Last Week in the Federal Circuit: Waiver and Constitutional Avoidance

The Federal Circuit issued just one precedential opinion last week.  But it’s an interesting one:  The Court exercised its discretion to reach (or rather, avoid) a constitutional issue not pressed or passed upon by the trial court.  Below we provide our usual weekly statistics and our case of the week—our highly subjective selection based on whatever case piqued our interest.

Precedential opinions: 1

Non-precedential opinions: 16

Rule 36: 2

Longest pending case from argument:  Land Shark Shredding, LLC v. US, Nos. 20-1230 and 20-1231 (187 days).

Shortest pending case from argument (non-Rule 36):  Beck v. Wilkie, No. 19-2448 (9 days)

Case of the week:  Veterans4You LLC v. United States, No. 20-1175

Panel:  Judges Lourie, Clevenger, and Chen, with Judge Clevenger writing the opinion

You should read this case if:  you’re interested in the separation of powers and statutory interpretation—or you have a case with a waiver issue

Our case of the week is not your typical bid protest.  This one is unusually interesting for reasons both academic (the separation of powers) and practical (the law of waiver).

The dispute concerns a printing contract.  The Department of Veterans Affairs (VA) wanted to print information about suicide prevention on gun locks.  To find a vendor, it enlisted the Government Printing Office (GPO) to run a solicitation.  The VA did so against the backdrop of a statute—which the Court calls the “printing mandate”—providing that “[a]ll printing” for executive agencies shall be done through the GPO.  44 U.S.C. § 501.  The GPO ran the solicitation, but it determined its regulations prevented it from employing the “Rule of Two” (which in other solicitations requires setting aside contracts for certain veteran-owned contractors).

A veteran-owned business filed a bid protest, contending that the VA was not obligated to send the solicitation to the GPO, and that the VA violated the Rule of Two.  The Court of Federal Claims granted judgment to the government, concluding that the printing mandate required the VA to use the GPO for the solicitation, and that the VA had complied with the Rule of Two by securing the GPO’s compliance to the maximum extent feasible.

The Federal Circuit reversed.  It held that the printing mandate does not apply to the printed gun locks here, because to construe the statute otherwise would raise constitutional concerns. 

But first, the Court had to address waiver.  The bid protestor was advancing a constitutional challenge to the printing mandate that was never raised or addressed in the trial court.  The Federal Circuit, however, explained that “the rule of waiver is prudential,” and it decided to exercise its discretion to reach the issue anyway.  It explained that the constitutional issue “is a pure question of law which has been fully briefed by the parties before our Court, and we perceive no prejudice to any party in considering this issue now, nor any purpose to be served by remand.”  Interestingly, the Court declined to decide whether the bid protestor could avoid waiver by characterizing the constitutional issue as “a new argument in support of an existing claim.”

Reaching the merits, the Court noted doubt about the constitutionality of the printing mandate.  The separation of powers limits Congress’s ability to control non-legislative actors.  The statutory mandate that executive agencies procure printing through the GPO—a congressional entity controlled by members of Congress—implicates that principle.  For that reason, the Office of Legal Counsel has opined that the printing mandate is unconstitutional, and government counsel in this case adhered to that position.  (While the Court recounted those views, it appears to have tiptoed around declaring its own view of the statute’s constitutionality.)

With the parties apparently agreeing that the printing mandate standing alone is unconstitutional, the Court was left with two ways to avoid the constitutional defect.  First was the path urged by the government:  It argued that even apart from the printing mandate, a regulation independently required the VA to use the GPO for printing here.  The Court rejected that view, concluding that the regulation merely “parrots” the statute and therefore “does not obviate any potential separation of powers concern.”  Instead, the Court took a second path.  It construed the statute narrowly under the canon of constitutional avoidance so that the printing mandate does not apply to this case.  In particular, the Court construed “printing” to apply “only to the production of written or graphic published materials,” not the production of the gun locks in this solicitation. 

Thus, under the Court’s construction of the statute, the VA was not required to send the solicitation to the GPO, undercutting the premise of the trial court’s decision.  The Federal Circuit declined to go further and address how the Rule of Two should have applied, instead sending the case back to the trial court.  It is not immediately obvious, though, what will happen on remand, as the solicited goods have already been procured.  The Court held that the case is not moot because of the exception for controversies “capable of repetition, yet evading review,” but the Court did not address what relief could still be available to the bid protestor.