               VICTORY IN THE DENNIS GROSHEL CASE
                         by Marc Maurer

     The National Federation of the Blind has always stood as the
only truly effective protector of the rights of blind vendors. We
have advised and advocated, served on arbitration panels, and
fought for legislative reform; and when necessary, we have gone
to court to battle for the justice that vendors deserve. The
organized blind of America recognize that what is good for blind
vendors will benefit all blind people, and the National
Federation of the Blind has always been dedicated to improving
the lives of all blind people. 
     In October of 1992 a landmark decision in Federal District
Court came down that has sweeping implications for blind vendors.
It was an unqualified victory in the Dennis Groshel case, and it
is important for all of us to understand what was accomplished. 
     In July, 1987, the Groshel case made its first appearance in
Federal Court. It was not an ideal time for such a case because
the judicial climate was particularly unfavorable. In 1985, the
American Council of the Blind--through its vendors' group The
Randolph-Sheppard Vendors of America--joined by the National
Council of State Agencies for the Blind, charged precipitately
into Federal Court. The action, ineffectively and untimely
brought, was against the Defense Department which had sought to
contract with fast-food chains for service at military
installations. The point of the litigation, to assert the
priority for blind vendors, was in order, but use of the federal
courts as the first avenue of appeal proved both dangerous and
ineffective. The Defense Department contended that the priority
provisions of the Randolph-Sheppard Act did not prohibit
competition by fast-food chains, and the district court, where
the case was originally brought, agreed. The potential blow to
blind vendors was severe, and the Federation mounted an appeal.
     Fortunately for the entire blind vendor program, we were
successful. In June of 1986 the United States Court of Appeals
for the District of Columbia reversed the district court decision
and declared that the issue concerning fast-food chains at
military bases should have been considered first by a three-
member arbitration panel as the law requires. This is precisely
the position which the National Federation of the Blind had taken
before the court in filing an effective amicus curiae. With the
briefs in hand the court concluded as we did that the suit
against the Department of Defense should never have been brought
in the first place and that the arbitration procedures contained
in the Randolph-Sheppard Act were to be used before recourse to
the courts. In reaching this conclusion the court found that the
previous decision was in error, and the effect of this ruling
saved the blind vendor priority on federal property. Competition
from fast-food chains or any other commercial enterprise would be
subject to the arbitration procedures and could be challenged by
any state agency.

     Then in 1986 the Department of Veterans Affairs made a new
attack upon the blind vendor priority. At that time there were
one hundred and seventy-two hospitals and homes operated by the
Veterans Administration (now the Department of Veterans Affairs).
Food service at each of these sites has been provided by the
Veterans' Canteen Service. The Veterans Canteen Service had
allowed a blind vendor to conduct business at only one of these
sites--the Medical Center for Veterans in St. Cloud, Minnesota. 
     In 1986 Dennis Groshel was the vendor at that location. He
was licensed by the Minnesota Department of Jobs and Training.
The Department of Jobs and Training is the state licensing agency
for blind vendors in Minnesota operating under the federal
Randolph-Sheppard Act. The Department was rightfully concerned
that Dennis Groshel had been required to pay the Veterans'
Canteen Service a commission of approximately seventeen percent
of his gross sales, cutting his net profit (the amount which
Dennis Groshel actually received from the business) approximately
in half. 
     With the urging of the National Federation of the Blind,
Minnesota state officials vowed to remedy this situation. Their
first step was to request a commission-free "permit" to maintain
a vending facility at the St. Cloud Medical Center. The facility
had been operated under a "contract" between the Veterans'
Canteen Service and the state. The contract required commission
payments. Also, the contract expired periodically and was
scheduled to expire in 1987. A permit, issued by a federal agency
for vending facility service to be provided under the Randolph-
Sheppard Act is permanent. So, the battle between the State of
Minnesota and the Department of Veterans Affairs was joined when
the state applied for a permit, free from a sales commission, and
the Department of Veterans Affairs insisted upon having a
contract and receiving a substantial share of the proceeds. 
     This is another instance where knowledge of the law and
clear judgment in how to enforce it were essential. The wrong
action could mean a decision which would threaten the priority
for all blind vendors. In this respect the Minnesota case was
evolving as another test of both will and competence in advancing
the rights of blind vendors. But in this instance, as compared to
the Department of Defense case, there was one important
difference: The National Federation of the Blind. 
     The Minnesota state agency turned to us for advice. However,
state officials were mindful of that fact that the Federation
represented Dennis Groshel, the licensed blind vendor. His
interests in the dispute with the Department of Veterans Affairs
were arguably different from the state's interest, but we could
still be allies in attempting to preserve the vending facility.
Acting on our advice in early 1987, the state requested the
convening of an arbitration panel--the very step which the
American Council and its allies should have taken in the Defense
Department case. Then, to protect Dennis Groshel during the
unknown duration of the arbitration proceeding the Minnesota
attorney general, with our urging, sought and obtained an
injunction from the Federal Court that would prevent the
Veterans' Canteen Service from removing Mr. Groshel from his
location. 
     Meanwhile, the State of Minnesota also named James Gashel,
Director of Governmental Affairs for the National Federation of
the Blind, as its representative on the arbitration panel. Mr.
Gashel is a nationally-recognized expert on Randolph-Sheppard
matters. After due consideration the arbitration panel ruled in
1988 that no commission should be charged and that the interested
parties should negotiate the remaining issues. But after
prolonged efforts to resolve their differences, the two sides
were forced to admit that they were unable to settle the
remaining issues, and the case went back to the arbitration
panel. 
     Again the panel convened, heard testimony, and considered
the issues. It all took time (by now it was late 1991), and
during the almost four years that had elapsed Dennis Groshel had
continued to manage his vending facility while paying no
commission. He didn't have much job security, but because of the
court order and the earlier arbitration panel decision that no
commission on sales could be charged, his income was effectively
doubled, as long as his facility remained open. 
     In August, 1991, the arbitration panel reached its final
decision. The panel confirmed that the Randolph-Sheppard Act
priority applies to the hospitals and homes of the Department of
Veterans Affairs just as much as it does to any other federal
property. Following that premise the panel directed that the
state (and, by implication, Dennis Groshel) had a continuing
right to a vending facility at the St. Cloud Medical Center. 
Also, by implication, the same would be true for any other
similar facility of the Department of Veterans Affairs. That was
the good news, but surprisingly two members of the panel agreed
with the position of the Department of Veterans Affairs, finding
that a sales commission of seventeen percent to be charged
against the gross proceeds of a blind vendor was acceptable. Mr.
Gashel filed a strong dissent to this portion of the decision
which was published as part of the arbitration panel's opinion.
Nonetheless, he was in the minority. 
     Fortunately because of the same panel's earlier rulings
Dennis Groshel had been able to operate his vending facility
without paying commissions since September, 1988. This status was
now threatened, and the potential danger was real. However,
unlike the case with the Defense Department, the legal groundwork
had been carefully laid with compelling testimony from a blind
vendor who stood to lose a substantial part of his livelihood.
The arguments had been carefully thought through and articulated
before the Federal Court was ever asked to hear the case. There
had been a full arbitration of the dispute, and the panel had
made the most important decision of all, finding that the
Randolph-Sheppard Act applies. Its acceptance of a commission was
a glaring inconsistency with this finding. It would now be up to
the courts to uphold the Act and overturn the inconsistency. 
     This was the situation in the fall of 1991 shortly after the
arbitration panel's ruling became effective. Here is what I said
about the case in my report to the convention on Wednesday, July
1, 1992:

     We continue to be active to protect the interests of blind
vendors in the Randolph-Sheppard program. As Federationists know,
Dennis Groshel is a blind vendor in Minnesota who operates a
facility at the Department of Veterans Affairs Hospital in St.
Cloud. The income from this facility is about $30,000 a year. The
Department of Veterans Affairs first argued that Dennis should
not be permitted to have a vending facility at the VA Hospital at
all, but the arbitration panel convened to hear the case ruled
against them. However, the VA asked that it be paid a commission
amounting to seventeen percent of the gross receipts from the
vending facility (about $15,000, or half of the profit). The
arbitration panel erroneously granted this request, so we are
helping with an appeal.
     The Dennis Groshel arbitration is, to say the least, quite
unusual. The vending facility in question is operated by Dennis
Groshel; the money being taken is the income of Dennis Groshel;
and the person who reports to work is Dennis Groshel. It seemed
only reasonable that one of the parties in the case should be
Dennis Groshel. However, the lawyer for the Department of
Veterans Affairs has tried to keep him out. But this is simply
not fair. We are helping Dennis intervene in his own case. He
will be involved, and we intend to help him keep the money that
is rightfully his under the law. Incidentally, all other vendors
should take note, for this case has implications for every one of
them throughout the nation.

     That is what I reported at the 1992 convention of the
National Federation of the Blind, and we were as good as our
word. The National Federation of the Blind filed an amicus brief
which supported the position taken by the state of Minnesota, and
we represented Dennis Groshel, enabling him to enter the case as
the plaintiff-intervenor. The case went to the United States
District Court in September and was heard by Judge Harry H.
MacLaughlin, who rendered his decision on October 13, 1992. 
     The judge's opinion completely vindicated Dennis Groshel's
position: a veterans hospital was found to be an appropriate
location for a Randolph-Sheppard facility. This means that all
veterans hospitals and homes across the country can have
Randolph-Sheppard vending facilities. Moreover, the permit
application and approval procedure normally employed to establish
Randolph-Sheppard facilities other than cafeterias was found to
be the appropriate instrument for use in establishing a Randolph-
Sheppard food service facility in a veterans medical center. The
Veterans' Canteen Service's demand for a seventeen percent
commission on sales--or, for that matter, any commission at all--
was found to be inappropriate. The Groshel decision is of
critical importance to blind vendors across the country and to
all who work to protect their right to earn a reasonable living
in food-service facilities under the Randolph-Sheppard Program.
The decision is so significant and potentially far-reaching that
we are reprinting it in its entirety so that those who need to
understand Judge MacLaughlin's well-reasoned opinion will have it
at their finger tips. Here it is: 

     This matter is before the Court on plaintiff's and
plaintiff-intervenor's motions for summary judgment, defendants'
motion for summary judgment against plaintiff, and defendants'
motion to dismiss the complaint of plaintiff-intervenor.

FACTS
     In this action the State of Minnesota, on behalf of the
Department of Jobs and Training, State Services for the Blind and
Visually Handicapped (DJT) appeals from a decision of an
arbitration panel convened under the Randolph-Sheppard Act, 20
U.S.C.  107 et seq. The action arises out of the relationship
between the DJT and the Veterans' Canteen Service (VCS), which is
a department within the United States Department of Veterans
Affairs (VA). In April 1977, following a competitive bidding
process, the DJT entered into a contract with the VCS under which
the DJT would provide vending services at the VA Medical Center
in St. Cloud, Minnesota. The contract, which was renewed for four
consecutive one-year terms, provided that the DJT would pay the
VCS commissions on sales from the vending facility. In April
1982, again following a competitive bidding process, the DJT and
the VCS entered into another contract for the provision of
vending services at the medical center. That agreement was also
renewed for four consecutive one-year terms and provided that the
DJT would pay the VCS a commission of approximately 17 1/2
percent on vending sales.I 1
     The DJT in turn subcontracted with blind vendors to operate
the vending facility.2 Since 1985 the subcontractor has been
Dennis Groshel, the plaintiff-intervenor in this action.3 The DJT
operates other vending facilities on federal property in addition
to the one at the medical center. The other facilities, however,
are not operated under contract, but under permits acquired by
the DJT under the Randolph-Sheppard Act, which authorizes blind
persons who are licensed by an appropriate state agency to
operate vending facilities on federal property. Where the DJT
operates vending facilities under Randolph-Sheppard permits, it
does not pay commissions to the federal agency on whose property
the facility is located.
     In 1979 the DJT raised the issue of whether the vending
facility at the medical center fell within the provisions of the
Randolph-Sheppard Act; despite its questions, however, the DJT
continued to operate the facility under contract with the VCS.
When it came time to renegotiate the contract in June 1986, the
DJT took the position that the medical center's vending facility
was governed by the act. Rather than renegotiate the contract,
the DJT applied for a permit to operate the facility in
accordance with the procedure set forth in the regulations
governing the Randolph-Sheppard Act.4 The VCS denied the permit
application on the grounds that the VCS was exempt from the
Randolph-Sheppard Act.5
     Pursuant to 20 U.S.C.  107d-1(b), the DJT filed a complaint
with the Secretary of the Department of Education (DOE), alleging
that in denying the permit application, the VCS had failed to
comply with the provisions of the Randolph-Sheppard Act.II 6 The
Secretary convened a three-member arbitration panel to resolve
the dispute, in accordance with 20 U.S.C.  107d-2. In September
1988 the panel held that the VCS was not exempt from the
Randolph-Sheppard Act and ordered the parties to negotiate an
arrangement under which the DJT could continue to operate the
vending facility at the medical center. Because the parties were
unable to negotiate such an arrangement, the arbitration panel
was reconvened. In August 1991 the panel held, with one dissent,
that the normal permit application and approval process did not
apply to the relationship between the DJT and the VCS, that the
DJT should pay the VCS a commission of seventeen percent on the
gross sales of the vending facility, and that the arrangement
should be for a five-year term subject to renegotiation.III 
     Plaintiff filed this action, seeking review of the panel's
decision under 20 U.S.C.  107d-2(a). Plaintiff and defendants
have made cross-motions for summary judgment. In addition,
defendants move to dismiss the plaintiff-intervenor's complaint
for lack of jurisdiction and failure to state a claim, and
plaintiff-intervenor moves for summary judgment on his claims.

DISCUSSION
     A movant is not entitled to summary judgment unless the
movant can show that no genuine issue exists as to any material
fact.7 In considering a summary judgment motion, a court must
determine whether "there are any genuine factual issues that
properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party."8 The role
of a court is not to weigh the evidence but instead to determine
whether, as a matter of law, a genuine factual conflict exists.9
"In making this determination, the court is required to view the
evidence in the light most favorable to the nonmoving party and
to give that party the benefit of all reasonable inferences to be
drawn from the facts."10 When a motion for summary judgment is
properly made and supported with affidavits or other evidence as
provided in Fed.R.Civ.P. 56(c), then the nonmoving party may not
merely rest upon the allegations or denials of the party's
pleading, but must set forth specific facts, by affidavits or
otherwise, showing that there is a genuine issue for trial.11
Moreover, summary judgment must be entered against a party who
fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial.12

I. Standard of Review
     Decisions of an arbitration panel convened under the
Randolph-Sheppard Act are reviewable as final agency actions
under the Administrative Procedure Act, 5 U.S.C.  500, et seq.
20 U.S.C.  107d-2(a). The standard of review applicable to
agency actions depends upon whether the challenged action rests
upon factual findings or legal conclusions. Where, as here, a
case is reviewed on the record of an agency hearing provided by
statute, an agency's findings of fact must be upheld if they are
supported by substantial evidence.13 Agency interpretations of
statutes present questions of law that are normally subject to de
novo review; however, where an agency has been given authority to
interpret and administer the statutes in question, the reviewing
court must defer to the agency's interpretation, so long as the
interpretation is a reasonable one.14
     Plaintiff argues that in the instant case no deference is
owed the legal conclusions of the arbitration panel. The
Randolph-Sheppard Act mandates that, where a panel is convened to
hear complaints raised by a state licensing agency, the panel
must consist of one individual designated by the state agency,
one individual designated by the federal agency controlling the
property over which the dispute arose, and one individual jointly
designated by the parties.15 Although the DOE is the agency
authorized to interpret and administer the Randolph-Sheppard Act,
it is not represented on the panel, has no input into the panel's
decision, and does not review the panel's decision. Thus,
plaintiff argues, the panel's legal conclusions are not entitled
to deference.
     In similar circumstances the United States Court of Appeals
for the Eighth Circuit has held that an administrative decision
maker's resolution of legal questions is owed no special
deference.16 In Brock, the Occupational Safety and Health Review
Commission vacated a citation against an employer for failure to
provide a guardrail around an open-sided floor. The Secretary of
Labor appealed the commission's action. In discussing the
appropriate standard of review, the court noted that because the
Secretary, not the commission, exercised policy-making and
prosecutorial authority under the Occupational Health and Safety
Act, the commission's legal conclusions were not entitled to
deference. Moreover, the Third Circuit has held that review of a
panel's decisions under 20 U.S.C.  107d-2(a) is plenary and that
the arbitrators are owed no deference on questions of law.17
Because the arbitration panel is not the entity charged with
interpreting and administering the Randolph-Sheppard Act, the
Court will review the questions of law presented in this appeal
de novo.

II. The Statutory and Administrative Background
     The arguments in this case are based on two federal acts,
the Randolph-Sheppard Act and the Veterans' Canteen Service Act,
38 U.S.C.  7801 et seq.

     A. The Veterans' Canteen Service Act
     The Veterans' Canteen Service Act created the VCS "for the
primary purpose of making available to veterans of the Armed
Forces who are hospitalized or domiciled in hospitals and homes
of the [VA], at reasonable prices, articles of merchandise and
services essential to their comfort and well-being."18 The
Veterans' Canteen Service Act authorizes the Secretary of the VA
to establish, maintain, and operate canteens in VA
establishments; make and carry out all necessary contracts to
purchase or sell merchandise, supplies and services; fix the
prices of merchandise and services in canteens to carry out the
purposes of the statute; and make the rules and regulations
deemed necessary to effectuate the statute.19 The Act also
provides that the VCS "shall function as an independent unit in
the [VA] and shall have exclusive control over all its activities
including sales; procurement and supply; finance, including
disbursements; and personnel management...."20
     The legislative history of the Veterans' Canteen Service Act
indicates that Congress generally intended the VCS to be
financially self-sustaining.21 Nonetheless, the act authorizes
appropriations to the VCS.22 In addition, the act requires the
VCS to submit a budget that includes an estimate of the amount
required to make up any deficits in the operating fund.23
     While the VCS is as a whole financially self-sustaining,
many individual canteens operate at a loss; in fiscal year 1987,
for example, sixty-six of one hundred seventy-two canteens
suffered a net loss.24 The VCS uses revenues from competitively
bid vending contracts to offset operating losses. Factors
considered in awarding contracts are quality of product, quality
of service, and commissions paid to the VCS.25 To assure quality
products, the VCS uses a centralized product-screening system,
which restricts the sale of products deemed to pose health and
safety risks and limits the selection of brands available for
sale.26 Some of the VCS health and safety requirements are more
strict than those set by state law; for example, certain
perishable foods, such as mayonnaise, cannot be sold in VCS
vending facilities.27 The VCS also controls the price of the
merchandise sold, taking into account the fact that VA patients
are often indigent and the fact that VA patients and staff
sometimes lack access to alternative sources of merchandise.28

     B. The Randolph-Sheppard Act
     The other federal act at issue in this case is the Randolph-
Sheppard Act. As noted above, the Randolph-Sheppard Act
authorizes blind persons licensed by state agencies to operate
vending facilities on federal property. The Randolph-Sheppard Act
was enacted "for the purposes of providing blind persons with
remunerative employment, enlarging the economic opportunities of
the blind, and stimulating the blind to greater efforts in
striving to make themselves self-supporting."29 As originally
enacted in 1936, the act provided that blind persons would be
allowed to operate vending facilities at the discretion of the
head of the department or agency in charge of maintaining a
particular federal building.30 In 1954 Congress amended the act
to require each agency to issue regulations designed to assure
preference to licensed blind people in establishing vending
facilities.31
     Despite the 1954 amendments some agencies failed to carry
out the purposes of the act. In some cases federal authorities
resisted the initial establishment of blind vending facilities on
federal property; in other cases federal authorities imposed
harmful and arbitrary limitations on blind vendor operations
regarding the types of merchandise sold, the location of the
vending facilities, and the amount of income permitted to accrue
to the blind vendor.32 To address these problems, Congress
enacted several amendments to the Randolph-Sheppard Act in 1974.
     First, Congress made the preference for blind vendors
mandatory, providing that "[i]n authorizing the operation of
vending facilities on Federal property, priority shall be given
to blind persons licensed by a State agency as provided in this
chapter...."33 (emphasis added). Second, the amendments
established that income from vending machines on federal
property, including those that are in direct competition with a
blind vending facility, must accrue to the blind vendor operating
the facility or to the state licensing agency in whose state the
property is located.34 Congress specifically provided, however,
that the income-sharing provisions of the Randolph-Sheppard Act
would not apply to income from vending machines operated by the
VCS.35
     Finally, Congress removed the implementation of the
Randolph-Sheppard Act from the control of each individual agency
and placed regulatory control within the authority of the DOE.
The act now requires the Secretary of the DOE, after consultation
with those in control of the maintenance and operation of federal
property, to promulgate regulations designed to insure that
priority is given to licensed blind persons and that "wherever
feasible, one or more vending facilities are established on all
Federal property to the extent that any such facility or
facilities would not adversely affect the interests of the United
States."36 Any limitation on the placement or operation of
vending facilities must be based on a finding that the placement
or operation would adversely affect the interest of the United
States and must be justified to and approved by the Secretary of
the DOE.37
     In implementing the provisions of the Randolph-Sheppard Act,
the DOE defined "vending facility" broadly to include not only
automated vending machines, but also "cafeterias, snack bars,
cart service, shelters, counters, and such other appropriate
auxiliary equipment which may be operated by blind licensees and
which is necessary for the sale of...articles or services
dispensed automatically or manually."38 The DOE then established
two procedures by which blind vendors could obtain authorization
to operate vending facilities on federal property.
     Blind vendors may be afforded priority in the operation of
cafeterias "when the Secretary determines, on an individual
basis, and after consultation with the appropriate property
managing department...that such operation can be provided at a
reasonable cost, with food of a high quality comparable to that
currently provided employees, whether by contract or
otherwise."39 The regulations provide that, in order to establish
the ability of blind vendors to operate the cafeteria, the state
licensing agency may be invited to submit a bid which will be
judged under criteria set forth in the regulations.40
Alternatively the federal agency in control of the property at
issue may afford priority in cafeteria operations by negotiating
directly with the state licensing agency.41
     Authority to operate a vending facility other than a
cafeteria is not conferred through a process of competitive
bidding or contract negotiation, but is conferred through a
permit application and approval process.42 Under that process a
state licensing agency submits a permit application to the
federal agency on whose property it proposes to operate a
facility. The permit application must set forth the location and
type of facility proposed, certain terms prescribed by the
regulations, and the other terms and conditions that the state
agency desires.43 If the federal agency disapproves the permit
application, the head of the agency must give the state licensing
agency written notice of the decision and the reasons underlying
it.44 The state licensing agency may challenge the disapproval of
a permit by filing a complaint with the Secretary of the DOE, as
the DJT did in this case.45 Upon the filing of a complaint, the
Secretary of the DOE convenes a panel of arbitrators to resolve
the dispute, in accordance with 20 U.S.C.  107d-2.

III. The Application of the Randolph-Sheppard Act to the VCS
     As noted above, the arbitration panel in this case concluded
that the Randolph-Sheppard Act's mandatory priority for blind
vendors applied to the VCS. That holding is not challenged on
appeal. Plaintiff and plaintiff-intervenor argue, however, that
the panel did not follow its conclusion to its logical end by
applying all requirements of the act and its accompanying
regulations to the vending facility at the medical center.
Specifically plaintiff and plaintiff-intervenor challenge the
panel's conclusions regarding the permit application and approval
process, the duration of the permit, and the payment of
commissions.

     A. The Permit Application and Approval Process
     The arbitration panel found that, while the Randolph-
Sheppard Act priority requirement was normally met through the
permit application and approval process, a negotiated arrangement
could be substituted for that process in this case.46 Plaintiff
and plaintiff-intervenor argue that the arbitration panel's
finding that the VCS is not exempt from the Randolph-Sheppard Act
compels the conclusion that the VCS is subject to all the
provisions of the act, including the regulations governing the
permit process. Thus, they argue, the panel's determination that
the parties should negotiate an agreement rather than follow the
permit process applicable to vending facilities other than
cafeterias is erroneous.
     Defendants argue that negotiation between the DJT and the
VCS is critical if the VCS is to fulfill its statutory mandate to
provide high quality goods at reasonable prices to veterans
hospitalized or domiciled in VA facilities. Defendants
characterize plaintiff's position as requiring the VCS to give
blanket approval to any permit the DJT drafts, even if it
contains terms and conditions that undermine the VCS's statutory
mission. Defendants argue that allowing a negotiated arrangement
would not violate the terms of the Randolph-Sheppard Act, because
the regulations define "permit" broadly as "the official approval
given...by a department, agency, or instrumentality in control of
the maintenance, operation, and protection of Federal
property."47 That definition does not, in defendants' view,
preclude a process of negotiation in the award of a permit.
      Moreover, defendants point out that nothing in the language
of the Randolph-Sheppard Act gives state licensing agencies the
authority to dictate the terms of a permit, grants blind vendors
an unqualified right to operate vending facilities, or strips the
VCS of its authority to control vending facilities at VA
hospitals. In short, defendants argue that the best way to
harmonize the purposes of the Veterans' Canteen Service Act with
those of the Randolph-Sheppard Act is to allow the parties to
reach a negotiated agreement.
     The Court agrees with plaintiff and plaintiff-intervenor
that the conclusion that the VCS is not exempt from the Randolph-
Sheppard Act compels the conclusion that all provisions of the
regulatory scheme apply to the parties' relationship. As noted
above, section 107d-3(d) of the Randolph-Sheppard Act
specifically exempts the VCS from the income-sharing provisions
of the act; this limited exemption indicates that Congress
considered the effects of the Randolph-Sheppard Act on the VCS
and determined to exempt the VCS from only the income-sharing
provisions. Once it is determined that the Randolph-Sheppard Act
governs the relationship between the parties, it cannot be argued
that only some of its requirements apply.
     The regulations specifically set forth the process by which
authority to operate vending facilities shall be conferred:
authority to operate cafeterias is conferred through a
competitive bidding process or through direct contract
negotiations, while authority to operate facilities other than
cafeterias is conferred through a permit process. Because the
facility at issue in this case is not a cafeteria, authorization
to operate it must be conferred through the permit process.
     The Court rejects defendants' contention that applying the
permit application and approval process to the parties'
relationship will undermine the statutory mission of the VCS or
strip the VCS of its authority over VA vending facilities.
Nothing in the regulations requires the VCS to approve the DJT's
permit; in fact, the regulations specifically give the VCS
authority to disapprove a permit application.48 Nor do the
regulations prohibit the parties from negotiating the terms of
the permit, so long as the permit also includes the terms
mandated by the regulations. Indeed the record shows that the
parties have negotiated regarding the terms of the permit and
that the DJT has been willing to modify the terms to meet the
VCS's concerns regarding what products are appropriate for its
patient population.49
     The DJT's proposed permit does not give the DJT blanket
authority to sell products without regard to the VCS's concerns.
The proposed permit provides only for the sale of products that
are already being offered for sale at the St. Cloud medical
center and for other articles that "are determined by the State
licensing agency, in consultation with the on-site official
responsible for the Federal property...to be suitable for a
particular location."50 In addition, the VCS's health and safety
concerns are addressed in both the DJT's proposed permit and the
regulations, which provide that the vending facilities must
comply with all applicable health, sanitation, and building
regulations.51
     Finally, as the DJT points out, the Randolph-Sheppard Act
provides a procedure by which a federal agency may limit a
permit. The Randolph-Sheppard Act requires agencies to permit
blind-operated vending facilities only insofar as the facility
would not adversely affect the interests of the United States.52
The placement or operation of a vending facility may be limited
if the Secretary of the DOE determines that the limitation is
justified.53 Thus, if the DJT were to insist upon a permit term
that is allowed under the Randolph-Sheppard Act but that the VCS
finds inconsistent with its statutory purpose, the VCS could seek
a determination from the Secretary of the DOE that a limitation
of the permit is justified.
     In conclusion, the Court finds that the determination that
the VCS is subject to the Randolph-Sheppard Act compels the
conclusion that it is subject to all provisions of the act and
that the arbitration panel erred in concluding otherwise. Under
the Randolph-Sheppard Act and its regulations, the authority to
operate the medical center's vending facility must be conferred
pursuant to the permit process. Such a holding does not strip the
VCS of its authority to regulate the sale of goods at VA
facilities, because the Randolph-Sheppard Act provides the VCS
with a means to limit the permit. Therefore, the Court will grant
the plaintiff's motion for summary judgment on this issue.

     B. The Duration of the Permit
     Plaintiff and plaintiff-intervenor also challenge the
panel's conclusion that the agreement to operate the vending
facility should be for a term of five years, subject to
renegotiation. Plaintiff and plaintiff-intervenor argue that the
panel's conclusion directly conflicts with the regulations, which
provide that permits to operate vending facilities "shall be
issued for an indefinite period of time, subject to suspension or
termination on the basis of compliance with agreed upon terms."54
Defendants argue that the five-year term is necessary to allow
the VCS to conduct a periodic review of the agreement terms and
to renegotiate those terms if necessary.
     The Court has already concluded that the relationship
between the DJT and the VCS is governed by permit and that the
VCS is bound by all provisions of the Randolph-Sheppard Act,
except those from which it has been exempted by Congress. Neither
the Randolph-Sheppard Act nor its regulations exempt the VCS from
the requirement that permits be of an indefinite duration. If,
however, the VCS sees a need for renegotiation, it has two
alternatives under the Randolph-Sheppard Act. It may either reach
an agreement with the DJT to include in the permit a provision
for periodic renegotiation of certain terms or, barring that,
apply to the Secretary of the DOE to limit the permit under the
procedure set forth in 20 U.S.C.  107(b). Because the
regulations specifically provide that permits shall be for an
indefinite term, the Court holds that the panel's determination
that the agreement could be for a limited term is contrary to
law.

     C. The Payment of Commissions
     The dispute about commissions is at the heart of this
action. The arbitration panel determined that the DJT should pay
the VCS commissions on vending sales and that a commission of
seventeen percent was reasonable. Plaintiff and plaintiff-
intervenor assert that the Randolph-Sheppard Act precludes the
payment of commissions and that in any event a seventeen percent
commission is unreasonable. Defendants assert that the Randolph-
Sheppard Act does not preclude the payment of commissions, that
the payment of commissions is necessary to carry out the purposes
of the Veterans' Canteen Service Act, and that the panel
correctly concluded that a commission of seventeen percent was
reasonable.
     1. Commission Payments under the Randolph-Sheppard Act
     In arguing that the Randolph-Sheppard Act precludes the
payment of commissions, plaintiff and plaintiff-intervenor point
out that the primary purpose of the 1974 amendments to the
Randolph-Sheppard Act was to ensure that blind vendors could
operate free from impediments imposed by federal agencies. One of
the abuses identified in the legislative history of the
amendments was the practice of diverting income from blind vendor
facilities into employee recreation and welfare programs.55 The
Senate report accompanying the amendments noted that
          Commanders of military installations are
     singularly insensitive to the need to develop the
     [blind vendor] program.... The parent Defense
     Department association at a major Federal space
     installation demanded that blind vendors give a portion
     of their income to the association--precisely the
     reverse of what should be taking place on Federal
     property.56

     Plaintiff and plaintiff-intervenor argue that Congress
addressed the problem of diversion of funds through three
statutory provisions. The first of these provisions is section
107(b), which provides that any limitation on the placement or
operation of a vending facility must be based on a finding by the
Secretary of the DOE that placement or operation of the facility
would adversely affect the interests of the United States.57 The
second provision is section 107d-3(a), which provides that "[n]o
limitation shall be imposed on income from vending machines,
combined to create a vending facility, which are maintained,
serviced, or operated by a blind licensee."58 The third provision
addressing income diversion is section 107b(3), which allows a
state licensing agency to set aside funds from the net proceeds
of a Randolph-Sheppard facility for five purposes: 1) maintenance
and replacement of equipment, 2) purchase of new equipment, 3)
management services, 4) assuring a fair minimum return to vending
facility operators; and 5) funds for vendor benefits such as
retirement, insurance, sick leave, and vacation time.59
     Plaintiff and plaintiff-intervenor argue that these
provisions, together with the legislative history of the
Randolph-Sheppard Act, establish that diversions of vendor income
are prohibited unless they are for the narrow purposes set forth
in section 107b(3). Any other diversion of income is in their
view a limitation on the operation of a vending facility that
must be justified to the Secretary of the DOE as necessary to
prevent adverse effects on federal interests.
     Defendants argue that the Randolph-Sheppard Act permits the
payment of commissions. They first argue that the payment of
commissions is not a limitation on the operation of a vending
facility within the meaning of section 107(b). They rely on the
legislative history of the 1974 amendments to argue that Congress
was concerned with ad hoc limitations placed on blind vendors by
employee recreational associations that operated without
statutory authority, not with limitations imposed by another
agency pursuant to that agency's own statutory authority.60
     Defendants next argue that plaintiff and plaintiff-
intervenor have read section 107d-3(a) out of context. Section
107d-3(a) sets up a system by which income from vending machines
not operated by blind vendors is paid to the blind vendor or the
appropriate state licensing agency. The section provides that,
where the income is shared with a blind vendor rather than with
the state agency, regulations may be prescribed to impose a
ceiling on the income that an individual vendor may obtain from
machines not operated by blind vendors. The section then provides
that no limitation may be imposed on income from vending machines
operated by a blind licensee.61 Thus, defendants argue that read
in context, section 107d-3(a) merely prohibits the DOE from
placing a ceiling on income earned by blind vendors from the
operation of their own machines. They argue that in the instant
case neither the VCS nor the DOE is placing a ceiling on the
plaintiff-intervenor's income; the payment of commissions may
reduce Groshel's income, but it does not place a limit on it.
     Finally, defendants argue that section 107b(3) and 34 C.F.R.
 395.9, which strictly limit the purposes for which a state
licensing agency may set aside funds from a vending facility, are
simply inapplicable to the case at hand. Defendants point out
that the regulations define "set-aside funds" as "funds which
accrue to a State licensing agency from an assessment against the
net proceeds of each vending facility in the State's vending
facility program...."62 Defendants argue that, because the
commissions at issue here would accrue to the VCS and not to the
state licensing agency, they are not "set-aside funds" and are
not governed by 20 U.S.C.  107b(3) and 34 C.F.R.  395.9.
     The question of whether the Randolph-Sheppard Act precludes
the payment of commissions is a difficult one because, as
defendants point out, nothing in the act or its accompanying
regulations deals expressly with commission payments.
Nonetheless, the Court concludes that requiring commission
payments is a limitation on the operation of a vending facility
which may not be imposed without authorization from the Secretary
of the DOE.IV
     The Randolph-Sheppard Act grants a mandatory priority to
licensed blind vendors who wish to operate on federal property.
While the right to operate a Randolph-Sheppard facility other
than a cafeteria may be qualified by permit terms that are
mandated by the regulations or negotiated by the parties, other
limitations on the right are governed by section 107(b)'s
requirement that limitations on the placement and operation of
vending facilities be approved by the Secretary of the DOE. The 
Court is not persuaded by defendants' argument that Congress
intended section 107(b) to apply only to the limitations placed
on vending operations by employee associations operating without
statutory authority. The legislative history does indicate that
Congress was concerned with the diversion of funds from blind
vendors to employee associations. But the legislative history
also reveals Congressional concern with other practices that
impeded the purposes of the act by impairing the financial
viability of blind vendor operations, such as unfair limitations
on the goods sold, the location of facilities, or the hours of
operation.
     The conclusion that Congress's concern was not limited to
the diversion of income to employee associations is bolstered by
the provisions of the act itself. The Randolph-Sheppard Act
applies explicitly to all federal agencies (not merely to their
employee associations) and subjects "[a]ny limitation on the
placement and operation of a vending facility" to the oversight
of the Secretary of the DOE.63 It is difficult to square this
broad language with defendants' argument that "limitation" refers
only to diversion of funds to employee associations.
     In addition, the fact that the act limits the extent to
which state licensing agencies may divert the proceeds of vending
facilities is evidence that Congress was concerned with a broad
variety of factors that could impair the effectiveness of the
Randolph-Sheppard Act in providing a source of income to the
blind. In section 107b(3) Congress provided a very specific list
of purposes for which a state licensing agency could set aside
funds from the proceeds of vending operations. Allowing the state
to set aside funds from vending operations is an important part
of the regulatory scheme, because under the Randolph-Sheppard Act
the state licensing agencies obtain authorization to operate the
vending facilities and then delegate that authorization to
licensed blind vendors. Section 107b(3) allows the state agency
to collect from the licensed vendor the funds needed to fulfill
the state agency's obligations under its permit, as well as to
ensure that the Randolph-Sheppard program achieves its statutory
objectives. Under this scheme the state agency acts as a conduit,
collecting money from the vendors and then redistributing it for
the statutorily authorized purposes. Congress' failure to
authorize state licensing agencies to set aside funds for
commissions suggests strongly that Congress did not intend those
commissions to be assessed. If the VCS were to assess the DJT a
commission, section 107b(3) would preclude the DJT from
collecting the fee from the blind vendor; in that case the DJT
would not act as a conduit for funds or a facilitator of the
Randolph-Sheppard program, but as the source of funds for that
program. Nothing in the Randolph-Sheppard Act, however,
contemplates that sort of role for the state.
     Moreover, the Court is not persuaded by defendants' argument
that because the commission payments ultimately accrue to the
VCS's benefit, they differ fundamentally from the set-aside funds
authorized in section 107b(3). Funds retained and expended for a
statutorily authorized purpose such as replacing vending machines
could be seen as ultimately accruing to the seller of the
machines. Nonetheless, the regulations view funds set aside to
replace vending machines as accruing to the benefit of the state
licensing agency, because the funds allow the agency to provide
the vending facilities that its permits require it to provide. In
the Court's view funds set aside for commission payments would
accrue to the benefit of the state agency in the same way that
funds set aside for other authorized purposes do: they would
allow the agency to meet the obligations imposed on it by its
permits and the Randolph-Sheppard Act.
     In summary, the provisions and legislative history of the
Randolph-Sheppard Act indicate that the payment of commissions is
a limitation on the operation of a vending facility that may not
be imposed without authorization from the Secretary of the DOE.
Thus, the Court holds that the arbitration panel erred in
concluding that the VCS could charge the DJT commissions without
such authorization.
     2. Commission Payments under the Veterans' Canteen Service
Act
     Defendants argue that reading the Randolph-Sheppard Act to
preclude the VCS from charging commissions is inconsistent with
the provisions of the Veterans' Canteen Service Act. They base
this argument on provisions in the Veterans' Canteen Service Act
that authorize the VCS to "make all necessary contracts or
agreements to purchase or sell merchandise, fixtures, equipment,
supplies, and services...."64 The VCS has chosen to exercise its
authority by providing vending services through contract.
Consistent with Congress's intent that the VCS be self-
sustaining, the VCS has used its vending service contracts to
raise revenue by charging commissions. Reading the Randolph-
Sheppard Act to preclude the VCS from collecting commissions from
Randolph-Sheppard vending facilities would in defendants' view be
tantamount to finding in the Randolph-Sheppard Act a silent
repeal of the VCS's statutory authority. In addition, defendants
argue that allowing state licensing agencies to operate vending
facilities without paying commissions would deprive the VCS of
needed revenue. That in turn would require the VCS to cut
services, raise prices, or seek appropriations from Congress, any
of which would undercut the VCS's statutory mission. Finally,
defendants point out that the Veterans' Canteen Service Act
provides that the Secretary of the VA "shall...fix the prices of
merchandise and services in canteens so as to carry out the
purposes of this chapter."65 They argue that the VCS's need to
control prices is equally compelling regardless of whether a
vending facility is operated by a Randolph-Sheppard vendor or a
non-Randolph-Sheppard vendor.
     Plaintiff and plaintiff-intervenor respond that, while the
VCS has authority to charge commissions on vending contracts, it
is not required to do so. Nor does the Veterans' Canteen Service
Act require the VCS to be self-sustaining. Even if it did,
plaintiff and plaintiff-intervenor argue that the Veterans'
Canteen Service Act neither requires nor authorizes the VCS to
meet that objective by diverting income from blind vendors. Thus,
they argue, there is no conflict between the Randolph-Sheppard
Act and the Veterans' Canteen Service Act; the VCS may adhere to
the provisions of the Randolph-Sheppard Act without violating
those of the Veterans' Canteen Service Act. To the extent that
there is a conflict between the Veterans' Canteen Service Act and
the Randolph-Sheppard Act, plaintiff and plaintiff-intervenor
contend that the Randolph-Sheppard Act should prevail because, in
amending the Randolph-Sheppard Act, Congress balanced the
interests of the VCS and the blind vendors and determined that
the interests of both were best met by exempting the VCS only
from the income-sharing provisions of the Randolph-Sheppard Act.
Finally, plaintiff points out that, if compliance with the
Randolph-Sheppard Act causes the VCS a significant loss, the VCS
may either seek appropriations from Congress under 38 U.S.C. 
7804 or apply to the Secretary of the DOE to place limitations on
Randolph-Sheppard permits under 20 U.S.C.  107(b).V
     The Court agrees that the VCS can comply with the Randolph-
Sheppard Act without violating the Veterans' Canteen Service Act.
The stated purpose of the Veterans' Canteen Service Act is to
provide merchandise and services at VA facilities at reasonable
prices.66 Applying the Randolph-Sheppard Act's requirements to
the VCS does not interfere with this purpose; indeed, as
plaintiff and plaintiff-intervenor point out, charging
commissions on vending sales could result in higher prices on the
goods sold. The application of the Randolph-Sheppard Act could
make it more difficult for the VCS to be self-sustaining;
however, the Veterans' Canteen Service Act does not require the
VCS to be self-sustaining, and it does not require the VCS to
charge commissions on vending contracts. The Veterans' Canteen
Service Act merely grants the VCS broad and generalized authority
to provide services. That general grant of authority cannot be
read to override the explicit provisions of the Randolph-Sheppard
Act. In fact, it seems clear that in determining that the VCS
should be exempt from the income-sharing provisions of the
Randolph-Sheppard Act, Congress considered the VCS's need for
vending machine revenues, balanced that need with the purposes of
the blind vending program, and struck a compromise. The fact that
Congress specifically addressed the VCS's needs in amending the
Randolph-Sheppard Act indicates a Congressional intent to subject
the VCS to the Randolph-Sheppard Act; thus, to the extent that
its provisions conflict with those of the Veterans' Canteen
Service Act, the provisions of the Randolph-Sheppard Act must
prevail. 
     In this action the VCS in effect argues that Congress'
compromise gave Randolph-Sheppard vendors too much and left the
VCS too little. That, however, is another way of arguing that
compliance with the Randolph-Sheppard Act would adversely affect
the interests of the United States. The Randolph-Sheppard Act has
an escape clause for such cases: the VCS may apply to the
Secretary of the DOE for permission to limit the operation of
Randolph-Sheppard facilities on VCS premises.VI

IV. The Claims of the Plaintiff-Intervenor
     In addition to joining in the DJT's complaint, the
plaintiff-intervenor raises a due process claim, asserting that
the VCS has violated his Fifth Amendment right to due process by
charging him commissions without legal authority and by refusing
requests for price increases and additional vending machines at
the St. Cloud medical center during the pendency of this action.
In making this claim, plaintiff-intervenor relies on the
testimony of the Deputy Director of the VCS, who stated that

     [B]asically as long as this dispute lasts the guy who
     is going to suffer over it is going to be Dennis
     [Groshel] because prices are going to continue to go
     up, and we are going to continue to hold until this is
     resolved. The longer it goes on the less money he is
     going to make.67    

     Plaintiff-intervenor also relies on settlement proposals in
which the VCS proposed to increase prices in exchange for
commissions.68 Although he originally asked for a retroactive
refund of the commissions paid prior to the arbitration,
plaintiff-intervenor now concedes that, because this action names
defendants in their official capacity, he cannot pursue a damages
claim against them.69 He asserts, however, that he is entitled to
a declaration that defendants violated his right to due process
by misusing their power to pressure him and the DJT to drop this
action. He also asserts that he is entitled to an injunction
requiring the VCS to approve price increases.
     Under the Randolph-Sheppard Act, a vendor may not bring a
grievance directly against a federal agency; instead the vendor
must bring his complaint to the state licensing agency. If the
vendor is dissatisfied with the decision of the state licensing
agency, he may file a complaint with the Secretary of the DOE,
who will convene a panel to arbitrate the dispute.70 Defendants
argue that, because plaintiff-intervenor has no right of direct
action against the VCS and because plaintiff-intervenor has
failed to exhaust his remedies by bringing a complaint before the
DJT, this Court lacks jurisdiction over his claims. Plaintiff-
intervenor has not addressed defendants' jurisdictional
arguments.
     It appears, however, that plaintiff-intervenor is not
raising a claim under the Randolph-Sheppard Act, but is instead
raising a direct claim against the VCS under the United States
Constitution. In support of his claim, plaintiff-intervenor cites
cases in which courts have held that 42 U.S.C.  1983 prohibits
state actors from taking retaliatory actions against individuals
in order to punish them for exercising their constitutional right
to seek judicial relief.71 Section 1983, however, applies to
actions taken by state officials under color of state law.72 It
does not apply to this action, in which plaintiff-intervenor
challenges actions by federal officials.
     More importantly, plaintiff-intervenor's constitutional
claim is simply beyond the scope of this action. The DJT brought
suit under the Randolph-Sheppard Act, seeking review of the
arbitration panel's decision regarding the relationship between
the DJT and the VCS. Groshel was allowed to intervene in order to
protect his interests in that action. His claim that the VCS
infringed upon his constitutional right of access to judicial
review is outside the scope of the Randolph-Sheppard Act and
outside the scope of the DJT's appeal. Therefore, the Court will
dismiss plaintiff's constitutional claim without prejudice.
     Accordingly, based on the foregoing and upon all the files,
records, and proceedings herein, it is ordered that: 1)
defendants' motion for summary judgment is denied; 2) plaintiff's
motion for summary judgment is granted; 3) the plaintiff-
intervenor's constitutional claim is dismissed without prejudice;
and 4) the United States Department of Veterans Affairs and
defendant James B. Donohue, in his capacity as Administrator of
Veterans' Canteen Services, shall follow the permit application
and approval procedures of the Randolph-Sheppard Act and its
accompanying regulations, as they are construed in this
memorandum and order, with regard to the vending facility at the
Veterans Affairs Medical Center in St. Cloud, Minnesota.
     Let judgment be entered accordingly.

                                       Judge Harry H. MacLaughlin
                                     United States District Court
                                                 October 13, 1992
                            Footnotes

I. The record in this case consists of the transcript of a
hearing held by the arbitration panel in Minneapolis, Minnesota
(Minn. Tr.), the transcript of a hearing held by the arbitration
panel in Washington, D.C. (D.C. Tr.), the administrative record
compiled in the arbitration (Admin. R.), exhibits submitted by
plaintiff (DJT Ex.), and exhibits submitted by defendants (VCS
Ex.).

II. In addition to filing an administrative action, plaintiff
filed a separate action seeking to restrain the VCS from awarding
a contract for the medical center vending facility pending the
outcome of the administrative action. This Court granted
plaintiff's motion for a temporary restraining order in July,
1987. The restraining order remains in effect, and Groshel
continues to operate the vending facility at the medical center.

III. The panel also unanimously held that no commissions were due
to the VCS from September 2, 1988 to the date of the panel's
final order, that the DJT was not liable for the storage and
utility costs of the vending facility, that the VCS did not have
the right to install or operate its own machines at the medical
center, and that all future disputes between the parties should
be resolved in accordance with the procedures of the Randolph-
Sheppard Act. Plaintiff does not challenge these holdings on
appeal.

IV. This conclusion must be distinguished from a conclusion that
the Randolph-Sheppard Act precludes the charging of commissions
in all instances. The Court expresses no opinion on whether the
payment of commissions would be an acceptable limitation on a
Randolph-Sheppard permit.

V. Plaintiff also notes that the VCS's assertion that complying
with the Randolph-Sheppard Act will cause it significant loss is
purely hypothetical; of the VCS's 150 vending contracts, the
contract for the St. Cloud medical center is the only one
involving a blind vendor. Minn. Tr. at 277.

VI. Because the Court has determined that the arbitration panel
erred in holding that the VCS could charge the DJT commissions
absent authority from the Secretary of the DOE, it does not reach
the issue of whether the panel correctly determined that a
seventeen percent commission was reasonable under the facts of
this case.

                         Legal Citations

1. D.C. Tr. at 27; DJT Ex. 1
2. D.C.Tr. at 61
3. Minn. Tr. at 240
4. Admin. R. 5-25
5. Admin. R. at 26
6. Admin. R. at 2
7. Fed.R.Civ.P. 56(c)
8. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)
9. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987)
10. AgriStor Leasing, 826 F.2d at 734
11. Lomar Wholesale Grocery, Inc. v. Dieter's Gourmet Foods,
Inc., 824 F.2d 582, 585 (8th Cir. 1987), cert. denied, 108 S.Ct.
707 (1988)
12. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
13. City of St. Louis v. Dept. of Transportation, 936 F.2d 1528,
1533 (8th Cir. 1991); 5 U.S.C.  706(1)(E)
14. City of St. Louis, 936 F.2d at 1533
15. 20 U.S.C.  107d-2(b) (2)
16. Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135, 1137
(8th Cir. 1987)
17. Delaware Dept. of Health v. U.S. Dept. of Educ., 772 F.2d
1123, 1139 (3d Cir. 1985)
18. 38 U.S.C.  7801
19. 38 U.S.C.  7802
20. 38 U.S.C.  7808
21. S. Rep. No. 1701, 79th Cong., 2d Sess. 4 (1946)
22. 38 U.S.C.  7804
23, 57, 63. 38 U.S.C.  7806
24. D.C. Tr. at 614-15, 629-30
25. D.C. Tr. at 527-28, 625, 654-59, 958-60
26. D.C. Tr. at 521-23
27. D.C. Tr. at 621-22
28. D.C. Tr. at 530-705
29. 20 U.S.C.  107(a)
30. Pub. L. No. 74-732,  1, 49 Stat. 1559 (1936)
31. Pub. L. No. 83-565,  4, 68 Stat. 652, 663 (1954)
32. S. Rep. No. 937, 93rd Cong., 2d Sess. 14-16 (1974); Hearings
on S. 2581 before the Subcomm. on the Handicapped of the Senate
Comm. on Labor and Public Welfare, 93rd Cong., 1st Sess. 71
(1973)
33. 20 U.S.C.  107(b)
34. 20 U.S.C.  107d-3(a), (b)
35. 20 U.S.C.  107d-3(d)
36. 20 U.S.C.  107(b)(2)
37. Id.
38. 34 C.F.R.  395.1(x)
39. 34 C.F.R.  395.33(a)
40. 34 C.F.R.  395.33(b)
41. 34 C.F.R.  395.33(d)
42. 34 C.F.R.  395.35(f)
43. 34 C.F.R.  395.16, 395.34, 395.35
44, 48. 34 C.F.R.  395.16
45. 34 C.F.R.  395.37
46. Admin. R. at 481-82
47. 34 C.F.R.  395.1(o)
49. D.C. Tr. at 67, 87-89
50. Admin. R. at 25
51. 34 C.F.R.  395.35(d); Admin. R. at 25
52. 20 U.S.C.  107(b)(2); 34 C.F.R.  395.30(a)
53. 20 U.S.C.  107(b)(2); 34 C.F.R.  395.30(b)
54. 34 C.F.R.  395.35(b)
55. Hearings on S. 2581 before the Subcomm. on the Handicapped of
the Senate Comm. on Labor and Public Welfare, 93d Cong., 1st
Sess. 24 (1973)
56. S. Rep. No. 937, 93d Cong., 2d Sess. 10 (1974)
58, 61. 20 U.S.C.  107d-3(a)
59. 20 U.S.C.  107b(3); see also 34 C.F.R.  395.9
60. See, e.g., Hearings on S. 2581 before the Subcommittee on the
Handicapped of the Senate Committee on Labor and Public Welfare,
93rd Congress, 1st Sess. 24, 46-47 (1973)
62. 34 C.F.R.  395.1(s)
64. 38 U.S.C.  7802(6)
65. 38 U.S.C.  7802(7)
66. 78 U.S.C.  7801
67. Minn. Tr. at 250
68. VA Ex. 109, 110
69. Pl-Int.'s Response at 13
70. 20 U.S.C.  107d-1(a); Georgia Department of Human Resources
v. Nash, 915 F.2d 1482, 1484 (11th Cir. 1990)
71. Harrison v. Springdale Water & Sewer Commission, 780 F.2d
1422, 1428 (8th Cir. 1986); Graham v. National Collegiate
Athletic Association, 804 F.2d 953, 958-59 (6th Cir. 1986)
72. 42 U.S.C.  1983

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