                                                                              FILED
                                                                  United States Court of Appeals
                                      PUBLISH                             Tenth Circuit

                     UNITED STATES COURT OF APPEALS                   September 26, 2018

                                                                     Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                         Clerk of Court
                       _________________________________

NOEL TYLER, as interim director of the
Oklahoma Department of Rehabilitation
Services,

             Plaintiff Counter Defendant -
             Appellant,

v.                                                         No. 17-6074

UNITED STATES DEPARTMENT OF
EDUCATION REHABILITATION
SERVICES ADMINISTRATION,

             Defendant - Appellee,

and

DAVID ALTSTATT, SR.,

             Intervenor Defendant
             Counterclaimant - Appellee.
                       _________________________________

                    Appeal from the United States District Court
                       for the Western District of Oklahoma
                            (D.C. No. 5:16-CV-00137-W)
                      _________________________________

Peter A. Nolan, Winstead PC, Austin, Texas (Richard Olderbak, Oklahoma Office of
Attorney General, Department of Rehabilitation Services, Oklahoma City, Oklahoma,
with him on the briefs), for Plaintiff-Appellant.

Kay Sewell, Assistant United States Attorney, Oklahoma City, Oklahoma (Robert J.
Troester, Acting United States Attorney, Chad A. Readler, Acting Assistant Attorney
General, Mark B. Stern and Laura E. Myron, Attorneys, Appellate Staff, United States
Department of Justice, Washington, D.C., with her on the briefs), for Defendant-
Appellee.

Kevin R. Donelson, (Anh Kim Tran with him on the briefs), Fellers, Snider, Blankenship,
Bailey & Tippens, P.C., Oklahoma City, Oklahoma, for Intervenor Defendant
Counterclaimant-Appellee.
                        _________________________________

Before MATHESON, McHUGH, and EID, Circuit Judges.
                 _________________________________

MATHESON, Circuit Judge.
                   _________________________________

       The Oklahoma Department of Rehabilitation Services (“ODRS”) appeals from the

district court’s affirmance of an arbitration decision rendered under the Randolph-

Sheppard Act (the “RSA”), 20 U.S.C. §§ 107 et seq. The statute authorizes designated

state agencies such as ODRS to license and assign blind vendors to operate vending

facilities on federal property. It establishes an arbitration scheme to resolve disputes

arising from this program.

       In accordance with the statute, the Department of Education (“DOE”) convened an

arbitration panel (the “Panel”) to hear the grievances of David Altstatt, a blind vendor,

challenging ODRS’s selection of another blind vendor, Robert Brown, for a particular

vending assignment. Both Mr. Altstatt and Mr. Brown had applied for the assignment.

The Panel found for Mr. Altstatt and ordered ODRS to remove Mr. Brown from the

disputed assignment, appoint Mr. Altstatt in Mr. Brown’s place, and pay damages and

attorney fees to Mr. Altstatt.

       ODRS brought suit in district court against DOE, seeking to vacate the Panel’s

decision, which the Randolph-Sheppard Act subjects to judicial review as a final agency

                                              2
action under the Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 551 et seq. Mr.

Altstatt intervened as a defendant and counterclaimant, requesting that the court affirm

the arbitration decision. DOE participated in the litigation only to the extent of filing the

administrative record of the Panel proceedings. The district court entered judgment in

favor of Mr. Altstatt and ordered ODRS to comply with the Panel’s decision. ODRS now

appeals.

       Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

decision as to the Panel’s award of injunctive relief in the form of Mr. Brown’s removal

and Mr. Altstatt’s appointment to the disputed assignment, but we reverse as to the

Panel’s award of damages and attorney fees.

                                   I. BACKGROUND

       This section provides background on: (A) the RSA, (B) Mr. Altstatt’s grievances

against ODRS, (C) the Panel’s decision in favor of Mr. Altstatt, and (D) the federal

district court proceedings.

                              A. The Randolph-Sheppard Act

       The RSA, 20 U.S.C. §§ 107 et seq., enacted in 1936 and amended in 1954 and

1974, established a federal program (the “RSA Program”) to enhance blind individuals’

economic opportunities by granting them priority to operate vending facilities on federal

property. States participate in the RSA Program through state licensing agencies

(“SLAs”) designated by the DOE, which administers the RSA. Id. §§ 107a(a), 107(b).

SLAs promulgate and implement policies and standards, which DOE must approve,



                                              3
governing the licensure and selection of blind vendors to operate vending facilities on

federal property. 34 C.F.R. § 395.4; see also id. § 395.3(a)(7).

       As amended in 1974, the RSA establishes a two-tiered scheme for resolving blind

vendors’ grievances arising from SLAs’ operation of the RSA program. First, SLAs

must hear and render a decision on a blind vendor’s grievance. 20 U.S.C. § 107d-1(a).

Second, a vendor who is dissatisfied with the SLA’s decision may then request arbitration

by a panel convened by DOE. Id. RSA arbitration decisions are subject to judicial

review in federal court as final agency actions under the APA. Id. § 107d-2.

                       B. Mr. Altstatt’s Grievances against ODRS

       ODRS, Oklahoma’s designated licensing agency, issues licenses to blind vendors

and assigns them to manage vending contracts with the federal government. See Okla.

Admin. Code § 612:25-4-1(a). In late 2012, ODRS initiated a selection process for a

licensed blind vendor to assume the management of the Fort Sill vending contract (the

“Contract”) with the Army. It solicited applications through a position announcement

(the “Announcement”), which enumerated “eligibility criteria specific to this

announcement.” App., Vol. 7 at 1135, 1139. To be eligible, the applicant must not “have

had any delinquency on taxes for the past 3 years.” Id. at 1139. In accordance with its

regulations, Okla. Admin. Code §§ 612:25-4-57, 612:25-4-59, ODRS convened a

selection committee (the “Committee”) to interview the candidates, evaluate their

applications, and make a recommendation for the Contract assignment. The Committee

recommended Mr. Brown over the other candidates, which included Mr. Altstatt. ODRS



                                             4
accepted the Committee’s recommendation and selected Mr. Brown to manage the

Contract.

       After Mr. Brown’s selection, Mr. Altstatt filed a grievance with ODRS,

complaining about the Committee’s selection procedures. He argued that Mr. Brown’s

selection was null and void because the Committee had not considered a required scoring

factor under ODRS’s regulations.1 ODRS, after a full evidentiary hearing, ordered the

Committee to reconvene within 30 days to consider the previously omitted factor. In the

meantime, ODRS appointed Mr. Brown as the interim Contract manager so that he could

begin preparations to operate Fort Sill’s vending facility. ODRS also assigned each

candidate a score for the previously omitted factor based on the available data and

provided this information to the Committee. The reconvened Committee considered the

additional scores and again recommended Mr. Brown for the Contract assignment.

ODRS again accepted the Committee’s recommendation.

       Following ODRS’s interim appointment of Mr. Brown and again after ODRS’s

permanent re-selection of Mr. Brown, Mr. Altstatt filed grievances with ODRS to

challenge these actions. He complained, among other things, that (1) ODRS’s re-

selection process was “infirm,” App., Vol. 7 at 1227, (2) one of the Committee

       1
         At the relevant time, ODRS regulations provided that selection committees’
scoring of applicants “shall be based on” four “factors,” one of which was called
“[m]onthly location reviews and annual evaluation.” Okla. Admin. Code § 612:25-4-59
(2012). Mr. Altstatt complained—and ODRS does not dispute—that the Committee
failed to consider the “monthly location reviews and annual evaluation” factor. ODRS
has instead defended the omission of this factor by offering evidence to show that “data
was [not] available for [this factor] at the time that the . . . Committee needed to conduct
th[e] selection process.” Aplt. Br. at 10 (citing App., Vol. 6 at 1053-58).

                                              5
members—Charles Pride—was biased, and (3) Mr. Brown was ineligible for the Contract

assignment because he was delinquent on his taxes. Mr. Altstatt also filed a complaint

with DOE to request arbitration of his grievances against ODRS.

       ODRS granted Mr. Altstatt a second full evidentiary hearing. After the hearing, it

affirmed Mr. Brown’s interim and permanent appointments, concluding that they

“complied with the applicable regulations and due process.” App., Vol. 4 at 718-19.

Dissatisfied with ODRS’s decision, Mr. Altstatt filed a second complaint with DOE

requesting arbitration of his grievances.

                                 C. The Panel’s Decision

       In July 2014, DOE notified the parties that it was consolidating Mr. Altstatt’s

requests for arbitration and “authoriz[ing] the convening of [the Panel] to hear and render

a decision on the issues raised in the two complaints.” App., Vol. 5 at 766, 768. DOE

stated that “[t]he central issue is whether [ODRS]’s process for selecting a blind vendor

for the Ft. Sill food service contract violated the Randolph-Sheppard Act, implementing

regulations and state rules and regulations.” Id.

       In his second complaint to DOE, Mr. Altstatt had specified that he sought the

following relief: “that the selection process for the putative winner, Robert Brown, be

declared invalid and that Altstatt be awarded the current Contract and profits which he

would have received during the period of time in which he would have been operating the

Contract from ODRS.” App., Vol. 4 at 715. DOE’s notices to the parties incorporated

this language by reference: “A complete statement of . . . the relief sought is contained in



                                             6
this complaint for arbitration.” App., Vol. 5 at 765, 767. The notices did not advise the

parties of any limitations on the types of relief the Panel could award.

       In January 2016, after a hearing in November at which “[c]ounsel for the parties

presented opening statements and then called witnesses to give sworn testimony,” the

Panel rendered a decision in favor of Mr. Altstatt. App., Vol. 4 at 635, 643. As relevant

to this appeal, the Panel concluded that ODRS’s re-selection of Mr. Brown for the

Contract assignment was invalid because (1) “[ODRS’s] utiliz[ation] of the same . . .

Committee again after it had violated its own rules deprived Altstatt of due process and

was fundamentally unfair,” (2) “one of the committee members (Pride) was personal

friends with Brown and was known to socialize with him,” and (3) “Brown was not

eligible [for the Contract assignment] by the clear meaning of the words set forth in the

[Announcement]” for having been delinquent in his taxes in the relevant time period. Id.

at 641-42. The Panel ordered that ODRS remove Mr. Brown from the Contract

assignment, appoint Mr. Altstatt in Mr. Brown’s place, and pay damages2 and attorney

fees to Mr. Altstatt.


       2
         The Panel ordered ODRS to pay Mr. Altstatt damages “in an amount equal to
Brown’s net revenue share during the time that he served as the Interim and Permanent
[Contract manager] along with interest at the legal rate.” App., Vol. 4 at 643-45. At the
arbitration hearing, Mr. Altstatt had called a damages expert to testify. The Panel had
rejected the expert’s calculations, which were based on the historical financial statements
of Mr. Brown’s predecessor. Following the Panel’s decision, Mr. Altstatt filed a motion
requesting the Panel to set a specific amount of damages and to rely on the expert’s
damages calculations or to order the production of and independently review Mr.
Brown’s financial statements. App., Vol. 4 at 653-57. The Panel denied this motion,
stating that it “set the damages in its original order with parameters sufficient to calculate
the amount of damages and has no authority to hear additional evidence or modify said
order.” Id. at 650.

                                              7
                          D. Federal District Court Proceedings

         ODRS sued DOE in the U.S. District Court for the Western District of Oklahoma,

seeking judicial review of the Panel’s decision. Mr. Altstatt intervened as a defendant

and counterclaimant, requesting that the court affirm the arbitration decision. After filing

the administrative record of the Panel proceedings, DOE obtained the parties’ stipulation

that it “is a nominal defendant in terms of the rights, claims and remedies sought to be

reviewed [in the case].” Dist. Ct. Doc. 21 at 4. The court accepted the parties’

stipulation and designated DOE a nominal defendant, such that it “[was] not required to

participate in any substantive proceedings . . . unless [specifically] directed to do so.” Id.

at 1.3

         Disallowing any discovery, the court ordered ODRS and Mr. Altstatt to submit

briefs on all of the issues. In its brief, ODRS attacked, as arbitrary or capricious and

unsupported by substantial evidence, the Panel’s following bases for concluding that its

permanent selection of Mr. Brown for the Contract assignment was contrary to the RSA:

(1) the re-selection process was infirm, (2) Mr. Pride and Mr. Brown were friends at the

relevant time, and (3) Mr. Brown was ineligible for the Contract Assignment because of

his tax delinquency. ODRS also challenged each type of relief granted by the Panel:

(1) the removal of Mr. Brown from the Contract assignment as violating Mr. Brown’s

due process, (2) the appointment of Mr. Altstatt to the Contract assignment as exceeding


         3
        Mr. Brown did not seek to intervene in the district court proceedings at any
point. After the entry of final judgment, Mr. Brown filed a motion in this court to
intervene in ODRS’s appeal. We denied this motion as untimely.

                                              8
the scope of the Panel’s remedial authority under the RSA and alternatively as arbitrary

or capricious, (3) the damages award as barred by sovereign immunity, and (4) the

attorney fee award as exceeding the scope of the Panel’s remedial authority under the

RSA and alternatively as barred by sovereign immunity.

       After receiving briefs from ODRS and Mr. Altstatt on these issues, the district

court upheld the Panel’s decision in favor of Mr. Altstatt and all relief granted. The court

rejected on the merits all but one of ODRS’s claims—the due process challenge to the

Panel’s order to remove Mr. Brown from the Contract assignment. The court determined

that ODRS lacked standing to assert the rights of Mr. Brown, a non-party to the litigation,

through this claim. The court later entered final judgment, in which it affirmed the

“Findings of Fact and Conclusions of Law set forth in the [Panel’s decision] . . . in favor

of [Mr.] Altstatt.” App., Vol. 8 at 1384. It further ordered ODRS to remove Mr. Brown

as the Contract manager, replace him with Mr. Altstatt, and pay damages and attorney

fees to Mr. Altstatt as provided for in the Panel’s decision.

       ODRS appealed from the district court’s affirmance of the Panel’s decision,

reasserting all of the arguments it presented below. After oral argument, we ordered the

parties, including DOE, to submit supplemental briefs on issues pertaining to sovereign

immunity and the scope of the Panel’s remedial power under the RSA. DOE attached to

its supplemental brief a document titled “Revised Interim Policies and Procedures for

Convening and Conducting an Arbitration Pursuant to Sections 5(a) and 6 of the

Randolph-Sheppard Act as Amended” (“RSA Arbitration Policies”). This document,

which the Commissioner of DOE’s Rehabilitation Services Administration approved in

                                              9
1978, establishes the policies and procedures governing the arbitration of blind vendors’

grievances against SLAs under the RSA.

                                     II. DISCUSSION

      We begin with our standard of review. We then turn to ODRS’s various

challenges to the Panel’s decision, providing additional background as needed.

                                  A. Standard of Review

      “We review de novo a district court’s decision in an APA case.” Biodiversity

Conservation All. v. Jiron, 762 F.3d 1036, 1059 (10th Cir. 2014). Accordingly, we apply

the standards for reviewing final agency actions set forth in the APA:

             To the extent necessary to decision and when presented, the
             reviewing court shall decide all relevant questions of law,
             interpret constitutional and statutory provisions, and
             determine the meaning or applicability of the terms of an
             agency action. The reviewing court shall—

             ...

             (2) hold unlawful and set aside agency action, findings, and
                 conclusions found to be—

                   (A) arbitrary, capricious, an abuse of discretion, or
                       otherwise not in accordance with law;
                   (B) contrary to constitutional right, power, privilege, or
                       immunity;
                   (C) in excess of statutory jurisdiction, authority, or
                       limitations, or short of statutory right;
                   (D) without observance of procedure required by law; [or]
                   (E) unsupported by substantial evidence in a case . . .
                       reviewed on the record of an agency hearing provided
                       by statute . . . .

5 U.S.C. § 706 (emphases added).



                                             10
                         B. ODRS’s Challenges under the APA

       ODRS raises various APA challenges to (1) the Panel’s conclusion that ODRS’s

permanent selection of Mr. Brown for the Contract assignment violated the RSA, and (2)

specific types of relief awarded to Mr. Altstatt, whom the Panel determined should have

received the Contract assignment instead of Mr. Brown. We affirm the district court’s

decision as to the Panel’s order to remove Mr. Brown from the Contract assignment and

replace him with Mr. Altstatt, but we reverse as to the Panel’s award of damages and

attorney fees.

       We first review the Panel’s conclusion that Mr. Brown’s selection violated the

RSA. ODRS attacks as arbitrary or capricious or as unsupported by substantial evidence

the Panel’s reasons for this conclusion: infirmity in ODRS’s re-selection process, the

friendship between Mr. Brown and Mr. Pride, and Mr. Brown’s ineligibility. We need

only consider ODRS’s arguments regarding the Panel’s third reason—Mr. Brown’s

ineligibility for the Contract assignment due to tax issues. Based on our review of the

record, we conclude that the Panel’s finding of ineligibility was not arbitrary or

capricious or unsupported by substantial evidence. Because this reason alone supports

the Panel’s conclusion that Mr. Brown’s selection violated the RSA, we do not consider

ODRS’s arguments regarding the Panel’s remaining reasons.

       We then turn to the Panel’s remedies awarded to Mr. Altstatt. ODRS challenges:

(a) Mr. Altstatt’s appointment to the Contract assignment as exceeding the scope of the

Panel’s remedial authority under the RSA and as arbitrary or capricious; (b) the damages

award as violating sovereign immunity; and (c) the attorney fee award as exceeding the

                                             11
scope of the Panel’s remedial authority and as violating sovereign immunity.4 We

conclude that (a) the Panel had statutory authority to order Mr. Altstatt’s appointment to

the Contract; (b) ODRS is entitled to sovereign immunity from the damages award; and

(c) the Panel exceeded its statutory authority in awarding Mr. Altstatt attorney fees.5

   The Panel’s Conclusion that ODRS Violated the RSA

       Under the APA, the reviewing court must “hold unlawful and set aside agency

action,” 5 U.S.C. § 706(2), that is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,” id. § 706(2)(A), or “unsupported by substantial

evidence,” id. § 706(2)(E). ODRS contends the Panel’s finding that Mr. Brown was

ineligible for the Contract assignment due to tax issues “is not supported by substantial

evidence and is arbitrary.” Aplt. Br. at 40. We disagree.




       4
         ODRS also challenges the Panel’s removal of Mr. Brown as violating Mr.
Brown’s due process rights. See Aplt. Br. at 28-31. We decline to address this claim,
which the district court dismissed for lack of standing. App., Vol. 8 at 1372 n.28
(“Ordinarily a litigant may only assert its own constitutional rights and a plaintiff cannot
sue for the deprivation of another’s civil rights; the Court therefore has disregarded this
argument.”). On appeal, ODRS fails to address its standing to bring the due process
claim, both in its opening brief and in its reply brief, even after Mr. Altstatt argued lack
of standing in his response brief. Under these circumstances, ODRS has waived any
argument that it has standing to pursue a due process claim on Mr. Brown’s behalf, and
we therefore do not entertain such a claim. See Colorado Outfitters Ass’n v.
Hickenlooper, 823 F.3d 537, 552 (10th Cir. 2016) (“[T]he plaintiffs don’t argue on
appeal that [one of the plaintiffs] had standing. . . . Thus, the plaintiffs have waived that
argument.”).
       5
          We do not address ODRS’s contention that sovereign immunity bars the attorney
fee award because we conclude the RSA does not authorize attorney fees. We reverse the
district court’s affirmance of the Panel’s attorney fee award on this basis alone.

                                             12
       We (a) summarize the evidence before the Panel relating to the tax eligibility

requirement for the Contract assignment and Mr. Brown’s tax issues; (b) provide legal

background on the federal contracting regulations ODRS relies on to challenge the

Panel’s finding that Mr. Brown was tax delinquent and therefore ineligible for the

Contract assignment; and (c) analyze the Panel’s finding in light of the administrative

record and conclude that the finding was neither unsupported by substantial evidence, nor

was it arbitrary or capricious.

       a. Relevant evidence in the administrative record

       We summarize the evidence relating to (i) the Contract assignment’s tax eligibility

requirement and (ii) Mr. Brown’s tax issues in the period leading up to ODRS’s selection

process.

              i. The tax eligibility requirement

       The Announcement for the Contract assignment enumerated several “eligibility

criteria,” including that applicants must not “have had any delinquency on taxes for the

past 3 years.” App., Vol. 7 at 1139.

       The administrative record contains the affidavit of Michael Jones, who served as

ODRS’s Division Administrator from July 2011 to April 2013. App., Vol. 7 at 1124-25.

In his affidavit, Mr. Jones stated that he “wrote the applicant requirements for the

[Announcement].” Id. at 1124. He stated that “[o]ne of these requirements was that the

successful applicant could not have any tax delinquencies” and that he had “included the

tax delinquency provision . . . based on requirements found in the Defense Finance

Acquisition Regulations, or ‘DFARS’ that govern all federal contracts.” Id. at 1124,

                                             13
1125. He also stated that, “if [this requirement] was not met, [it] would be grounds for

the federal contracting officer administering [the Contract] to ‘debar’ or deem the

selected manager disqualified from continuing to work at the facility.” Id. at 1124.

       At the arbitration hearing, ODRS called Mike Hamrick, its Operations Coordinator

for the RSA Program, to testify. He testified that the tax eligibility requirement is not in

ODRS’s rules and regulations but instead “comes from the DFARS.” App., Vol. 6 at

1049. He also testified that ODRS had not undertaken to check whether the candidates

for the Contract assignment satisfied the tax eligibility requirement, “since it w[as] the

Army’s [rather than ODRS’s own] requirement[].” Id. at 1050.

              ii. Mr. Brown’s tax issues

       The administrative record contains notices of two federal tax liens filed against

Mr. Brown’s property within the three years preceding the application due date for the

Contract assignment, December 21, 2012. App., Vol. 7 at 1141-42. In both notices, the

Internal Revenue Service (the “IRS”) stated that “taxes . . . have been assessed against

[Mr. Brown and his wife]” and that the United States “ha[s] made a demand for payment

of this liability, but it remains unpaid.” Id. In the first notice, prepared on February 18,

2011, the IRS assessed an unpaid balance of $15,117.95 from tax years 2008 and 2009.

In the second notice, prepared on November 1, 2012, the IRS assessed an unpaid balance

of $6,481.96 from tax year 2010. In both notices, the IRS also stated that “there is a lien

in favor of the United States on all property and rights to property belonging to [Mr.

Brown and his wife] for the amount of these taxes.” Id.



                                             14
       The administrative record also contains Mr. Brown’s sworn affidavit, in which he

states that he had entered into an installment payment plan for his unpaid taxes with the

IRS before ODRS selected him for the Contract assignment:

               At the time that I received the invitation to apply [for the
               Contract assignment] I was concluding negotiation of a
               payment plan with the U.S. Internal Revenue Service for
               certain personal income taxes that had not been properly filed
               on my behalf in prior years. I did enter into an agreed
               payment plan before the [ODRS] selection process had
               concluded. My monthly payments at an agreed amount began
               in February, 2013. To the extent that the IRS has filed any
               liens relating to taxes owed by me, those claimed taxes due
               are covered by the repayment plan and I have been assured
               that the IRS will not attempt any collection or treat me as a
               delinquent taxpayer while I am making the agreed payments
               according to the agreed payment plan.

Id. at 1126.

       In his affidavit, Mr. Brown also stated that he had “discussed the above matter

with Division Manager Mike Jones before applying for the selection process” and that

Mr. Jones had “referred to particular U.S. Army regulations for contracting (DFARS) as

the reason for including in the [Announcement] a section stating that the successful

applicant would need to be clear of any tax delinquency.” Id. at 1127. Mr. Brown stated

that Mr. Jones had “advised [him] that DFARS itself contained a provision saying that

taxes covered by an agreed repayment plan do not constitute a delinquency, and that

[ODRS] would not consider [his] tax matter covered by a payment plan to be a

delinquency.” Id.

       Mr. Jones’s affidavit corroborated Mr. Brown’s affidavit. In his affidavit, Mr.

Jones stated: “Prior to submitting his application for the [Contract assignment], Robert

                                            15
Brown advised me that he had learned that he had some unpaid federal taxes but that he

had previously entered into a payment plan to satisfy his tax obligations and was making

his payments as agreed.” Id. at 1125. Mr. Jones also stated: “Applying both the DFARS

standards and common sense, I determined that the payment plan being in place and not

being breached meant that Mr. Brown did not have a tax ‘delinquency’ that would

disqualify him from the selection process or from performing [the Contract] if selected,

and I advised him of that position.” Id.

       Mr. Brown also testified at the arbitration hearing regarding unpaid taxes and his

installment plan with the IRS. He elaborated on the plan’s terms: “I was to pay back a

set amount monthly, and then if there were ever any issues where I might [] be late, then

they needed me to make sure I contacted them so that I would continue to be considered

in good standing.” App., Vol. 6 at 1031.

       b. Legal background

       The Federal Acquisition Regulations System (“FARS”) is a set of regulations

jointly promulgated by the Department of Defense, the General Services Administration,

and the National Aeronautics and Space Administration to establish “uniform policies

and procedures for acquisition by all executive agencies.” 48 C.F.R. §§ 1.101, 1.103.

Under the regulations, “[a]cquisition means the acquiring by contract with appropriated

funds of supplies or services . . . by and for the use of the Federal Government through

purchase or lease . . . .” Id. § 2.101.




                                            16
      Under FARS, a federal contractor may be debarred “based upon a preponderance

of the evidence” for, among other things, “[d]elinquent Federal taxes in an amount that

exceeds $3,500.” Id. § 9.406-2(b)(1)(v).6 FARS provides that:

             (A) Federal taxes are considered delinquent for purposes of
                 this provision if both of the following criteria apply:

                    (1) The tax liability is finally determined. The liability
                        is finally determined if it has been assessed. A
                        liability is not finally determined if there is a
                        pending administrative or judicial challenge. In
                        the case of a judicial challenge to the liability, the
                        liability is not finally determined until all judicial
                        appeal rights have been exhausted.

                    (2) The taxpayer is delinquent in making payment. A
                        taxpayer is delinquent if the taxpayer has failed to
                        pay the tax liability when full payment was due and
                        required. A taxpayer is not delinquent in cases
                        where enforced collection action is precluded.

             (B) Examples.

                    ...

                    (2) The IRS has filed a notice of Federal tax lien with
                        respect to an assessed tax liability, and the taxpayer
                        has been issued a notice under I.R.C. § 6320
                        entitling the taxpayer to request a hearing with the
                        IRS Office of Appeals contesting the lien filing,
                        and to further appeal to the Tax Court if the IRS
                        determines to sustain the lien filing. In the course
                        of the hearing, the taxpayer is entitled to contest
                        the underlying tax liability because the taxpayer
                        has had no prior opportunity to contest the liability.
                        This is not a delinquent tax because it is not a final

      6
        “Debarment means action taken . . . to exclude a contractor from Government
contracting and Government-approved subcontracting for a reasonable, specified period;
a contractor that is excluded is ‘debarred.’” 48 C.F.R. § 2.101.

                                            17
                           tax liability. Should the taxpayer seek tax court
                           review, this will not be a final tax liability until the
                           taxpayer has exercised all judicial appeal rights.

                     (3) The taxpayer has entered into an installment
                         agreement pursuant to I.R.C. § 6159. The taxpayer
                         is making timely payments and is in full
                         compliance with the agreement terms. The
                         taxpayer is not delinquent because the taxpayer is
                         not currently required to make full payment.

                     ...

Id. § 9.406-2(b)(1)(v) (emphases added).
       c. Analysis

       The Panel’s finding that Mr. Brown was ineligible for the Contract assignment

because he had a tax delinquency during the relevant time period was neither

unsupported by substantial evidence, nor arbitrary or capricious.7 Because this finding

alone supports the Panel’s conclusion that ODRS violated the RSA in selecting Mr.

Brown, we need not address ODRS’s challenges to the Panel’s other bases for it

conclusion.8



       7
        We address both ODRS’s substantial evidence and arbitrary or capricious
challenges together because “[t]he arbitrary and capricious standard of review has been
equated to the substantial evidence test.” AllCare Home Health, Inc. v. Shalala, 278 F.3d
1087, 1089 (10th Cir. 2001). Our review under both standards is “narrow and highly
deferential to the agency.” Jake’s Fireworks Inc. v. Acosta, 893 F.3d 1248, 1257 (10th
Cir. 2018). Under these standards, we do not overturn an agency’s factual findings if “a
reasonable mind would consider the evidence adequate to support the conclusion
reached.” Id. (quotations omitted).
       8
         Under the RSA, participating SLAs must “[t]ake effective action . . . to carry out
full responsibility for the supervision and management of each vending facility in its
program in accordance with its established rules and regulations, [DOE regulations], and
the terms and conditions governing the permit [for each vending facility].” 34 C.F.R.
                                                18
       The administrative record adequately supports the Panel’s finding that Mr. Brown

had tax delinquencies in the three-year period before the Announcement’s publication in

December 2012 and was therefore ineligible for the Contract assignment. ODRS’s

Announcement expressly “deemed as [an] eligibility criteri[on]” an applicant’s not

having “had any delinquency on taxes for the past 3 years.” App., Vol. 7 at 1139

(emphasis added). ODRS contends that the term “delinquency” as used in the

Announcement should be given the same meaning it has under FARS debarment rules.

But even accepting the FARS definition, the Panel did not err in concluding that Mr.

Brown had a delinquency sometime in the three years before December 2012. In Mr.

Brown’s notices of federal tax lien, the IRS stated that it had “assessed” tax liabilities

against Mr. Brown in tax years 2008, 2009, and 2010 and that Mr. Brown failed to

comply when the IRS had previously “made a demand for payment.” Id. at 1141, 1142.9


§ 395.3(a)(11)(ii). Accordingly, whether the tax eligibility requirement published in the
Announcement was ODRS’s rule or, as ODRS maintains, the Army’s rule, ODRS’s
failure to enforce the requirement violated the RSA Program’s terms.
       9
         Under FARS, a tax liability is not a delinquency “if there is a pending
administrative or judicial challenge.” 48 C.F.R § 9.406-2(b)(1)(v)(A)(1). Accordingly,
when the IRS files a federal tax lien and the taxpayer requests a hearing to “contest the
underlying tax liability,” the liability is not a delinquency. Id. § 9.406-2(b)(1)(v)(B)(2).
And “[s]hould the taxpayer seek tax court review, this will not be a final tax liability until
the taxpayer has exercised all judicial appeal rights.” Id. ODRS relies on § 9.406-
2(b)(1)(v)(B)(2) for the proposition that “the mere existence of a Notice of Federal Tax
Lien is not evidence of a tax delinquency.” Aplt. Br. at 40. And it contends that “[s]ince
the burden of proof was on Altstatt and his only evidence on Brown’s tax delinquency
was the Notice of Federal Tax Liens, the Panel’s conclusion that Brown was delinquent is
not supported by substantial evidence and is arbitrary.” Id. We disagree.
       Taken together, §§ 9.406-2(b)(1)(v)(A)(1) and 9.406-2(b)(1)(v)(B)(2) mean that
an assessed tax liability is not a delinquency only to the extent the taxpayer pursues an
administrative or judicial challenge. Here, the administrative record does not show that
                                              19
       Mr. Brown’s installment plan to repay his taxes does not compel a contrary

conclusion. Under FARS, a taxpayer who “has entered into an installment agreement”

and “is making timely payments and is in full compliance with the agreement terms” is

not delinquent. 48 C.F.R § 9.406-2(b)(1)(v)(B)(3). According to his affidavit and

testimony, Mr. Brown learned of his unpaid taxes sometime in 2012 and entered into an

installment agreement with the IRS after ODRS published the Announcement in

December 2012. See App., Vol. 6 at 1028, 1030-31; App., Vol. 7 at 1126. But he had a

tax delinquency as early as February 18, 2011, when the IRS prepared the first notice of

federal tax lien. App., Vol. 7 at 1141. His later installment plan cannot erase the fact that

he had a tax delinquency during the three-year period preceding the Announcement’s

publication, contrary to its stated eligibility requirements. See App., Vol. 7 at 1139

(requiring applicants “[n]ot to have had any delinquency on taxes for the past 3 years”

(emphasis added)). The record therefore contains substantial evidence that Mr. Brown

was ineligible for the Contract assignment.

   The Relief Granted to Mr. Altstatt by the Panel

       Having rejected ODRS’s challenges to the Panel’s conclusion that Mr. Brown’s

selection violated the RSA, we now turn to ODRS’s challenges to the types of relief the

Mr. Brown pursued such a challenge. Despite Mr. Brown’s participation in the
arbitration hearing as a witness, he never mentioned such a challenge. Instead, he
testified that he did not learn of his tax liabilities until “the 2012 time frame,” App.,
Vol. 6 at 1028, despite the IRS’s filing notice of tax lien in February 2011 based on
unpaid taxes from 2008 and 2009, App., Vol. 7 at 1141. He further testified that after he
learned of the liabilities, rather than pursue a challenge, he began negotiating an
installment plan with the IRS. App., Vol. 6 at 1030-31. In light of this record, we
conclude that “a reasonable mind would consider the evidence adequate to support the
[Panel’s] conclusion.” Jake’s Fireworks Inc., 893 F.3d at 1257 (quotations omitted).
                                              20
Panel granted to Mr. Altstatt, whom the Panel determined should have received the

Contract assignment instead. Providing additional legal background as needed, we

address (a) the Panel’s order to appoint Mr. Altstatt to the Contract, (b) the Panel’s award

of damages to Mr. Altstatt, and (c) the Panel’s award of attorney fees to Mr. Altstatt.

       a. Order to appoint Mr. Alstatt to the Contract

       Under the APA, the reviewing court must “hold unlawful and set aside agency

action,” 5 U.S.C. § 706(2), that is “in excess of statutory jurisdiction, authority, or

limitations,” id. § 706(2)(C). ODRS contends the Panel exceeded its remedial authority

under the RSA in ordering Mr. Altstatt’s appointment to the Contract assignment. We

disagree.

       We begin with legal background on arbitration panels’ power to grant prospective,

or injunctive, relief to aggrieved blind vendors under the RSA. We then analyze whether

the Panel’s order to appoint Mr. Altstatt to the Contract assignment exceeded the scope of

the Panel’s authority and conclude that it did not.

              i. Legal background

       This court has not previously considered what forms of relief arbitration panels

may grant aggrieved blind vendors under the RSA. Although this question has received

limited judicial attention, the approaches to prospective relief in three out-of-circuit cases

help inform our analysis: (1) Delaware Department of Health & Social Services v.

United States Department of Education, 772 F.2d 1123 (3d Cir. 1985); (2) Georgia

Department of Human Resources v. Nash, 915 F.2d 1482 (11th Cir. 1990); and (3)

Wisconsin Department of Workforce Development v. United States Department of

                                              21
Education, 667 F. Supp. 2d 1007 (W.D. Wis. 2009). We summarize the relevant

discussion from each case.10

                      1) Delaware Department of Health and Social Services—
                         interpreting the RSA in light of established arbitration principles
       In Delaware Department of Health and Social Services, the Third Circuit

considered whether the RSA authorizes arbitration panels to grant retrospective relief to

aggrieved blind vendors. The district court had vacated an arbitration award of

retrospective damages based on its “conclu[sion] that prospective arbitral relief against

Delaware was clearly within the authority of the arbitrators . . . , but that . . . Congress

could not have intended that the arbitrators have the authority to award retrospective

relief.” 772 F.2d at 1136.

       The Third Circuit reversed, holding that “the district court erred in concluding that

the arbitrators in a Randolph-Sheppard arbitration were not authorized to award

compensatory damages.” Id. at 1137. In reaching this outcome, and as relevant to our

concern about prospective relief, the court considered the legal backdrop against which

Congress had provided for arbitration of blind vendors’ grievances under the RSA. The

court considered that, “[w]hen Congress [amended the RSA] in 1974 [to] provide[] that

states desiring to gain access to blind vendor locations in federal facilities must agree to

submit to arbitration their disputes with blind vendors, the term arbitration had a well-

recognized meaning.” Id. at 1136.

10
  We describe these decisions, not to opine on their holdings or results, but to detect
approaches to remedial authority that may help us in deciding whether the injunctive
relief awarded in this case was proper.

                                              22
       The court further considered that, in enacting the 1974 amendments, “Congress

was surely aware that arbitrators proceeding under the authority of the Federal

Arbitration Act or under the authority of the Uniform Arbitration Act, as a matter of

course awarded retrospective compensatory relief in appropriate cases.” Id. It also

reviewed the legislative history materials and found “no . . . support[] [for] any reading of

the term arbitration other than the conventional one.” Id. at 1137.

       Although Delaware also “contend[ed] that even prospective relief was improper,”

the Third Circuit did not address that question because the arbitration was limited to the

claims of the blind vendor, who did not seek prospective relief. Id. at 1137 n.9; see id.

at 1132. The court did not speak directly to whether an RSA arbitration panel may grant

prospective relief, but it noted that the RSA “lends no support for the distinction drawn

by the district court between prospective and compensatory relief.” Id. at 1136-37.

                     2) Georgia Department of Human Resources—interpreting the RSA
                        in view of the differences between §§ 107d-2(b)(1) and 107d-
                        2(b)(2)
       In Georgia Department of Human Resources, the Eleventh Circuit considered

whether the RSA authorizes arbitration panels to award damages to a blind vendor “based

on [the SLA’s] failure to complain when a federal entity closed a vending stand located

on property under its control.” 915 F.2d at 1483. The district court had “upheld an

award of compensatory damages to the blind vendor made by an arbitration panel

convened under the Act” based on its “interpret[ation] [of] the statute to provide a blind

vendor with [such] an action.” Id.



                                             23
       The Eleventh Circuit reversed, holding that “the district court ha[d] misinterpreted

the statute” and that such a “cause of action is inconsistent both with the Act’s express

language and its remedial structure.” Id. at 1483, 1484-85. Again, as relevant to our

concern, the court observed that the RSA provides separately for the arbitration of blind

vendors’ grievances against SLAs under § 107d-1(a) and for the arbitration of SLAs’

grievances against federal entities under § 107d-1(b). Id. at 1487. It determined that the

procedures for the two types of arbitration “are similar, but different, and these

differences undermine the cause of action at issue.” Id. at 1490.

       Sections 107d-2(b)(1) and 107d-2(b)(2) of the RSA, which respectively establish

procedures for vendor-versus-SLA and SLA-versus-federal entity arbitrations, mirror

each other in structure—with one notable exception. The last sentence in § 107d-2(b)(2),

which lacks a counterpart in § 107d-2(b)(1), provides:

              If the [arbitration panel appointed to hear an SLA’s
              complaint] finds that the acts or practices of [the federal
              entity] are in violation of [the RSA or any implementing
              regulation], the head of any such [entity] 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.

20 U.S.C. § 107d-2(b)(2).

       Relying on the inclusion of this sentence in § 107d-2(b)(2) and not in § 107d-

2(b)(1), the Eleventh Circuit determined that “the [arbitration] panel’s remedial powers

vary under the two [types of arbitration].” Ga. Dep’t of Human Res., 915 F.2d at 1491

(emphasis added). It said that “[s]ection 107d–2 provides specific direction to the

arbitration panel regarding remedies in [SLA-versus-federal entity] cases but provides no

                                             24
instruction at all regarding remedies in [vendor-versus-SLA] cases.” Id. The court

interpreted the sentence’s inclusion in § 107d-2(b)(2) as “limit[ing] the panel’s authority

to . . . determine that a violation is occurring and . . . identify[ing] the discrete acts that

are in violation.” Id. at 1492. It thus determined that the RSA “does not authorize the

arbitration panel [hearing an SLA’s complaint against a federal entity] to order the

federal entity to take any remedial action” and instead “expressly places the obligation of

ending the violation on the federal entity itself.” Id. And the court interpreted the

sentence’s exclusion in § 107d-2(b)(1) as imposing, “[i]n contrast to the[] express limits

on the arbitration panel’s power in [SLA-versus-federal entity] cases, . . . no such limits

on the panel in [vendor-versus-SLA] cases.” Id.

       The court summarized the differences in the panel’s remedial powers in the two

types of arbitrations:

               Whatever the exact limits of a [vendor-versus-SLA] panel’s
               remedial powers, its powers are qualitatively different from
               those of a [SLA-versus-federal entity] panel. The Act gives
               [vendor-versus-SLA] panels authority to impose remedies
               directly on the state licensing agency. The [SLA-versus-
               federal entity] panel, however, under the Act’s express terms,
               has no remedial powers whatsoever. It may determine that
               certain of the federal entity’s acts violate the Act, but the Act
               leaves responsibility for remedying the violation to the
               federal entity itself.

Id. “Although [the court did not need to] decide the scope of an arbitration panel’s

remedial powers [in a vendor-versus-SLC arbitration]” to resolve the case before it, it

“note[d] in passing that the Third Circuit has held that those panels’ remedial powers are

equivalent to the powers of an arbitration panel under the Federal Arbitration Act or the


                                               25
Uniform Arbitration Act.” Id. (discussing Del. Dep’t of Health & Social Servs., 772 F.2d

at 1136).

                     3) Wisconsin Department of Workforce Development—interpreting
                        the RSA’s arbitration provisions to effectuate congressional
                        intent
       In Wisconsin Department of Workforce Development, the federal district court

reviewed an RSA arbitration decision granting an aggrieved blind vendor both retroactive

money damages and prospective relief. The court vacated the damages award on the

basis of sovereign immunity but upheld the injunctive relief. In doing so, it reasoned that

“the arbitration panel must have the authority to grant some relief to blind licensees in

order to give meaning to the arbitration provisions.” 667 F. Supp. 2d at 1015; see also

New Hampshire v. Ramsey, 366 F.3d 1, 18 (1st Cir. 2004) (“The effect of [an] argument

[that neither retrospective damages nor prospective equitable relief is available to blind

vendors] would be to render [the RSA’s grievance] procedures meaningless.”).

              ii. Analysis

       The Panel acted within its remedial power under the RSA in ordering ODRS to

appoint Mr. Altstatt as the Contract manager.11 Confronted with silence as to the

remedies available to aggrieved blind vendors in the RSA’s text, and implementing


       11
           In its supplemental brief, DOE said “the RSA authorizes arbitration panels to
issue all forms of prospective equitable relief.” Aplee. DOE Suppl. Br. at 6. We need
not decide whether DOE’s interpretation of the statute is entitled to deference because, as
we explain below, we agree with DOE even under de novo review. In any event, DOE
has not claimed any entitlement to deference. See Hydro Res., Inc. v. U.S. EPA, 608 F.3d
1131, 1146 (10th Cir. 2010) (en banc) (“[W]hen the agency doesn’t ask for deference to
its statutory interpretation, we need not resolve the issues regarding deference which
would be lurking in other circumstances.” (alterations and quotations omitted)).

                                             26
regulations, we find instructive the interpretive approaches other courts have applied to

the statute.12 And ODRS has not offered—nor have we identified—a competing

approach to interpreting the RSA’s remedial provisions.

       Each of the three approaches to interpreting the RSA in the cases discussed above

lends support to the conclusion that the RSA broadly authorizes arbitration panels to

fashion prospective remedies for aggrieved blind vendors.13 The first approach—

interpreting the RSA in light of established commercial arbitration principles at the time

Congress enacted the arbitration scheme in 1974—provides support because, under the

American Arbitration Association rules, an arbitrator could “grant any remedy or relief

which he deems just and equitable.” Martin Domke, The Law and Practice of

       12
          The sparse legislative history on this issue points to the result reached here. The
purpose of the RSA’s vendor-versus-SLA arbitration procedures is to provide aggrieved
vendors with an effective means to resolve their grievances against SLAs. See, e.g.,
S. Rep. No. 98-937, at 20 (1974) (“It is the expectation of the Committee [on Labor and
Public Welfare] that the arbitration and review procedures . . . will provide the means by
which aggrieved vendors . . . may obtain a final and satisfactory resolution of disputes.”
(emphasis added)). One of the “conditions [that] prompted the inclusion of these
[arbitration procedures] . . . [was that] blind vendors ha[d] considered previously
available legal procedures to be inadequate.” 121 Cong. Rec. 16,227 (1975) (speech on
RSA Amendments of 1974 inserted into the record by Rep. John Brademas).
       13
           We see no reason why such authority should not extend to the specific form of
relief at issue here—the order to appoint Mr. Altstatt to the Contract assignment. ODRS
contends that, under the RSA, “the Arbitration Panel had no authority to preempt [its]
rules concerning how to select managers for a particular facility” and that “[i]ts only
authority was to review and judge the selection process that had been conducted.” Aplt.
Br. at 34. We agree that the RSA delegates authority to SLAs to promulgate rules
governing their operation of the RSA Program, see 20 U.S.C. § 107b(5), including the
selection of blind vendors for particular vending assignments. But the RSA nowhere
prohibits an arbitration panel from remedying violations of such rules by ordering the
offending SLA to appoint the aggrieved blind vendor to the disputed assignment should it
find that, but for the violation, the vendor would have received the assignment.

                                             27
Commercial Arbitration, § 30:01 (1968) (quotations omitted). The second approach—

interpreting the RSA by comparing its provisions pertaining to the two types of

arbitration proceedings—offers support because, although Congress included language

limiting the arbitration panel’s remedial power in SLA-versus-federal entity arbitrations,

20 U.S.C. § 107d-2(b)(2), no such language appears for vendor-versus-SLA arbitrations,

see id. § 107d-2(a). The third approach—interpreting the RSA to effectuate its

arbitration scheme—supplies support because, if arbitration panels lacked authority to

fashion injunctive relief, blind vendors would lack a complete remedy for their

grievances arising from SLAs’ operation of the RSA Program.14

       Drawing on these various approaches to interpreting the RSA’s remedial

provisions, we conclude that the Panel acted within its remedial power in ordering ODRS

to appoint Mr. Altstatt as the Contract manager.15



       14
         Blind vendors ordinarily may not obtain compensatory relief for their grievances
because, as we explain below, SLAs enjoy sovereign immunity from damages awarded to
a blind vendor by an RSA arbitration panel.
       15
          ODRS primarily challenges the order to appoint Mr. Altstatt as exceeding the
scope of the Panel’s statutory authority. But ODRS also appears to bring a separate,
albeit cursory, challenge to the order as arbitrary and capricious.
        As discussed above, the Panel properly found that Mr. Brown was ineligible for
the Contract assignment because of his tax delinquency. Mr. Altstatt received the next
highest total score of all the candidates and thus presumably should have received the
Contract assignment. App., Vol. 7 at 1231 (Mr. Altstatt received a total score of 300.75,
whereas the remaining two candidates received 239.25 and 266.75). ODRS appears to
contend, however, that the Panel’s consideration of the candidates’ total scores—
comprised of the scores from the original selection process supplemented with the scores
for the previously omitted factor, as later calculated by ODRS during the re-selection
process—was arbitrary and capricious given the Panel’s determination that the original
selection process was flawed. Aplt. Br. at 33. We disagree.
                                            28
       b. Award of damages to Mr. Altstatt

       Under the APA, the reviewing court must “hold unlawful and set aside agency

action,” 5 U.S.C. § 706(2), that is “contrary to constitutional right, power, privilege, or

immunity,” id. § 706(2)(B). ODRS contends the Panel’s damages award violates its

sovereign immunity. We agree and hold the award should be vacated.

       We begin with legal background on sovereign immunity’s application to agency

adjudications and standards governing waiver of sovereign immunity as to money

damages. We then proceed to analyze whether sovereign immunity bars the Panel’s

damages award. Guided by the Supreme Court’s decisions in Federal Maritime

Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002), and Sossamon

v. Texas, 563 U.S. 277 (2011), we conclude that it does.

              i. Legal background

       “Sovereign immunity is the privilege of the sovereign not to be sued without its

consent.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253 (2011). A

state’s sovereign immunity extends to its agencies and departments. Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“It is clear, of course, that in the



       Apart from Mr. Brown’s ineligibility, the Panel identified two other flaws in the
original selection process: (1) the omission of a required scoring factor, and (2) Mr.
Pride’s friendship with Mr. Brown. But neither flaw rendered the Panel’s consideration
of the original scores arbitrary or capricious because Mr. Altstatt had the next highest
score with or without the scores for the previously omitted factor and with or without the
scores given by Mr. Pride. See App., Vol. 7 at 1231 (subtracting the previously omitted
“Annual Evaluation Score[s]” from the total scores, Mr. Altstatt received 290.75,
whereas the remaining two candidates received 226.25 and 251.75; subtracting Mr.
Pride’s scores from the total scores, Mr. Altstatt received 246.75, whereas the remaining
two candidates received 183.25 and 206.75).
                                             29
absence of consent a suit in which the State or one of its agencies or departments is

named as the defendant is proscribed by the Eleventh Amendment.” (emphasis added)).

       The Eleventh Amendment, which constitutionalizes the doctrine of sovereign

immunity, provides that “[t]he Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI. The Supreme Court “has repeatedly held that the sovereign immunity

enjoyed by the States extends beyond the literal text of the Eleventh Amendment.” Fed.

Mar. Comm’n, 535 U.S. at 754.

       We discuss (1) sovereign immunity’s application to agency adjudications and

(2) the standards governing waiver of sovereign immunity as to money damages.

                     1) Sovereign immunity’s application to agency adjudications:
                        Federal Maritime Commission
       In Federal Maritime Commission, the Supreme Court addressed for the first time

whether a state’s sovereign immunity extends to federal agency adjudications of private

complaints against state agencies. In this instance, the Federal Maritime Commission

(the “FMC”) adjudicated a complaint filed by a private company against the South

Carolina State Ports Authority, which had denied the company permission to berth a

cruise ship at the state’s port facilities. Id. at 747. The Court “h[eld] that state sovereign




                                              30
immunity bars the FMC from adjudicating complaints filed by a private party against a

nonconsenting State.” Id. at 760.16

       In its analysis, the Court examined “whether [FMC adjudications] are the type of

proceedings from which the Framers would have thought the States possessed immunity

when they agreed to enter the Union.” Id. at 756. To answer this question, the Court first

considered general similarities between an agency adjudication before an Administrative

Law Judge (“ALJ”) and civil litigation before an Article III judge. It noted the

“similarities between the role of an ALJ and that of a trial judge”17 and “the numerous




       16
          The Court clarified that “[s]overeign immunity does not merely constitute a
defense to monetary liability or even to all types of liability” but rather “provides an
immunity from suit.” Fed. Mar. Comm’n, 535 U.S. at 766. It thus suggested that
sovereign immunity bars the FMC from adjudicating private complaints against state
entities “regardless of whether [the adjudication] is for monetary damages or some other
type of relief” and, indeed, even “if Congress had . . . precluded [the FMC] from
awarding [private parties] any relief.” Id. at 765, 766.
       17
            The Court said:

                “There can be little doubt that the role of the modern federal
                hearing examiner or administrative law judge . . . is
                ‘functionally comparable’ to that of a judge. His powers are
                often, if not generally, comparable to those of a trial judge:
                He may issue subpoenas, rule on proffers of evidence,
                regulate the course of the hearing, and make or recommend
                decisions. More importantly, the process of agency
                adjudication is currently structured so as to assure that the
                hearing examiner exercises his independent judgment on the
                evidence before him, free from pressures by the parties or
                other officials within the agency.”

Fed. Mar. Comm’n, 535 U.S. at 756 (quoting Butz v. Economou, 438 U.S. 478, 513
(1978)).

                                              31
common features shared by administrative adjudications and judicial proceedings.”18 Id.

at 756-57. The Court then considered specific similarities between FMC and Article III

proceedings, including: (1) “the FMC’s Rules governing pleadings are quite similar to

those found in the Federal Rules of Civil Procedure,” id. at 757; (2) “discovery in FMC

adjudications largely mirrors discovery in federal civil litigation,” id. at 758-59;

(3) “similar to that of an Article III judge,” the ALJ’s role in an FMC adjudication

includes arranging, giving notice, and managing the conduct of a hearing, granting

appropriate relief, and issuing a ruling that ordinarily becomes the agency’s final

decision, id. at 759; and (4) the FMC’s own rules provide for application of the Federal

Rules of Civil Procedure and the Federal Rules of Evidence in many situations, id. at 759

& n.10.

       In light of the foregoing, the Court concluded that “the similarities between FMC

proceedings and civil litigation are overwhelming.” Id. at 759. It also clarified that

       18
            The Court said:

                “[F]ederal administrative law requires that agency
                adjudication contain many of the same safeguards as are
                available in the judicial process. The proceedings are
                adversary in nature. They are conducted before a trier of fact
                insulated from political influence. A party is entitled to
                present his case by oral or documentary evidence, and the
                transcript of testimony and exhibits together with the
                pleadings constitute the exclusive record for decision. The
                parties are entitled to know the findings and conclusions on
                all of the issues of fact, law, or discretion presented on the
                record.”

Fed. Mar. Comm’n, 535 U.S. at 756-57 (quoting Butz, 438 U.S. at 513 (alteration in Fed.
Mar. Comm’n)).

                                              32
“[t]he preeminent purpose of state sovereign immunity is to accord States the dignity that

is consistent with their status as sovereign entities.” Id. at 760. “Given both this interest

in protecting States’ dignity and the strong similarities between FMC proceedings and

civil litigation,” the Court held that state sovereign immunity extends to formal FMC

adjudications before an ALJ. Id. It said that “[t]he affront to a State’s dignity does not

lessen when an adjudication takes place in an administrative tribunal as opposed to an

Article III court.” Id. It further suggested that “allowing a private party to haul a State in

front of such an administrative tribunal constitutes a greater insult . . . than requiring a

State to appear in an Article III court presided over by a judge with life tenure nominated

by the President . . . and confirmed by the . . . Senate.” Id. at 760 n.11.

                      2) Waiver of sovereign immunity as to money damages: Sossamon
       “A State . . . may choose to waive its [sovereign] immunity . . . at its pleasure.”

Sossamon, 563 U.S. at 284. The “test for determining whether a State has waived its

immunity . . . is a stringent one.” Id. (quotations omitted). “A State’s consent to suit

must be unequivocally expressed.” Id. (quotations omitted). “A state can express such

unequivocal intent by statute, constitutional provision, or through its actions, specifically,

its participation in a particular federal program.” Arbogast v. Kan. Dep’t of Labor, 789

F.3d 1174, 1182 (10th Cir. 2015) (emphasis added) (quotations omitted). When the

statute enacting a federal program unequivocally expresses Congress’s intent to condition

states’ participation on their consenting to suit, their participation then results in a waiver

of sovereign immunity. See id. at 1182-83.



                                              33
       In Sossamon, the Supreme Court addressed the standards governing states’ waiver

of sovereign immunity as to money damages. Sossamon presented the question of

“whether the States, by accepting federal funds, consent to waive their sovereign

immunity to suits for money damages under the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA).” Id. at 280. To answer this question, the Court

examined RLUIPA, which “includes an express private cause of action . . . : ‘A person

may assert a violation . . . in a judicial proceeding and obtain appropriate relief against a

government.’” Id. at 282 (emphasis added) (quoting 42 U.S.C. § 2000cc-2(a)).

       Based on this language, the Court held that states do not waive sovereign

immunity by accepting federal funds under RLUIPA. Id. at 280, 285-88. It clarified that

the “waiver of sovereign immunity to other types of relief does not waive immunity to

damages.” Id. at 285. With this principle in mind, it concluded that “RLUIPA’s

authorization of ‘appropriate relief against a government,’ § 2000cc–2(a), is not the

unequivocal expression of state consent that our precedents require [to effectuate a

waiver of sovereign immunity].” Id. It reasoned that the term “‘[a]ppropriate relief’ is

open-ended and ambiguous about what types of relief it includes” and that “the word

‘appropriate’ is inherently context-dependent.” Id. at 286. The Court said that “[t]he

context here—where the defendant is a sovereign—suggests, if anything, that monetary

damages are not suitable or proper.” Id. (quotations omitted). And it further clarified

that, “where a statute is susceptible of multiple plausible interpretations, including one

preserving immunity, we will not consider a State to have waived its sovereign

immunity.” Id. at 287.

                                             34
              ii. Analysis

       ODRS’s assertion of sovereign immunity as to the Panel’s damages award

presents two questions of first impression before this court: (i) whether sovereign

immunity extends to RSA arbitrations of vendor complaints, and, if so, (ii) whether

ODRS’s participation in the RSA Program effectuates a waiver of sovereign immunity as

to damages. Guided by Federal Maritime Commission and Sossamon, we conclude that

sovereign immunity bars the Panel’s damages award because (i) sovereign immunity

extends to RSA arbitration proceedings, and (ii) ODRS’s participation in the RSA

Program does waive not its sovereign immunity from damages awards.19

                     1) Sovereign immunity extends to RSA arbitration proceedings
       We first address whether sovereign immunity extends to arbitrations of vendor

complaints against SLAs under the RSA. Our analysis proceeds in two parts. First, we

examine the Supreme Court’s rationale for extending sovereign immunity to FMC

adjudications and conclude that it supports doing so in the RSA context as well. Second,

we discuss some notable differences between RSA arbitrations and FMC adjudications

and conclude that they do not materially distinguish the two types of proceedings for

purposes of state sovereign immunity.




       19
         ODRS has not asserted sovereign immunity from RSA arbitration proceedings
generally or from any other type of relief, apart from money damages and attorney fees.
As we explain below, the RSA does not authorize attorney fees in any event. We
therefore do not decide whether ODRS’s participation in the RSA Program, although not
a waiver of sovereign immunity as to damages, nevertheless waives sovereign immunity
from RSA arbitration proceedings generally or from other forms of relief.

                                            35
                             a) Federal Maritime Commission’s rationale extends to the
                                RSA context
       The Supreme Court based its holding in Federal Maritime Commission—that

sovereign immunity applies in the context of FMC adjudications—on the need “to accord

States the dignity that is consistent with their status as sovereign entities” and on “the

strong similarities between FMC proceedings and civil litigation.” 535 U.S. at 760. Both

bases support extending Federal Maritime Commission’s holding to the RSA context.

                                     i) Need to accord dignity
       As with FMC adjudications, RSA arbitrations of private complaints affront the

states’ dignity as sovereign entities. In Federal Maritime Commission, the Supreme

Court explained: “[I]f the Framers thought it an impermissible affront to a State’s dignity

to be required to answer the complaints of private parties in federal courts, we cannot

imagine that they would have found it acceptable to compel a State to do exactly the

same thing before the administrative tribunal of an agency, such as the FMC.” Id. The

RSA’s mandatory arbitration scheme likewise affronts states’ dignity because it

effectively “compel[s] a State to [answer private complaints] before the administrative

tribunal of an agency.” Id. Under the RSA, SLAs such as ODRS must submit to final

and binding arbitration of blind vendors’ grievances against them by panels convened by

DOE. See 20 U.S.C. § 107d-1(a).

       Furthermore, the Supreme Court suggested in Federal Maritime Commission that

“[o]ne, in fact, could argue that allowing a private party to haul a State in front of . . . an

administrative tribunal constitutes a greater insult to a State’s dignity than requiring a

State to appear in an Article III court presided over by a judge with life tenure nominated
                                               36
by the President . . . and confirmed by the . . . Senate.” 535 U.S. at 760 n.11. Such an

argument appears to have equal, if not greater, force in an RSA arbitration before an

ad hoc panel.20

                                    ii) Similarities to Article III proceedings
       As with FMC adjudications, RSA arbitrations share in common with Article III

judicial proceedings many of the features noted by the Supreme Court as supporting the


       20
          Four justices and several commentators have criticized the Court’s dignity
rationale in Federal Maritime Commission as confusing or unworkable in application.
See Fed. Mar. Comm’n, 535 U.S. at 772 (Stevens, J., dissenting) (“The reasons why the
majority in [Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)] concluded that the
‘dignity’ interests underlying the sovereign immunity of English Monarchs had not been
inherited by the original 13 States remain valid today. By extending the untethered
‘dignity’ rationale to the context of routine federal administrative proceedings, today’s
decision is . . . anachronistic.” (citation omitted)); id. at 786 (Breyer, J., dissenting) (“The
Court’s decision threatens to deny the Executive and Legislative Branches of
Government the structural flexibility that the Constitution permits and which modern
government demands. The Court derives from the abstract notion of state ‘dignity’ a
structural principle that limits the powers of both Congress and the President.”); see also,
e.g., Scott Dodson, Dignity: The New Frontier of State Sovereignty, 56 Okla. L. Rev.
777, 778 (2003) (“[T]he dignity rationale itself lacks substantial justification and is
untethered to any limiting principles save those locked inside the minds of five
Justices.”); Scott Fruehwald, The Supreme Court’s Confusing State Sovereign Immunity
Jurisprudence, 56 Drake L. Rev. 253, 301 (2008) (“How can the Court assert that a
state’s dignity is impacted by having to appear at an administrative hearing, as was true in
Federal Maritime Commission, but not in front of a federal bankruptcy court? This
inconsistency suggests that . . . dignity is not a proper consideration when evaluating
sovereignty.”); Gordon G. Young, Federal Maritime Commission v. South Carolina State
Ports Authority: Small Iceberg or Just the Tip?, 47 St. Louis U. L.J. 971, 997 (2003)
(“The Maritime majority opinion, perhaps more than any other in the immunity series,
unashamedly identified the difficult to quantify notion of state ‘dignity’ as the principal
value [of sovereign immunity].”).
        Notwithstanding such criticisms, we are bound to apply Supreme Court precedent.
Because we discern no reason why RSA arbitrations would pose a lesser affront to a
state’s dignity than FMC adjudications, we conclude that the dignity rationale favors
extending sovereign immunity to the former.

                                              37
application of sovereign immunity. For example, RSA arbitrations are “adversary in

nature.” Fed. Mar. Comm’n, 535 U.S. at 757 (quoting Butz v. Economou, 438 U.S. at

514).21 Likewise, parties to RSA arbitrations are “entitled to present [their] case[s] by

oral or documentary evidence, and the transcript of testimony and exhibits together with

the pleadings constitute the exclusive record for decision.” Fed. Mar. Comm’n, 535 U.S.

at 757 (quoting Butz, 438 U.S. at 513); see RSA Arbitration Policies at 4-5 (“The parties

may . . . [p]resent relevant and material evidence on the issues in the arbitration.”); id.

at 6 (“The transcripts of testimony, including transcripts of depositions introduced as

evidence, and any pleadings, motions, stipulations, exhibits, briefs, and rulings by the

panel . . . shall constitute the exclusive record for decision.”). And parties are “entitled to

know the findings and conclusions on all of the issues of fact, law, or discretion presented

on the record.” Fed. Mar. Comm’n, 535 U.S. at 757 (quoting Butz, 438 U.S. at 513); see

RSA Arbitration Policies at 6 (“The decision of the arbitration panel shall be in writing

and contain a statement of the rationale, including findings of fact and conclusions of

law, upon which it is based.”).

                             b) Differences do not materially distinguish RSA and FMC
                                proceedings for purposes of sovereign immunity
       Our analysis thus far points to the extension of Federal Maritime Commission’s

holding to the RSA context. On the other hand, four notable characteristics distinguish



       21
          The parties to an arbitration of a blind vendors’ complaint are “the complainant
blind licensee and the State licensing agency.” RSA Arbitration Policies at 1. The
arbitration is party-driven, with the parties presenting evidence and making arguments in
support of their respective positions. See id. at 4-5.

                                              38
RSA arbitrations from the FMC adjudications at issue in Federal Maritime Commission.

We first identify these differences and then explain why they do not compel us to reject

sovereign immunity in the RSA context.

                                   i) Differences between RSA and FMC proceedings

       (1) Decisionmaker—In contrast to FMC proceedings before ALJs, RSA

proceedings are not necessarily decided by a “federal officer,” Fed. Mar. Comm’n, 535

U.S. at 761. Under the RSA, DOE convenes ad hoc arbitration panels to hear and render

decision on vendor grievances against SLAs. 20 U.S.C. §§ 107d-1, 107d-2(a). These

panels are composed of three members:

              (A)     one individual designated by the State licensing
                      agency;

              (B)     one individual designated by the blind licensee; and

              (C)     one individual, not employed by the State licensing
                      agency or, where appropriate, its parent agency, who
                      shall serve as chairman, jointly designated by the
                      members appointed under subparagraphs (A) and (B).

              If any party fails to designate a member under subparagraph
              (1)(A), (B), or (C), the Secretary shall designate such member
              on behalf of such party.

Id. § 107d-2(b)(1).

       Additionally, unlike ALJs (and also Article III judges), who “may issue

subpoenas,” Fed. Mar. Comm’n, 535 U.S. at 756 (quoting Butz, 438 U.S. at 513), RSA

arbitration panels “do[] not have the authority to compel by subpoena the production of

witnesses, papers, or other evidence.” RSA Arbitration Policies at 4.



                                             39
       (2) Agency’s Role in Screening Complaints—Unlike the FMC, which “does not

even have the discretion to refuse to adjudicate complaints brought by private parties,”

Fed. Mar. Comm’n, 535 U.S. at 764, DOE reviews vendor complaints and, under some

circumstances, dismisses them without arbitration:

              After the complaint has been docketed it will be reviewed by
              [DOE’s] Division for the Blind and Visually Impaired. . . .

              (a)    If the complaint alleges sufficient relevant and material
                     facts which, if proved, would entitle the blind licensee
                     to any of the relief sought and if any of the relief
                     sought is within the authority of the arbitration panel to
                     grant, . . . an ad hoc arbitration panel will be convened.

              (b)    If the complaint fails to allege sufficient relevant and
                     material facts which, if proved, would entitle the
                     blind licensee to any of the relief sought; or, if none of
                     the relief sought is within the authority of the
                     arbitration panel to grant, the blind licensee will be
                     so notified . . . and given an opportunity to amend the
                     complaint . . . .

              (d)    If . . . the amended complaint fails to allege sufficient
                     relevant and material facts or . . . none of the relief
                     sought is within the power of the arbitration panel to
                     grant, . . . the complaint is dismissed.

              (e)    If the complaint does not allege facts which indicate
                     dissatisfaction with all or part of the decision rendered
                     [by the SLA] as a result of a full evidentiary hearing,
                     or action taken as a result of a full evidentiary hearing,
                     . . . the complaint is dismissed.

              (f)    If . . . the complaint is specious or . . . has been filed
                     solely for the purpose of harassment, . . . the complaint
                     is dismissed.

RSA Arbitration Policies at 2-3.



                                             40
       (3) Default Judgments—Whereas “default judgment may be entered on behalf

of the plaintiff” in an FMC adjudication, should the defendant fail to respond to the

complaint, Fed. Mar. Comm’n, 535 U.S. at 757, “[t]he failure to file an answer [to an

RSA vendor complaint] will not . . . result in the default of the State licensing agency.”

RSA Arbitration Policies at 3. The applicable policies and procedures instead appear to

contemplate that the arbitration would proceed even in the absence of the SLA’s answer.

See id. (“The issues for arbitration and the positions of the parties thereon may be

identified at the pre-arbitration conference.”).

       (4) Formality of Procedures and Rules—The procedures and rules governing

the conduct of RSA arbitrations are generally more informal and ad hoc than those

governing FMC adjudications. For example, whereas “discovery in FMC adjudications

largely mirrors discovery in federal civil litigation,” Fed. Mar. Comm’n, 535 U.S. at 758,

discovery in RSA arbitrations proceeds only to the extent that, “[i]f the panel chairperson

determines that the interest of justice would be served, he may authorize the taking of

depositions,” RSA Arbitration Policies at 5. And whereas the Federal Rules of Evidence

generally apply in FMC adjudications, Fed. Mar. Comm’n, 535 U.S. at 759 n.10,

“[t]echnical rules of evidence shall not apply to [RSA] arbitration[s], but rules or

principles designed to assure production of the most credible evidence available and to

subject testimony to test by cross-examination shall be applied by the panel chairperson,”

RSA Arbitration Policies at 5.

                                    ii) Why differences do not compel rejection of
                                        sovereign immunity in the RSA context


                                              41
       Despite the foregoing differences, and guided by Federal Maritime Commission,

we nevertheless conclude that RSA arbitrations are materially indistinguishable from

FMC adjudications for purposes of state sovereign immunity. We address each in turn:

       (1) Decisionmaker—The differences between RSA arbitration panels and FMC

ALJs do not compel the conclusion that sovereign immunity extends only to the latter.

       Although ad hoc panels—rather than ALJs—arbitrate vendor complaints under the

RSA, the role of the RSA panel—like that of the ALJ—is “‘functionally comparable’ to

that of a judge.” Fed. Mar. Comm’n, 535 U.S. at 756 (quoting Butz, 438 U.S. at 513).

ALJs enjoy certain protections from political influence and thereby serve as “impartial

officer[s] designated to hear a case.” Id. at 758 (citation omitted). RSA panels are

likewise “structured so as to assure that the[y] exercise[] [their] independent judgment on

the evidence.” Id. at 756 (quoting Butz, 438 U.S. at 513). Specifically, their composition

helps to assure impartiality—each party designates one panel member, and the third

member, who presides over the arbitration, is jointly selected by the two party-designated

members. See 20 U.S.C. § 107d-2(b)(1).

       Additionally, RSA arbitration panels, like ALJs, have powers that “are often, if not

generally, comparable to those of a trial judge.” Fed. Mar. Comm’n, 535 U.S. at 756

(quoting Butz, 438 U.S. at 513). For example, RSA panels “ha[ve] the authority to

arrange and give notice of hearing[s].” Id. at 758 (quotations omitted); see RSA

Arbitration Policies at 3. They also regulate the conduct of the hearing and may

“prescribe the order in which evidence shall be presented; . . . administer oaths and

affirmations; examine witnesses; . . . rule upon offers of proof[,] . . . [and] fix[] the time

                                              42
and manner of filing briefs.” Fed. Mar. Comm’n, 535 U.S. at 758-59 (quotations

omitted); see RSA Arbitration Policies at 4. And they “issue[] a decision that . . .

subsequently becomes the final decision of the [agency].” Fed. Mar. Comm’n, 535 U.S.

at 759; see RSA Arbitration Policies at 4. Although RSA panels “do[] not have the

authority to compel by subpoena the production of witnesses, papers, or other evidence,”

RSA Arbitration Policies at 4, their powers on balance are “comparable to those of a trial

judge,” Fed. Mar. Comm’n, 535 U.S. at 756 (quoting Butz, 438 U.S. at 513).

       (2) Agency’s Role in Screening Complaints—DOE’s authority to deny

arbitration under certain circumstances does not defeat Federal Maritime Commission’s

logical extension to the RSA context. DOE’s authority to dismiss complaints is limited

and does not “convert an [RSA arbitration] initiated and pursued by a private party into

one initiated by the Federal Government.” Id. at 764.22 DOE may dismiss a complaint

only upon effectively determining that it lacks any merit, see RSA Arbitration Policies

at 2-3, much as a federal district judge “may dismiss [a complaint] sua sponte when it is

patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him

an opportunity to amend his complaint would be futile,” Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991) (quotations omitted); see also Charles Alan Wright, Arthur R.

Miller et al., 5B Federal Practice & Procedure § 1357 (3d ed., April 2018 update)


       22
          The Supreme Court has said that, “[i]n ratifying the Constitution, the States
consented to suits brought . . . by the Federal Government. . . . Suits brought by the
United States itself require the exercise of political responsibility for each suit prosecuted
against a State, a control which is absent from a broad delegation to private persons to
sue nonconsenting States.” Alden v. Maine, 527 U.S. 706, 755-56 (1999).

                                             43
(“[T]he district judge on his or her own initiative may note the inadequacy of the

complaint and dismiss it . . . as long as the procedure employed is fair to the parties.”).

       In other words, “the only duty assumed by [DOE], and hence the United States, in

conjunction with a private complaint is to assess its merits in an impartial manner.” Fed.

Mar. Comm’n, 535 U.S. at 764. DOE lacks broad discretion to dismiss vendor

complaints based on policy or other considerations unrelated to the merits. “As a result,

the United States plainly does not exercise political responsibility for such complaints,

but instead has impermissibly effected a broad delegation to private persons to sue

nonconsenting States.” Id. at 764 (alterations and quotations omitted).

       (3) Default Judgments—DOE’s inability to enter default judgments against

SLAs is not at odds with our conclusion that sovereign immunity applies in the RSA

context. Notwithstanding this feature of RSA arbitrations, “[an SLA] seeking to contest

the merits of a complaint filed against it by a [blind vendor] must defend itself in front of

the [arbitration panel] or substantially compromise its ability to defend itself at all.” Fed.

Mar. Comm’n, 535 U.S. at 762. An SLA may decline to file an answer to a blind

vendor’s complaint without incurring a default judgment against it, and yet it would still

be hard-pressed to decline to participate in the arbitration proceeding in its entirety.23

       Once an arbitration panel has rendered a decision, that decision is “final and

binding on the parties.” 20 U.S.C. § 107d-1(a). Although the SLA may seek judicial


       23
         As noted above, the applicable policies and procedures appear to contemplate
that an RSA arbitration of a blind vendor’s complaint would proceed whether or not the
SLA files an answer. See RSA Arbitration Policies at 3.

                                              44
review, failure to participate in the arbitration proceeding would hamper its ability to

challenge the panel’s decision in federal court. The Supreme Court has previously

established “a general rule that courts should not topple over administrative decisions

unless the administrative body not only has erred but has erred against objection made at

the time appropriate under its practice.” United States v. L.A. Tucker Truck Lines, Inc.,

344 U.S. 33, 37 (1952). In Federal Maritime Commission, the Court, citing this general

rule, concluded that FMC adjudications are coercive in part because, “if a party fails to

appear before the FMC, it may not then argue the merits of its position in an appeal of the

[FMC’s] determination.” 535 U.S. at 762.

       To the extent the general rule against courts’ considering objections not made in

the agency proceeding also applies here, failure to appear before the RSA arbitration

panel would severely constrain an SLA’s ability to appeal the merits. And even if the

court were to consider the merits, the APA’s judicial review standards would, as a

practical matter, limit the scope of the appeal. See Council Tree Inv’rs, Inc. v. FCC,

739 F.3d 544, 555 (10th Cir. 2014) (“Although we review matters of law de novo, . . . the

standard of review is [otherwise] very deferential to the agency.[] A presumption of

validity attaches to the agency action and the burden of proof rests with the parties who

challenge such action.” (citations and quotations omitted)).24


       24
         One other related distinction between FMC and RSA proceedings bears noting
here. Unlike the FMC, which “may impose monetary penalties for each day of
noncompliance” with an FMC order, Fed. Mar. Comm’n, 535 U.S. at 763, the RSA does
not authorize DOE to impose sanctions on SLAs that refuse to comply with an arbitration
panel’s order. We nevertheless conclude that the RSA’s mandatory arbitration scheme as
a whole, like the FMC adjudication scheme, “makes it quite clear that, absent sovereign
                                             45
       (4) Formality of Procedures and Rules—The relative informality of RSA

arbitrations’ procedures and rules does not undermine Federal Maritime Commission’s

application to the RSA context. In that case, the Supreme Court said that its “review of

the FMC’s Rules of Practice and Procedure confirms that FMC administrative

proceedings bear a remarkably strong resemblance to civil litigation in federal courts.”

Fed. Mar. Comm’n, 535 U.S. at 757 (emphasis added). Although the rules and

procedures governing RSA arbitrations are less formal than in FMC adjudications, in

light of their general similarities and the other considerations discussed above, we

conclude that RSA and Article III proceedings are sufficiently similar to warrant

extending sovereign immunity to the former context.

                                          ****
       In sum, as in Federal Maritime Commission, the “interest in protecting States’

dignity and the strong similarities between [RSA] proceedings and civil litigation”

compel us to conclude that state sovereign immunity bars RSA arbitration panels from

adjudicating complaints filed by a private party against a nonconsenting State. 535 U.S.

at 760. But see Premo v. Martin, 119 F.3d 764, 769 (9th Cir. 1997) (pre-Federal

Maritime Commission decision holding “that the Eleventh Amendment does not apply to

Randolph–Sheppard arbitration proceedings and thus does not limit the authority of

arbitration panels convened under the Act to award compensatory relief”); Tenn. Dep’t of

Human Servs. v. U.S. Dep’t of Educ., 979 F.2d 1162 (6th Cir. 1992) (same). The


immunity, States would effectively be required to defend themselves against private
parties in front of the [arbitration panel].” Id.

                                            46
differences between RSA arbitrations and the FMC adjudications at issue in Federal

Maritime Commission do not persuade us to the contrary.

                     2) ODRS has not waived sovereign immunity as to money damages
       Having determined that state sovereign immunity applies to RSA arbitrations, we

now address whether ODRS has nevertheless consented to suit for money damages by

participating in the RSA Program.

       Guided by Sossamon, we conclude that the RSA is insufficiently explicit to render

state participation in the RSA Program a waiver of sovereign immunity from an RSA

arbitration panel award for damages.25 Like RLUIPA, which authorizes private parties to

sue states for “appropriate relief,” the RSA does not expressly enumerate the types of

remedies available to private parties aggrieved by a state. Compare 42 U.S.C. § 2000cc-

2(a) with 20 U.S.C. §§ 107d-1(a), 107d-2(a)-(b)(1). In Sossamon, the Supreme Court

held that states, by accepting federal funding under RLUIPA, do not waive sovereign

immunity as to damages because the term “appropriate relief” is too “open-ended and

ambiguous about what types of relief it includes.” 563 U.S. at 286. Here, the RSA does

not even use the words “appropriate relief.” It is silent as to what remedies aggrieved

vendors may obtain against SLAs and is therefore just as “open-ended and ambiguous” as

RLUIPA, if not more.


       25
          This case presents no opportunity to address the extent to which we may look
beyond the relevant statute to determine whether a state has waived sovereign immunity
by participating in a federal program. Here, neither the RSA’s implementing regulations
nor the RSA Arbitration Policies contain any mention of money damages, and the parties
have not provided us with any other material that sheds light on the terms of ODRS’s
participation in the RSA Program.

                                            47
       Under these circumstances, ODRS has not waived its sovereign immunity to a

damages award from an RSA arbitration panel. But see Del. Dep’t of Health & Soc.

Servs., 772 F.2d at 1138 (pre-Sossamon decision holding that a state waives sovereign

immunity when, “after full notice of the Act’s requirements, one of which [is] an

agreement to arbitration, it voluntarily ma[kes] application with [DOE] to participate in

the Randolph-Sheppard program” and that such a waiver extends to damages).

       c. Award of attorney fees to Mr. Altstatt

       Under the APA, the reviewing court must “hold unlawful and set aside agency

action,” 5 U.S.C. § 706(2), that is “in excess of statutory jurisdiction, authority, or

limitations,” id. § 706(2)(C). ODRS contends the Panel exceeded its remedial authority

under the RSA in awarding attorney fees to Mr. Altstatt. We agree and hold the award

should be vacated.

       We begin with legal background on the “American Rule” regarding the recovery

of attorney fees in civil litigation and its application to administrative proceedings. We

then proceed to analyze whether the American Rule bars the Panel’s attorney fee award

and conclude that it does.

              i. Legal background

       “Our basic point of reference when considering the award of attorney’s fees is the

bedrock principle known as the American Rule: Each litigant pays his own attorney’s

fees, win or lose, unless a statute or contract provides otherwise.” Baker Botts L.L.P. v.

ASARCO LLC, 135 S. Ct. 2158, 2164 (2015) (quotations omitted); see also Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). “The American Rule

                                              48
has roots in our common law reaching back to at least the 18th century, and statutes

which invade the common law are to be read with a presumption favoring the retention of

long-established and familiar legal principles.” Baker Botts, 135 S. Ct. at 2164

(alterations, citations, and quotations omitted). Courts therefore “will not deviate from

the American Rule absent explicit statutory authority.” Id. (quotations omitted).

       “[The Supreme Court] ha[s] recognized departures from the American Rule only

in ‘specific and explicit provisions for the allowance of attorneys’ fees under selected

statutes.’” Id. (quoting Alyeska Pipeline, 421 U.S. at 260). “Although these [departures]

take various forms, they tend to authorize the award of ‘a reasonable attorney’s fee,’

‘fees,’ or ‘litigation costs,’ and usually refer to a ‘prevailing party’ in the context of an

adversarial ‘action.’” Id. (citations and quotations omitted).

       Although this court has not addressed the American Rule’s application to

administrative proceedings, the D.C. Circuit has held that it applies equally in that

context. See Unbelievable, Inc. v. NLRB, 118 F.3d 795, 806 (D.C. Cir. 1997) (“The

American Rule is deeply rooted in our history and in congressional policy. Therefore, we

may not lightly allow an administrative agency, any more than a court, to depart from the

Rule . . . .” (citation and quotations omitted)).

              ii. Analysis

       The Panel exceeded its remedial authority under the RSA in awarding attorney

fees to Mr. Altstatt. We agree with the D.C. Circuit that the American Rule applies in

administrative proceedings, and we see no reason to depart from it here. The RSA’s text

makes no mention of attorney fees, litigation costs, prevailing parties, or other related

                                               49
terms. Indeed, the statute is wholly silent as to what relief an arbitration panel may grant

an aggrieved blind vendor, and it provides only that “the decision of such panel shall be

final and binding on the parties” and “subject to appeal and review as a final agency

action.” 20 U.S.C. §§ 107d-1(a), 107d-2(a).26 The RSA is thus insufficiently explicit to

authorize arbitration panels to award attorney fees to aggrieved blind vendors who prevail

in arbitration against their SLA.

                                    III. CONCLUSION

       The Panel complied with the APA when it determined that the ODRS violated the

RSA by awarding the Contract to Mr. Brown despite his tax delinquency. It acted within

its authority under the RSA and complied with the APA when it determined that Mr.

Altstatt should have received the Contract assignment and ordered that Mr. Altstatt

replace Mr. Brown as the Contract vendor.

       The Panel violated state sovereign immunity when it awarded damages to Mr.

Altstatt and against ODRS, and it exceeded the scope of its remedial authority when it

awarded attorney fees to Mr. Altstatt and against ODRS.

       We therefore affirm the district court’s decision upholding the Panel’s

determination that the ODRS violated the RSA by awarding the Contract to Mr. Brown

and its order to replace Mr. Brown with Mr. Altstatt as the Contract vendor. We reverse




       26
         DOE’s implementing regulations and the RSA Arbitration Policies likewise do
not enumerate what relief may be granted, and the parties have not provided us with any
other materials relevant to the American Rule’s application.

                                             50
the district court’s judgment as to the Panel’s award of damages and attorney fees and

remand for further proceedings consistent with this opinion.




                                           51
