[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]
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