are blind or have other significant
disabilities. Because the nature and structure of the
Commission and the program that it manages are somewhat
unusual, the Court describes them in some detail before
reviewing the procedural status of this case and addressing
the merits of the dispute.
The U.S. AbilityOne Commission and the AbilityOne
U.S. AbilityOne Commission is a federal agency originally
established in 1938 by the Wagner-O'Day Act as the
Committee on Purchases of Blind-made Products (the
“Committee”). Wagner-O'Day Act, ch. 697,
§ 1, 52 Stat. 1196 (1938). The Act established a federal
policy of increasing employment of the blind by requiring
that the federal government obtain certain products only from
nonprofit agencies (“NPAs”) employing blind
workers. Id. §§ 2, 3. The Committee was
created to administer this directive by determining fair
pricing of the products to be purchased and selecting a
“central non-profit-making agency to facilitate the
distribution of orders among the agencies for the
blind.” Id. § 2. National Industries for
the Blind (“NIB”) was the organization designated
for this role. See 41 C.F.R. § 301.2 (1943). In
1971, Congress amended the Act with legislation now referred
to as the Javits-Wagner-O'Day Act (“JWOD” or
“JWOD Act”). Pub. L. No. 92-28, 85 Stat. 77
(1971) (codified as amended at 41 U.S.C. §§
8501-06). The JWOD expanded the mandatory procurement program
to include services as well as products and to add NPAs
employing the “severely handicapped” as potential
suppliers alongside those employing blind workers.
Id. § 2(a)(1)(A). The Committee, which the Act
renamed to reflect the expanded program, was directed to
determine which products and services would be subject to the
program and to maintain a list to be published in the Federal
Register. Id. § 2(a)(1). The Committee was also
authorized to designate “a central nonprofit agency or
agencies to facilitate the distribution” of orders for
listed products “among qualified nonprofit agencies for
the blind or such agencies for other severely
handicapped.” Id. § 2(c). Six NPAs were
originally designated as central nonprofit agencies
(“CNAs”) for the “severely
handicapped” component of the program, but were later
replaced by a single CNA, National Industries for the
Severely Handicapped (“NISH”), which was created
for that purpose. See Workshops for the Other
Severely Handicapped, 41 Fed. Reg. 21, 359 (May 25, 1976).
Committee is now named by statute as the Committee for
Purchase From People Who are Blind or Severely Disabled, but
operates as the U.S. AbilityOne Commission, reflecting its
2006 decision to use the name “AbilityOne
Program” for the program it administers. See
Notice; Adoption of Operational Name for Agency, 76 Fed. Reg.
60, 808 (Sept. 30, 2011). The statutory scheme that governs
the agency, parts of which are largely unchanged from the
JWOD Act, charges the fifteen-member Commission with
maintaining the “procurement list” of products
that the government may only purchase from qualified NPAs
employing blind or severely disabled workers. 41 U.S.C.
§§ 8502, 8503(a), 8504. The current provision
relating to CNAs, 41 U.S.C. § 8503(c), directs that the
Commission “shall designate a central nonprofit agency
or agencies to facilitate the distribution . . . of orders of
the Federal Government for products and services on the
procurement list among qualified nonprofit agencies for the
blind or qualified nonprofit agencies for other severely
disabled.” § 8503(e) of the statute further
directs that the Commission “shall make a continuing
study and evaluation of its activities under [the JWOD Act]
to ensure effective and efficient administration of [the
Act], ” and provides that the Commission may work on
its own or “with other public or nonprofit private
agencies” to study “problems related to the
employment of the blind and other severely disabled
individuals” and “the development and adaptation
of production methods that would enable a greater utilization
of the blind and other severely disabled individuals.”
Id. § 8503(e). Currently, approximately 550
NPAs participate in the AbilityOne Program. Comm. for
Purchase From People Who Are Blind or Severely Disabled,
Fiscal Year 2019 Budget Justification 3,
cation%2020180212%20Final.pdf. The NPAs collectively employ
approximately 45, 000 workers and make more than $3.3 billion
in sales annually. Id. at 1, 25.
Commission has also promulgated regulations governing the
operation of the AbilityOne Program pursuant to authority
granted by 41 U.S.C. § 8503(d). The regulations
establish an expansive set of duties for designated CNAs.
Among other requirements, each CNA must: represent affiliated
NPAs before the Commission; evaluate the NPAs'
qualifications and capabilities and report that information
to the Commission; gather information from other government
components about their procurement needs; recommend products
or services for the procurement list and recommend and
continually reevaluate pricing; distribute procurement orders
among affiliated NPAs and oversee compliance with orders and
with the statutory and regulatory requirements of the
AbilityOne Program, including through site visits; and
perform other administrative functions for the Commission,
including activities to increase awareness of the Program
across the government and among the public. See 41
C.F.R. § 51-3.2. CNAs may also act as contractors when
permitted by the Commission. Id. § 51-3.2(k).
Importantly, the regulations authorize CNAs to charge fees to
the NPAs whose contracts they facilitate. Id. §
51-3.5. Fees are calculated as a percentage of the NPAs'
sales to the government through the AbilityOne Program but
are capped by a fee ceiling set by the Commission.
Id. Commission materials included in the
Administrative Record refer to these charges as
“Program Fees.” See ECF No. 26-3 at
NISH, which is now known as SourceAmerica, have continued to
serve as the CNAs for blind workers and disabled workers,
respectively, since their original designations. NIB's
fee ceiling is 3.9 percent of each contract, while
SourceAmerica's ceiling is 3.85 percent. U.S. Ability One
Comm'n, Fiscal Year 2017 Performance Accountability
Y%202017%20PAR-Final.pdf. Together these Program Fees provide
approximately $100 million annually in combined revenue to
the two CNAs, which collectively have more than $100 million
in reserves and assets. Id. In December 2015,
Congress adopted legislation requiring that the Commission
enter into written agreements with each of its CNAs within
180 days, without which no CNA could collect fees under the
AbilityOne Program. Consolidated Appropriations Act, 2016,
Pub. L. No. 114-113, 129 Stat. 2242, 2639 (2015). According
to the Amended Complaint and Plaintiff's memorandum in
support of its motion for a preliminary injunction, the
Commission entered “cooperative agreements” with
NIB and SourceAmerica in 2016. ECF No. 2 ¶ 20; ECF No.
17-1 at 7. Plaintiff asserts that Congress's directive
was motivated in part by a 2013 Government Accountability
Office report identifying significant issues with oversight
and transparency of CNAs. ECF No. 2 ¶¶ 19-20; ECF
No. 17-1 at 7. Plaintiff's submissions also note
subsequent reports from the Department of Defense identifying
oversight issues with the Program. ECF No. 2 ¶¶
21-23; ECF No. 17-1 at 7-8.
Designation of American Foundation for the Blind as a
2018, NIB and SourceAmerica were the only CNAs designated by
the Commission. In July 2018, however, the Commission entered
a cooperative agreement (the “July 2018
Agreement”) with the American Foundation for the Blind,
an organization that promotes the interests of the blind and
visually impaired, and designated it to serve as a new CNA
for NPAs employing blind workers. ECF 17-2 at 2, 7. In its
introductory materials, the Agreement states that it
“provides a framework for a new CNA model in the
AbilityOne Program that places the focus on increasing job
placement and career advancement opportunities in
knowledge-based positions.” Id. at 2. It then
establishes a three-phase, five-year process for AFB to begin
operating as a CNA. Id. In Phase I, which is to last
up to 18 months, AFB is directed to “conduct research
and studies” that meet a number of objectives,
including identifying “innovative employment
opportunities/careers and lines of business for people who
are blind” and “a world-class public-private
operational structure that defines the relationship and
responsibilities among the Commission, CNAs, and NPAs.”
Id. at 8-9, 26. The Commission will also
“continue the vetting process” for AFB during
Phase I and will conduct mandatory quarterly reviews to
determine the effectiveness of AFB's studies.
Id. at 7, 9. AFB will also be exempt at Phase I from
the CNA duties imposed by Commission regulations at 41 C.F.R.
§ 51-3.2, but must implement ethics programs and
conflict-of-interest and governance policies for its
management. Id. at 14, 20-24.
Phase II, which is to last up to 30 months, AFB is to
implement the recommendations and findings from the studies
it conducted at Phase I and begin gradually executing CNA
duties with the approval of the Commission, though it will
remain exempt from the requirements imposed by 41 C.F.R
§ 51-3.2. Id. at 30, 35. To determine whether
AFB is capable of becoming a fully functional CNA, the
Commission will conduct reviews twice per year in which AFB
must submit detailed lists of the services it is capable of
providing to NPAs participating in the AbilityOne Program and
other information detailing its implementation of the
procedures and recommendations it developed at Phase I.
Id. at 30. If AFB demonstrates that it has become
compliant with the CNA requirements, it may begin collecting
Program Fees. Id. at 35, 41-42. Finally, at Phase
III, which will last up to 18 months, AFB will become a fully
functioning CNA compliant with the requirements of §
51-3.2, though the Commission will continue conducting
reviews twice each year until the Phase is complete.
Id. at 51, 70.
Parties and Procedural History
National Federation of the Blind filed a Complaint
challenging the Commission's designation of AFB and the
July 2018 Agreement on September 26, 2018, ECF No. 1, and
filed an Amended Complaint the same day, ECF No. 2. According
to the Amended Complaint, Plaintiff is “the oldest and
largest national organization of blind persons, ” has
approximately 50, 000 members and affiliates in all fifty
states, the District of Columbia, and Puerto Rico, and is
“widely recognized by the public, Congress, executive
agencies of state and federal governments, and courts as a
collective and representative voice on behalf of blind
Americans and their families.” ECF No. 2 ¶ 24.
Plaintiff further states that its “ultimate purpose . .
. is the complete integration of blind individuals into
society on a basis of equality, ” which it furthers in
part by developing and advocating for policies to increase
employment of blind adults as well as by operating three
vocational training centers for the blind in Minnesota,
Colorado, and Louisiana. Id. ¶¶ 25-26. The
Amended Complaint names as defendants the U.S. AbilityOne
Commission and its chairperson Thomas Robinson and executive
director Tina Ballard, who are sued in their official
capacities. Id. ¶ 27.
counts, which are styled as “causes of action, ”
are included in the Amended Complaint: violation of the
Administrative Procedure Act (“APA”) for
designating AFB without using the APA's notice and
comment procedures, id. ¶¶ 67-77;
violation of the APA for designating AFB in violation of
certain statutes and regulations governing federal
procurement and awards, without a rationale for selecting AFB
as a CNA, and without a rationale for not soliciting or
considering other potential choices, id.
¶¶ 78-83; violation of regulations governing
procedure for making federal awards, id.
¶¶ 84-89; and violation of federal procurement
statutes and regulations, id. ¶¶ 90-95.
Plaintiff requests that the Court issue a declaratory
judgment that the designation and July 2018 Agreement
violated the APA and federal procurement and award law,
vacate the designation and Agreement, issue preliminary and
permanent injunctions barring implementation of the Agreement
and requiring the agency to comply with the APA and governing
procurement law in designating any CNAs, appoint a special
master to ensure compliance with the Court's order, and
award fees and costs. Id. at 21-22.
filed a Motion for Preliminary Injunction and an accompanying
Memorandum in Support on December 6, 2018. ECF Nos. 17, 17-1.
On February 8, 2019, Defendants filed a Motion to Dismiss, or
Alternatively, for Summary Judgment, and an accompanying
Memorandum in Support. ECF Nos. 24, 24-2. Defendants filed
the Certified Administrative Record of the Commission's
actions relating to its decision to designate AFB and its
execution of the July 2018 Agreement on February 15, 2019.
ECF No. 26-3. On March 15, 2019, Plaintiff filed a Response
in Opposition to Defendants' Motion and Reply in Support
of its Motion for Preliminary Injunction. ECF No. 30.
Defendants filed a Reply to Plaintiff's Response on April
12, 2019. ECF No. 34. The Court held a hearing on September
26, 2019. ECF No. 37.
STANDARD OF REVIEW
Motion to Dismiss Pursuant to Rule 12(b)(1)
have moved to dismiss this case pursuant to Rule 12(b)(1),
asserting that the Court lacks subject matter jurisdiction
over Plaintiff's claims because Plaintiff lacks standing.
“A district court should grant a motion to dismiss for
lack of subject matter jurisdiction under Rule 12(b)(1)
‘only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a
matter of law.'” Upstate Forever v. Kinder
Morgan Energy Partners, L.P., 887 F.3d 637, 645 (4th
Cir. 2018) (quoting Evans v. B.F. Perkins Co., 166
F.3d 642, 647 (4th Cir. 1999)). “The burden of
establishing subject matter jurisdiction rests with the
plaintiff.” Demetres v. East West Constr., 776
F.3d 271, 272 (4th Cir. 2015). “When a defendant
challenges subject matter jurisdiction pursuant to Rule
12(b)(1), ‘the district court is to regard the
pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment.'”
Evans, 166 F.3d at 647 (quoting Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991)).
Motion to Dismiss Pursuant to Rule 12(b)(6)
have also moved to dismiss the case pursuant to Rule 12(b)(6)
on the ground that the Amended Complaint fails to state a
claim upon which relief can be granted. To state a claim that
survives a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The “mere recital of elements of
a cause of action, supported only by conclusory statements,
is not sufficient to survive a motion made pursuant to Rule
12(b)(6).” Walters v. McMahen, 684 F.3d 435,
439 (4th Cir. 2012). To determine whether a claim has crossed
“the line from conceivable to plausible, ” the
Court must employ a “context-specific” inquiry,
drawing on the court's “experience and common
sense.” Iqbal, 556 U.S. at 679-80 (quoting
Twombly, 550 U.S. at 570). When performing this
inquiry, the Court accepts “all well-pled facts as true
and construes these facts in the light most favorable to the
plaintiff in weighing the legal sufficiency of the
complaint.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009). The Court need not, however, accept unsupported legal
conclusions, Revene v. Charles Cnty. Comm'rs,
882 F.2d 870, 873 (4th Cir. 1989), nor must it agree with
legal conclusions couched as factual allegations,
Iqbal, 556 U.S. at 678, or conclusory factual
allegations devoid of any reference to actual events,
United Black Firefighters of Norfolk v. Hirst, 604
F.2d 844, 847 (4th Cir. 1979); see also Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Motion for Summary Judgment Pursuant to Rule 56(a)
move in the alternative for summary judgment on each of
Plaintiff's claims. Under Federal Rule of Civil Procedure
56(a), summary judgment is appropriate when the pleadings and
the evidence demonstrate that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” In a case involving
review of a final agency action under the APA, however, the
standard set forth in Rule 56(a) does not apply because of
the limited role of a court in reviewing the administrative
record. See Otsuka Pharm. Co., Ltd. v. Burwell, No.
GJH-15-852, 2015 WL 3442013, at *5 (citing Roberts v.
United States, 883 F.Supp.2d 56, 62-63 (D.D.C. 2012)).
Summary judgment thus serves as a mechanism for deciding, as
a matter of law, whether the agency action is supported by
the administrative record and is otherwise consistent with
the APA standard of review. See Id. (citing
Richard v. INS, 554 F.2d 1173, 1177 & n. 28
(D.C. Cir. 1977)). “[T]he function of the district
court is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to
make the decision it did.” Air Transp. Ass'n of
Am. v. U.S. Dep't of Agric., 303 F.Supp.3d 28, 38
(D.D.C. 2018) (quoting Sierra Club v. Mainella, 459
F.Supp.2d 76, 90 (D.D.C. 2006)).
the APA, the Court shall “hold unlawful and set aside
agency action, findings and conclusions” that are
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). “A disputed action also may be set aside as
arbitrary and capricious if the agency has acted
‘without observance of procedure required by
law.'” Safari Club Int'l v. Zinke, 878
F.3d 316, 325 (D.C. Cir. 2017) (quoting 5 U.S.C. §
706(2)(D)). “Generally, an agency decision is arbitrary
and capricious if ‘the agency has relied on factors
which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product
of agency expertise.'” Sierra Club v. U.S.
Dep't of the Interior, 899 F.3d 260, 293 (4th Cir.
2018) (quoting Motor Vehicle Mfrs. Ass'n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
“Review under this standard is highly deferential, with
a presumption in favor of finding the agency action
valid.” Ohio Valley Envtl. Coal. v. Aracoma Coal
Co., 556 F.3d 177, 192 (4th Cir. 2009). “Although
[the court's] inquiry into the facts is to be searching
and careful, the ultimate standard of review is a narrow one.
The court is not empowered to substitute its judgment for
that of the agency.” Id. (quoting Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
416 (1971))). “Deference is due where the agency has
examined the relevant data and provided an explanation of its
decision that includes ‘a rational connection between
the facts found and the choice made.'” Id.
(quoting State Farm, 463 U.S. at 43). Courts
“should ‘uphold a decision of less than ideal
clarity if the agency's path may reasonably be
discerned.” Sanitary Bd. of City of
Charleston v. Wheeler, 918 F.3d 324, 333 (4th Cir. 2019)
(quoting Nat'l Ass'n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 658 (2007)). Courts “will
vacate agency action if it is not ‘based on a
consideration of the relevant factors' or where
‘there has been a clear error of judgment.'”
Defs. of Wildlife v. U.S. Dep't of the Interior,
931 F.3d 339, 345 (4th Cir. 2019) (quoting Marsh v. Or.
Nat. Res. Council, 490 U.S. 360, 378 (1989)).
Motion for Preliminary Injunction
has moved for a preliminary injunction barring Defendants
from implementing the July 2018 Agreement. The grant of a
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Dewhurst v. Century
Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011) (quoting
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
22 (2008)). “In order to receive a preliminary
injunction, a plaintiff must establish that: (1) it is likely
to succeed on the merits; (2) it is likely to suffer
irreparable harm without the preliminary injunction; (3) the
balance of equities tips in its favor; and (4) the injunction
is in the public interest.” Mountain Valley
Pipeline, LLC v. W. Pocahontas Props. Ltd. P'ship,
918 F.3d 353, 366 (4th Cir. 2019) (citing Winter,
555 U.S. at 20). “Each of these four requirements must
be satisfied.” Id.
raise two threshold issues, contending that Plaintiff lacks
standing for this action and is not within the zone of
interests of the relevant statute, and that the designation
of AFB is a decision committed to the agency's discretion
and is therefore judicially unreviewable under the APA. ECF
No. 24-2 at 23-31. Defendants then address the merits,
asserting that the designation (1) was not a rulemaking and
therefore did not require APA notice and comment procedures,
or alternatively is a rulemaking but is subject to the notice
and comment exception for decisions of agency management and
contracting, id. at 31-37; (2) was not subject to
the federal procurement statutes and regulations that
Plaintiff alleges were violated, id. at 37-40, 43-
45; and (3) was not substantively arbitrary and capricious
under the APA because the Commission articulated discernible
rationales for its decisions, id. at 40-43. These
issues are now considered in turn.
Standing and Reviewability
motions hearing, Defendants conceded Plaintiff's standing
for this action. Because federal courts have “an
independent obligation to assure that standing exists,
regardless of whether it is challenged, ” the Court
briefly reviews Plaintiff's standing arguments.
Summers v. Earth Island Inst., 555 U.S. 488, 499
(2009). Concluding that Plaintiff indeed has standing, the
Court then turns to Defendants' agency discretion
argument, which is unpersuasive.
III of the U.S. Constitution limits the jurisdiction of
federal courts to ‘Cases' and
‘Controversies.'” Beck v. McDonald,
848 F.3d 262, 269 (4th Cir. 2017) (quoting U.S. Const. art.
III, § 2). “One element of the case-or-controversy
requirement is that plaintiffs must establish that they have
standing to sue.” Id. (quoting Clapper v.
Amnesty Int'l USA, 568 U.S. 398, 408 (2013)).
“To invoke federal jurisdiction, a plaintiff bears the
burden of establishing the three ‘irreducible minimum
requirements' of Article III standing.”
Id. (quoting David v. Alphin, 704 F.3d 327,
333 (4th Cir. 2013)). The plaintiff must demonstrate
“(1) an injury in fact (i.e., a ‘concrete and
particularized' invasion of a ‘legally protected
interest'); (2) causation (i.e., a ‘fairly ...
trace[able]' connection between the alleged injury in
fact and the alleged conduct of the defendant); and (3)
redressability (i.e., it is ‘likely' and not merely
‘speculative' that the plaintiff's injury will
be remedied by the relief plaintiff seeks in bringing
suit).” David, 704 F.3d at 333 (alterations in
original) (quoting Sprint Commc'ns Co., L.P. v. APCC
Servs., Inc., 554 U.S. 269, 273-74 (2008)). A plaintiff
must demonstrate standing “for each claim he seeks to
press, ” DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 352 (2006), but may put forth multiple theories of
standing for a claim, only one of which must be sufficient
for the claim to advance, see Safari Club Int'l v.
Jewell, 842 F.3d 1280, 1287 (D.C. Cir. 2016); see
also Suhre v. Haywood County, 131 F.3d 1083, 1085 n.*
(4th Cir. 1997).
Amended Complaint asserts an injury that is procedural in
part: Plaintiff alleges that it was denied the opportunity to
submit comments on the designation of AFB, which it would
have been entitled to do if Defendants had used APA notice
and comment procedures. ECF No. 2 ¶¶ 39, 45, 74-75.
An agency's violation of procedure, however, is not
enough on its own to confer standing for any party that
disagrees with the agency's action. See Fund
Democracy, LLC v. SEC, 278 F.3d 21, 27 (D.C. Cir. 2002).
“A party has standing to challenge an agency's
failure to abide by a procedural requirement only if the
government act performed without the procedure in question
will cause a distinct risk to a particularized interest of
the plaintiff.” Id. Plaintiff makes multiple
allegations of harm to its particularized interests that
satisfy this requirement. Plaintiff explains that it is the
nation's largest group advocating for the interests of
the blind and that one of its “primary
initiatives” is a program to increase blind employment,
which it furthers by operating three employment training
centers across the country and maintaining affiliates in all
50 states, the District of Columbia, and Puerto Rico. ECF No.
2 ¶¶ 24-26. Despite its similar mission, Plaintiff
maintains, AFB is unqualified to serve as a CNA. Id.
¶¶ 41-42; see also ECF No. 30 at 27,
49-51. Yet as a result of a designation process that lacked
the benefit of public comment - which could have revealed
that other organizations were better qualified and that a
competitive bidding process would be helpful to the
Commission - AFB will collect millions of dollars in Program
Fees each year. ECF No. 2 ¶¶ 10-11, 41-46.
other words, Plaintiff alleges that the Commission's
decision not to accept comments effectively denied Plaintiff
the opportunity to pursue the right to manage and expand a
multimillion-dollar program of federal contracting that
furthers Plaintiff's mission. See Id. ¶ 44;
ECF No. 30 at 27-28. Plaintiff has thereby articulated a
cognizable harm to its particularized interest. Importantly,
when a plaintiff “seek[s] to enforce procedural (rather
than substantive) rights, ” the plaintiff “need
not demonstrate that but for the procedural violation the
agency action would have been different.” Mendoza
v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014) (citing
Ctr. for Law & Educ. v. Dep't of Educ., 396
F.3d 1152, 1160 (D.C. Cir. 2005)). Further, courts have
recognized that the loss of an opportunity to pursue a
benefit, including a relationship with the federal
government, may be sufficient for an Article III injury in
fact. See CC Distribs., Inc. v. United States, 883
F.2d 146, 150-51 (D.C Cir. 1989); Info. Handling Servs.,
Inc. v. Def. Automated Printing Servs., 338 F.3d 1024,
1029-31 (D.C. Cir. 2003).
also argues that as a result of the allegedly unlawful
designation of AFB, Plaintiff “will have to fill the
gap created by the AFB's inability to carry out
JWOD's [sic] mandate.” ECF No. 30 at 28.
Specifically, Plaintiff contends that growth in employment of
the blind has stagnated for decades because of the
Commission's failure to adapt to new conditions, but that
because the Commission's chosen solution for that problem
will not address it, Plaintiff “will have to continue
to dedicate its resources to make up for the Commission's
failures.” ECF No. 30 at 28-29; see also ECF
No. 2 ¶¶ 13-18. Plaintiff further maintains that
the Commission's choice of an unqualified CNA - and the
continued stagnation that will result - harms Plaintiff's
“significant interest in serving the blind community
and providing its members with employment
opportunities.” ECF No. 30 at 28. An organization
suffers an injury in fact when an agency action frustrates
the organization's mission and compels it to divert its
resources “to mitigate the effects of the challenged
action.” Kravitz v. U.S. Dep't of
Commerce, 366 F.Supp.3d 681, 741 (D. Md. 2019) (citing
Smith v. Pac. Props. & Dev. Corp., 358 F.3d
1097, 1105 (9th Cir. 2004)); see also Am. Soc. For
Prevention of Cruelty to Animals v. Feld Entm't,
Inc., 659 F.3d 13, 25 (D.C. Cir. 2011) (citing
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379
theories of injury in fact are sufficient to proceed to the
two other prongs of standing, which are self-evidently met
here. Causation plainly exists because it was Defendants'
allegedly unlawful process that denied Plaintiff the
opportunity to pursue the designation and necessitated its
diversion of resources. And those injuries could be redressed
by a judicial ruling vacating the designation of AFB and
requiring Defendants to comply with the APA and federal
procurement law, which is the relief that Plaintiff seeks.
ECF No. 2 at 21-22. The Court therefore concludes that
Plaintiff has Article III standing for the claims in this
action. While plaintiffs pursuing APA claims typically must
also satisfy the “zone of interests” test, which
asks whether a plaintiff is “within the class of
plaintiffs whom Congress has authorized to sue” under a
particular statute, that test is not jurisdictional.
Lexmark Int'l, Inc. v. Static Control
Components, 134 S.Ct. 1377, 1387 & n.4 (2014);
see also Crossroads Grassroots Policy Strategies v.
FEC, 788 F.3d 312, 319 (D.C. Cir. 2015). Because the
Court need not raise the zone of interests question on its
own, Defendants' concession of their position on
standing, which had included a zone of interests argument in
their briefing, obviates the need for the Court to address
the test further.
Decision Committed to Agency Discretion
continue to maintain that judicial review of AFB's
designation is precluded because the decision and the
resulting July 2018 Agreement are agency action
“committed to agency discretion by law” under
§ 701(a)(2) of the APA. ECF No. 24-2 at 26-31 (citing 5
U.S.C. § 701(a)(2)). That provision “makes it clear
that ‘review is not to be had' in those rare
circumstances where the relevant statute ‘is drawn so
that a court would have no meaningful standard against which
to judge the agency's exercise of discretion.'”
Lincoln v. Vigil, 508 U.S. 182, 191 (1993) (quoting
Heckler v. Chaney, 470 U.S. 821, 830 (1985)).
“In other words, judicial review is foreclosed if the
‘agency action of which plaintiff complains fails to
raise a legal issue which can be reviewed by the court by
reference to statutory standards and legislative
intent.'” Inova Alexandria Hosp. v.
Shalala, 244 F.3d 342, 346 (4th Cir. 2001) (quoting
Strickland v. Morton, 519 F.2d 467, 470 (9th Cir.
1975)); see also Webster v. Doe, 486 U.S. 592, 600
(1988) (“§ 701(a)(2) requires careful examination
of the statute on which the claim of agency illegality is
based”). “[T]he mere fact that a statute contains
discretionary language does not make agency action
unreviewable.” Inova Alexandria Hosp., 244
F.3d at 346 (alteration in original) (quoting Beno v.
Shalala, 30 F.3d 1057, 1066 (9th Cir. 1994)).
Additionally, “even if the underlying statute does not
include meaningful (or manageable) standards,
‘regulations promulgated by an administrative agency in
carrying out its statutory mandate can provide standards for
judicial review.'” Id. (quoting CC
Distribs., 883 F.2d at 154); see also Steenholdt v.
FAA, 314 F.3d 633, 638 (D.C. Cir. 2003).
maintain that nothing in 41 U.S.C. § 8503(c), the
provision of the JWOD Act directing the Commission to
designate CNAs, nor anything in the Commission's
regulations, provides the court with standards for reviewing
the designation of AFB. ECF No. 24-2 at 28-31, ECF No. 34 at
6-8. § 8503(c) provides as follows:
The Committee shall designate a central nonprofit agency or
agencies to facilitate the distribution, by direct
allocation, subcontract, or any other means, of orders of the
Federal Government for products and services on the
procurement list among qualified nonprofit agencies for the
blind or qualified nonprofit agencies for other severely
are correct that nothing on the face of § 8503(c)
establishes standards for the Court to apply in reviewing the
Committee's designation of AFB; the statute merely
directs that the Committee “shall designate” one
or more CNAs. Id. But Defendants take too narrow a
view of the scope of authorities relevant to this issue. As
Plaintiff observes, Committee regulations promulgated under
the authority of § 8503 establish substantial and
extensive duties for CNAs. ECF No. 30 at 25. In a definitions
section of the regulations, 41 C.F.R. § 51-1.3,
“[c]entral nonprofit agency” is defined as
an agency . . . designated by the Committee to facilitate the
distribution (by direct allocation, subcontract, or any other
means) of orders of the Government for commodities and
services on the Procurement List among nonprofit agencies
employing persons who are blind or have other severe
disabilities, to provide information required by the
Committee to implement the JWOD Program, and to otherwise
assist the Committee in administering these regulations as
set forth herein by the Committee.
41 C.F.R. § 51-3.2 elaborates on those responsibilities
in detail. For example, the regulation provides that each CNA
must make recommendations to the Committee on “suitable
commodities or services for procurement” from NPAs and
must recommend appropriate initial pricing and price changes
in response to market conditions. 41 C.F.R. §§
51-3.2(d), (e), (i). CNAs are also tasked with gathering
information on federal contracting needs from the Committee,
equitably distributing and allocating orders among
participating NPAs, and representing the NPAs in dealings
with the Committee. Id. ¶¶ 51-3.2(a), (c),
(f), (g). CNAs must continually evaluate and collect data on
the qualifications and capabilities of the NPAs providing
goods and services through the AbilityOne Program and provide
that information to the Committee. Id. §
51-3.2(b). Finally, CNAs are tasked with overseeing and
assisting the NPAs to ensure that they ...