As the nation pauses to remember Justice Antonin Scalia, SDVOSBs and VOSBs are already asking: what does Justice Scalia’s passing mean for Kingdomware v. United States, which is currently scheduled for oral argument on February 22?

Good question.  Here’s what I know now, plus a little speculation to boot.

As it stands, Kingdomware is still scheduled for oral argument at 10:00 a.m. on February 22.  The Supreme Court is not in session this week, which means that Kingdomware is slated to be the first case heard by the Court following Justice Scalia’s passing.  Of course, it’s possible that the case is postponed; if that happens I will update SmallGovCon right away (and change my own travel plans, too).

Now onto the legal implications.  With an eight-member Supreme Court, there is a possibility that Kingdomware could result in a 4-4 tie. If that were to happen, it is unclear what the Court would do. Ordinarily, when the Court has a tie vote (perhaps because a justice recuses himself or herself), the decision of the lower court is “affirmed by an equally divided court,” but is not considered binding precedent.

In Kingdomware, of course, the lower court in question is the Federal Circuit, which ruled against Kingdomware on a 2-1 vote.  Therefore, if the Kingdomware vote were to end in a tie, it could mean that the Federal Circuit’s decision would be affirmed–which, of course, would be a disastrous result for SDVOSBs and VOSBs.

An affirmation of the Federal Circuit’s decision would be somewhat absurd, given that the Government has abandoned the very position that prevailed in that court. In other words, it is possible that a tie vote could lead to the affirmation of a decision that neither party no longer believes to be legally correct.

Fortunately, it appears that another option exists.  In a post this morning on SCOTUSblog, publisher Tom Goldstein predicts that any cases resulting in a 4-4 tie will be “reargued once a new Justice is confirmed.”  Mr. Goldstein points out that tie cases have been reargued in similar circumstances, and “[b]ecause the Court follows tradition when possible,” this tradition likely will be applied to any tie cases resulting from Justice Scalia’s death–including, potentially, Kingdomware.  That said, there is nothing that requires the Court to order a rehearing of a tie case, so we will all just have to wait and see.

Finally, I’ve been asked by some SDVOSBs and VOSBs how I think Justice Scalia would have voted in Kingdomware.  And if I may engage in a little bit of raw speculation (and I may, since this is my blog), I think that Justice Scalia’s strong preference for applying the black-and-white text of a statute would likely have caused Justice Scalia to vote in Kingdomware’s favor.

The public (myself included) may never know why the Government pulled a last-minute switcheroo in this case, jettisoning the goal-setting argument that had succeeded at the Court of Federal Claims and Federal Circuit.  But I wonder whether concerns about Justice Scalia’s vote–and his influence with other like-minded Justices–might have been among the reasons.

In his strong dissent at the Federal Circuit, Judge Jimmie Reyna applied Justice Scalia’s precedent from a well-known case, District of Columbia v. Heller, to find that the reference to goal-setting in the statutory “Rule of Two” was mere “prefatory language” and did not weaken the command that contracts shall be set-aside for SDVOSBs and VOSBs when the Rule of Two is satisfied. Had the Government not changed its position, it would have been very easy for Justice Scalia to simply follow his own precedent and rule in Kingdomware’s favor.

But even after the switch, my best guess is that Justice Scalia would have ruled in Kingdomware’s favor based on the plain language of the statute.  Perhaps Justice Scalia would even have used one of his trademark phrases (“jiggery-pokery,” anyone?) to describe the Government’s current attempt to argue that a FSS order is not actually a contract, despite what FAR 2.101 has to say on that topic.  Unfortunately, we’ll never know.

As of now, I still plan to be in the Supreme Court on February 22, at what will may be a somber session without one of the Court’s longtime stalwarts and biggest personalities.  I will keep you posted.