Georgia Dept. of Human Resources v. Bell, Civ. A. No. C80-1398A.

• Decision Date: 28 December 1981
• Docket Number: Civ. A. No. C80-1398A.
• Citation: 528 F. Supp. 17
• Parties: GEORGIA DEPARTMENT OF HUMAN RESOURCES, et al., Plaintiffs, v. Terrell H. BELL, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

528 F. Supp. 17

GEORGIA DEPARTMENT OF HUMAN RESOURCES, et al., Plaintiffs, v. Terrell H. BELL, et al., Defendants.

Civ. A. No. C80-1398A.

United States District Court, N. D. Georgia, Atlanta Division.

December 28, 1981.

COPYRIGHT MATERIAL OMITTED

Michael J. Bowers, State's Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., H. Perry Michael, Sr. Asst. Atty. Gen., Carol Atha Cosgrove, Thomas D. Watry, Asst. Attys. Gen., Atlanta, Ga., for plaintiffs.

James E. Baker, U. S. Atty., Atlanta, Ga., Sarah L. Kemble, Asst. Gen. Counsel, U. S. Dept. of Ed., Washington, D. C., for federal defendants; Nina Loree Hunt, Asst. U. S. Atty., Atlanta, Ga., of counsel.

Susan Hoy, Stagg, Wildau, Simpson, Hoy & Oakley, Atlanta, Ga., for defendant Nash.

Marc Maurer, Baltimore, Md., for defendant-intervenor.

ORDER

SHOOB, District Judge.

Plaintiffs seek review of an arbitration panel's decision under the Randolph-Sheppard Vending Stand Act, 20 U.S.C. § 107, et seq., (cited as the Act). The case is now before the Court on the parties' cross motions for summary judgment. The parties to this action are the following: 1) plaintiffs, Georgia Department of Human Resources and Georgia Department of Human Resources, Division of Vocational Rehabilitation. Plaintiff Division of Vocational Rehabilitation is the single State agency of the State of Georgia designated, pursuant to § 107a(a)(5) and (e) of the Act, as the State agency responsible for the administration of the Act in the State of Georgia; 2) defendants, Terrell H. Bell, Secretary of the United States Department of Education, in his official capacity, United States Department of Education, Frederick Sachs, Acting Commissioner of Rehabilitation Services Administration, in his official capacity, Rehabilitation Services Administration, a subdivision of the Department of Education, and Jessie C. Nash, the complainant in the proceedings before the arbitration panel; 3) defendant-intervenor, the National Federation of the Blind (NFB), a nationwide membership organization of blind people with a membership of over 50,000. The parties have filed a "Joint Statement of Facts" and numerous briefs addressing the underlying issues.

I. Facts

In October of 1973, the United States Marine Corps requested plaintiffs to place visually handicapped persons as operators of the snack bars and cafeterias at its Logistics Support Base (Atlantic) in Albany, Georgia, as part of the blind vendor program established by the State of Georgia, pursuant to the Act. Joint Statement of Facts at p. 1. Between October 1973 and January 1974, the Marine Corps and the State entered into agreements entitled "licenses" pursuant to which four facilities located at the base would be operated by vendors licensed under the State's vending facility program (cited as the program). Id. at p. 3. These facilities consisted of the main base cafeteria building (building 3600); a smaller cafeteria in the repair division (building 2200); a snack bar in the main administration building (building 3500); and a snack bar in the maintenance building (building 5500). Id. The building 2200 facility was classified on the "licenses" as a "cafeteria" and was to provide "food items, tobacco products, and various sundry items."¹ Id. at p. 3, n. 4.

The individual "licenses" covering buildings 2200 and 3500 were expressly made contingent upon the program's acceptance of the building 3600 cafeteria no later than December 1, 1973. Id. at p. 3. The "licenses" were for a term of one year, with an automatic renewal clause, and revocable by the State upon 30 days notice and by the Corps without notice. Id.

Sometime during the summer of 1976, the blind vendor originally selected by the State to operate the building 2200 facility became disabled and the program placed a sighted substitute vendor in his place. Id. at p. 6. Although this facility was classified as a "cafeteria" in the "licenses", at this time it was operated as a snack bar due to equipment breakdown. Id. Defendant Nash asked the program to place her in the building 2200 facility.² Id. The State advised her that this assignment might be temporary, three to six months, because the Marine Corps Food Service Board was assessing whether to solicit bids for a single contract to provide cafeteria services for the entire base. Id. Nash admitted that she was advised of the uncertain status of the assignment. Id. Furthermore, the Marine Corps corroborated the fact that Nash was so advised. Id. at p. 7. Under these circumstances Nash took over operation of the building 2200 facility as a snack bar, given the equipment breakdown. Id.

In the fall of 1976 the Marine Corps informed the program that it planned to solicit bids for the provision of hot food service in buildings 3600, 2200 and 5500 and that bidders would be required to bid on these facilities as a package. Id. The program advised the Corps of its interest in retaining the building 2200 facility, operated by Nash, and the snack bar in building 5500. Id. at p. 8. However, the program declined to bid for the package, as requested by the Corps, as in its view it was not in the best interest of the program to branch out into full-service cafeteria operations. Id. at p. 9.

After a number of exchanges between the Corps and the program regarding the base's dining facilities, on February 10, 1977 the Corps awarded a cafeteria contract for the base's facilities to Dinner Bell Catering Service. Id. at p. 12. On March 9, 1977, the program informed Nash of the award and officially notified her that "her stand location in building 2200 is being terminated by the Marine Base as of mid-April." Id. On March 17, 1977 the Corps wrote to the State to terminate the permit for the building 2200 facility as of April 15, 1977. Id.

Between February and April of 1977, the program offered two alternative vending stands to Nash, one at the Naval Dispensary in Albany, Georgia, and the other in a paint factory. Id. In November 1977, Nash was assigned to a facility in Leesburg, Georgia, and at the time of the arbitration hearing, held in late 1979, was operating another facility within the program. Id. at p. 13.

II. Procedural history

On February 14, 1977, Nash filed a request for a full evidentiary hearing before the Georgia Department of Human Resources concerning the termination of her vending stand in building 2200.³Id. at p. 15. The State acknowledged Nash's request on February 24, 1977, and informed her she would be notified of the scheduling of the hearing. Id. On April 19, 1977, Nash, after being notified of the impending closing of her facility, filed suit in this Court against the State licensing agency and the U.S. Department of Defense to restrain the said termination until after a hearing was held before the Georgia Department of Human Resources. Id. On April 28, 1977, the Court denied her application for injunctive relief and dismissed her action for failure to exhaust administrative remedies; thereafter, Nash appealed to the Fifth Circuit. Id.

On May 12, 1977, the Georgia Department of Human Resources' hearing officer dismissed Nash's request for a hearing, asserting lack of jurisdiction. Id. at p. 17. He noted that he could not provide the ultimate relief sought by Nash, cancellation of the Marine Corps' cafeteria contract and her reinstatement at the building 2200 facility. Id. Accordingly, on May 27, 1977, Nash filed a complaint with the Secretary as provided in 20 U.S.C. § 107d-1(a).⁴ Id. On June 8, 1977, Nash dismissed her appeal before the Fifth Circuit. Id.

On August 17, 1977, the Secretary advised Nash that it was unable to convene an arbitration panel because she had not been afforded the State hearing, which was a condition precedent to convening such a panel. Id. at p. 18. Therefore, the Secretary remanded the matter to the State for a hearing on a number of the issues raised by Nash's complaint. Id. On December 2, 1977, the State hearing officer, after conducting the State hearing, dismissed Nash's claims. Id.

On December 16, 1977, Nash filed a second complaint with the Secretary to convene an arbitration panel. Id. On December 29, 1977, the State moved to dismiss, asserting (1) that the complaint was not sufficiently specific, (2) that it failed to state a claim upon which relief could be granted, (3) that it was specious and harassing, and (4) that the relief sought was beyond the authority of the panel. Id. at p. 19. On April 12, 1978, the Secretary denied the State's motion to dismiss, but dismissed the U.S. Department of Defense as a named respondent and "those claims for relief that relate either directly or in an ancillary fashion to DOD and its termination of its permit relationship with the Georgia State licensing agency for the operation of a vending facility in building 2200." Id. Also on April 12, 1978, the Secretary convened an arbitration panel to resolve the remaining claims for relief. Id. In December of 1978, the State again requested dismissal of Nash's complaint. In April 1979, the Secretary denied the State's request.

Finally, in October and December of 1979, the arbitration panel held hearings on Nash's complaint. On June 24, 1980, the panel's chairperson issued her decision, with a concurrence and a dissent. On August 14, 1980, plaintiffs filed this action, pursuant to 28 U.S.C. § 1331 (federal question), 20 U.S.C. § 107d-2(a) (Randolph-Sheppard Act) and 5 U.S.C. § 704 (Administrative Procedure Act), seeking, inter alia, reversal of the panel's decision. On September 1, 1981, the Court granted the National Federation of the Blind's motion to intervene.

III. Discussion

Defendant Nash contends, as a preliminary matter, that plaintiffs' action was untimely filed; therefore, this Court lacks subject matter jurisdiction. The Court finds the complaint to have been timely filed. Accordingly, the Court has jurisdiction over this action.

The arbitration award is "subject to appeal and review in this...