[Federal Register Volume 77, Number 10 (Tuesday, January 17, 2012)]
[Notices]
[Pages 2279-2280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-749]


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DEPARTMENT OF EDUCATION


Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice of decision.

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SUMMARY: The Department of Education (Department) gives notice that on 
September 18, 2010, an arbitration panel rendered a decision in the 
matter of John Bell, et al. v. New Jersey Commission for the Blind and 
Visually Impaired, Case no. R-S/07-14.

FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text 
of the arbitration panel decision from Mary Yang, U.S. Department of 
Education, 400 Maryland Avenue SW., room 5162, Potomac Center Plaza, 
Washington, DC 20202-2800. Telephone: (202) 245-6327. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service (FRS), toll free, at 1-(800) 877-8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or compact 
disc) by contacting the program contact person listed in this section.

SUPPLEMENTARY INFORMATION: This arbitration panel was convened by the 
Department under 20 U.S.C. 107d-l(a), after receiving a complaint from 
the Complainant, John Bell. Under section 6(c) of the Randolph-Sheppard 
Act (Act), 20 U.S.C. 107d-2(c), the Secretary publishes in the Federal 
Register a synopsis of each arbitration panel decision affecting the 
administration of vending facilities on Federal and other property.

Background

    John Bell (Complainant) alleged violations by the New Jersey 
Commission for the Blind and Visually Impaired, the State licensing 
agency (SLA), under the Act and implementing regulations in 34 CFR part 
395. Complainant alleged that the SLA violated the Act, the 
implementing regulations and the New Jersey Administrative Code 
concerning Complainant's management of a facility comprised of laundry 
equipment and vending machines at the Fairton Federal Correction 
Institution (Fairton) operated by the Federal Bureau of Prisons (BOP) 
at Fairton, New Jersey.
    Specifically, Complainant alleged that the SLA unlawfully (1) 
entered into an ``intergovernmental agreement'' with BOP rather than a 
``permit'' for the Fairton facility; (2) allowed BOP to collect 15 
percent of Complainant's net sales, as opposed to net profit; (3) 
allowed BOP to improperly change the rate charged for laundry services; 
(4) failed to pay the cost of replacing certain laundry machines in 
2003 and/or failed to reimburse Complainant for $48,000 for the lease 
purchase agreement he signed to replace the laundry machines himself; 
(5) required Complainant to pay the first $200 in repair costs for each 
machine breakdown; and (6) failed to provide Complainant with a State 
fair hearing.
    Complainant requested that the arbitration panel grant the 
following relief: (1) Damages of approximately $440,000; (2) an order 
directing the SLA to file an arbitration against the BOP regarding the 
15 percent that Complainant paid to BOP; (3) a recommendation from the 
panel to the Secretary of Education that the New Jersey Commission for 
the Blind and Visually Impaired be removed as the SLA under the Act 
based upon its failure to provide Complainant with a full State fair 
hearing; and (4) costs incurred in this proceeding, including 
reasonable attorney's fees.
    Complainant filed for a State fair hearing of his complaint, which 
was held on October 23, 2007. The Administrative Law Judge (ALJ) set 
January 15, 2008, as the date for the parties to submit post-hearing 
briefs. However, prior to the decision, the SLA requested that the ALJ 
return the case to it. Complainant opposed the request, but the ALJ 
advised Complainant that under New Jersey law he was required to 
relinquish the case back to the SLA.
    Subsequently, Complainant filed with the Department a request for 
Federal arbitration seeking an appeal of the State fair hearing 
decision. A Federal

[[Page 2280]]

arbitration panel was convened on December 8 and December 9, 2009.

Synopsis of the Arbitration Panel Decision

    After reviewing all of the testimony and evidence, the panel found 
that most of the grievances were time barred, either by operation of 
the 15-day time limit set forth in the New Jersey Administrative Code, 
the doctrine of latches, or both. The panel further determined that 
Complainant did not show that the SLA had violated the Act or the 
Federal and State implementing regulations. Accordingly, the panel 
majority concluded that Complainant was not entitled to any remedy with 
the exception of Complainant's claim for the costs, including 
reasonable attorney's fees, he incurred in the State evidentiary 
hearing.
    However, with respect to the State fair hearing, the panel majority 
concluded that the SLA knew, or had reason to know, prior to the 
commencement of the ALJ hearing, that Complainant's case would require 
the ALJ to interpret two potentially conflicting Federal statutes and, 
as a result, that the ALJ might lack subject matter jurisdiction. Yet, 
the SLA allowed the ALJ hearing to take place and asked the ALJ to 
return the case after Complainant had submitted his post-hearing brief 
requiring significant time and resources to no avail. Thus, the panel 
majority ruled that fundamental principles of fairness require that the 
SLA reimburse Complainant for the costs expended by Complainant in the 
State fair hearing, including reasonable attorney's fees.
    The panel also retained jurisdiction of this matter for the sole 
purpose of resolving any disputes regarding the amount the SLA must pay 
Complainant for those costs.
    One panel member dissented in part and concurred in part. This 
panel member dissented from the panel's determination that the 
commission payment was neither timely protested by Complainant nor a 
violation of the Act but concurred with the panel majority regarding 
the SLA's reimbursement to Complainant for costs incurred in the State 
fair hearing, including reasonable attorney's fees.
    On January 11, 2011, the SLA sought reconsideration of the portion 
of the panel's award granting Complainant the costs he incurred in the 
State fair hearing, including reasonable attorney's fees.
    The panel agreed to consider the SLA's motion and granted 
Complainant the opportunity to reply, which he did on or about March 2, 
2011.
    On March 25, 2011, the panel conferred via conference call. After 
reviewing the parties' motions including the legal authority cited, the 
panel unanimously denied the SLA's motion for reconsideration on the 
merits and affirmed its initial decision of September 18, 2010, to 
award Complainant his costs for the State fair hearing, including 
reasonable attorney's fees.
    The views and opinions expressed by the panel do not necessarily 
represent the views and opinions of the Department.
    Electronic Access to This Document: The Official version of this 
document is the document published in the Federal Register. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Adobe Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: January 11, 2012.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2012-749 Filed 1-13-12; 8:45 am]
BILLING CODE 4000-01-P