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.
Court Description: Sovereign Immunity. The panel reversed the district court’s denial of sovereign immunity to Oregon Commission for the Blind (“OCB”) in a case in which the district court affirmed an arbitration panel’s award of compensatory relief, attorney’s fees, and costs in favor of petitioner Jerry Bird. Bird and other blind vendors filed a formal complaint with 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, and Bird filed a petition for federal review in Oregon District Court. The district court relied on Premo v. Martin, 119 F.3d 764 (9th Cir. 1997) (holding that Eleventh Amendment sovereign immunity did not apply to an arbitration panel’s decision under the Randolph-Sheppard Act (“RSA”)), and held that the Eleventh Amendment did not protect OCB from liability for compensatory damages. * The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. BIRD V. OREGON COMM’N FOR THE BLIND 3 The panel held that 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. The panel joined the Sixth and Tenth Circuits, and concluded that the holding in Premo was no longer binding. Subsequent to Premo, the Supreme Court decided Sossamon v. Texas, 563 U.S. 277 (2011) (analyzing whether a state waives sovereign immunity from compensatory relief through acceptance of federal funding under the Religious Land Use and Institutionalized Persons Act of 2000). The panel held that Sossamon’s declaration that a waiver of sovereign immunity must be explicit within the text of the statute left no room for Premo’s reliance on constructive waiver. An agreement to arbitrate all disputes simply did not unequivocally waive sovereign immunity from liability for monetary damages. The panel concluded that OCB did not waive immunity from compensatory damages, and the district court’s decision to the contrary was in error. Insofar as Bird argued that the operating agreements constituted waiver, those agreements, too, incorporated the text of the RSA and contained no express waiver of immunity from money damages. The panel held that because no provision of the RSA or the operating agreements provided for attorney’s fees, Bird was not entitled to attorney’s fees.