34 C.F.R. § 395.37

Arbitration of State licensing agency complaints

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(a) Whenever any State licensing agency determines that any department, agency, or instrumentality of the United States which has control of the maintenance, operation, and protection of Federal property is failing to comply with the provisions of the Act or of this part and all informal attempts to resolve the issues have been unsuccessful, such licensing agency may file a complaint with the Secretary.

(b) Upon receipt of a complaint filed under paragraph (a) of this section, the Secretary shall convene an ad hoc arbitration panel which shall, in accordance with the provisions of 5 U.S.C. ch. 5, subchapter II, give notice, conduct a hearing and render its decision which shall be final and binding on the parties except that such decision shall be subject to appeal and review as a final agency action for purposes of the provisions of 5 U.S.C. ch. 7. The arbitration panel convened by the Secretary to hear complaints filed by a State licensing agency shall be composed of three members appointed as follows:

(1) One individual designated by the State licensing agency;

(2) One individual designated by the head of the Federal department, agency, or instrumentality controlling the Federal property over which the dispute arose; and

(3) One individual, not employed by the Federal department, agency, or instrumentality controlling the Federal property over which the dispute arose, who shall be jointly designated by the other members of the panel and who shall serve as chairman of the panel.

(c) If either the State licensing agency or the head of the Federal department, agency, or instrumentality fails to designate a member of an arbitration panel, the Secretary shall designate such member on behalf of such party.

(d) If the panel finds that the acts or practices of any department, agency, or instrumentality are in violation of the Act or of this part, the head of any such department, agency, or instrumentality (subject to any appeal under paragraph (b) of this section) shall cause such acts or practices to be terminated promptly and shall take such other action as may be necessary to carry out the decision of the panel.

(e) The decisions of an arbitration panel convened by the Secretary under this section shall be matters of public record and shall be published in the Federal Register.

(f) The Secretary shall pay all reasonable costs of arbitration under this section in accordance with a schedule of fees and expenses which shall be published in the Federal Register.

Notes of Decisions

Cited in 14 cases (2 in the last 5 years), 1984–2023 · leading case: Kentucky v. United States Ex Rel. Hangel, 759 F.3d 588 (6th Cir. 2014).

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Kentucky v. United States Ex Rel. Hangel, 759 F.3d 588 (6th Cir. 2014). · cites it 2× “§ 107d-2(b); 34 C.F.R. § 395.37 (b), (c), (f). The panel’s decision is considered to be the final agency action and to be binding upon the parties.”

Commonwealth of Kentucky, Educ. Cabinet, Dep't for the Blind v. United States, 424 F.3d 1222 (Fed. Cir. 2005). · cites it 2× “§ 107d — 1(b); see also 34 C.F.R. § 395.37 (a). 1 Section 107d-1(b) provides, as one example of the type of claim that is arbitrable, “a limitation on the placement or operation of a vending facility as described in .”

Kansas ex rel. Kansas Dep't for Child. & Families v. SourceAmerica, 874 F.3d 1226 (10th Cir. 2017). “§ 107d-2(b) (emphasis added); see also 34 C.F.R. § 395.37 (d).”

North Carolina Div. of Servs. for the Blind v. United States, 53 Fed. Cl. 147 (Fed. Cl. 2002). “See 34 C.F.R. § 395.37 . II. Factual Background A.”

Texas State Comm'n v. United States, 6 Cl. Ct. 730 (Ct. Cl. 1984). · cites it 2× “-13(a) (1982), 34 C.F.R. § 395.37 (a) (1982). An arbitration panel would be comprised of three members.”

Sauer v. United States Dep't of Educ., 668 F.3d 644 (9th Cir. 2012). “See § 107b (requiring a state licensing agency “to cooperate with the Secretary in carrying out the purpose of this chapter”); § 107a(e) (requiring a state licensing agency to seek authorization from a federal agency before establishing a vending site on federal property); 34…”

State ex rel. the Kansas Dep't for Child. & Families v. United States ex rel. Carter, 192 F. Supp. 3d 1184 (D. Kan. 2016). “See 34 C.F.R. § 395.37 (d) (explaining that if the arbitration panel decides the federal agency has violated the RSA “the head of any such department, agency, or instrumentality.”

Kansas v. United States, 171 F. Supp. 3d 1145 (D. Kan. 2016). “§ 107d-1(b); 34 C.F.R. § 395.37 . After the State Licensing Agency has filed a complaint with the DOE’s Secretary, the “Secretary .”

Comm. of Blind Vendors v. Dist. of Columbia, 736 F. Supp. 292 (D.D.C. 1990). “Rather, the Act’s language is permissive: Whenever any State licensing agency determines that any department, agency, or instrumentality of the United States that has control of the maintenance, operation, and protection of Federal property is failing to comply with the…”

United States v. Mississippi Vocational Rehab. for Blind, 794 F. Supp. 1344 (S.D. Miss. 1992). “Section 107d-2(b)(2); 34 C.F.R. Section 395.37. Accordingly, the Court does not find there is an Appointments Clause violation based upon this assertion by the USA.”

Randolph-Sheppard Vendors of Am. v. Weinberger, 602 F. Supp. 1007 (D.D.C. 1985). “The plaintiffs have not pursued the arbitration procedures outlined in sections 107d-l and 107 d-2 of the Act and the accompanying regulations at 34 C.F.R. § 395.37 . LEGAL ANALYSIS A. STANDING A challenge to the award of a federal contract is subject to judicial review under…”

Arizona Dep't of Econ. Sec. v. Wormuth (D. Ariz. 2023). · cites it 3× “If the SLA's proposal is excluded from the CR, the SLA may file a complaint with the Secretary of Education under 12 the provisions of 34 CFR § 395.37 . 13 STEP 2. In accordance with Army Regulation 210-25 (Vending Facility Program for the Blind on Federal Property), the…”

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