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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

STATE OF OHIO, OPPORTUNITIES FOR OHIOANS 

WITH DISABILITIES, BUREAU OF SERVICES : 

FOR THE VISUALLY IMPAIRED, BUSINESS 

ENTERPRISE PROGRAM : JUDGE 

 150 E. Campus View Blvd. 

 Columbus, Ohio 43235 : Magistrate Judge 

 

Petitioner, : Civil Case No. 17-cv-873 

 v. 

 : 

UNITED STATES DEPARTMENT OF EDUCATION, 

REHABILITATION SERVICES ADMINISTRATION : 

 400 Maryland Avenue, S.W. 

 Washington, D.C. 20202 : 

and : 

BETSY DEVOS, in her official capacity as SECRETARY, : 

UNITED STATES DEPARTMENT OF EDUCATION, 

REHABILITATION SERVICES ADMINISTRATION : 

 400 Maryland Avenue, S.W. 

 

 Washington, D.C. 20202 : 

 

 Respondents. : 

COMPLAINT/PETITION FOR JUDICIAL REVIEW OF AGENCY ACTION OF 

THE UNITED STATES DEPARTMENT OF EDUCATION UNDER THE RANDOLPHSHEPPARD ACT AND ADMINISTRATIVE PROCEDURE ACT 

Petitioner, the State of Ohio Opportunities for Ohioans with Disabilities, Bureau of 

Services for the Visually Impaired, Business Enterprise Program, through its undersigned 

counsel, files this Complaint for Judicial Review against the United States Department of 

Education, Rehabilitation Services Administration and Secretary Betsy Devos, to appeal the 

December 2016 Opinion overruling the State’s motion to dismiss (“December 2016 Opinion”), 

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and the August 8, 2017, "Opinion and Award," mailed to the parties on September 19, 2017. 

This Complaint/Petition for Judicial Review is filed pursuant to the Randolph-Sheppard Act, 20 

U.S.C. § 107 et seq., including 20 U.S.C. 107d-2(a), and the Administrative Procedure Act, 5 

U.S.C. § 701 et seq., and alleges and pleads as follows: 

I. INTRODUCTION 

1. Congress enacted the Randolph-Sheppard Act (“the Act”) to “provid[e] blind 

persons with remunerative employment, enlarg[e] the economic opportunities of the blind, and 

stimulat[e] the blind to greater efforts in striving to make themselves self-supporting” by giving 

priority to blind persons who desire to operate vending facilities on federal property. 20 U.S.C. 

§ 107(a). Federal law does not grant blind vendors special priority to operate vending facilities 

on State property, but through its own “Mini Randolph-Sheppard Act,” Ohio has decided to do 

so. See Ohio Rev. Code §§ 3304.28-3304.35; Ohio Admin. Code §§ 3304:1-21-01-3304:1-21-

18.  Responsibility for carrying out both acts is divided between state and federal agencies. On 

the federal level, the Secretary of Education is responsible for interpreting and enforcing the 

Act's provisions and for designating state licensing agencies. 20 U.S.C. §§ 107a(a)(5), 107b; 34 

C.F.R. §§ 395.5, 395.8. The State Licensing Agency (“SLA”) for the State of Ohio is the 

Opportunities for Ohioans with Disabilities, Bureau of Services for the Visually Impaired. 

Ohio’s program for licensed blind vendors is known as the Business Enterprise Program. 

2. The responsibilities of the SLA under the Act include issuing licenses to blind 

persons for operating vending facilities and administering the blind vending program within the 

state. 20 U.S.C. § 107a(a)(5). The Act provides a procedural mechanism for resolving disputes 

that arise out of the administration of the Act. See 20 U.S.C. §107d–1(a) and 20 U.S.C. § 107d-2. 

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A blind licensee who is dissatisfied with the SLA's decision following a full evidentiary hearing 

may file a complaint with the Secretary of Education who shall convene an arbitration panel 

pursuant to 20 U.S.C. §107d-2 to settle the dispute. Pursuant to 20 U.S.C §107d–2(a), the 

arbitration panel shall, in accordance with the provisions of subchapter II of chapter 5 of title 5, 

give notice, conduct a hearing, and render a decision subject to appeal and review as a final 

agency action under chapter 7 of title 5, the Administrative Procedure Act. 

3. This is an appeal brought pursuant to the Administrative Procedure Act by the 

SLA for Ohio, Opportunities for Ohioans with Disabilities/Bureau of Services for the Visually 

Impaired, for judicial review of a final agency action issued in a Randolph-Sheppard Act 

arbitration proceeding convened by the U.S. Department of Education pursuant to 20 U.S.C. 

107d-1(b). 

II. JURISDICTION AND VENUE 

4. Pursuant to 20 U.S.C. § 107d-2, the "Opinion and Award" is subject to appeal and 

review under the standards of the Administrative Procedure Act as a final agency action for 

purposes of Chapter 7 of Title 5, 5 U.S.C. § 704. The December 2016 Opinion is a “preliminary, 

procedural, or intermediate agency action” that is “subject to review on the review of the final 

agency action”; here, the Opinion and Award. 5 U.S.C. § 704. 

5. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. 

§ 1346; and 20 U.S.C. § 107d-2, and the Administrative Appeal Act, 5 U.S.C. § 701 et seq. 

Venue properly lies in the Southern District of Ohio pursuant to 28 U.S.C. § 1391. 

 

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III. PARTIES 

6. Opportunities for Ohioans with Disabilities (“OOD”) is an agency of the State of 

Ohio and was formerly known as the Ohio Rehabilitation Services Commission, and is the State 

Licensing Agency for the State of Ohio pursuant to the Randolph-Sheppard Act. The Bureau of 

Services for the Visually Impaired (“the Bureau”) is a division of OOD that operates the 

Business Enterprise Program (“BEP”). The offices of OOD/the Bureau are located in Columbus, 

Ohio in Franklin County. OOD/the Bureau appeals and seeks review of the “Opinion and 

Award" of the Arbitration Panel convened by the United States Department of Education 

pursuant to the Act. 

7. Respondent Betsy Devos is the Secretary of Respondent United States 

Department of Education, the federal agency that administers the Act and convened the 

arbitration panel pursuant to 20 U.S.C.§ 107d-2. 

IV. DESIGNATION OF RECORD 

8. OOD/the Bureau designates the entire arbitration record, including the transcript 

of proceedings, all exhibits, submissions and briefing to the Panel, and Panel decisions. The 

record will be filed separate from this Complaint/Petition. 

V. STANDARD OF REVIEW 

9. An arbitration panel decision under the Randolph-Sheppard Act is “subject to 

appeal and review as a final agency action” under the standards set forth in the Administrative 

Procedure Act (“APA”). See 20 U.S.C. § 107d–2(a). The APA requires a reviewing court to 

“decide all relevant questions of law, interpret constitutional and statutory provisions, and 

determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. 

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10. In addition, the reviewing court must “hold unlawful and set aside agency action, 

findings, and conclusions” that are found to be (A) “arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law;” (B) “contrary to constitutional right, power, privilege 

or immunity;” (C) “in excess of statutory jurisdiction, authority, or limitations, or short of 

statutory right;” (D) “without observance of procedure required by law;” (E) unsupported by 

substantial evidence;” or (F) “unwarranted by the facts to the extent that the facts are subject to 

trial de novo by the reviewing court.” 5 U.S.C. § 706(2). 

11. The court reviews de novo the questions of law at issue, and must set aside the 

arbitration award if it is “not in accordance with law.” 5 U.S.C. § 706(2)(A); Sauer v. United 

States Dep’t of Educ., 668 F.3d 644, 650 (9th Cir. 2012). The APA “substantial evidence” 

standard requires a court to ask whether a “reasonable mind might accept” a particular 

evidentiary record as adequate to support a conclusion. Dickinson v. Zurko, 527 U.S. 150, 162 

(1999). The Supreme Court has stressed the importance of not simply rubber-stamping agency 

fact-finding. Id.

12. Although an arbitration panel's decision is considered a final action of the 

Secretary for purposes of appeal, see 20 U.S.C. § 107d–2(a), this is a legal fiction: an arbitration 

panel is composed of members appointed by the parties to the arbitration, not of Department of 

Education officials whose expertise merits deference. Sauer, 668 F.3d at 650. 

VI. FACTUAL ALLEGATIONS 

13. In order to carry out its duties, the Bureau executes agreements, known as 

Bureau-Grantor Agreements, with various entities for the purpose of establishing a Business 

Enterprise Program facility. The Bureau also enters into separate agreements, known as BureauCase: 2:17-cv-00873-EAS-CMV Doc #: 1 Filed: 10/04/17 Page: 5 of 22 PAGEID #: 5
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Operator Agreements, with licensed blind vendors to operate vending facilities. Pursuant to the 

Bureau-Operator Agreements, vendors are required to pay a service charge, or “set aside,” to the 

Bureau. 

14. James Cyrus is the licensed blind vendor who was the complainant who requested 

and participated in the Randolph-Sheppard Act arbitration against the Bureau. James Cyrus has 

been licensed as a blind vendor in Ohio’s Business Enterprise Program since 1989. Mr. Cyrus 

operates as the blind vendor for a facility identified as Facility # 304. Facility # 304 includes 

multiple sites, which are located at the Lucas County Corrections Center, Lucas County Work 

Release, Adult Treatment Center, Probation Youth Treatment Center, Lucas County Work 

Release, Adult Treatment Center, Probation Youth Treatment Center, as well as the University of 

Toledo Health Science Campus. (fka Medical College of Ohio/Medical University of Ohio). 

15. The University of Toledo’s Health Science Campus is state governmental 

property as defined under the Mini Randolph-Sheppard Act, Ohio Rev. Code § 3304.28(C). The 

Bureau has priority to establish blind vendors to operate these sites under Ohio Rev. Code § 

3304.30. The other sites within Facility # 304 are owned by Lucas County and are not state 

governmental property under the Mini-Randolph Sheppard Act. 

16. The Bureau signed a Bureau-Grantor Agreement, dated October 16, 2006, with 

the University of Toledo (“University”) that permits the BEP to assign a licensed blind vendor to 

operate vending service locations on the University’s Health Science Campus. 

17. Provision 11(a) in the 2006 Bureau-Grantor Agreement between the Bureau and 

the University includes the following language requiring the operator (referred to as “the 

Contractor”) to pay a commission to the University: 

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In order to partially reimburse the University for utilities, data line, and other 

amenities it provides to the Contractor in connection with the vending services 

provided by the Contractor under this Agreement, the Contractor, through the 

operator, shall pay to the University a 7% commission on gross sales less food 

and pastry sales representing vending revenue it obtains from the Vending Service 

Locations on the Campus (“the Commission”). The Commission shall be paid to 

the University on or before the 15th day of each month based upon the previous 

month’s gross sales, less sales tax and shall be deposited in a bank account 

designated by the University. 

18. Multiple Bureau-Grantor Agreements were entered into with Lucas County for 

the County sites within Facility # 304. These County Bureau-Grantor Agreements also required 

the payment of commissions in varying amounts, based on a percentage of vending sales, less 

sales tax, for each vending location. 

19. Mr. Cyrus signed multiple Bureau-Operator Agreements permitting Mr. Cyrus to 

act as the operator of Facility # 304. In each agreement, including the Bureau-Operator 

Agreement signed on March 24, 2010, Mr. Cyrus agreed to comply with all provisions of the 

Bureau-Grantor Agreements for all sites within Facility # 304. Mr. Cyrus affirmed in the March 

24, 2010 Bureau-Operator Agreement that he had received a copy of the Bureau-Grantor 

Agreement for Facility # 304. In addition, on October 19, 2006, Mr. Cyrus entered into a Mutual 

Settlement Agreement settling a grievance and federal lawsuit relating to Facility # 304. 

Pursuant to the Mutual Settlement Agreement, Mr. Cyrus expressly agreed to pay a commission 

to the University. 

20. In June 2013, the Executive Director of OOD requested a formal opinion from the 

Ohio Attorney General on several issues relating to the Business Enterprise Program. One 

question related to the requirement for BEP vendors to pay commissions to state colleges or 

universities. 

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21. On March 4, 2014, the Ohio Attorney General issued a formal opinion concluding 

that a state or state-affiliated college or university “may not require the Bureau of Services for 

the Visually Impaired to pay a commission of the sales generated from the suitable vending 

facility” operated on its property by a licensed blind vendor. (Ohio Atty. Gen. Op. 2014-008). 

The Attorney General Opinion did not address commission payments for county properties. 

22. Mr. Cyrus complied with the requirement to pay commissions to the University 

until May 12, 2014, when he unilaterally stopped paying the commission to the University. All 

commission payments made by Mr. Cyrus were paid directly from Mr. Cyrus to the University. 

The Bureau never received any part of the commission payments from Mr. Cyrus or the 

University, and did not use any service charge or set aside funds to pay commissions. Neither 

the Bureau nor the University has initiated any action towards Mr. Cyrus for his failure to pay 

commissions to the University. 

23. Mr. Cyrus continued to pay the required commission to Lucas County, at least 

through the date of the arbitration proceeding. The Bureau never received any part of these 

commission payments, which were paid directly to Lucas County. Nor did the Bureau use any 

service charge or set aside funds to pay commissions to Lucas County. 

24. Ohio law provides that a licensed blind vendor “may grieve in writing any action 

taken directly against the grievant or an action or inaction that affects the administration of” the 

program. Ohio Admin. Code § 3304:1-21-14. Such a grievance must be received “within fortyfive calendar days of when the date [sic] the grievant became or reasonably should have become 

aware of the action taken.” Ohio Admin. Code § 3304:1-21-14. 

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25. On April 29, 2014, Mr. Cyrus filed a grievance that requested an end to the 

payment of commissions to the University and Lucas County, and further requested 

reimbursement from the Bureau for every commission payment made to these entities, going 

back over two decades. 

26. An attempt was made to resolve the grievance in an informal manner. On May 

28, 2014, the Bureau sent a letter to the University stating that, based on the Attorney General 

opinion, “OOD believes that the requirement to pay commissions is void and can no longer be 

part of the agreement.” On June 18, 2014, the Bureau sent Mr. Cyrus a follow-up letter 

regarding the meeting it held with him on May 20, 2014, to discuss his grievance and try to 

resolve the matter informally. Mr. Cyrus was not satisfied with the Bureau’s actions and 

requested a formal hearing. 

27. A hearing on Mr. Cyrus’s grievance was held on February 18 and 19, 2015 in 

Columbus, Ohio. The Hearing Examiner granted the State’s motion to limit Mr. Cyrus’s 

grievance to payments made no earlier than 45 days prior to the filing of his grievance on April 

29, 2014, pursuant to Ohio Admin. Code § 3304:1-21-14. The Hearing Officer issued a Report 

and Recommendation recommending denial of the grievance. 

28. On March 25, 2015, the Bureau issued an adjudication order approving the 

recommendation of the Hearing Officer and denying the grievance. 

29. Mr. Cyrus filed a complaint for arbitration on April 20, 2015. 

30. On October 14, 2016, BSVI and the University entered into an amendment to the 

2006 Bureau-Grantor Agreement, removing the obligation for the operator to pay commissions. 

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31. The U.S. Department of Education convened a three-person arbitration panel 

pursuant to 20 U.S.C. § 107d-l(b), to resolve the dispute between James Cyrus and the Bureau. 

The arbitration panel (“Panel”) conducted an arbitration hearing pursuant to 20 U.S.C. §107d-1 

and 107d-2 and 34 C.F.R. § 395.13. 

32. The Panel was asked to determine whether the Bureau could lawfully require Mr. 

Cyrus to pay a commission to the University and Lucas County in connection with his vending 

service operations on their respective properties. Mr. Cyrus requested an order that the Bureau 

could no longer enforce the provisions requiring payment of a commission in any BureauGrantor Agreement concerning Facility #304. Mr. Cyrus further requested an award of damages 

for commissions previously paid to the University and the County. Mr. Cyrus also requested 

attorney fees. 

33. On June 21, 2016, the Bureau submitted a motion to dismiss, arguing that the 

Panel was barred by sovereign immunity from ordering monetary damages. Mr. Cyrus filed a 

motion for partial summary judgment on June 16, 2016. The Panel heard oral argument on both 

motions on December 12, 2016. 

34. The Panel, through a two-person majority opinion, denied the Bureau’s motion to 

dismiss. (Dec. 2016 Opinion, attached as Ex. A). The majority of the Panel denied the Bureau’s 

motion to dismiss and concluded that the State of Ohio had waived sovereign immunity by 

participating in the blind vendor program. One member of the Panel issued a dissenting opinion 

concluding that Ohio had not waived sovereign immunity relating to money damages. (Dec. 

2016 Dissenting Opinion, attached Ex. B). 

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35. The Panel unanimously agreed that Mr. Cyrus’s motion for partial summary 

judgment should be denied. 

36. A hearing on the merits was held before the Panel on January 27, 2017. 

37. After the conclusion of the arbitration hearing, but before a decision was issued, 

the Panel directed the parties to brief the issue of attorney fees. The Bureau filed a motion 

asking the Panel to issue a decision on the merits before the issue of attorney fees was briefed, 

but the motion was denied. The parties filed briefs, and a hearing on attorney fees was held on 

July 21, 2017. 

38. On September 19, 2017, the DOE mailed the Arbitration Opinion and Award, and 

a dissenting opinion, to the Bureau. The Opinion and Award was received by the Bureau on 

September 22, 2017. A true and accurate copy of the Arbitration Opinion and Award is attached 

as Exhibit C. The Opinion and Award has not yet been published in the Federal Register. 

39. The Arbitration Opinion and Award rejected the Bureau’s argument that monetary 

relief was barred by sovereign immunity, and found that the request for prospective relief was 

not moot. The Order concluded that the contractual agreement to pay commissions was a 

violation of the Act and Ohio’s Mini Randolph-Sheppard Act. The Order applied a six-year 

statute of limitations for “an action upon a liability created by statute.” Ohio Rev. Code § 

2305.07. 

40. The Opinion and Award ordered the Bureau to pay the following monetary relief: 

a. $47,463.72 for commissions paid to the University; 

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b. $165,693.58 for commissions paid to Lucas County through 2016, 

“plus the amount of any commissions Cyrus paid to Lucas County from January 

1, 2017 through this date, less 18% of this amount.” 

c. Pre-judgment interest in the amount of $7,776.58. 

d. Post-judgment interest “at the federal statutory rate to the date of 

payment.” 

e. Attorney fees in the amount of $40,588.97. 

41. The Order also ordered the following prospective relief: 

a. “The Bureau is enjoined from compelling Cyrus to pay 

commissions under the 2010 Bureau-Operator Grantor [sic] or taking any other 

adverse action against Cyrus for non-payment of such commissions. 

b. The Bureau shall within 30 days notify any Grantor with which the 

Bureau has a Bureau-Grantor Agreement pertaining to a vending facility on state 

or county property that provides for the payment of a commission by the blind 

vendor operator that said provision is void and that the blind vendor operator is no 

longer obligated to pay said commission; and 

c. The Bureau shall within 60 days publish notice to every state 

university, medical university, technical college, state community college, 

community college, university branch district or state affiliated college or 

university located in the State of Ohio calling the attention of those entities to the 

language of both R.C. §3304.30 and R.C. §3304.33. The notice shall also inform 

those entities that the Bureau shall, in the future, seek to enforce the provisions of 

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those two subsections and any dispute will be resolved in accordance with R.C. § 

3304.32.” 

(Opinion and Award, p. 34, Ex. C, attached). 

42. One member of the Panel concurred in part and dissented in part from the Order, 

and issued a dissenting opinion. A true and accurate copy of the Dissenting Opinion is attached 

as Exhibit D. 

43. The Dissenting Opinion concurred with the conclusion that the Bureau was barred 

from compelling vendors to pay commissions for the operation of vending facilities on state 

property. The Dissenting Opinion disagreed that county facilities were included in that 

prohibition. The dissenting Panel member therefore dissented from any conclusion or relief 

relating to the county facilities. 

44. The Dissenting Opinion also concluded that monetary relief was barred because 

Ohio has not waived sovereign immunity. 

45. The Dissenting Opinion further concluded that even if damages were permitted, 

damages should not be awarded in this case because to do so is inequitable given that the Bureau 

did not receive or profit from the payment of commissions in this case. 

46. Further, the Dissenting Opinion concluded that if damages were awarded, the 

starting point for calculation of damages should be March 4, 2014, the date of the formal opinion 

of the Attorney General. 

47. The Dissenting Opinion further concluded that the Panel lacked authority to 

award pre-judgment or post-judgment interest. 

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48. The Dissenting Opinion concluded that attorney fees should be denied pursuant to 

the American Rule, because there is no statute, regulation, or contractual provision in this case 

authorizing an award of attorney fees. 

VII. ASSIGNMENTS OF ERROR 

Count I 

49. Plaintiff restates and realleges each of the allegations set forth in Paragraphs 1 

through 48 above. 

50. The Arbitration Panel erred in its December 2016 Opinion by rejecting the State’s 

assertion of sovereign immunity, and in its Opinion and Award by ordering the Bureau to pay 

monetary damages to Mr. Cyrus. The award of money damages is not authorized by the Act, and 

the award of retroactive money damages is barred by sovereign immunity and the Eleventh 

Amendment. 

51. In this regard, the Arbitration Panel's December 2016 Opinion and the Opinion 

and Award are arbitrary, capricious and constitute an abuse of discretion, and are not in 

accordance with law. The December 2016 Opinion and the Opinion and Award are also contrary 

to constitutional right, power privilege or immunity, and are in excess of statutory jurisdiction, 

authority, or limitations, are short of statutory right, are without observance of procedures 

required by law, and are unsupported by substantial evidence and unwarranted by the facts. 

Count II 

52. Plaintiff restates and realleges each of the allegations set forth in Paragraphs 1 

through 48 above. 

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53. The Arbitration Panel erred in its Opinion and Award by ordering the Bureau to 

pay monetary damages to Mr. Cyrus for commissions Mr. Cyrus agreed to pay to the University 

and the County where the Bureau never received or profited from the commissions. 

54. In this regard, the Opinion and Award is arbitrary, capricious and constitutes an 

abuse of discretion, and is not in accordance with law. The Opinion and Award is also contrary 

to constitutional right, power privilege or immunity, and is in excess of statutory jurisdiction, 

authority, or limitations, is short of statutory right, is without observance of procedure required 

by law, and is unsupported by substantial evidence and unwarranted by the facts. 

Count III 

55. Plaintiff restates and realleges each of the allegations set forth in Paragraphs 1 

through 48 above. 

56. The Arbitration Panel erred in its Opinion and Award by applying a six-year 

statute of limitations set forth in Ohio Rev. Code § 2305.07. Ohio law provides that a licensed 

blind vendor must submit a written grievance within forty-five calendar days of the date when 

the licensee became aware “or reasonably should have become aware of the action taken.” Ohio 

Admin. Code 3304:1-21-14. Mr. Cyrus’s grievance was time-barred and should have been 

dismissed. Even if the action Mr. Cyrus challenges is his own payment of commissions, he can 

only challenge the commissions that he paid in the 45 days immediately preceding his grievance 

(or after his grievance). He did not exhaust remedies for any earlier payments. In the 

alternative, the Panel should have applied the two-year statute of limitations period set forth in 

Ohio Rev. Code § 2743.16(A). 

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57. In this regard, the Opinion and Award is arbitrary, capricious and constitutes an 

abuse of discretion, and is not in accordance with law. The Opinion and Award is also contrary 

to constitutional right, power privilege or immunity, and is in excess of statutory jurisdiction, 

authority, or limitations, is short of statutory right, is without observance of procedure required 

by law, and is unsupported by substantial evidence and unwarranted by the facts. 

Count IV 

58. Plaintiff restates and realleges each of the allegations set forth in Paragraphs 1 

through 48 above. 

59. The Arbitration Panel erred in its December 2016 Opinion and by rejecting the 

State’s assertion of sovereign immunity, and in its Opinion and Award by ordering the payment 

of pre-judgment and post-judgment interest. This award is not authorized by the Act, and the 

award of retroactive money damages is barred by sovereign immunity and the Eleventh 

Amendment. 

60. In this regard, the December 2016 Opinion and the Panel's Opinion and Award 

are arbitrary, capricious and constitute an abuse of discretion, and are not in accordance with 

law. The December 2016 Opinion and the Opinion and Award are also contrary to constitutional 

right, power privilege or immunity, and are in excess of statutory jurisdiction, authority, or 

limitations, are short of statutory right, are without observance of procedure required by law, and 

are unsupported by substantial evidence and unwarranted by the facts. 

Count V 

61. Plaintiff restates and realleges each of the allegations set forth in Paragraphs 1 

through 49 above. 

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62. The Arbitration Panel erred in its December 2016 Opinion by rejecting the State’s 

assertion of sovereign immunity, and in its Opinion and Award by ordering the Bureau to pay 

attorney fees in connection with this case. The Act does not authorize the award of attorney fees 

and an award of attorney fees is barred by sovereign immunity and the Eleventh Amendment. 

63. In this regard, the December 2016 Opinion and the Panel's Opinion and Award 

are arbitrary, capricious and constitute an abuse of discretion, and are not in accordance with 

law. The Opinion and Award are also contrary to constitutional right, power privilege or 

immunity, and are in excess of statutory jurisdiction, authority, or limitations, are short of 

statutory right, are without observance of procedure required by law, and are unsupported by 

substantial evidence and unwarranted by the facts. 

Count VI 

64. Plaintiff restates and realleges each of the allegations set forth in Paragraphs 1 

through 49 above. 

65. The Panel erred in its Opinion and Award by ordering the Bureau to notify any 

grantor with which the Bureau has an agreement that provides for payment of commissions that 

the commission provision is void, and in ordering the Bureau to publish notice to every state 

university, medical university, technical college, state community college, community college, 

university branch district, or state affiliated college or university in Ohio “calling the attention” 

of those entities to language of Ohio Rev. Code §§ 3304.30 and 3304.33, and informing those 

entities that the Bureau shall seek to enforce those provisions. This relief is not provided for in 

the Randolph Sheppard Act or the Mini-Sheppard Act, was not requested by Mr. Cyrus in this 

action, applies to entities that were not a party to the arbitration and are not participants in the 

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Business Enterprise Program, and relates to matters outside the jurisdiction of the Panel and the 

scope of their charge by the U.S. Department of Education. 

66. In this regard, the Arbitration Panel's Opinion and Award is arbitrary, capricious 

and constitutes an abuse of discretion, and is not in accordance with law. The Opinion and 

Award is also contrary to constitutional right, power privilege or immunity, and is in excess of 

statutory jurisdiction, authority, or limitations, is short of statutory right, is without observance of 

procedure required by law, and is unsupported by substantial evidence and unwarranted by the 

facts. 

 

VIII. PRAYER FOR RELIEF 

WHEREFORE, Petitioner Opportunities for Ohioans with Disabilities/Bureau of Services 

for the Visually Impaired, prays this Court to find that the Panel’s December 2016 Opinion and 

the Panel’s Opinion and Award decision are arbitrary, capricious and constitute an abuse of 

discretion, and are not in accordance with law, and further are contrary to constitutional right, 

power privilege or immunity, and are in excess of statutory jurisdiction, authority, or limitations, 

are short of statutory right, are without observance of procedure required by law, and are 

unsupported by substantial evidence and unwarranted by the facts; and to hold unlawful and set 

aside the December 2016 Opinion and the Panel’s Opinion and Award in this case, and to take 

action as follows: 

A. Hold unlawful and set aside the award of monetary damages against the Bureau as 

in violation of sovereign immunity and the Eleventh Amendment as set forth in paragraphs 49 

through 51, above; 

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B. Hold unlawful and set aside the award of monetary damages against the Bureau as 

unlawful as set forth in paragraphs 52 through 54, above; 

C. Hold unlawful and set aside the Panel’s conclusion that the statute of limitations 

applicable to Mr. Cyrus’s claims is the six-year statute of limitations set forth in Ohio Rev. Code 

§ 2305.07, and hold that the action is time-barred, and/or barred by failure to exhaust, as set forth 

in paragraphs 55 through 57, above; 

D. Hold unlawful and set aside the award of pre-judgment and post-judgment 

interest, as set forth in paragraphs 58 through 60, above; 

E. Hold unlawful and set aside the award of attorney fees in this case as contrary to 

sovereign immunity and the Eleventh Amendment and unlawful as set forth in paragraphs 61 

through 63 above; and 

F. Hold unlawful and set aside the Panel’s order of prospective relief in paragraphs 

C, subsections (b) and (c) of the Opinion and Award, as unlawful and beyond the scope of the 

Panel’s authority as set forth in paragraphs 64 through 66, above; 

G. Such other and further relief as seems just and proper. 

 

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20

 Respectfully submitted, 

 MIKE DEWINE (0009181) 

 Ohio Attorney General 

/s/ Katherine Bockbrader

 _______________________________ 

 KATHERINE BOCKBRADER (0066472) 

 *Trial Attorney 

CHARISSA D. PAYER (0064452)

Assistant Attorneys General 

 Health & Human Services Section 

 30 E. Broad St, 26th Fl. 

Columbus, Ohio 43215 

(614) 466-8600; (866) 473-4885 fax 

Katherine.Bockbrader@ohioattorneygeneral.gov 

Charissa.Payer@ohioattorneygeneral.gov 

Counsel for State of Ohio, Opportunities for 

Ohioans with Disabilities, Bureau of Services for 

the Visually Impaired, Business Enterprise Program 

Case: 2:17-cv-00873-EAS-CMV Doc #: 1 Filed: 10/04/17 Page: 20 of 22 PAGEID #: 20
21

CERTIFICATE OF SERVICE 

I hereby certify that on October 4, 2017, I electronically filed the foregoing Complaint 

with the Clerk of the Court using the CM/ECF system. Notice of this filing will be sent by 

operation of the Court’s electronic filing system. Parties may access this filing through the 

Court’s system. 

I also certify that a copy of the foregoing Complaint, a Summons, and a pre-paid return 

envelope, was sent by United States Certified Mail, postage prepaid to the following: 

United States Department of Education 

c/o Phil Rosenfelt, General Counsel 

Office of General Counsel 

400 Maryland Ave., SW 

Washington, DC 20202 

Betsy Devos, Secretary 

United States Department of Education 

c/o Office of General Counsel 

400 Maryland Ave., SW 

Washington, DC 20202 

Jeff Sessions, United States Attorney General 

United States Department of Justice 

950 Pennsylvania Avenue, NW 

Washington, DC 20530-0001 

Benjamin C. Glassman, United States Attorney for the Southern District of Ohio 

c/o Mark D’Alessandro 

United States Attorney’s Office 

303 Marconi Boulevard, Suite 200 

Columbus, OH 43215 

 

Case: 2:17-cv-00873-EAS-CMV Doc #: 1 Filed: 10/04/17 Page: 21 of 22 PAGEID #: 21
22

Also, one copy of the Complaint was sent by certified by United States Certified Mail, 

postage prepaid this 4th day of October, 2017, on counsel for James Cyrus at the following 

address: 

Paul Belazis, Esq. 

Malone, Ault & Farell 

7654 W. Bancroft Street 

Toledo, Ohio 43617 

 /s/ Charissa D. Payer 

 ________________________________ 

 CHARISSA D. PAYER (0064452)

 Assistant Attorney General 

Counsel for State of Ohio, Opportunities for 

Ohioans with Disabilities, Bureau of Services for 

the Visually Impaired, Business Enterprise Program

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