Braille Monitor                                                                           December 1986

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ACB'S Fast-Food Fiasco: Here's the Latest Chapter

by James Gashel

Early in 1984 the National Federation of the Blind led a very successful campaign to prevent the General Services Administration from violating the Randolph-Sheppard Act. The issue involved the installation of fast-food restaurants in federal buildings in violation of the priority accorded to blind vendors by the Randolph-Sheppard Act to operate such facilities. Among other things our protest took the form of petitioning and picketing at the headquarters building of the U. S. Department of Education since that agency is responsible for keeping the other federal agencies in line concerning the blind priority requirements of the law. The American Council of the Blind (ACB) did not join out protest. In fact, they complained because we were trying to get the rules changed.

In November of 1984 the ACB and others (including the National Council of State Agencies for the Blind, representing agency directors) filed two suits in the federal district court for the District of Columbia. Casper W. Weinberger, the Secretary of Defense, was the principal defendant named in both suits. The contention of the ACB and the agencies was that the Department of Defense (DOD) had violated the Randolph-Sheppard Act by signing contracts with McDonald's and Burger King to open and operate fast food restaurants at Army and Navy bases worldwide. Of course, some of the locations would be in the United States. Therefore, the states where these fast food restaurants were located, priority should have been given to the blind over the fast-food giants.

The Council and its cohorts asked the court to grant a permanent injunction voiding the Department of Defense contracts with McDonald's and Burger King. As we said at the time, that was a mistake. Given the complexity of the issues presented to the court, it was about the shortest lawsuit on record.

In January of 1985 summary judgment was given in favor of the Defense Department and the fast-food chains. Moreover, the court went beyond the question at issue and made pronouncements jeopardizing the entire RandolphSheppard program. An appeal from the lower court decision was made by ACB and the others who brought the ill-fated case, and we were faced with a dilemma. If we entered the case, we risked losing credibility by keeping such company, and if we did not enter, the appeal might be handled so badly that every blind vendor in the country would suffer the consequences. Under the circumstances we had no choice. We filed a motion to enter the case as an amicus. The American Council of the Blind and the fast-food chains stood together in opposing our entrance into the case, but the court decided against them.

We filed our brief. The position we took in the court of appeals was clear. The dispute over the Department of Defense contracts should never have been heard in the federal district court (or in any court) in the first place. It was brought to the court by the wrong parties, for the wrong reasons, resulting in the wrong decision. Everything about it was wrong.

Under the Randolph-Sheppard Act a state agency for the blind may file a complaint with the Secretary of Education whenever the agency finds that a federal agency (such as the Department of Defense) is violating the RandolphSheppard Act. Having received such a complaint, the Secretary of Education is then required to convene an arbitration panel. It is the arbitration panel in the first instance (not the court) that must hear complaints of federal agency violations of the Randolph-Sheppard Act.

But the ACB and its co-plaintiffs went straight to the federal court, bypassing the arbitration procedure available to aggrieved state agencies--the very arbitration procedure which we have repeatedly used with success to win victories for blind vendors. The district court should have dismissed the case in the first place. Better yet, the court should have granted a preliminary injunction to allow time for arbitration of any state agency complaints resulting from the Department of Defense contracts. But ths is not what the American Council of the Blind and the agencies were asking the court to do. They wanted a permanent injunction against the Department of Defense, totally bypassing the arbitration. We pointed this out to the court of appeals and explained that the court should not actually consider the merits of any dispute arising under the RandolphSheppard Act until the arbitration mechanism has been used. The law gives any party to the arbitration the right to appeal the decision to the courts for judicial review, following the arbitration. That, we told the court, is the way the law is intended to work--and the appeals court agreed.

On June 13, 1986, the decision was issued in our favor. In contrast to ACB's loss in the district court, the appeals court did not uphold the McDonald's and Burger King contracts. In fact, the appeals court reopened the question as to whether the contracts are valid and reserved the judgment on that point. The lower court's decision is now nullified. The court of appeals properly found that the district court never should have accepted jurisdiction over this matter in the beginning. Any state agency aggrieved by the Department of Defense contracts could have requested arbitration. Meanwhile, the court could consider halting the contracts with a preliminary injunction. That would be the proper course of action under the Randolph-Sheppard Act, the appeals court ruling said.

Perhaps one should never be shocked by the behavior of the American Council of the Blind. Nevertheless, their behavior with respect to the decision of the appeals court is just that, shocking. They consider the appeals court decision to be another smashing defeat for blind vendors, branding it as a "poorly reasoned decision." (See the following article entitled "Fast-Food War Continues Between Vendors and Defense Department" by Lynn Abbott, reprinted from the Braille Forum, July-August, 1986.) How can a decision which nullifies a devastating defeat and reestablishes the legal status of the blind vendor priority be labeled "poorly reasoned?" It is true that the appeals court did not grant ACB's request for a reversal of the lower court decision, ruling instead that the position we took was correct--but surely the objective should have been to improve the lot of blind vendors, not to make points or gain prestige.

In the article that follows, the ACB can speak for itself. However, readers should realize that the court of appeals decision (which the ACB now complains of) has absolutely erased the damaging precedent earlier established by ACB 's unnecessary and disastrous loss in the district court. Rather than complaining about the court's reasoning, the American Council of the Blind should be sending thank-you notes to the judges for bailing out the blind vendors. Of course, they should probably also be sending a few thank-you notes to the Federation, but that is obviously a bit much to expect.

Any state that wants to do so can now use arbitration to contest the Department of Defense contracts. That right would have been precluded and lost altogether under the district court's ruling. Moreover, states may be able to block the Defense Department's fast-food installations with injunctions during the arbitrations. This is what ACB now calls a further loss and vows to fight with further appeals to the courts. One can only hope to be preserved from the blessings of such further appeals. Here in its entirety is the article which appeared in the July-August, 1986, Braille Forum:

FAST-FOOD WAR CONTINUES BETWEEN VENDORS AND DEFENSE DEPARTMENT

by Lynn Abbott
Legal Assistant

The United States Court of Appeals for the District of Columbia Circuit on June 13, 1986, issued a decision in the controversial (controversial is an understatement) Randolph-Sheppard Vendors of America, et al, v. Casper W. Weinberger, et al, case. The vendors, joined by the American Council of the Blind, the National Council of State Agencies for the Blind, Blinded Veterans Association, Inc., and two individual plaintiffs sought to reverse a lower court determination which found the awarding of fast-food contracts to McDonald's and Burger King by the Departments of the Army and Navy to be legal, in spite of certain provisions of the RandolphSheppard Act.

The Court of Appeals opinion, authored by District Judge Louis F. Oberdorfer (sitting on the Court of Appeals panel along with Circuit Judges Abner J. Mikva and Robert H. Bork), stated that no decision had been made on the merits of the case because the plaintiffs did not pursue administrative relief prior to seeking a judicial determination. In other words, the court declared that the plaintiffs did not "exhaust administrative remedies." Accordingly, the Court of Appeals vacated the lower Court's judgment and ordered the District Court to dismiss the case.

As stated above, the dispute began in 1984 when the Army and Air Force Exchange Service awarded a fast-food contract to Burger King and the Navy signed a similar contract with McDonald's. Because Randolph-Sheppard vendors were excluded from the bidding process, the above-named plaintiffs expressed their concern that such actions by the Department of Defense were in violation of the RandolphSheppard Act. [Note how the filing of lawsuits is now described as "the plaintiffs expressed their concern...." No doubt another understatement. Now back to the article.] Under the RandolphSheppard Act, it is mandated that state licensing agencies be notified of, and that blind persons receive priority in, competitive solicitations for cafeteria contracts on Federal property. [ Another note, and this is typical of the problems with ACB's lawsuits: It is not "mandated" in the Randolph-Sheppard Act that there be any form of "competitive solicitations" for cafeteria contracts on federal property. The Act requires a priority without competition. Competitive bidding is only something that administrative regulations have permitted, not required. Here again, though, the Council is misstating the law in a manner which hurts blind vendors. No wonder we have problems. Now back to the article.] In this instance, not only did the Defense Department neglect to notify the state licensing agency of its action, but the Department also decided not to consult with the Secretary of Education regarding a determination of whether any state licensing agency would be able to provide the desired food service. Even the District Court recognized that the Defense Department's "insensitivity to the plight of the blind vendors is deplored...." Both actions resulted in the denial of opportunities for blind vendors to apply for either of the two contracts in question.

Because the Randolph-Sheppard Act contains provisions which establish a grievance and arbitration process to resolve disputes, it is generally necessary to initiate proceedings at the administrative level. However, courts nationwide have determined that if "any resort to arbitration would have been futile," it would be permissible to bypass the usual administrative procedures by filing for judicial relief directly. In fact, when presented with this issue in District Court, the lower court determined that the arbitration indeed would have been futile. Unfortunately, the Court of Appeals disagreed with the lower court and stated that it would not be proper for the courts to determine the complex issues of the case before the matter went to arbitration. [Note: Ah! Is the ACB now saying that they would rather have the district court's decision? At least that decision upheld their theory of bypassing the arbitration. But the balance of the decision was an unmitigated disaster. Would the ACB like to have it back in effect just for the sake of saying that we can bypass arbitration? How can you tell?]

The American Council of the Blind and the other plaintiffs intend to pursue this matter further [Note: Oh my!] both legally and administratively. [Note: Is this blustering a warning to the court or to the blind? Probably to both, but it certainly is blustering.] The Court of Appeals' poorly reasoned decision cannot remain unchallenged, and the Defense Department's blatant disregard of the Randolph-Sheppard Act will not be tolerated. [So says the Council.]