wisconsin department of workforce development against i guess nominally the secretary of education and  it please the court i represent theresa taylor who was a blind vendor operating bending facilities in wisconsin under the federal randolph sheppard act i would like to reserve five minutes of my time to address mature kilpatrick's arguments on behalf of the state of wisconsin with respect to the errors of the district court they are numerous the st most glaring error is its decision that and the more lucrative vending facilities you could have as many as five or even ten applicants what i thought was maybe recast what i understood the district judge to be saying i thought he wasn't so much saying that everyone than two interested applicants and so it was a way of saying the arbitrators went too far with the wart had they for example remanded this matter back to the department of workforce development and said or wor and i do believe that they arbitration panel did not do that for the simple reason that the state of wisconsin had already on to two different occasions conducted interviews and fashioned interviews in a if the if the if the case with remand and all of the other applicants could read interview we would have had the same result because the department  state of wisconsin had already decided else who was going to be awarded that facility that was evident from the testimony given by the state's representative at the full evidentiary hearing which we don't have  audio video or a video or even an audio recording no because the state didn't bother to get equipment that worked and that's in the record because cashel on this point perhaps you're right is a predictive matter but i thought that are a practical matter but i thought that your adversary was arguing that the arbitration panel has authority that's cabined or that's limited and that is that it extends to resolving the dispute that's put before it in a finding in binal binding decision but that the wisconsin administrative code leaves decision making authorities with respect to the selection of vendors to whatever that division is called the rehabilitation division or whatever it is that that is correct in the ordinary course but arbitration is a is a remedy that is designed to provide a great deal of latitude to its participants in this case if we would have remanded the case back we would be you know here maybe two years ago down the road since to this this case has been pending since two thousand and eleven and we would we could definitely be caught in an endless loop of arbitrations the panel could see that  division of vocational rehabilitation was determined to install misspell shock it was obvious from the record and the only remedy that it could see which which it's as under it's a broader remedial powers as an arbitration panel would be to rig install miss miss taylor so the one question that i have that i want to make sure that you get to is your client seems to have dealt you a tough hand in this regard she just chose not to participate in the two thousand and thirteen reinterview process or largely not to participate isn't that a difficult fact for you i don't i don't think so given the facts of this case she contacted the department of vision of vocational rehabilitation and she said are you going to consider my profitability margins from two thousand and eleven when i operated the lucrative facility are you going to consider my property ability margin which her income had gone down by about almost fifty percent from now and they said we're going to consider your profitability margins from now which means because mr belcher had been installed in october th two thousand and eleven she had been installed and operating the more lucrative facility since then her profitability figures were going to be way higher than like clients and because only a few points ever separated the two of them there was no possible way she could prevail she was she decided not to perform and a fu to know they they only considered scoring they did not consider letters of recommendation or you know participation in other aspects of their all all the only thing they considered in that was the scoring they made it based solely on scoring and the director of the program the only witness that the department of rehabilitation brought forth at the arbitration hearing said they now accept letters of recommendation and she had no idea why the policy at that time was not to accept what letters very well i mean i think you know that this is not my experience but i thought for the new ones the ones that is judge scudder finds out she chose to stand away from had sections with different points so a testing component fifteen questions two points each in interview time finished twenty five point performance review forty five points so there were a number of factors in twenty or team right yes and she would have done well on all of them and set for the proper ability for added we know that since she didn't participate why she had done well on all her other  on all her other interviews and with respect to the st interview there were evident cross out made in the interview tally sheets and the blind and the interview was constituted with two blind individuals members of the of the of the state committee a blind vendors and and and one staff person well the blind people couldn't have crossed out and changed the discourse because they couldn't see the documents to do so so it had to be the staff that changed scores so at that point once she knew that they were going to consider the profitability factors from two thousand and thirteen and not two thousand and eleven which were relevant the only probability factors that were relevant she knew that it was futile for her to participate in the interview and that was that was explained well in the to the arbitration panel and the arbitration panel agreed that there was no point in her going forward with the interview and there was no no testimony to the contrary or no evidence put on to the contrary her view these are my words obviously not yours and not hers but it is her view of basically that when what's this fellow's name greco michael greco when this greco fella decided that we're going to go forward with new interviews in a new decision making process in two thousand and thirteen and that we would ask for current freshened up profitability and cost of sales data that the deck was stacked yes that is for that's her view so that's her view ok and and so she she's basically saying the decision to reopen revisit reinterview whatever you want to call that that's where the legal error occurred because at that point everything was stacked against her yes the way this wisconsin department operates these contracts is is not a one hundred percent merit based system it seems to me they face also have a criterion where they're trying to equalize the the positions of various vendors and trying to give everybody an opportunity to have some work and i wonder whether it's your position that federal law is somehow violated by that goal on the state's part with whether nothing but a pure meritocracy and that that it that is not my seven but i'm not positive about this provides for a vendor who's been displaced through no fault of their own to be given preference but they didn't follow the provisions on that one of the provisions is they're put on six months probation and and that and the committee is more involved in the process they didn't follow that they followed the merit based procedure in this case so that is something  that was not even addressed by the arbitration panel was not argued by the state in the arbitration but was merely discovered by the district court judge and going through apparently of the state agency followed was a flawed process because she was she had proven her qualifications by taking over on very short notice some time back she had successfully been operating these places better person for this contract but if the state wants to have a policy of spreading employment out and says actually ultimate merit isn't our only goal we're trying to get employment for a number of people i don't know why a state can't have that policy i don't know why that's invidious discrimination against anybody so i'm just trying to get to the fundamental question are we dealing with a federal law problem here is that violent for but it but in this case they did not follow their merit based or their your nonuse non married patients see their yeah their need they didn't follow the needs based criteria in this case are it's better you fund because if you're saying the state agency didn't adequately follow state law we may have a problem well they did not select the best suited operator for that facility and that is what is required under have these different policies to go through to do that but they have the one carved out for if a vendor has lost a significant amount of income but they didn't use that policy letter fact at the very top of the criteria for this nd interview it says according to the marriage based policy it doesn't say those words but it it it cites the division of their regulation that is merit based ok prevents countervailing evidence to the evidence presented by by ms taylor the state brought forth only one witness and very few documents and that were that were at all relevant and its witness had no knowledge of the staff didn't even tell her that this case was up for arbitration and she had learned about it and she testified to this when she got a letter from the united states department of education saying why aren't you guys moving forward with this arbitration so they did not present any other any witnesses that had any knowledge whatsoever about this america and as you and you may be aware the arbitration panel so as when a blind vendor goes into arbitration the blind vendor has to rely on the truth to make its case on whatever witnesses the statements available ok well if you'd like to save that bit of time for rebuttal this went through the proper process does it matter i mean there is an overtone here maybe i'm reading something into this maybe not of i want to say almost favoritism or just you know we're going to put you in this facility we're going to put you in this other less lucrative facility you know now we need to balance it out it seems very ad hoc and and really rife's with possibilities for arbitrary decision making and that seems to be what has frustrated ms taylor because she had been doing the work and earning the money and all of a sudden for reasons that looked quite arbitrary to her state pulled takes issue with the state using two thousand and thirteen data instead of two thousand and it's our position that the that the state wanted to use the most up to date data that was available at the time of the new selection process that was in two thousand and thirteen and at that point because the misspelt had been selected after the two thousand and eleven so lection process particular point i know i know that there's only nine points that are allocated to cost of sales and profitability in the aggregate but is it missed taylor's point that hey look this is happening in two thousand and thirteen at a time when i don't i don't know what these things are called prison prison facilities or junior correct whatever that whatever the term is ok and she said that that's what dooms this for me because the prison facilities are more profitable than the non prison facilities whatever the right lingo is right and she said so that's what the deck is stacked i mean yeah that's what he decided but that's that's completely arbitrary and that's going to lead to an outcome that is surely not in my favor so i'm questions miss taylor didn't provide other than her own testimony at least the prison facilities prison sites were more lucrative and the evidence going from what she's provided in two thousand and eleven when she applied showed that you're not in prison say the southern wisconsin center had twenty three percent net profit percentage that was asked to question six and then during the was prison then in two hundred and one thousand three hundred and twenty three percent not present so there was not a significant distinction between twenty three and twenty four percent and i believe was judge would point out question six has these ranges so you get four points between twenty percent and twenty four ninety nine percent so it's the state's position that she would receive four points either way with regard to if she has participated  provided evidence regarding those two different years two thousand other words two thousand and thirteen is neither here nor there because the data is the data at the end of the day they both fall below twenty five percent correct kilpatrick going to the two thousand and thirteen reinterviews was mr fay paul i think he's been cast as one of the darker characters in the drama is mr faithful involved in those two thousand and thirteen your views and afterwards capricious aspect of the panel's decision so what the panel did was you search the states role in the states a statutory regulatory authority to select the operator of the sites and that's exactly what he was trying to do and what it did in two thousand and thirteen after the redo and selected misspelt miss taylor chose for whatever reason not to participate in that selection process so there was no way that she should she could have been awarded the contract after that two thousand and thirteen process so going where she tries to do is go to an arbitration hearing and get about it on this what strikes me is extremely bizarre position that the department was taking on letters of recommendation i gather this was not part of the two thousand and thirteen process but it still seems as peculiar as anything i've ever heard you know that and i'm sorry for not standing on a mat in the briefs i don't have references in the record right now but if you read the arbitration panel this young man but it makes reference to a d v r the mission of vocational rehabilitation policy that would say when appropriate each candidate will be asked to bring a resume to reference the interview and that when miss taylor decided to bring hers that it made the decision well we haven't asked any of the other applicants to do so so what would be unfair to us to allow hers to come in and interviews but it was any explanation for the parents well for the changes the handwritten modifications to the forms that sounds a little your regular as well krishna's expanding a little bit as to the distinction here between what happened and the decision from the circuit in tyler mr taylor says that tyler a lot of those exactly what happened here that it was correct on the sovereign immunity aspect i'm a sailor's argument seems to be that so participation in the results were not program is enough to waive the state of wisconsin some unity from again no express language with regard to the attorneys fees and even in the statute and the tyler decision from the time circuit when it if i had no other questions that i just said i would like to say that is called for arbitration has always had a well established meaning and the sassaman case simply does not apply because the agreement to participate as the state licensing agency the voluntary agreement is just the unequivocal will consent to the waiver of our sovereign immunity and i understand that the states are concerned about the the high costs but what has happened in the state of wisconsin is ever since two thousand and nine when the previous district court case came down to the states you don't granting the states jump from jump ahead she was appointed as permanent operator misspell she was october th my client provided over one hundred pages of of financial information to the so they had the information to see the difference in the earnings in addition she testified that she had all occasions for storage facilities he had ongoing leases that she had to continue to pay and also obligation for equipment that she ha paid pay the fact that mr fay pope was not involved is completely relevant because that it's it it's it's davy our itself that was biased and we don't know what mr faithful was told to do or what not to do and it's in terms of why was it necessary to change the interview criteria it was not if they had conducted the interview as required by the two thousand and ten criteria then we wouldn't be here today but they went through a long lengthy process and and to change the interview criteria so it would be skewed in favor and the fact that that they didn't ask for references does not mean that those people who did not bring references should me should have their very good recommendations and their hard work ignored by the arbitration panel especially panel in the st interview was not constituted as is required by the policy so again i think your honour's for their opportunity to  well thank you miss the national thank you mr kilpatrick the court will take the case