[00:00:00] Speaker 03:
Case number 19-7074.

[00:00:03] Speaker 03:
Derwin Patton et al.

[00:00:05] Speaker 03:
Appellants versus District of Columbia.

[00:00:08] Speaker 03:
Mr. Ruffin for the Appellants, Mr. Schiefferle for the Appellate.

[00:00:13] Speaker 04:
Good morning.

[00:00:13] Speaker 04:
Council for Appellants.

[00:00:15] Speaker 00:
Good morning, Your Honors.

[00:00:17] Speaker 00:
I'm Thomas Ruffin.

[00:00:18] Speaker 00:
If it please the Court, I'm Thomas Ruffin.

[00:00:21] Speaker 00:
I'm the lawyer for the Appellants, Hazel Brooks, Derwin Patton, and his brother, Roy Patton.

[00:00:27] Speaker 00:
In our view,

[00:00:29] Speaker 00:
The fundamental issues in this case can be stated more or less in twofold.

[00:00:35] Speaker 00:
And I think it looks at it in this way.

[00:00:40] Speaker 00:
Does the Randolph Shepherd vending facility program mean that when a blind person joins that program,

[00:00:49] Speaker 00:
that those blind people lose all of their rights under the Americans with Disabilities Act, the Rehabilitation Act, and the Human Rights Act, and any other anti-discrimination statutes, because as the district court held, any factual allegation of discrimination must be regarded as a complaint about the operation and the administration of the Randall Shepard program.

[00:01:10] Speaker 00:
And then coupled with that, coupled with that, and that includes

[00:01:17] Speaker 00:
the proper reading of the fact allegations as to whether they allege violations of the Americans with Disabilities Act, the Rehabilitation Act, and the District of Columbia's Human Rights Act.

[00:01:28] Speaker 00:
But coupled with that, that statement of one issue, we would also look at whether the DC code at section 2-1831.03, that is, as part of the Office of Administrative Hearings Establishment Act of 2001,

[00:01:45] Speaker 00:
says nothing about since that statute says nothing about jurisdiction of the Randolph Shepard program cases and since the dictum

[00:01:56] Speaker 00:
in an Office of Administrative Hearings case titled MF through G versus Department on Disability Services, Rehabilitation Services Administration never mentioned mayoral action coupled with the Office of Administrative Hearings Chief Judge action so as to enlarge OAH Office of Administrative Hearings jurisdiction to hear Randolph-Shepard cases.

[00:02:18] Speaker 00:
Under those circumstances, does the Office of Administrative Hearings have jurisdiction to hear Randolph-Shepard line vendor case?

[00:02:27] Speaker 00:
And when we look at this, we say that the Office of Administrative Hearings has no jurisdiction to hear these cases and that

[00:02:37] Speaker 00:
The reading of the Randolph Shepherd Act by the U.S.

[00:02:40] Speaker 00:
District Court is overbroad insofar as it basically says that any allegation of illegal discrimination must be read as asserting rights under the Randolph Shepherd Act.

[00:02:53] Speaker 03:
Mr. Ruffin, so at least as I read it, it seems our circuit precedent requires us to read the Randolph Shepherd Act.

[00:03:02] Speaker 03:
as providing for mandatory exhaustion of administrative remedies.

[00:03:07] Speaker 03:
Do you agree with that reading of circuit precedent?

[00:03:11] Speaker 00:
Not in all cases.

[00:03:13] Speaker 00:
I think it calls for that when a Randolph Shepherd blind vendor asserts rights under the Randolph Shepherd Act.

[00:03:20] Speaker 00:
So like, for example, if you look at the case of Committee of Blind Vendors versus District of Columbia,

[00:03:26] Speaker 00:
the blind vendors associations that filed that lawsuit, they actually alleged problems with the application of the Randolph-Shepard Act.

[00:03:33] Speaker 00:
And they said that the state licensing agency was not properly administering the program.

[00:03:39] Speaker 00:
And then similarly, if you look at the Weinberger case, there was the issue of whether two different fast food chains could set up

[00:03:53] Speaker 00:
fast food restaurants in the military bases and the Randolph Shepherd Blind vendors said that hold it.

[00:04:00] Speaker 00:
That violates our rights on the Randolph Shepherd Act.

[00:04:02] Speaker 00:
And so I think when, in answer to your question, Your Honor, when Randolph Shepherd Blind vendors assert their rights under the Randolph Shepherd Act or alleged problems with the actual administration of the program as a program itself,

[00:04:18] Speaker 00:
then there would be a requirement of exhaustion.

[00:04:21] Speaker 00:
However, I think even with that, there's a question about exhaustion that needs to be explored more deeply than what has been done historically.

[00:04:28] Speaker 03:
Do you think though, I mean, so I think part of your claim is futility, right?

[00:04:34] Speaker 03:
That the OAH lacks jurisdiction.

[00:04:36] Speaker 03:
And so it would be futile to raise those claims before the OAH.

[00:04:41] Speaker 00:
Yes, ma'am.

[00:04:42] Speaker 03:
And so I guess one of my questions is, after the Supreme Court's decision in Ross v. Blake, are we permitted to read a futility exception into a mandatory exhaustion scheme, like the Randall Shepherd Act?

[00:05:02] Speaker 03:
And is there anything in the Randall Shepherd Act that suggests we can apply judge-made exhaustion exceptions?

[00:05:11] Speaker 03:
to the exhaustion requirement?

[00:05:14] Speaker 00:
Well, I think that this court would probably be reluctant to apply judge-made exceptions to the exhaustion requirement.

[00:05:21] Speaker 00:
However, even when we're looking at the exhaustion requirement, let's say that that absolutely applies.

[00:05:27] Speaker 00:
We have to look at the scheme that's been set up by the state licensing agency, and that's the District of Columbia government.

[00:05:33] Speaker 00:
the Council of the District of Columbia set up in Section 2-1403.03, subsection B, a fair hearing process that's required under the Randolph-Shepard Act.

[00:05:49] Speaker 00:
And it's set it up specifically for civil rights cases.

[00:05:53] Speaker 00:
But when you look at Title 20 of the United States Code, Sections 107D-1, subsection A, and 107B,

[00:06:02] Speaker 00:
B, subsection C, the Randolph Shepherd Act calls for a fair hearing for the blind vendors.

[00:06:10] Speaker 00:
It didn't say set it up at the Office of Administrative Hearings.

[00:06:13] Speaker 00:
It didn't even say set up an administrative hearing.

[00:06:16] Speaker 00:
What it said is give the Randolph Shepherd blind vendors a fair hearing.

[00:06:20] Speaker 00:
And the council very carefully crafted for all civil rights claims

[00:06:27] Speaker 00:
in section two dash 1403.03 subsection B of the DC code, the option of anybody, the Randall Shepherd vendors going to court, any court of competent jurisdiction or to the office of human rights.

[00:06:43] Speaker 00:
And in fact, under the district of Columbia regulations, title four of the DC municipal regulations as section 128.1,

[00:06:55] Speaker 00:
If the Randolph-Shepard blind vendors took their matter to the Office of Administrative Hearings, as the government has insisted, the Office of Administrative Hearings would be required to tell my clients and any, excuse me, any other blind vendor, take your case to the Office of Human Rights under DC Code Section 2-1403.03 Subsection B.

[00:07:19] Speaker 00:
and make it clear that the office of administrative hearings would have no jurisdiction to hear a discrimination case.

[00:07:27] Speaker 00:
And so what we really have here is the government on the one hand in this advocacy and the district court in its opinion below, looking at the allegations, the fact allegations in the second amendment complaint.

[00:07:41] Speaker 00:
And even though they're talking about traditional claims under

[00:07:46] Speaker 00:
traditional disability discrimination came under the ADA and under the Rehabilitation Act.

[00:07:53] Speaker 00:
They're saying, well, since it's in the Randolph Shepherd program, you're really talking about how the Randolph Shepherd program deals with these matters, and that must be exhausted.

[00:08:06] Speaker 00:
Okay, if it does, then it has to be exhausted as the city provides for it.

[00:08:10] Speaker 00:
The legislature provided for it at section 2-1403.03 subsection B. And I think that's something that the government just, for one reason or another, has not squarely responded to.

[00:08:30] Speaker 00:
And that's just a real problem.

[00:08:33] Speaker 00:
And then we have on top of that, the Office of Administrative Hearings, Establishment Act of 2001.

[00:08:39] Speaker 00:
And that's at DC Code Section 2-1831.03.

[00:08:47] Speaker 00:
There is no reference at all to the Randolph-Shepard program in that jurisdictional statute.

[00:08:56] Speaker 00:
However, there is one reference

[00:09:00] Speaker 00:
in that statute to the Office of Administrative Hearings taking jurisdiction over cases from the Department on Disability Services.

[00:09:10] Speaker 00:
But it's not from the Rehabilitation Services Administration, which holds the Randolph-Shepard program.

[00:09:16] Speaker 00:
It's rather from the Developmental Disability Administration.

[00:09:26] Speaker 00:
And that's under section seven dash, pardon me.

[00:09:32] Speaker 00:
That's in section two dash 1831.03, subsection B15.

[00:09:42] Speaker 00:
And that refers to

[00:09:45] Speaker 00:
Disability, severely disabled individuals, developmentally disabled individuals pursuing actions under Section 7-761.13.

[00:09:59] Speaker 00:
And that is totally different from what's set up in the Randolph-Shepard program.

[00:10:02] Speaker 00:
That's number one.

[00:10:04] Speaker 00:
And the government, in another case, in a related case that was at the DC Court of Appeals, agreed with us that that section does not apply to the Randolph-Shepard program.

[00:10:13] Speaker 00:
However, even there, that matter that deals with the one

[00:10:17] Speaker 00:
point where the legislature said, okay, the Office of Administrative Hearings has jurisdiction over something from the Department on Disability Services.

[00:10:27] Speaker 00:
That case has to go first to something called an external reviewer and then appeal from there to the Office of Administrative Hearings.

[00:10:34] Speaker 00:
And even then,

[00:10:36] Speaker 00:
under section 7-761.13 subsection C and also under 29 district municipal regulations, section 13,206.1, they make clear that those disabled individuals, civil rights are perfectly preserved even though they may exhaust remedies for administrative issues through that process.

[00:11:05] Speaker 00:
Uh, and I add that because I'm sorry.

[00:11:08] Speaker 00:
Yes, ma'am.

[00:11:09] Speaker 00:
I'm sorry.

[00:11:11] Speaker 04:
Uh, you've exhausted your time.

[00:11:14] Speaker 04:
Uh, let's hear from the government and then we'll give you a couple of minutes on rebuttal.

[00:11:18] Speaker 00:
Thank you very much, Your Honor.

[00:11:22] Speaker 01:
Good morning.

[00:11:24] Speaker 01:
May it please the court, Carl Schifferly for the District of Columbia.

[00:11:27] Speaker 01:
It is well established under this circuit's precedent

[00:11:31] Speaker 01:
that the Randolph-Shepard Act mandates exhaustion of administrative remedies prior to judicial review.

[00:11:37] Speaker 01:
That exhaustion requirement applies broadly to, quote, any blind licensee dissatisfied with any action arising from the operation or administration of the vending facility program.

[00:11:52] Speaker 01:
The district court was correct that plaintiff's claims involving access to program documents and inspections of their facilities by program monitors

[00:12:01] Speaker 01:
arise from the operation of the program.

[00:12:04] Speaker 01:
They are indeed challenges to the administration of the program and thus must be exhausted.

[00:12:10] Speaker 01:
Alternatively, plaintiff's complaint fails to state a claim, a plausible claim of disability discrimination.

[00:12:18] Speaker 01:
And the district court found as much, the plaintiff's brief does not address that ruling in its opening brief does not address that ruling and thus it would be forfeited.

[00:12:30] Speaker 01:
in any event.

[00:12:32] Speaker 01:
I can address first the exhaustion point.

[00:12:35] Speaker 01:
The plaintiffs pursued two types of claims on appeal.

[00:12:38] Speaker 01:
The first involves access to program documents in a format that they can read.

[00:12:44] Speaker 01:
These claims arise directly from the administration of the program.

[00:12:49] Speaker 01:
The statute and the implementing regulations generally entitle the plaintiffs to access to these documents.

[00:12:56] Speaker 01:
Those regulations also

[00:12:58] Speaker 01:
provide for auxiliary services, such as communications and braille or audio recordings.

[00:13:06] Speaker 01:
And they more generally provide for vocational rehabilitation services.

[00:13:11] Speaker 01:
And those would include auxiliary aids of the type the plaintiffs are seeking.

[00:13:16] Speaker 01:
The second type of claim the plaintiffs pursue on appeal involves the inspection of their facilities by program monitors.

[00:13:24] Speaker 01:
challenge the nature or even just the fact of the inspections, as well as the qualifications of the program monitors conducting the inspections.

[00:13:35] Speaker 01:
But once again, this is something that arises from the administration of the program.

[00:13:39] Speaker 01:
The Act requires the Rehabilitation Services Administration as the state license in the agency to manage and supervise each facility in the program.

[00:13:51] Speaker 01:
And the regulations require that where

[00:13:53] Speaker 01:
that facility is not operating in compliance with its operating agreement or with applicable laws and regulations that the rehabilitation services agency administration has to revoke that operating license.

[00:14:11] Speaker 01:
Plaintiffs can't simply evade this analysis that shows that their complaints, their grievances arise from the operation of the administrative

[00:14:22] Speaker 01:
arise from the operation or administration of the program simply by labeling the claims as disability discrimination.

[00:14:29] Speaker 01:
I mean, I would first point out that there will still ultimately be judicial review.

[00:14:33] Speaker 01:
So it's not as though as Mr. Ruffin suggested that these claims will not ultimately be heard by a federal court.

[00:14:43] Speaker 01:
It's simply a question of exhaustion of administrative remedies.

[00:14:48] Speaker 01:
And the plaintiffs can't avoid that requirement, as I said,

[00:14:52] Speaker 01:
by simply labeling their claims as disability discrimination.

[00:14:55] Speaker 01:
The reason, one of the reasons why this court has required in committee on blind vendors for exhaustion is that the need to prevent circumvention of the prescribed administrative process.

[00:15:10] Speaker 01:
And that circumvention would be, that risk would be particularly acute here where this program is only open to individuals of plaintiffs who have plaintiffs type of disability

[00:15:22] Speaker 01:
So it would be the case that any vendor in the position of the plaintiffs could simply label their grievance with the operation or administration of the program as a claim of disability discrimination.

[00:15:39] Speaker 01:
And there's also the risk as well, not only circumvention of that administrative process, but parallel proceedings where you have both an action in district court and then parallel proceedings in the administrative process.

[00:15:51] Speaker 01:
And that's another reason why exhaustion exists to avoid that possibility.

[00:15:56] Speaker 03:
Mr. Schifferle, has OAH previously exercised jurisdiction over similar types of discrimination claims?

[00:16:05] Speaker 03:
Are there examples of that occurring?

[00:16:10] Speaker 01:
The OAH, assuming that the OAH does not have the authority to adjudicate directly claims of discrimination.

[00:16:20] Speaker 01:
accepting the premise of Your Honor's point.

[00:16:25] Speaker 01:
That may be true, but that doesn't obviate the need to exhaust.

[00:16:29] Speaker 01:
The Office of Administrative Hearings regularly hears cases involving the Randolph-Shepard Act.

[00:16:36] Speaker 01:
There's no question that there is an administrative process available to hear these grievances.

[00:16:42] Speaker 01:
And that administrative process serves benefits even if

[00:16:48] Speaker 01:
the Office of Administrative Hearings can't directly adjudicate the claim of discrimination.

[00:16:53] Speaker 01:
It nonetheless can create an administrative record, can conduct fact-finding.

[00:17:01] Speaker 03:
Basically- And does it regularly or does it occasionally do that in cases that raise discrimination claims?

[00:17:09] Speaker 01:
Well, I would point to Mr. Patton's own proceeding before the Office of Administrative Hearings where he challenged

[00:17:17] Speaker 01:
the termination of his operating agreement for the facility of a defense intelligence agency.

[00:17:22] Speaker 01:
And that decision is in the record in the appendix in this case.

[00:17:29] Speaker 01:
And that's the way the process should work, that the claims of discrimination, disability discrimination, can be raised in the context of the administrative proceeding.

[00:17:39] Speaker 01:
But the administrative proceeding can still take place.

[00:17:42] Speaker 01:
You can still have a determination by the Office of Administrative Hearings.

[00:17:46] Speaker 01:
That then can go to the Secretary of Education to convene the arbitration panel, and then ultimately to a federal court on review.

[00:17:53] Speaker 01:
So just as the situation in numerous cases in this circuit and the Supreme Court, or even if, for example, a statutory claim or a constitutional claim couldn't necessarily be adjudicated by the administrative agency, nonetheless, that did not excuse the exhaustion requirement

[00:18:14] Speaker 01:
And I'm referring specifically to cases in the Supreme Court like the Elgin case, cases in this court like AFG versus Trump decided in 2019.

[00:18:23] Speaker 01:
Those cases likewise presented situations where, for example, constitutional challenges to the validity of other statutes and even assuming that the administrative agency where the plaintiffs had to go to exhaust, couldn't adjudicate those types of claims.

[00:18:44] Speaker 01:
Nonetheless, the court held that exhaustion was required.

[00:18:48] Speaker 02:
How can a blind vendor claim disability discrimination on your theory if I'm surprised to hear you say that the agency can't adjudicate that claim?

[00:19:01] Speaker 02:
How do they ever get it litigated?

[00:19:06] Speaker 02:
They can't raise it before the agency and then the only thing that's subject to judicial review is

[00:19:12] Speaker 02:
the Randall Shepard determination, which you've just said doesn't encompass a question whether the vendor was discriminated against.

[00:19:22] Speaker 01:
No, the ultimate judicial review would encompass a claim of disability discrimination.

[00:19:28] Speaker 02:
Judicial review in a court of appeals of the agency action, which is the arbitration,

[00:19:36] Speaker 02:
There's a channeling mechanism.

[00:19:38] Speaker 02:
You start where you have the state agency making a finding and that's reviewed in a federal arbitration and that's reviewed in a court of appeals under the APA.

[00:19:50] Speaker 02:
Or well, my understanding would be reviewed in the district court under the Randolph- I'm sorry, district, but under the APA, under the standards of- Right.

[00:20:00] Speaker 01:
And that would be correct.

[00:20:01] Speaker 01:
I don't think that would be any different than the Elgin case, the Supreme Court case where it was

[00:20:07] Speaker 01:
under the Civil Service Reform Act, the Merit Systems Protection Board would be issuing the adjudication that will be reviewed under the APA by a federal court.

[00:20:18] Speaker 01:
Likewise, an AFTI versus Trump decision of the Federal Labor Relations Authority, again, reviewed under the Administrative Procedure Act.

[00:20:27] Speaker 01:
Same sort of judicial mechanism of review.

[00:20:30] Speaker 02:
Right, but your theory now is that

[00:20:35] Speaker 02:
Randall Shepherd, not only does it provide the exclusive channeling mechanism for raising claims, which is start with the state agency and proceed as we discussed, but it actually as a substantive matter, um, impliedly repeals the ADA and the Rehab Act.

[00:21:03] Speaker 01:
Not at all, Your Honor.

[00:21:04] Speaker 01:
I mean, just because it channels those claims through an administrative process doesn't mean it repeals those acts, because as I said, ultimately, there will be judicial review.

[00:21:14] Speaker 01:
Maybe an example might help clarify.

[00:21:16] Speaker 01:
There could be a claim that my operating agreement was improperly terminated, and it's based on discrimination.

[00:21:27] Speaker 01:
The reason for the termination, ostensibly, is the facility was not kept clean.

[00:21:33] Speaker 01:
The vendor could argue, well, that wasn't the standard to apply.

[00:21:37] Speaker 01:
And in any event, I kept my facility spotless.

[00:21:39] Speaker 01:
And therefore, it was pretext for discrimination.

[00:21:42] Speaker 01:
The administrative agency can still proceed to resolve issues related to that claim, what in fact the program standard was regarding cleanliness, whether as a factual matter, the facility was kept cleanly or not.

[00:21:55] Speaker 01:
And ultimately, as I said, the purpose of exhaustion is even if the administrative agency can't necessarily

[00:22:03] Speaker 01:
finally adjudicate those claims, it can facilitate judicial review by creating that record, by creating fact-finding that a court will ultimately review and pass upon merits of any claim the plaintiff has.

[00:22:16] Speaker 01:
We believe that's consistent, as I said, with the case law from the Supreme Court and from this circuit in terms of how that administrative process works when you have, for example, constitutional claims or other statutory claims that the agency may not be able to

[00:22:31] Speaker 01:
necessarily fully adjudicate.

[00:22:34] Speaker 01:
Nonetheless, exhaustion is required in those circumstances.

[00:22:38] Speaker 04:
So is that true even where the remedy under the federal discrimination statute would be different?

[00:22:50] Speaker 04:
The available remedy?

[00:22:53] Speaker 01:
Yes.

[00:22:54] Speaker 01:
As long as it's meaningful judicial review, I don't think it requires that every particular

[00:23:00] Speaker 01:
aspect of remedial relief be necessarily available through the administrative process.

[00:23:05] Speaker 01:
But as long as there's meaningful judicial review.

[00:23:08] Speaker 04:
But meaningful judicial review is limited by the Administrative Procedure Act.

[00:23:15] Speaker 04:
My hypothetical is if you were a plaintiff in the district court proceeding on a complaint under the discrimination statutes, you'd still have your burden, et cetera.

[00:23:31] Speaker 04:
But the APA would not be involved.

[00:23:40] Speaker 01:
I think it would, if I understand correctly.

[00:23:43] Speaker 01:
I mean, these cases, once they go through the administrative process, are then.

[00:23:47] Speaker 04:
No, no, no.

[00:23:49] Speaker 04:
I'm following up as to whether or not the way you're interpreting the mandatory requirements

[00:24:00] Speaker 04:
means that, I mean, I could come up with a hypothetical that any other plaintiff who's not blind or otherwise covered by the Randolph-Shepard Act could go to district court, claim discrimination under these federal discrimination statutes, and end up one of the remedies is a brand new car.

[00:24:23] Speaker 02:
Or money damages.

[00:24:25] Speaker 04:
Or money damages, much less attorney's fees.

[00:24:30] Speaker 04:
Whereas you cannot get that through the Randolph Shepherd Act.

[00:24:38] Speaker 01:
Well, as I said, I mean, it's my understanding.

[00:24:41] Speaker 04:
That's what I'm getting at.

[00:24:43] Speaker 01:
Right.

[00:24:44] Speaker 01:
It's my understanding, first of all, that the availability of the same type of relief isn't a necessary prerequisite to an exhaustion requirement.

[00:24:53] Speaker 01:
Secondly, there's no reason that I know of that the district court couldn't award appropriate relief

[00:24:59] Speaker 01:
upon review of the final administrative decision in Randolph-Shepard Act cases.

[00:25:07] Speaker 04:
I mean, I tried to make it extreme.

[00:25:09] Speaker 04:
I mean, obviously, money damages is different.

[00:25:18] Speaker 04:
In other words, I understand the channeling notion.

[00:25:20] Speaker 04:
And I understand in the Civil Service Reform Act context,

[00:25:27] Speaker 04:
the remedy doesn't necessarily have to be the same.

[00:25:34] Speaker 04:
But there's no question here that under the mandatory exhaustion requirement, not only do you have to spend a lot of time and money going through that process, you can't get your car.

[00:25:51] Speaker 04:
Whereas if you're a non-blind person,

[00:25:56] Speaker 04:
You could file your complaint in the district court.

[00:25:59] Speaker 04:
And if you were able to meet your burden, then the district court would be able to award you this car.

[00:26:09] Speaker 04:
I just want to make an extreme situation.

[00:26:13] Speaker 04:
I mean, the theory was this was going to be a less expensive, timely process.

[00:26:21] Speaker 04:
for the vendors to get what they are complaining about.

[00:26:24] Speaker 04:
If they want these aids, if they want the documents in readable type.

[00:26:34] Speaker 01:
And yes, and that benefit of the process is served.

[00:26:38] Speaker 01:
It may well be as a result of the administrative adjudication that those issues are resolved.

[00:26:43] Speaker 01:
It's an opportunity for the agency to correct any errors.

[00:26:47] Speaker 01:
Access to program documents needs to be fixed.

[00:26:49] Speaker 04:
Is this an application of implicit repeal?

[00:26:55] Speaker 01:
No, Your Honor, I'm not suggesting that at all.

[00:26:57] Speaker 01:
And in fact, as I said, I think the district court on review would have the opportunity to award appropriate relief.

[00:27:05] Speaker 04:
I'm not.

[00:27:06] Speaker 04:
Just to put it, an attorney's fees?

[00:27:11] Speaker 01:
I'm sorry, Your Honor, an attorney.

[00:27:12] Speaker 01:
Well, you know,

[00:27:14] Speaker 01:
I think that district court would, if it's necessary in order for exhaustion to be a requirement, then I think that district court would have the ability to award appropriate relief after that administrative process is exhausted.

[00:27:28] Speaker 01:
As I said, it serves a purpose in allowing the agency to correct errors, to develop a factual record.

[00:27:36] Speaker 04:
That's the issue that we're getting at, all right?

[00:27:40] Speaker 02:
Let me try.

[00:27:41] Speaker 02:
If you're done, Judge Rogers, let me try it this way.

[00:27:46] Speaker 02:
I'm trying to exploit the fact that review starts in district court.

[00:27:51] Speaker 02:
So the plaintiff goes through the mandatory exhaustion.

[00:28:05] Speaker 02:
And based on what you've said here, the plaintiff can litigate all of those issues in Randall Shepard terms about was the vendor fired for violation of the operating agreement.

[00:28:23] Speaker 02:
And that process will generate whatever fact finding it generates, expertise is brought to bear, and so on.

[00:28:33] Speaker 02:
goes up through the secretary, and then at the end of the administrative process, the aggrieved vendor files a complaint in district court.

[00:28:46] Speaker 02:
And the complaint has two counts.

[00:28:49] Speaker 02:
Count one, through the APA seeking judicial review of the Randall Shepherd determination,

[00:29:01] Speaker 02:
Count two under the ADA seeking a de novo trial of the disability discrimination question, seeking money damages, and let's assume that the administrative findings have whatever preclusive effect they have, but to the extent that the agency hasn't directly addressed disability determination

[00:29:31] Speaker 02:
plaintiff says, I want a trial on those open issues.

[00:29:35] Speaker 02:
Is that count to litigable on your theory at that point?

[00:29:41] Speaker 01:
I think it may well be.

[00:29:42] Speaker 01:
My argument certainly is not premised that it would not be litigable.

[00:29:46] Speaker 01:
I mean, Your Honor mentioned the preclusive effect of factual findings, so I would at least insist upon that.

[00:29:51] Speaker 02:
Which might narrow the case, but on your representation that the

[00:29:58] Speaker 02:
The agency won't directly be deciding the question of disability based discrimination.

[00:30:04] Speaker 02:
It wouldn't end the case.

[00:30:06] Speaker 02:
I mean, suppose the agency says, well, you breached your operating agreement and that's basis for termination under Randall Shepherd.

[00:30:14] Speaker 02:
It would still be open to the plaintiff to say, well, yes, but similarly situated non-blind person wouldn't have lost the contract.

[00:30:26] Speaker 01:
Yeah, it might not necessarily do so, but the plaintiff could be satisfied with the outcome of having their operating agreement restored.

[00:30:32] Speaker 01:
So there's certainly many possibilities in which judicial review would not be necessary, ultimately.

[00:30:37] Speaker 01:
I would also, given the questions on exhaustion, I would want to make the point, too, about the district court's ruling that the complaint in itself failed to state a plausible claim of disability discrimination.

[00:30:48] Speaker 01:
The district court, I think, was quite correct to say that the allegations merely suggested the reason for the actions

[00:30:55] Speaker 01:
was the plaintiff's participation in the program.

[00:30:57] Speaker 01:
It was not by reason of disability.

[00:30:59] Speaker 01:
It was by reason they were vendors in the program.

[00:31:02] Speaker 01:
As I said, this issue was forfeited by the plaintiffs by not challenging that particular aspect of the district court's ruling.

[00:31:09] Speaker 01:
In any event, that district court ruling is correct, we believe, that this program, again, is only open to those with plaintiff's particular type of disability.

[00:31:18] Speaker 01:
And so it's not a question of program monitors going out and inspecting

[00:31:25] Speaker 01:
others who are not participants in the program, for example.

[00:31:28] Speaker 01:
The inspections are clearly by reason of participation in the program.

[00:31:32] Speaker 01:
It just so happens the program is only open to those who claim it's a disability, that particular type of disability.

[00:31:38] Speaker 01:
But that doesn't make it a plausible claim of disability discrimination.

[00:31:43] Speaker 01:
So I think even if the court has some concerns about exhaustion, that alternative base is also proper for affirmance as well.

[00:31:52] Speaker 01:
I do see that I'm out of time.

[00:31:54] Speaker 01:
I'm happy to address any questions from the court then.

[00:32:00] Speaker 02:
Covered mine, thank you.

[00:32:02] Speaker 04:
Thank you.

[00:32:03] Speaker 02:
Thank you.

[00:32:05] Speaker 04:
Council for Appellant.

[00:32:09] Speaker 00:
Madam Your Honor, I'll try to use my time as quickly as wisely as possible.

[00:32:15] Speaker 00:
I want to say, first of all,

[00:32:17] Speaker 00:
that I think the court made a very astute observation.

[00:32:21] Speaker 00:
What the government is arguing and what would happen with the affirmance of the lower court opinion would be that for Randolph-Shepard blind vendors, those blind people, their ADA rights would be basically abolished.

[00:32:36] Speaker 00:
They would have no opportunity for injunctive reliefs at the office of administrative hearings.

[00:32:42] Speaker 00:
no opportunity for damages.

[00:32:44] Speaker 00:
Office administrative hearings insist that they have no authority to issue damages, to award damages.

[00:32:50] Speaker 00:
No opportunity for attorney's fees.

[00:32:53] Speaker 00:
And hence the blind vendors would have no rights under the ADA.

[00:32:58] Speaker 00:
I would even bring to your attention another matter with regard to the appeal of the matter under the Administrative Procedures Act.

[00:33:10] Speaker 00:
Under the DC code,

[00:33:13] Speaker 00:
Under the DC regulations, if I'm not mistaken, the appeal would go to the DC Court of Appeal.

[00:33:21] Speaker 00:
It wouldn't go to a US District Court or to the Superior Court.

[00:33:25] Speaker 00:
And the DC Court of Appeals would have a very, very limited standard of review to apply.

[00:33:33] Speaker 00:
And it would basically be whether the law regarding Randolph Shepard was properly applied, yes or no.

[00:33:40] Speaker 00:
not whether my clients or any other blind vendors have rights that should have been protected under federal law or under the Human Rights Act.

[00:33:50] Speaker 00:
I will even mention again what the government

[00:33:55] Speaker 00:
consistently overlooks.

[00:33:57] Speaker 00:
Title IV, the District of Columbia Municipal Regulations at Section 128.1 made sense of what was happening in my two clients' case, Hazel Brooks and Derwin Patton's case.

[00:34:09] Speaker 00:
When we raised the issue of disability discrimination affecting their performance in the Randolph Shepherd Program, the Office of Administrative Hearings refused to take jurisdiction.

[00:34:21] Speaker 00:
And that section, Section 128.1 of Title IV of the DC Municipal Regulation says that any discrimination matter brought to any agency other than the Office of Human Rights must be referred to the Office of Human Rights.

[00:34:37] Speaker 00:
That applies to the Office of Administrative Hearings.

[00:34:41] Speaker 00:
I think notwithstanding what the lower court said and what the government says, my client's cases, in many respects, similar to what was litigating in Barnett versus DC Court of Appeals.

[00:34:53] Speaker 00:
My clients receive written documents.

[00:34:57] Speaker 00:
My clients receive written documents and they could not, pardon me, this is beautiful.

[00:35:05] Speaker 00:
My clients receive written documents and they could not possibly see or read the paper.

[00:35:10] Speaker 00:
and they asked for auxiliary aids and they weren't providing any.

[00:35:15] Speaker 00:
And moreover, if at a blind graduate of law school was taking the bar examination without any auxiliary aids, if that blind graduate had turned in their bar exam, however they took it, being unable to see the document, if their test was corrected,

[00:35:38] Speaker 00:
by the National Conference of Bar Examiners and by local judges, while cited applicants, cited law school graduates, had their tests corrected solely by the National Conference of Bar Examiners, those circumstances would be illegal segregation under ADA and the Rehabilitation Act.

[00:35:57] Speaker 00:
And all we're saying is that notwithstanding how the government

[00:36:03] Speaker 00:
examines our claims, we talk about not perceiving any important communications, even unimportant communications in any form other than small print writing that blind people can't see or read.

[00:36:19] Speaker 00:
and that they were forced upon, that they had to endure inspections that were illegal under Section 7-731, Subsection A, Paragraph 5, and Subsection B of the D.C.

[00:36:34] Speaker 00:
Code.

[00:36:34] Speaker 04:
All right.

[00:36:35] Speaker 04:
Thank you, Mr. Ruffin.

[00:36:36] Speaker 04:
I think we have your argument.

[00:36:38] Speaker 04:
Did my colleague have a question?

[00:36:44] Speaker 04:
We will take the case under advisement.