Bird v. Oregon Commission for the Blind, No. 20-36066 (9th Cir. 2022)
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Bird and other blind vendors filed a formal complaint with Oregon Commission for the Blind (OCB) seeking arbitration, prospective relief, and attorney’s fees as a consequence of OCB’s alleged mishandling of vending contracts and representation of blind vendors’ interests. The arbitration panel denied relief. The district court held that sovereign immunity did not apply to an arbitration panel’s decision under the Randolph-Sheppard Act (RSA), which creates a cooperative federal-state program that gives preference to blind applicants for vending licenses at federal facilities, 20 U.S.C. 107, and that the Eleventh Amendment did not protect OCB from liability for damages.
The Ninth Circuit reversed. Neither the RSA nor the parties’ operating agreements unequivocally waived a state’s sovereign immunity from liability for monetary damages, attorney’s fees, or costs. Citing the Supreme Court’s 2011 "Sossamon" decision, the court rejected a “constructive waiver” argument, reasoning that a waiver of sovereign immunity must be explicit. An agreement to arbitrate all disputes simply did not unequivocally waive sovereign immunity from liability for monetary damages. The operating agreements incorporated the text of the RSA and contained no express waiver of immunity from money damages. Because no provision of the RSA or the operating agreements provided for attorney’s fees, Bird was not entitled to attorney’s fees.