82 FR 18128 - Arbitration Panel Decision Under the Randolph-Sheppard Act

DEPARTMENT OF EDUCATION

Federal Register Volume 82, Issue 72 (April 17, 2017)

The Department of Education (Department) gives notice that, on March 17, 2011, an arbitration panel (the Panel) rendered a decision in Bernard Werwie, Jr. v. Pennsylvania Office of Vocational Rehabilitation (Case no. R-S/07-16).

[Federal Register Volume 82, Number 72 (Monday, April 17, 2017)]
[Notices]
[Pages 18128-18129]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-07727]


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DEPARTMENT OF EDUCATION


Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY: Department of Education.

ACTION: Notice of arbitration decision.

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SUMMARY: The Department of Education (Department) gives notice that, on 
March 17, 2011, an arbitration panel (the Panel) rendered a decision in 
Bernard Werwie, Jr. v. Pennsylvania Office of Vocational Rehabilitation 
(Case no. R-S/07-16).

FOR FURTHER INFORMATION CONTACT: You may obtain a copy of the full text 
of the Panel decision from Donald Brinson, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 5045, Potomac Center Plaza, 
Washington, DC 20202-2800. Telephone: (202) 245-7310. If you use a 
telecommunications device for the deaf or a text telephone, call the 
Federal Relay Service, toll-free, at 1-800-877-8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or compact 
disc) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: The Panel was convened by the Department 
under the Randolph-Sheppard Act (Act), 20 U.S.C. 107d-1(a), after 
receiving a complaint from the complainant, Bernard Werwie, Jr., a 
licensed blind operator of a vending facility in Luzerne County, 
Pennsylvania. Under section 107d-2(c) of the Act, the Secretary 
publishes in the Federal Register a synopsis of each Panel decision 
affecting the administration of vending facilities on Federal and other 
property.

Background

    The complainant, Bernard Werwie, Jr., was a licensed blind operator 
of a vending facility in Luzerne County, Pennsylvania. His dispute with 
the respondent, the Commonwealth of Pennsylvania's Office of Vocational 
Rehabilitation (PA OVR), arose out of the termination of his 
participation in the Business Enterprises Program by the PA OVR 
effective December 31, 2006.
    Pursuant to the Act, Mr. Werwie sought a hearing of his claims 
against the PA OVR. On July 7, 2008, a hearing officer dismissed his 
appeal and denied his request for damages and attorney's fees. The PA 
OVR adopted the hearing officer's decision as its final agency action.
    Mr. Werwie then requested the convening of the Panel. The Panel 
chair moved to schedule a hearing for that summer. There were no 
acceptable hearing dates available in the summer, so the Panel chair 
circulated a list of proposed dates in late 2009.
    The hearing was not held in 2009 because, in July, Mr. Werwie 
discharged the attorneys he had engaged to handle the case. The Panel 
granted him until January 2010 to find new counsel.
    Despite being granted an extension to name a new representative by 
January of 2010, Mr. Werwie did not respond until February 25. In his 
response, he indicated that he was still looking for new counsel and 
asked that the case be held in abeyance until September 2010 or until 
further notice. The PA OVR objected to this request for delay, and, on 
March 29, 2010, the Panel gave Mr. Werwie until May 3, 2010, to find 
new counsel.
    Mr. Werwie never responded with the name of a new representative as 
requested by that deadline. Accordingly, the Panel chair informed him 
that, if he intended to proceed with his case against the PA OVR, he 
had to respond by June 10, 2010.
    On July 1, 2010, the PA OVR filed a motion to dismiss Mr. Werwie's 
claims for failure to prosecute. Counsel for the PA OVR served Mr. 
Werwie a copy of this motion and supporting brief by sending them by 
First Class Mail to his Fredericksburg, Virginia, address.
    On July 18, 2010, the RSA informed the Panel chair of an email 
received from Mr. Werwie asking about the status of his case. In it, he 
alleged that he had heard nothing about the case since early March. 
This message was from email and postal mail addresses different from 
those he had used in his prior correspondence. The New Cumberland, 
Pennsylvania, address that he listed in his July 18 communication was 
identified as his father's address.
    The Panel responded to Mr. Werwie on August 9, 2010. It asked him 
for confirmation that he was ready to proceed with the case and 
instructed him to inform it of the name and contact information of his 
new counsel on or before August 29, 2010. The Panel indicated that, if 
it could not schedule a hearing, it would then proceed with the PA 
OVR's motion to dismiss the complaint.
    On August 18, Mr. Werwie notified the Panel that his 
representatives were

[[Page 18129]]

the same attorneys whom he fired on July 22, 2009. The Panel then asked 
the attorneys to confirm that they represented Mr. Werwie and proposed 
a conference call to be held on September 2, 2010.
    On August 30, one of the attorneys, Mr. Leiterman, responded by 
email that Mr. Werwie asked him and his colleague to represent him in 
this case. Mr. Leiterman continued that they had ``agreed in 
principle,'' and they expected the letter of representation to be 
signed in the next week. However, in the two weeks that followed, the 
Panel did not hear from either attorney.
    On September 17, 2010, the Panel sent Mr. Werwie a letter 
indicating that it would grant the PA OVR's motion to dismiss if Mr. 
Werwie did not respond by November 1, 2010. Neither Mr. Werwie nor his 
attorneys responded to the motion to dismiss. On March 17, 2011, the 
Panel granted the PA OVR's motion to dismiss for failure to prosecute.

Synopsis of the Panel Decision

    The Panel reviewed the statutory language of the Act and the RSA's 
implementing regulations, policies, and procedures. The Panel concluded 
that it has the authority to grant a motion to dismiss in this case 
without first conducting a hearing. It also concluded that there were 
unusual circumstances present in this case, notably delays in the 
process due to the change of Mr. Werwie's lawyers. The Panel repeatedly 
warned Mr. Werwie that his failure to move the case forward could 
result in dismissal and noted that he chose not to file a response at 
all although he was given ample time to do so. Because of these 
circumstances, the Panel decided that granting the PA OVR's motion to 
dismiss for Mr. Werwie's failure to prosecute was an appropriate 
exercise of its discretion.
    The views and opinions expressed by the Panel do not necessarily 
represent the views and opinions of the Department.
    Electronic Access to This Document: The official version of this 
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    Dated: April 11, 2017.
Ruth E. Ryder,
Deputy Director, Office of Special Education Programs, delegated the 
duties of the Assistant Secretary for Special Education and 
Rehabilitative Services.
[FR Doc. 2017-07727 Filed 4-14-17; 8:45 am]
 BILLING CODE 4000-01-P