Does a State waive its sovereign immunity from money damages when it voluntarily enters into a commercial vending services contract with a private individual, and the contract incorporates a federal arbitration process to resolve disputes?

QUESTIONS PRESENTED This Court has never addressed the RandolphSheppard Act (RSA), 20 U.S.C. §§ 107-107f, in its decisional law. The RSA provides economic opportunities to blind Americans to operate vending concessions on government property, with the properties and vendors managed by States that voluntarily agree to participate. The RSA and its concomitant federal and state regulations require arbitration of any disputes between States and vendors, subject to limited appeal exclusively in the federal district courts under the Administrative Procedures Act. In this case, the RSA and it related federal and state statutes and rules—including the exclusive federal arbitration process—were incorporated by reference into private, annual contracts between the state agency and Petitioner. Petitioner asserted a contract dispute with the agency, the dispute was arbitrated, Bird was awarded compensatory money damages as well as attorney fees, and the entire award was upheld by the district court. On appeal in this case, the Ninth Circuit voided Bird’s monetary award under a theory of Eleventh Amendment immunity to damages pursuant to this Court’s holding in Sossamon v. Texas, 563 U.S. 277 (2011). The questions presented are: 1. Does a State by necessity waive its sovereign immunity from money damages in federal court when it voluntarily enters into a commercial vending services contract with a private individual, and the contract incorporates by reference a “final and binding” arbitration process created by federal statute to resolve contract disputes? ii 2. Does an arbitration panel convened by a federal agency to decide any grievance between a State anda blind individual under a commercial vending services contract have authority to award attorney fees as part of a make-whole remedy where such fees were previously authorized by prior Ninth Circuit precedent and authorized by the incorporated statutes?