Supreme Court Urged To Hear Appeal About Saving Jobs For People Who Are Blind

The federal AbilityOne Program, administered by the AbilityOne Commission, provides employment opportunities for tens of thousands of people who are blind or severely disabled. These skilled and dedicated individuals work at § 501(c)(3) nonprofit agencies (“NPAs”) that manufacture or provide a wide variety of products or services needed by the federal government.

To create and maintain employment opportunities, the AbilityOne statute and implementing regulations require all federal departments and agencies to procure AbilityOne Commission-listed products and services from AbilityOne NPAs. But a different, Department of Veterans Affairs-specific statute requires the VA to conduct competitive procurements that give priority to veteran-owned small businesses. The U.S. Court of Appeals for the Federal Circuit purported to resolve a conflict between these two statutes by holding that the VA must give priority to veteran-owned small businesses over AbilityOne NPAs when procuring products or services that are on the AbilityOne Procurement List.  That ruling created an unfortunate and unnecessary legal clash between two very worthy groups:  veteran-owned small businesses and AbilityOne NPAs.

Because the Federal Circuit’s ruling seriously undermines the AbilityOne Program by eliminating or curtailing AbilityOne contracts and the employment opportunities that they provide, Carter Phillips of Sidley Austin LLP and Jessica Abrahams, Dana Pashkoff, and Mark Taticchi of Drinker Biddle & Reath LLP filed a petition for a writ of certiorari requesting the Supreme Court to review the issue in Winston-Salem Industries for the Blind v. PDS Consultants, Inc., No 19-329.

I had the privilege of authoring an amicus curiae brief on behalf of 14 AbilityOne NPAs from around the nation that collectively employ 2,000 people who are blind.  Our brief urges the Supreme Court to grant the certiorari petition. It explains that the AbilityOne program is both necessary and beneficial; that the Federal Circuit’s ruling already has undermined the AbilityOne Program by inducing the VA to replace AbilityOne contracts and thereby eliminate AbilityOne jobs; and that there is reason to be concerned that other federal departments and agencies may attempt to latch onto the Federal Circuit’s opinion as a reason for circumventing the AbilityOne List.  Additional amicus briefs supporting the petition can be accessed through the Supreme Court’s online docket.

Capital Appellate Advocacy is an independent appellate litigation boutique that advocates for industries and businesses in the Supreme Court of the United States, federal courts of appeals, and state appellate courts.

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