Bird v. Or. Comm'n for Blind

• Decision Date: 07 January 2022
• Docket Number: 20-36066
• Parties: Jerry Bird, Petitioner-Appellee, v. Oregon Commission For The Blind, an agency of the State of Oregon, Respondent-Appellant, v. U.S. Department of Education, Rehabilitation Services Administration, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Jerry Bird, Petitioner-Appellee,
v.
Oregon Commission For The Blind, an agency of the State of Oregon, Respondent-Appellant,
v.
U.S. Department of Education, Rehabilitation Services Administration, Respondent-Appellee.

No. 20-36066

United States Court of Appeals, Ninth Circuit

January 7, 2022

Argued and Submitted November 8, 2021

Appeal from the United States District Court for the District of Oregon D.C. No. 3:18-cv-01856-YY, Marco A. Hernández, Chief District Judge, Presiding

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Before: Susan P. Graber and Morgan Christen, Circuit Judges, and Raner C. Collins, ^[*] District Judge.

SUMMARY^[**]

Sovereign Immunity

The panel reversed the district court's denial of sovereign immunity to Oregon Commission for the Blind ("OCB") in a case in which the district court affirmed an arbitration panel's award of compensatory relief, attorney's fees, and costs in favor of petitioner Jerry Bird.

Bird and other blind vendors filed a formal complaint with OCB seeking arbitration, prospective relief, and attorney's fees as a consequence of OCB's alleged mishandling of vending contracts and representation of blind vendors' interests. The arbitration panel denied relief, and Bird filed a petition for federal review in Oregon District Court. The district court relied on Premo v. Martin, 119 F.3d 764 (9th Cir. 1997) (holding that Eleventh Amendment sovereign immunity did not apply to an arbitration panel's decision under the Randolph-Sheppard Act ("RSA")), and held that the Eleventh Amendment did not protect OCB from liability for compensatory damages.

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The panel held that neither the RSA nor the parties' operating agreements unequivocally waived a state's sovereign immunity from liability for monetary damages, attorney's fees, or costs. The panel joined the Sixth and Tenth Circuits, and concluded that the holding in Premo was no longer binding. Subsequent to Premo, the Supreme Court decided Sossamon v. Texas, 563 U.S. 277 (2011) (analyzing whether a state waives sovereign immunity from compensatory relief through acceptance of federal funding under the Religious Land Use and Institutionalized Persons Act of 2000). The panel held that Sossamon's declaration that a waiver of sovereign immunity must be explicit within the text of the statute left no room for Premo's reliance on constructive waiver. An agreement to arbitrate all disputes simply did not unequivocally waive sovereign immunity from liability for monetary damages. The panel concluded that OCB did not waive immunity from compensatory damages, and the district court's decision to the contrary was in error. Insofar as Bird argued that the operating agreements constituted waiver, those agreements, too, incorporated the text of the RSA and contained no express waiver of immunity from money damages.

The panel held that because no provision of the RSA or the operating agreements provided for attorney's fees, Bird was not entitled to attorney's fees.

COUNSEL

Christopher A. Perdue (argued), Assistant Attorney General; Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, Attorney General; Oregon Department of Justice, Salem, Oregon; for Respondent-Appellant.

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Kristian Roggendorf (argued), The Zalkin Law Firm, P.C., San Diego, California; Roger K. Harris, Harris Berne Christensen LLP, Portland, Oregon; for Petitioner-Appellee.

No appearance for Respondent-Appellee.

OPINION

COLLINS, District Judge

Respondent Oregon Commission for the Blind ("OCB") appeals the district court's affirmation of an arbitration panel's award of compensatory relief, attorney's fees, and costs in favor of Petitioner Jerry Bird. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the denial of sovereign immunity de novo, Ray v. County of Los Angeles, 935 F.3d 703, 708 (9th Cir. 2019), we reverse. Neither the Randolph-Sheppard Act ("RSA") nor the parties' operating agreements unequivocally waive a state's sovereign immunity from liability for monetary damages, attorney's fees, or costs. In coming to this conclusion, we join the Sixth and Tenth Circuits and conclude that our holding in Premo v. Martin, 119 F.3d 764 (9th Cir. 1997), is no longer binding.

I. Factual and Procedural History

The RSA creates a cooperative federal-state program that gives preference to blind applicants for vending licenses at federal facilities. 20 U.S.C. §§ 107-107f. At the federal level, the Secretary of Education is responsible for administering the Act. 20 U.S.C. §§ 107(b), 107a(a). At the state level, state licensing agencies designated by the Secretary of Education implement the program. 20 U.S.C. § 107a(a)(5). Under the RSA, a blind licensee who is dissatisfied with "any action arising from the operation or

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