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The National Federation of the Blind v. U.S. Abilityone Commission

United States District Court, D. Maryland, Southern Division

September 30, 2019

THE NATIONAL FEDERATION OF THE BLIND Plaintiff,
v.
U.S. ABILITYONE COMMISSION, et al., Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. BACKGROUND

         Plaintiff 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.

         A. The U.S. AbilityOne Commission and the AbilityOne Program

         The 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).

         The 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.[1] 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, https://www.abilityone.gov/commission/documents/CPPBSD%20FY2019%20Budget%20Justifi cation%2020180212%20Final.pdf.[2] The NPAs collectively employ approximately 45, 000 workers and make more than $3.3 billion in sales annually. Id. at 1, 25.

         The 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 21.[3]

         NIB and 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 Report 22, https://www.abilityone.gov/commission/documents/U.S.%20AbilityOne%20Commission%20F 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.

         B. Designation of American Foundation for the Blind as a CNA

         Until 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.

         At 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.

         C. Parties and Procedural History

         Plaintiff 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.

         Four 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.

         Plaintiff 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.

         II. STANDARD OF REVIEW

         A. Motion to Dismiss Pursuant to Rule 12(b)(1)

         Defendants 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)).

         B. Motion to Dismiss Pursuant to Rule 12(b)(6)

         Defendants 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).

         C. Motion for Summary Judgment Pursuant to Rule 56(a)

         Defendants 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)).

         Under 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)).

         D. Motion for Preliminary Injunction

         Plaintiff 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.

         III. DISCUSSION

         Defendants 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.

         A. Standing and Reviewability

         At the 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.

         1. Standing

         “Article 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).

         Plaintiff's 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.

         In 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).

         Plaintiff 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 (1982)).

         These 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.

         2. Decision Committed to Agency Discretion

         Defendants 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)).[4] 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).

         Defendants 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 disabled.

         Defendants 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. ยง 51-3.2(b). Finally, CNAs are tasked with overseeing and assisting the NPAs to ensure that they ...


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