[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] ======================================================================= ----------------------------------------------------------------------- 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