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