21872 Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Notices 

February 13, 2008, the SLA suspended 

Complainant from the facility. 

Complainant then requested a full 

evidentiary hearing from the SLA on 

this matter. On August 4, 2008, the 

Administrative Law Judge (ALJ) issued 

a recommended decision. 

On November 14, 2008, the SLA 

adopted the ALJ’s recommendation as 

final agency action. Specifically, the 

SLA reimbursed Complainant for lost 

wages for the five-week period from the 

time that complainant was removed 

from his facility in February 2008 until 

his eligibility was restored in March 

2008 and for the two additional weeks 

for a transition period to allow 

Complainant after his eligibility 

restoration to bid on other locations. In 

addition, the SLA reimbursed 

Complainant for attorney’s fees and 

service time credit for time lost during 

his license suspension. Also, the SLA 

agreed to provide complainant 

assistance with bidding on new vending 

locations. However, the SLA denied the 

complainant’s request for punitive 

damages. 

Subsequently, Complainant filed with 

the Department a request for federal 

arbitration seeking an appeal of the state 

fair hearing decision based upon the 

following reasons: (1) Complainant 

alleged that the attorney fees of $3,550 

awarded to him by the SLA were 

inadequate; (2) Complainant requested 

service time for retirement alleging he 

would have been working if he had not 

been improperly removed from his 

facility; (3) Complainant requested that 

he receive a priority bid for another 

vending facility; (4) Complainant 

requested loss wages from the time he 

was removed from his facility to the 

time of his retirement several years in 

the future; (5) Complainant requested 

punitive damages because he asserts 

that the SLA summarily removed him 

from the facility and awarded it to 

another vendor before the SLA 

determined the validity of the complaint 

against him by DCH; and (6) 

Complainant alleged that he did not 

receive due process from the SLA. 

Arbitration Panel Decision 

After reviewing all of the evidence 

and testimony, the panel unanimously 

ruled: 

(1) Complainant was entitled to be 

reimbursed for one Additional hour of 

attorney’s fees in the amount of $200.00. 

(2) Complainant’s request for service 

time for Retirement was under the 

authority of the Office of Retirement 

Services (ORS) and not under the 

authority ofthe Federal arbitration 

panel. However, the SLA agreed to 

recommend service credit to ORS for the 

time Complainant’s license was 

suspended. 

(3) Complainant was not entitled to 

receive a a priority bid for another 

vending facility based upon the findings 

that a priority bid would harm other 

vendors and there was no basis to 

determine that Complainant needed a 

priority bid in order to be successful. 

(4) Complainant’s request to be 

awarded lost wages from the time he 

was removed from his facility to the 

time of his later retirement was denied. 

However, the panel also ruled that the 

SLA’s calculation of lost wages was 

unreasonable. The SLA had granted 

Complainant seven weeks of lost wage. 

This was based on the five-week period 

from the time the Complainant was 

removed from his facility in February 

2008, until his eligibility was restored in 

March 2008, plus two additional weeks 

for a transition period to allow 

Complainant to bid on other locations 

once the SLA restored his eligibility. 

The panel ruled that the transition 

period approved by the SLA was 

unreasonable in that it only allowed 

Complainant two weeks to bid on 

another location. Thus, the panel 

awarded the Complainant an additional 

ten weeks of lost wages at $192.32 per 

week or a total amount of $1,923.20. 

(5) Complainant’s request for punitive 

damages was denied based upon the 

finding that the SLA did not engage in 

extreme or outrageous behavior. 

(6) Complainant had not been denied 

due process concerning his complaint 

given that any procedural errors were 

rectified based upon the timely 

restoration of his eligibility and 

compensatory damages. 

The views and opinions expressed by 

the panel do not necessarily represent 

the views and opinions of the 

Department. 

Electronic Access to This Document: 

The Official version of this document is 

the document published in the Federal 

Register. Free Internet access to the 

official edition of the Federal Register 

and the Code of Federal Regulations is 

available via the Federal Digital System 

at: http://www.gpo.gov/fdsys. At this 

site you can view this document, as well 

as all other documents of this 

Department published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF). To use PDF 

you must have Adobe Acrobat Reader, 

which is available free at this site. 

Dated: April 14, 2011. 

Alexa Posny, 

Assistant Secretary for Special Education and 

Rehabilitative Services. 

[FR Doc. 2011–9476 Filed 4–18–11; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF EDUCATION 

Arbitration Panel Decision Under the 

Randolph-Sheppard Act 

AGENCY: Department of Education. 

ACTION: Notice of arbitration panel 

decision under the Randolph-Sheppard 

Act. 

SUMMARY: The Department of Education 

(Department) gives notice that on 

October 1, 2010, an arbitration panel 

rendered a decision in the matter of 

James Swartz v. Alaska Department of 

Labor and Workforce Development, 

Division of Vocational Rehabilitation, 

Case no. R–S/08–11. This panel was 

convened by the Department under 20 

U.S.C. 107d–1(a), after the Department 

received a complaint filed by the 

petitioner, James Swartz. 

FOR FURTHER INFORMATION CONTACT: You 

may obtain a copy of the full text of the 

arbitration panel decision from Suzette 

E. Haynes, U.S. Department of 

Education, 400 Maryland Avenue, SW., 

Room 5022, Potomac Center Plaza, 

Washington, DC 20202–2800. 

Telephone: (202) 245–7374. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Relay Service 

(FRS), toll-free, at 1–800–877–8339. 

Individuals with disabilities can 

obtain this document in an accessible 

format (e.g., braille, large print, 

audiotape, or computer diskette) on 

request to the contact person listed 

under FOR FURTHER INFORMATION

CONTACT. 

SUPPLEMENTARY INFORMATION: Under 

section 6(c) of the Randolph-Sheppard 

Act (Act), 20 U.S.C. 107d–2(c), the 

Secretary publishes in the Federal 

Register a synopsis of each arbitration 

panel decision affecting the 

administration of vending facilities on 

Federal and other property. 

Background 

James Swartz (Complainant) alleged 

that the Alaska Department of Labor and 

Workforce Development, Division of 

Vocational Rehabilitation, the State 

licensing agency (SLA), violated the Act 

and its implementing regulations in 34 

CFR part 395. The Complainant alleged 

that the SLA improperly administered 

the transfer and promotion policies and 

procedures of the Alaska RandolphSheppard Vending Facility Program in 

violation of the Act, the implementing 

regulations under the Act, and State 

rules and regulations in considering 

Complainant’s bid to manage a snack 

bar vending facility at the Nesbett 

Courthouse (Nesbett), a State court 

building, located in Anchorage, Alaska. 

mstockstill on DSKH9S0YB1PROD with NOTICES

Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Notices 21873 

Specifically, the Complainant, a blind 

vendor, challenged the SLA’s selection 

of a nonblind severely disabled vendor 

to operate the snack bar vending facility 

at Nesbett. In March 2006, the SLA 

issued a vacancy announcement for 

Nesbett. Both vendors applied for the 

Nesbett snack bar vending facility. At 

that time, the nonblind vendor had been 

operating the snack bar vending facility 

at Nesbett as a secondary vending site 

on a temporary basis, in addition to his 

primary vending site. Meanwhile, 

Complainant was operating a vending 

facility on Federal property as his 

primary location. 

During the selection interview 

process, the nonblind vendor indicated 

that he was willing to give up his 

current primary location and he 

intended, if selected, to operate the 

Nesbett snack bar vending facility as his 

primary site. At the same time, the 

Complainant indicated that he did not 

intend to relinquish his primary site, 

but would manage the Nesbett snack bar 

vending facility as a secondary vending 

facility site. After the interview and 

evaluation of the two vendors according 

to the SLA’s transfer and promotion 

policies and procedure, the selection 

committee chose the nonblind vendor 

for the Nesbett snack bar vending 

facility. 

Complainant then requested a full 

evidentiary hearing from the SLA on 

this matter, which was held. On May 29, 

2008, the Administrative Law Judge 

(ALJ) issued a decision ruling that (1) 

The Nesbett snack bar vending facility 

is not ‘‘other’’ property as defined by the 

Federal Randolph-Sheppard Act; (2) 

The Alaska Chance Act granted blind 

persons and persons with severe 

disabilities a priority when seeking a 

license to operate vending facilities on 

certain properties, but the Chance Act 

gave blind persons a first priority or 

prior right over a nonblind disabled 

person to operate a vending facility on 

public property; (3) The SLA’s 

interpretation of its regulations that a 

vending license is site specific and a 

qualified vendor may only have one 

license to operate a facility is 

reasonable; and (4) The SLA was correct 

when it granted the nonblind vendor a 

license to operate the Nesbett snack bar 

vending facility as his primary site, 

when there was no blind vendor seeking 

to operate the Nesbett snack bar vending 

facility as a primary site. 

On July 7, 2008, the SLA issued a 

decision as final agency action adopting 

the ALJ’s decision. Subsequently, 

Complainant filed with the Department 

a request for Federal arbitration seeking 

an appeal of the State fair hearing 

decision. On July 31, 2009, the SLA sent 

a letter to the Department stating that 

Complainant’s request was a ‘‘State-only 

matter’’ and it did not involve the 

Federal Randolph-Sheppard Program as 

the ALJ had ruled that the Nesbett snack 

bar vending facility was not ‘‘other 

property,’’ as defined under the Act and 

its implementing regulations. 

On August 24, 2009, the Department 

responded to the SLA’s letter stating 

that this is a Randolph-Sheppard matter 

under the Act and its implementing 

regulations and it is up to a Federal 

arbitration panel to decide on the issue 

of whether the Nesbett snack bar 

vending facility is or is not ‘‘other 

property.’’ 

A Federal arbitration panel was 

convened. Prior to the arbitration 

hearing, the SLA filed with the 

arbitration panel a Motion for Summary 

Disposition, arguing that the Nesbett 

snack bar vending facility was State 

property not subject to the Act and its 

implementing regulation. Therefore, the 

arbitration panel lacked jurisdiction to 

hear the complaint. 

By order dated April 9, 2010, the 

arbitration panel concluded that there 

was insufficient evidence before the 

panel to determine whether the Nesbett 

snack bar vending facility was ‘‘other 

property’’ under the Act, but that there 

were issues of material fact requiring a 

hearing and, therefore, the panel denied 

the SLA’s motion. The central issue 

before the arbitration panel was whether 

the Nesbett State courthouse snack bar 

vending facility qualified as ‘‘other 

property’’ within the meaning of the Act 

and its implementing regulations. 

Arbitration Panel Decision 

The panel heard testimony and 

concluded that Federal regulations 

implementing the Act defined ‘‘other 

property’’ as ‘‘property which is not 

Federal property and on which vending 

facilities are established or operated by 

the use of any funds derived in whole 

or in part, directly or indirectly, from 

the operation of vending facilities on 

any Federal property.’’ See 34 CFR 

395.1(n). 

Then, the panel determined that in 

order for Complainant’s claim to 

prevail, he must prove that the Nesbett 

snack bar vending facility was 

established or operated with funds 

derived directly or indirectly from the 

operation of vending facilities on 

Federal property. If Complainant was 

able to meet that burden, the SLA would 

concede that the Act applied to the 

Nesbett snack bar vending facility and 

the Complainant would be entitled to 

the priority in operating the Nesbett 

snack bar vending facility over the claim 

of the nonblind severely disabled 

vendor. 

After reviewing the entire record, the 

panel found that the evidence presented 

at the arbitration hearing demonstrated 

that the Nesbett State courthouse snack 

bar vending facility was not established 

or operated with any funds derived 

directly or indirectly from the operation 

of vending facilities on Federal 

property. Thus, the arbitration panel 

ruled that the Nesbett State courthouse 

was not ‘‘other property’’ subject to the 

Randolph-Sheppard Act and its 

implementing regulations and, 

therefore, the SLA’s decision did not 

violate the Act. Accordingly, the 

arbitration panel denied Complainant’s 

Federal arbitration appeal. 

The views and opinions expressed by 

the panel do not necessarily represent 

the views and opinions of the 

Department. 

Electronic Access to This Document: 

The official version of this is the 

document published in the Federal 

Register. Free Internet access to the 

official edition of the Federal Register 

and the Code of Federal Regulations is 

available via the Federal Digital System 

at: http://www.gpo.gov/fdsys. At this 

site you can view this document, as well 

as all other documents of this 

Department published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF). To use PDF 

you must have Adobe Acrobat Reader, 

which is available free at this site. 

Dated: April 14, 2011. 

Alexa Posny, 

Assistant Secretary for Special Education and 

Rehabilitative Services. 

[FR Doc. 2011–9477 Filed 4–18–11; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF EDUCATION 

Notice Inviting Proposals for Taking 

Ownership and Operation of the 

TEACH Campaign 

AGENCY: Office of Innovation and 

Improvement, U.S. Department of 

Education. 

ACTION: Notice inviting proposals for 

ownership and operation of the TEACH 

Campaign, including the recruiting 

effort and the maintenance and 

operation of the Web Portal. 

SUMMARY: The U.S. Department of 

Education (Department) has set a goal 

for the United States to lead the world 

in completion of postsecondary 

education by 2020. The Department 

recognizes that the most significant inschool-factor in a student’s education is 

his or her teacher, and wants to 

mstockstill on DSKH9S0YB1PROD with NOTICES