[Federal Register Volume 59, Number 121 (Friday, June 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15417]


[[Page Unknown]]

[Federal Register: June 24, 1994]


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DEPARTMENT OF EDUCATION

 

Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice of arbitration panel decision under the Randolph-
Sheppard Act.

SUMMARY: Notice is hereby given that on February 14, 1991, an 
arbitration panel rendered a decision in the matter of George McNabb v. 
Arkansas Department of Human Services, Division of Services for the 
Blind (Docket No. R-S/81-2). This panel was reconvened by the Secretary 
of the U.S. Department of Education to consider prospective damages and 
attorney's fees pursuant to a decision and court order issued by the 
United States Court of Appeals for the Eighth Circuit on December 5, 
1988. The panel was reconvened as the result of an original complaint 
filed by petitioner, George McNabb, on April 7, 1981. Mr. McNabb was 
grieving a State fair hearing decision denying his bid on three vending 
facility locations on State property and the awarding of two of those 
facilities to other blind vendors. The Randolph-Sheppard Act authorizes 
blind individuals to operate vending facilities on State and Federal 
property. Under the Randolph-Sheppard Act (the Act), a blind licensee 
dissatisfied with the State's operation or administration of the 
vending facility program authorized under the Act may request a full 
evidentiary hearing from the State licensing agency (SLA). If the 
licensee is dissatisfied with the State agency's decision, the licensee 
may complain to the Secretary, who then is required to convene an 
arbitration panel to resolve the dispute.

FOR FURTHER INFORMATION CONTACT: A copy of the full text of the 
arbitration panel decision may be obtained from George F. Arsnow, U.S. 
Department of Education, 400 Maryland Avenue, SW., Room 3230, Mary E. 
Switzer Building, Washington, D.C. 20202-2738. Telephone: (202) 205-
9317. Individuals who use a telecommunications device for the deaf 
(TDD) may call the TDD number at (202) 205-8298.

SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20 
U.S.C. 107d-2(c)), the Secretary publishes a synopsis of arbitration 
panel decisions.

Background

    The complainant, George McNabb, is a blind vendor licensed by the 
respondent, the Arkansas Department of Human Services, Division of 
Services for the Blind, pursuant to the Randolph-Sheppard Act, 20 
U.S.C. 107 et seq. The Arkansas Department of Human Services, Division 
of Services for the Blind, is the SLA responsible for the operation of 
the Arkansas vending facility program for blind individuals.
    This arbitration under the Act involved a complaint by Mr. McNabb 
against respondent that was filed initially on April 7, 1981, and filed 
in amended form on or about January 25, 1983. As a result of the 
complaint, an arbitration hearing was held by the arbitration panel on 
September 8, 1983, and an Interlocutory Award was made by the panel on 
December 29, 1983.
    The Interlocutory Award provided for the complainant to be given a 
continuing right of assignment to particular vending facilities when 
they became available and a continuing right to request additional 
relief from the arbitration panel. After the complainant accepted an 
assignment to a new vending facility on October 10, 1985, he requested 
the Department of Education to reconvene the arbitration panel for the 
purpose of awarding him additional relief, such as back pay, attorney's 
fees, and costs.
    In a letter dated March 26, 1986, the Department of Education 
issued a decision denying the request of Mr. McNabb that an arbitration 
panel be reconvened, on the basis that there was no additional relief 
that could be granted by the panel. This decision resulted in the 
complaint becoming a matter for the courts and on May 22, 1987, the 
U.S. District Court for the Eastern District of Arkansas, Western 
Division, concluded that the arbitration panel ``has the authority to 
award compensatory relief and attorney fees.'' The district court 
directed the Department of Education to ``reconvene an arbitration 
panel to consider the award of compensatory relief, attorney's fees and 
costs to the complainant.'' The Department of Education and the 
Arkansas Department of Human Services appealed the district court's 
decision on the grounds that neither compensatory relief nor attorney's 
fees were contemplated under the Act and that those awards would be 
contrary to the principle of sovereign immunity.
    The Court of Appeals concluded in a per curiam decision, followed 
by individual concurring and dissenting opinions, that the Act permits 
an arbitration panel to award prospective damages against a State from 
the time of the arbitration panel decision until the complainant is 
placed in an appropriate vending position. The court held, however, 
that a complainant is not entitled to retroactive money damages against 
a State involving expenses incurred prior to the decision of the 
arbitration panel. The court further held that ``the question whether 
the arbitration panel has the authority to award attorney's fees is a 
question more properly decided in the first instance by the arbitration 
panel when it reconvenes.''
    The Court of Appeals affirmed the order of the district court that 
the Department of Education reconvene the arbitration panel.
    A hearing by the arbitration panel was held on July 17, 1990. The 
parties agreed at the hearing that the matters to be considered by the 
arbitration panel were the interest that the complainant was entitled 
to receive on the prospective damages identified by the Court of 
Appeals, attorney's fees, and costs.

Arbitration Panel Decision

    The arbitration panel issued an award on February 14, 1991, which 
directed the respondent to pay the complainant interest on his loss of 
profits for the interval of time between the date of the Interlocutory 
Award by the arbitration panel and the date the complainant was paid 
his lost profits in full. The panel also directed the Arkansas 
Department of Human Services to reimburse the attorney's fees and 
expenses incurred by the complainant because of the litigation 
concerning the reconvening of the arbitration panel. The panel further 
found that the complainant was entitled to be reimbursed by the U.S. 
Department of Education for the attorney's fees and expenses incurred 
by him in connection with the arbitration that preceded and followed 
the litigation concerning the reconvening of the arbitration panel.
    The Department has appealed this case on the attorney's fees issue 
and is currently awaiting a decision in the United States Court of 
Appeals for the Eighth Circuit, George McNabb v. Richard W. Riley, 
Secretary, Department of Education, Docket No. 93-2877 EALR.

    Dated: June 21, 1994.
Judith E. Heumann,
Assistant Secretary, Office of Special Education and Rehabilitative 
Services.
[FR Doc. 94-15417 Filed 6-23-94; 8:45 am]
BILLING CODE 4000-01-P