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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 806

## Text

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

e.

DEPARTMENT OF VETERANS AFFAIRS, ET AL.

NATIONAL FEDERATION OF THE BLIND, ET AL.,
PETITIONERS

v.

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
SITTIN iksincesicicatuceniean Annendnibcibiiinehansanennthinmnnacteneihe 1
ERE ee: Se 2
Ba caiitiscnsaccinccesetniccsts widbegnihapcntendanaimanenstys 2
III iiatdinitinh adil ceshtdatiidosiehatanndeienningiétiidibensbionauees 9
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)

IV

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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SERRE EH ESESESEE SESE SEH EEE EEE ESE EES

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SOSH SHEESH SEH ESE SHEE ERE SESE HERES E EEE

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wo
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SESS SH SESS HEE EEEHESE SESE ESET EEE HERES

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

POSSESSES EEE EEE EEO HEHEHE EE SESE SESE RESETS

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)

2

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

3

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-

4

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

5

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.

6

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.

7

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.

8

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

9

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

10

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.

11

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

12

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

13

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.

14

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).

15

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.

WALTER DELLINGER
Acting Solicitor General

FRANK W. HUNGER
Assistant Attorney General

STEPHEN W. PRESTON
Deputy Assistant Attorney

General

WILLIAM KANTER

JEFFRICA JENKINS LEE
Attorneys

JULY 1997

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0504%3A6. Public record. Not legal advice.