Opposition Brief — Maryland State Department of Education v. Department of Veterans Affairs

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Supreme @ourt, U.S.

stk. & DD

JUL 2 1997

Nos. 96-1550 and 96-1551

err —

In the Supreme Court of the United States

OCTOBER TERM, 1996

MARYLAND STATE DEPARTMENT OF EDUCATION,

DIVISION OF REHABILITATION SERVICES, PETITIONER

DEPARTMENT OF VETERANS AFFAIRS, ET AL.

NATIONAL FEDERATION OF THE BLIND, ET AL.,

PETITIONERS

DEPARTMENT OF VETERAN AFFAIRS, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

FRANK W. HUNGER

Assistant Attorney General

STEPHEN W. PRESTON

Deputy Assistant Attorney

General

WILLIAM KANTER

JEFFRICA JENKINS LEE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether an arbitration panel convened under

the Randolph-Sheppard Act, 20 U.S.C. 107d-1(b),

107d-2(b)(2), to resolve a dispute between a state

licensing agency and a federal entity, may go beyond

determining whether a statutory violation occurred

and order a federal entity found to be in violation of

the Act to take specific remedial action.

(1)

TABLE OF CONTENTS

Page

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IIIT UIIIIT cateurinsssionnslnieginideocccttinehiidesnamncninehictinibiapetnaetacieonsne 15

TABLE OF AUTHORITIES

Cases:

Brown v. Gardner, 513 U.S. 115 (1994) .........000..... 15

Delaware Dep’t of Health v. United States Dep't

of Educ., 772 F.2d 1123 (3d Cir. 1985) .................. 12

Fillinger v. Cleveland Soc. for the Blind, 587

F.2d 336, reh’g denied, 591 F.2d 378 (6th Cir.

PUI Chtiiiiicteiesinadhenananibanbebiiebbouiinbhalansteupipernacerdcoosess 12

Franklin v. Gwinnett County Public Schs., 503

ESE TENOR ER tA ich eR 9, 10

Georgia Dep’t of Human Resources v. Nash, 915

F.2d 1482 (1ith Cir. 1990) .............ccccccccccccees 7, 8, 18, 14

Lane v. Pena, 1168S. Ct. 2092 (1996) .............00...... 10

Massachusetts Elected Comm. of Blind Vendors v.

Matava, 482 F. Supp. 1186 (D. Mass. 1980) .......... 12

McNabb v. United States Dep’t of Educ., 862

F.2d 681 (8th Cir. 1988), cert. denied, 493 U.S.

BERR Meats 2 ARIAS SPREE tet Ae a 12

Minnesota Dep’t of Economic Security v. Riley,

Be ee le GE Hila BOWED cavccccccccwsscsocnccesescoccccces 11, 12

Minnesota, Dep’t of Jobs & Training v. Riley,

18 F.3d 606 (8th Cir. 1994) ...............ccccccccsssssseees 6, 13, 14

New York v. USPS, 690 F. Supp. 1346 (S.D.

a See eect nites nc dbtih lL Siccubdnuahdsscesssceavsneccees 12

Randolph-Sheppard Vendors of America v.

Weinberger, 795 F.2d 90 (D.C. Cir. 1986) ....... 9, 10-11, 12

Russello v. United States, 464 U.S. 16 (1983) ....... 14

Tennessee Dep’t of Human Servs. v. United States

Dep't of Educ., 979 F.2d 1162 (6th Cir. 1992) ....... 12

(IIT)

Cases—Continued: Page

United States v. Mississippi Vocational Rehabilita-

tion for the Blind, 794 F. Supp. 1344 (S.D. Miss.

1992)

Statutes and regulation:

Administration Procedure Act, 5 U.S.C. 551

CF BOG. crrccsvcrsscedscossqoonscecccnocscenccosscsseseueseseccsesscescsees

Randolph- Sheamend Act, 20 U.S.C. 107 et seq.:

20 U.S.C. 107-107f

20 U.S.C. 107(b)

20 U.S.C. 107(b)(2)

20 U.S.C. 107a(a)

20 U.S.C. 107a(a)(1)

20 U.S.C. 107a(a)(5)

20 U.S.C. 107a(c)

20 U.S.C. 107a(d)(1)

20 U.S.C. 107b

20 U.S.C. 107b(3)(D)

20 U.S.C. 107d-1(a)

20 U.S.C. 107d-1(b)

20 U.S.C. 107d-2(a)

20 U.S.C. 107d-2(b)

20 U.S.C. 107d-2(b)(1)

20 U.S.C. 107d-2(b)(2)

20 U.S.C. 107d-3

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Veteran’s Canteen Service Act, 38 U.S.C. 7801

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38 U.S.C. 7801

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38 U.S.C. 7802(1)

34 C.F.R. 395.16

In the Supreme Court of the Gnited States

OCTOBER TERM, 1996

No. 96-1550

MARYLAND STATE DEPARTMENT OF EDUCATION,

DIVISION OF REHABILITATION SERVICES, PETITIONER

Vv.

DEPARTMENT OF VETERANS AFFAIRS, ET AL.

No. 96-1551

NATIONAL FEDERATION OF THE BLIND, ET AL.,

PETITIONERS

Vv.

DEPARTMENT OF VETERAN AFFAIRS, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

14a)! is reported at 98 F.3d 165. The opinion and order

of the district court (Pet. App. 17a-3la) are reported

at 896 F. Supp. 513. The arbitration panel’s final

1 References to “Pet. App.” are to the appendix to the pe-

tition in No. 96-1550.

(1)

award (Pet. App. 40a-45a) and its earlier opinion and

award (Pet. App. 32a-39a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 22, 1996. Petitions for rehearing were denied

on December 31, 1996. Pet. App. 15a-16a. The petition

for a writ of certiorari in No. 96-1551 was filed

on March 28, 1997. The petition for a writ of certio-

rari in No. 96-1550 was filed on March 31, 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. This case arises under the Randolph-Sheppard

Act, 20 U.S.C. 107-107f, a cooperative federal/state

program for licensing, training and placing qualified

blind persons as operators of vending facilities on

federal property. The Act provides that, “[iJn author-

izing the operation of vending facilities on Federal

property, priority shall be given to blind persons

licensed by a State agency.” 20 U.S.C. 107(b). Under

the Act, the design for every newly constructed

federal government building must include a satisfac-

tory site for a Randolph-Sheppard Act vending

facility. 20 U.S.C. 107a(d)(1). The Act charges the

Secretary of Education with responsibility for inter-

preting and enforcing its provisions, including

prescribing regulations to ensure that, “wherever

feasible, one or more vending facilities are established

on all Federal property to the extent that any such

facility * * * would not adversely affect the

interests of the United States.” 20 U.S.C. 107(b)(2);

see 20 U.S.C. 107a(a). “Any limitation on the place-

ment or operation of a vending facility based on a

finding that such placement or operation would

adversely affect the interests of the United States

shall be fully justified in writing to the Secretary [of

Education], who shall determine whether such

limitation is justified.” 20 U.S.C. 107(b).

The Act is implemented in the various States by

state agencies that are selected by the Secretary to

act as licensing agencies. 20 U.S.C. 107a(a)(1), 107b.

State licensing agencies are authorized to, inter alia,

issue licenses and select the location and type of

vending facility at a federal property, with the

approval of the head of the federal entity controlling

the property. 20 U.S.C. 107a(a)(5), 107a(c). A state

licensing agency applies to the appropriate federal

entity for a permit to establish a site for a licensed

blind vendor on federal property. 20 U.S.C. 107a(c);

34 C.F.R. 395.16. Selected vendors earn income from

the profits of the vending facilities they operate and

from a fund established under the statutory scheme.

20 U.S.C. 107a(a)(1), 107b(3)(D), 107d-3.

The Act further provides that, if a state licensing

agency determines that a federal entity that controls

federal property is failing to comply with the pro-

visions of the Act or regulations issued thereunder,

the state licensing agency may file a complaint with

the Secretary of Education. 20 U.S.C. 107d-1(b).

Upon receipt of such a complaint, “the Secretary

shall convene an ad hoc arbitration panel” to arbitrate

that dispute. 20 U.S.C. 107d-1(b), 107d-2(a). The arbi-

tration panel consists of three members, including

one person designated by the state licensing agency,

one person designated by the head of the federal

entity controlling the federal property over which the

dispute arose, and one person jointly designated by

the first two members. 20 U.S.C. 107d-2(b)(2). Ifa

party fails to designate a panel member, the Secre-

tary of Education designates a member on the party’s

behalf. 20 U.S.C. 107d-2(b)(2). The panel must, in ac-

cordance with certain provisions of the Administra-

tive Procedure Act (APA), 5 U.S.C. 551 et seq., “give

notice, conduct a hearing, and render its decision

which shall be subject to appeal and review as a final

agency action” for purposes of the APA. 20 U.S.C.

107d-2(a). If the panel finds that “the acts or

practices” of the federal entity are in violation of the

Act or regulations issued thereunder,

the head of any such * * * agency * * * shall

cause such acts or practices to be terminated

promptly and shall take such other action as may

be necessary to carry out the decision of the panel.

20 U.S.C. 107d-2(b)(2).?

2 Under the statutory scheme, federal agencies do not have

a direct relationship with the blind licensees. If a blind licensee

is “dissatisfied with any action arising from the operation or

administration of the vending facility program,” the licensee

may obtain a full evidentiary hearing before the state licensing

agency. 20 U.S.C. 107d-1(a). If the licensee is dissatisfied with

“any action taken or decision rendered as a result of such

hearing,” the licensee may file a complaint with the Secretary,

who must convene a panel under Sections 107d-1(a) and 107d-

2(b)(1), to arbitrate the dispute. That panel consists of three

persons, one designated by the state licensing agency, one des-

ignated by the blind licensee, and one designated by the first

two members. 20 U.S.C. 107d-2(b)(1). As under Section 107d-

2(b)(2), the Secretary designates a member if a party fails to do

so. Ibid. Like an arbitration panel designated under Section

107d-2(b)(2) to resolve a dispute between a federal entity and a

state licensing agency, the arbitration panel must, in accor-

dance with certain provisions of the APA, “give notice, con-

duct a hearing, and render its decision which shall be subject to

appeal and review as a final agency action” for purposes of the

APA. 20 U.S.C. 107d-2(a). Unlike the procedure under Section

2. Petitioner in No. 96-1550, the Maryland State

Department of Education, Division of Rehabilitation

Services, is designated as the state licensing agency

under the Randolph-Sheppard Act in the State of

Maryland. Petitioners in No. 96-1551 are the Na-

tional Federation of the Blind and Donald J. Morris, a

blind individual residing in the State of Maryland.®

In 1987, respondent, the Department of Veterans

Affairs,‘ began construction of the Veteran Affairs

Medical Center in Baltimore, Maryland. Petitioner

was not afforded notice of the construction as re-

quired under the Act, 20 U.S.C. 107a(d)(1), but it

learned of the project and applied to respondent for a

permit in December 1991 to operate a Randolph-

Sheppard Act vending facility at the new VA center.

Pet. App. 5a, 18a. Respondent denied the request,

and petitioner filed a complaint with the Secretary

of Education for arbitration pursuant to Sections

107d-1(b) and 107d-2(b)(2). Id. at 5a.

After a hearing, the arbitration panel issued an

order on May 5, 1994, rejecting respondent’s conten-

107d-2(b)(2), however, Section 107d-2(b)(1) is silent regarding

any limitations on the panel’s authority to remedy violations.

3 The petitioners in No. 96-1551 were not parties in the

district court proceedings, but the National Federation of the

Blind filed a brief as amicus curiae supporting the Maryland

State Department of Education, Division of Rehabilitation

Services, in the court of appeals. Both petitioners in No. 96-

1551 became intervenors in the court of appeals for purposes of

filing a petition for rehearing with suggestion of rehearing en

bane. Pet. App. 15a-16a. References to “petitioner” in the sin-

gular refer to the petitioner in No. 96-1550.

4 Petitioner brought this action against the Department of

Veterans Affairs and several officials of that Department, all of

whom we refer to collectively as respondent.

tion that the Act should not apply to the new facility’

and directing the parties to “enter into negotiations

leading to a permit that will allow [petitioner] and its

licensed blind vendor or vendors to operate the retail

store” at the Baltimore site. Pet. App. 39a. The arbi-

tration panel further ordered that, if the parties failed

to agree on such a permit by a specified date, each

party should submit a proposed permit and the permit

preferred by the majority of the panel would become

the panel’s final award. Jbid. The panel ultimately

issued a final order denying respondent’s motion for

reconsideration, adopting the only permit proposed

(that of petitioner), and directing respondent to “turn

over the operation of the retail store” at the

Baltimore site to petitioner. Jd. at 5a-6a, 39a-41a.

3. Petitioner brought the instant action in the

United States District Court for the District of

Maryland, seeking enforcement of the arbitration

5 Respondent initially took the position that the Randolph-

Sheppard Act was inapplicable to its medical facilities be-

cause of the Veterans’ Canteen Service Act (VCS Act), 38

U.S.C. 7801 et seg. The VCS is an independent unit within the

Department of Veterans Affairs established “for the primary

purpose of making available to [hospitalized] veterans * * * at

reasonable prices, articles of merchandise and services essential

to their comfort and well-being.” 38 U.S.C. 7801. Respondent

operates stores and canteens under the VCS Act in its hospitals

where it deems it “necessary and practicable” to do so. Pet.

App. 6a n.2; 38 U.S.C. 7802(1). The arbitration panel in this

case concluded (with one panel member dissenting) that the

then-recent decision in Minnesota, Department of Jobs and

Training v. Riley, 18 F.3d 606 (8th Cir. 1994), controlled and

required rejection of the argument that the Randolph-

Sheppard Act does not apply to VA facilities. Pet. App. 34a-

38a, 42a-45a. Respondent did not press that argument in the

courts below. Jd. at 21a.

panel’s award. On cross-motions for summary judg-

ment, the district court entered judgment for re-

spondent. Pet. App. 17a-3la. The court held that the

arbitration panel had exceeded its statutory authority

by ordering respondent to take specific remedial

action. Jd. at 6a-7a, 26a-27a. The court reasoned that,

“under the [Randolph-Sheppard Act] it is the role of

the agency head, in this case the Secretary of

Veterans Affairs, to remedy any violation of the Act.”

Id. at 26a (citing 20 U.S.C. 107d-2(b)(2)). The court

expressed its agreement with the view of the

Eleventh Circuit in Georgia Department of Human

Resources v. Nash, 915 F.2d 1482 (1990), that an

arbitration panel convened under Section 107d-2(b)(2)

“has no remedial powers whatsoever. It may deter-

mine that certain of the federal entity’s acts violate

the Act, but the Act leaves responsibility for remedy-

ing the violation to the federal entity itself.” Pet.

App. 26a-27a (quoting Nash, 915 F.2d at 1492, and

citing United States v. Mississippi Vocational

Rehabilitation for the Blind, 794 F. Supp. 1344, 1352

(S.D. Miss. (1992)).°

6 At the suggestion of the district court, petitioner had

added a plea for alternative relief, requesting that the court

exercise its equity powers and order respondent to comply

with the Act. Pet. App. 22a-25a, 27a. The court ultimately

declined to grant such relief, however, concluding that the

record as it stood did not show that respondent had violated the

Act. Id. at 29a. The court also noted that it was not resolving

various issues concerning respondent’s order regarding alter-

native sites, which had been issued during the pendency of the

court proceedings. See id. at 22a-25a, 27a-30a.

4. The court of appeals affirmed. Pet. App. la-14a.

It ruled that “the plain language of § 107d-2(b)(2)

limits the authority of an arbitration panel convened

under § 107d-1(b) to a determination of whether the

acts of the federal entity ‘are in violation’ of the sub-

stantive provisions of the Act.” Jd. at 9a. The court

read Section 107d-2(b)(2) to provide “that a § 107d-1(b)

arbitration panel will determine whether the federal

entity is in violation of the Act, while the head of the

federal entity will remedy the violation.” Jd. at 9a-

10a. Thus, the court concluded, “the statute places

the responsibility for ending the violation on the

head of the federal entity and does not authorize a

§107d-1(b) arbitration panel to order the federal entity

to take specific remedial action.” Jd. at 9a-10a.

The court of appeals pointed to the Eleventh Cir-

cuit’s discussion of “the differences between the

remedial procedures provided under § 107d-1(a) for

complaints filed by blind licensees against the state

licensing agency and those provided under § 107d-1(b)

for complaints filed by the state licensing agency

against a federal entity.” Pet. App. 10a (citing Nash,

915 F.2d at 1491-1492); see note 2, supra (describing

process for arbitration panel convened under Sections

107d-1(a) and 107d-2(b)(1), rather than Sections 107d-

1(b) and 107d-2(b)(2)). The court agreed with the Nash

court’s view that, unlike an arbitration panel con-

vened under Section 107d-1(a), a panel convened under

Section 107d-1(b) does not have authority to order a

specific remedy, but rather is limited by the text

of the Act to a determination of whether the federal

entity’s acts “are in violation” of the Act. Pet. App.

lla (quoting Nash, 915 F.2d at 1492).

The court below declined to rule that a Section

107d-1(b) arbitration panel has broader authority

based on the statement in Randolph-Sheppard Ven-

dors of America v. Weinberger, 795 F.2d 90, 109 (D.C.

Cir. 1986), that the Secretary of Education “has broad

remedial powers under the Act.” Pet. App. lla. The

court noted that that statement was not supported by

any articulated rationale or any explanation of the

effect of the language in Section 107d-2(b) that

specifies that the head of the federal entity has the

responsibility to remedy any statutory violations

found by the arbitration panel. Jd. at 11a-12a.

ARGUMENT

1. Petitioner contends (96-1550 Pet. 11) that the

court of appeals’ ruling constitutes a “complete dis-

regard of the presumption applied in this Court’s

decisions approving remedies when findings have been

made that federal law has been violated.” Petitioner

argues (id. at 11-16) that the court should have inter-

preted the Randolph-Sheppard Act to authorize

arbitration panels convened under Section 107d-2(b)(2)

to enter specific remedial orders, relying on a pre-

sumption in favor of all appropriate relief drawn from

Franklin v. Gwinnett County Public Schools, 503

U.S. 60, 69 (1992), and the cases cited therein.’

* See also 96-1551 Pet. 22, 27 (asserting that court of ap-

peals’ ruling is inconsistent with Franklin, thereby creating

constitutional problems, and is in tension with federal labor

law); Wisconsin Academy of Trial Lawyers et al. Amici Br. 18-

20 (urging Court to grant review to fashion judicial remedy

under Franklin). It does not appear that any constitutional

claims were raised in the courts below. Petitioners apparently

did not raise an argument under Franklin in the courts below,

although it was discussed in an amicus brief on appeal and in

the intervenors’ rehearing petition. See Nat’l Federation of

the Blind et al. C.A. Amici Br. 17-19; C.A. Pet. for Rehearing

The court of appeals correctly interpreted the Act

as limiting the authority of an arbitration panel

convened under Section 107d-2(b)(2) to the making of a

determination whether “acts or practices” of a federal

entity are in violation of the Act or regulations issued

thereunder. If the arbitration panel finds that the

federal entity’s acts or practices are in violation of

the Act or regulations, the plain language of the Act

commands the head of the federal entity to rectify the

violation—the federal entity head must “cause such

acts or practices to be terminated promptly” and must

“take such other action as may be necessary to carry

out the decision of the panel.” 20 U.S.C. 107d-2(b)(2).

The court of appeals thus accurately ruled that “the

statute places the responsibility for ending the vio-

lation on the head of the federal entity and does not

authorize a § 107d-1(b) arbitration panel to order the

federal entity to take specific remedial action.” Pet.

App. 10a.

The Court’s ruling in Franklin does not suggest

otherwise. As this Court recently explained, F’rank-

lin involved an action against non-federal defendants,

and the presumption on which the Court relied in that

case cannot trump federal statutory provisions that

limit the remedial scheme that is available in a matter

involving a federal agency. See Lane v. Pena, 116

S. Ct. 2092, 2098-2099 (1996); see also Franklin, 503

U.S. at 68 (presumption applies only where Congress

has not expressed a contrary intent).

2. Petitioners assert (96-1550 Pet. 17-18; 96-1551

Pet. 11-16) that the court of appeals’ decision conflicts. .

with the decisions in Randolph-Sheppard Vendors of

and Suggestion of Rehearing In “ar- * Nat’l Federation of

the Blind et al. 11, 15.

America v. Weinberger, 795 F.2d 90 (D.C. Cir. 1986),

and Minnesota Department of Economic Security v.

Riley, 107 F.3d 648 (8th Cir. 1997).

a. The court below did not, as petitioners suggest

(96-1550 Pet. 17; 96-1551 Pet. 11-12), expressly dis-

agree with the ruling of the D.C. Circuit in Wein-

berger. It simply declined to read into dicta in the

Weinberger opinion an interpretation of the Act that

is inconsistent with the plain statutory language.

The Weinberger court did not address the question

presented by the instant case. It involved an action

brought in federal district court directly against the

head of a federal entity that controlled federal

properties (military bases) to challenge two govern-

ment contracts for the construction and operation of

_ fast-food restaurants on those properties. 795 F.2d at

92. None of the plaintiffs had sought arbitration

under the Act, and the D.C. Circuit ruled that the

suit was barred because the plaintiffs had failed to

exhaust the Act’s administrative remedies, which the

court concluded were mandatory. Id. at 93.

In the course of its discussion of the exhaustion

issue (see 795 F.2d at 100-111), the Weinberger court

considered whether various exceptions to the exhaus-

tion doctrine should apply, including whether the

plaintiffs would suffer irreparable injury absent

immediate judicial review. The court concluded that

no such injury would result based on a series of

factors, including that there was no unusual delay

in the administrative process, the administrative

process might yield relief if a violation were found,

and a stay could have preserved the plaintiffs’ rights.

Id. at 107-111. In its description of the possible relief

available in the administrative process, the court

stated that it “appears,” that it “may well be,” and

that it “might well be” that the Secretary could pro-

vide broad remedies against the federal entity if the

panel found statutory or regulatory violations. Jd. at

109. Due to the context in which the statements were

made, the court did not provide a supporting rationale

for that speculation. Because the court did not have

before it an actual arbitration panel order that pur-

ported to grant specific remedial relief against a

federal entity, the court did not actually rule on the

scope of the remedies available from an arbitration

panel against a federal entity. Such speculation about

what type of relief might be available from an arbitra-

tion panel cannot carry great weight, and does not in

any event give rise to a circuit conflict.®

8 The court of appeals’ ruling also does not conflict with

other cases cited by petitioners (96-1551 Pet. 10-11) that focused

primarily on the debate about whether exhaustion of admin-

istrative remedies is mandatory under the Act. See, e.g.,

Fillinger v. Cleveland Society for the Blind, 587 F.2d 336, reh’g

denied, 591 F.2d 378 (6th Cir. 1978); New York v. United

States Postal Service, 690 F. Supp. 1346, 1349 (S.D.N.Y. 1989);

and Massachusetts Elected Comm. of Blind Vendors v.

Matava, 482 F. Supp. 1186, 1189 (D. Mass. 1980). Those cases

did not hold that an arbitration panel convened under Section

107d-2(b)(2) is authorized to order a federal entity to take

specific remedial action.

Other cases cited by petitioners (96-1550 Pet. 18; 96-1551 Pet.

11, 15) are readily distinguishable as well because they involved

arbitration panels convened under Section 107d-2(b)(1) (not

under Section 107d-2(b)(2)), and addressed issues regarding the

availability of damages against a State. See, e.g., Tennessee

Dep’t of Human Servs. v. United States Dep’t of Educ., 979

F.2d 1162, 1165 (6th Cir. 1992); McNabb v. United States Dep’t

of Educ., 862 F.2d 681, 684 (8th Cir. 1988) (Lay, C.J., con-

curring and dissenting), cert. denied, 493 U.S. 811 (1989);

Delaware Dep’t of Health & Social Servs. v. United States

Dep't of Educ., 772 F.2d 1123, 1136 (8d Cir. 1985). The

b. The court of appeals’ decision also does not

conflict with the Eighth Circuit’s recent decision in

Minnesota Department of Economic Security v.

Riley, 107 F.3d 648 (1997). The Riley court explicitly

noted that its ruling does not raise the concerns

addressed by the ruling in the instant case or in

Georgia Department of Human Resources v. Nash,

915 F.2d 1482 (11th Cir. 1990), because the arbitration

panel in that case “never ordered the [federal entity]

to take any remedial action, but simply decided” that

certain action “would violate the Act.” 107 F.3d at

650. The Eighth Circuit emphasized that the arbi-

tration panel in that case “did exactly what the

statute authorizes.” Ibid. The Riley court’s ruling

that a federal entity cannot ignore its statutory

responsibility to bring itself into compliance with the

Act is not inconsistent with the ruling below.’ The

ruling below does not suggest that a federal entity

statutory text makes clear that the authority of an arbitration

panel under Section 107d-2(b)(1) is different in relevant re-

spects from that of an arbitration panel under Section 107d-

2(b)(2), so that those cases do not conflict wit the ruling below.

See note 2, supra; see also State of Colorado et al. Amici Br. 15-

16 (conceding that such cases are not directly on point but

suggesting that they add confusion to the issue).

9 The attempt by petitioners (see 96-1551 Pet. 11, 13-14) to

create a conflict between the ruling below and an earlier

Eighth Circuit decision fails for the same reason. The court

there did not address the issue presented here. It affirmed the

district court’s ruling that had set aside an arbitration panel

order allowing the parties to negotiate an agreement outside

the Act’s permit requirements. Minnesota, Dep’t of Jobs and

Training v. Riley, 18 F.3d 606, 608 (1994). In doing so, the

court merely affirmed the principle that it later emphasized in

its other Riley opinion—that federal entities subject to the Act

must abide by the Act’s requirements. Ibid.

can evade its obligations under the Act. Moreover, the

district court suggested that, if a federal entity ad-

vances a remedy that is plainly inadequate, the state

licensing agency would not be precluded from chal-

lenging that remedy through an independent APA

action, although it declined to engage in such review

based on the circumstances of this case. See note 6,

supra.”

ce. The ruling below is consistent with the analysis

of the other federal courts that have discussed the

question. See Nash, 915 F.2d at 1487-1495; United

States v. Mississippi Vocational Rehabilitation for

the Blind, 794 F. Supp. 1344 (S.D. Miss. 1992). Those

courts have similarly opined that an arbitration panel

convened under Section 107d-2(b)(2) to resolve a dis-

pute between a state licensing agency and a federal

entity has no remedial authority. As the Nash court

recognized, Congress’s inclusion of language in Sec-

tion 107d-2(b)(2) limiting the panel’s authority to

resolution of whether a federal entity has violated the

Act and imposing on the federal entity the obligation

to end the violation, while omitting such language

from Section 107d-2(b)(1), establishes that Congress

acted intentionally when it limited the remedial

authority of Section 107d-2(b)(2) arbitration panels.

See, e.g., Russello v. United States, 464 U.S. 16, 23

(1983) (“Where Congress includes particular lan-

guage in one section of a statute but omits it in

10 The district court indicated that it would have jurisdic-

tion to review final agency action of respondent, but declined

to do so because petitioner had not made an adequate factual

showing. Thus, there is no merit to petitioners’ argument (96-

1551 Pet. 20-22) that the decision below creates a constitutional

due process problem. See also note 7, supra (constitutional

claims not raised below).

another section of the same Act, it is generally pre-

sumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.”); see also

Brown v. Gardner, 513 U.S. 115, 120 (1994).

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.