Braille Monitor                                                                  June 1985


Robert Albanese Vs. Delaware:
More Troubles in the Offing for Blind Vendors, the Federation Responds

Can blind vendors recover financial losses they may suffer if the state licensing agency violates the law and causes the loss? Believe it or not, that is a much debated question. It seems natural in the real world outside the courtroom that anyone who is harmed by someone else's wrongdoing should be entitled to compensation. Punitive damages may be another matter. But compensation at least to make up the loss seems only right. That's what most of us would think.

Blind vendors have a unique relationship to state agencies in that the agencies control many factors having to do with actual or potential income. The vendors are not really employees of the state, but they are often supervised and governed almost as if they were. Handing out promotions is a principal way that state agencies have to determine each vendor's income. No wonder promotions and the procedures surrounding them are often controversial. States like to have as much discretion as possible in deciding on promotions.

Vendors on the other hand prefer iron clad rights to advancement. This way state agency officials cannot manipulate and play favorites. But sometimes they do anyway, no matter what the rules say.

In 1974 Congress amended the Randolph-Sheppard Act, giving greater protection to vendors when disputes arise against the state. The procedure now in the law is unique among public programs. The law allows any blind vendor to bring a grievance with the state licensing agency before a federal arbitration panel. The panel is composed of three members--one appointed by the blind vendor filing the complaint, one appointed by the state licensing agency whose actions are the subject of the complaint, and the third member (who serves as chairman) appointed by agreement of the other two members. If they cannot agree, the third member appointed by the United States Secretary of Education. Expenses of the arbitration proceeding are paid by the federal government. This includes pay and per diem for the panel members, costs of making a transcript of the proceedings, travel expenses for the vendor and witnesses, and so forth.

In theory, if not in fact, the arbitration mechanism in the Randolph-Sheppard Act was designed to protect vendors against violations of the law or regulations by state agency officials. When President Jernigan was director of the Iowa Commission for the Blind, that agency was the first to install the arbitration procedure as a forerunner to the federal law. With the arbitration mechanism in place, agency officials should be more cautious for fear they may be caught violating the rules. Misdeeds might mean financial liability for the state or the personnel involved.

The number of arbitrations in the Randolph-Sheppard Program is relatively small, the first such case and most subsequent cases having been brought by the Federation. Even though the number is slow, there is a steady flow of cases. After the arbitration is over and a written decision is issued, either party (the blind vendor or the state licensing agency) may appeal to the federal district court for a review of the decision. Then the district court ruling may in turn be appealed to the United States Court of Appeals. After that the United States Supreme Court has discretion as to whether to hear a further appeal. It is a long process, and the stakes get higher at every stage.

In 1981, a grievance of Robert Albanese (a blind vendor in Delaware) reached the federal arbitration level. In his request for an arbitration panel, Mr. Albanese complained that Delaware refused to compensate him for financial losses he sustained when the state agency illegally withheld a promotion. At a hearing in the state, prior to the appeal to federal arbitration, Mr. Albanese was found to be entitled to the promotion and was in fact promoted. Compensation for his financial loss and the payment of some attorney's fees was, however, denied.

The federal arbitration was held on September 22, 1982. The only issue for the panel to decide was whether Delaware was liable to Mr. Albanese for retroactive damages. The damages included Mr. Albanese's attorney 's fees and the compensation due him for the eighteen month period during which he was illegally denied the promotion. The arbitration panel ruled in favor of Mr. Albanese and ordered the state to pay him the damages he alleged. In so doing, this arbitration panel followed earlier decisions reached by arbitration panels in the Jessie Nash and Betty Moffitt cases. With respect to Mrs. Nash, the arbitration panel's order for compensation was upheld by the federal district court for the Northern District of Georgia. This has been a subject of subsequent appeals by the State of Georgia, and the issue of retroactive monetary damages is not yet settled in that case.

But back to Mr. Albanese. The State of Delaware was not about to pay him attorney's fees and eighteen months back compensation into the bargain. So the state sued the United States Secretary of Education in the Federal Court for the District of Delaware. The suit was brought against the Secretary of Education because a ruling by an arbitration panel under the Randolph-Sheppard Act is a final action of the Department of Education.

Normally, defendants named in a lawsuit feel called upon to defend. But in this case, not so. The defendant, Secretary of Education, actually agreed with the plaintiff, State of Delaware, and both lined up against the blind vendor (now a defendant intervenor) Robert Albanese. All he wanted was back compensation and to have his attorney's fees paid, nothing more. But the United States government and the state of Delaware said no.

On August 14, 1984, the federal district court in Delaware gave its ruling. Albanese was not entitled to recover any retroactive damages or attorneys fees. The court noted that the Randolph-Sheppard Act is silent on the power of an arbitration panel to award damages or fees. But beyond that, the court observed that the state's "sovereign immunity" would bar any suit by a blind vendor for retroactive damages.

The legal doctrine of sovereign immunity holds that a state may not be sued unless a specific law has been passed which waives the state's immunity from suit under certain specified conditions. This is an anciently honorable principle based on the theory that the state makes, interprets, and enforces the laws and cannot, therefore, break the laws. So the state as the law giver and authority also has immunity for its actions, unless, by passing another law, the immunity is cast aside.

Applying this to the Randolph-Sheppard Program, it is arguable that Delaware and all other states have actually waived their immunity in choosing to participate in the federal blind vendor program. In most instances, there is a specific state law which authorizes participation by the state in various federal programs (including Randolph-Sheppard) in order to obtain the benefits of these programs for the citizens of the state. But opponents of this viewpoint say that such general state laws are not enough to waive the state's immunity, and there is no implied waiver granted merely by participation in a federal program.

The Delaware decision by the federal district court was disturbing enough standing alone. But even worse, it ran counter to the earlier decision we obtained from the district court in Georgia saying Jessie Nash was entitled to compensation "as the reasonable exercise" of an arbitration panel's power to decide the dispute. Then there are other cases such as George McNabb in Arkansas which have yet to be ruled on regarding retroactive money damages. If the courts ever close the door on recovering compensation through arbitration, then the best that procedure can deliver may be a minor slap on the wrist for state officials.

In one blow, with an unfavorable ruling by the United States Court of Appeals relating to Mr. Albanese, we could easily find ourselves in a situation where future blind vendor arbitrations under the Randolph-Sheppard Act would be virtually useless. This is especially so where (as in most cases which arise) payments of money are at issue. In September, 1984, Mr. Albanese made his appeal to the Third Circuit. This is the last stop before the United States Supreme Court. Of course, both the United States Secretary of Education and the State of Delaware would vigorously defend the District Court's decision against Mr. Albanese. But that decision was against all blind vendors in Delaware and everywhere else in this country.

Under the circumstances (and especially considering vendor appeals now pending and those which will certainly come in the future) the National Federation of the Blind could not stand by while the agencies (state and federal) used the courts as a weapon against all blind vendors. In January, 1985, the United States Court of Appeals for the Third Circuit granted our motion to intervene as a friend of the court and to file an amicus curiae brief. The brief (50 pages in all) was filed in March. Oral arguments should occur in May, and a decision is expected shortly thereafter. Whichever way the court rules, the decision will be significant since appeals court opinions carry the weight of legal precedent. By its very nature this is one of the most significant cases to date affecting the rights of blind vendors in this country.

And now we ask the perennial question: Where is the American Council of the Blind and its front group, the Randolph-Sheppard Vendors of America? Why are they not on the front lines fighting for blind vendors? If one thinks of all of the important cases that are for vendors, as opposed to agencies, the American Council of the Blind and the Randolph-Sheppard Vendors of America are notably absent. We know in this case, for example, that ACB staff members in Washington repeatedly promised to intervene in the court on behalf of Mr. Albanese. Perhaps the prospect of actually suing the Department of Education and a state agency was just too much for them to stomach. Who knows? At least the intervention never came.

So once again we in the NFB are called upon to carry the burden of the fight. It would be interesting to know how many blind vendors even know of Robert Albanese or the potential impact his case in the U.S. Court of Appeals may have on their lives. But we in the NFB know of Robert Albanese. We make it our business to know of such matters. Otherwise, the day may come when we will have no rights to defend. The agencies and the courts will have taken them all away. That could happen if we lack the initiative and the will to recognize and meet such challenges when they come. No one else will fight our battles for us, nor should they. We, the blind, must fight for ourselves and we will. Moreover, when we do fight, we should fight to win.