Kolb v. United States

In the United States Court of Federal
Claims
No. 20-784C
(Filed June 16, 2022)
LAURA KOLB, et al., Randolph-Sheppard Act;
RCFC 12(b)(1);
Plaintiffs, Mandatory Arbitration;
Implied-In-Fact Contract
v.
THE UNITED STATES,
Defendant.
Fazeel S. Khan, Haynes Kessler Myers & Postalakis, Incorporated of
Worthington, Ohio, for plaintiff. Eric B. Hershberger, Haynes Kessler Myers &
Postalakis, Incorporated, of counsel.
Jimmy S. McBirney, Trial Attorney, Commercial Litigation Branch, United
States Department of Justice, Washington D.C., for defendant.
OPINION AND ORDER
FUTEY, Senior Judge.
Plaintiffs Laura Kolb and Yvette Shackleford (the Vendors), are blind
vendors who have been licensed to provide vending services on federal property
through a state-federal partnership established pursuant to the Randolph-Sheppard
Act (RSA), 20 U.S.C. §§ 107 et seq. (2018). The RSA limits the purposes for which
funds that vendors earn may be set aside. The Vendors allege that the government
committed illegal exactions and breached implied-in-fact contracts by collecting
commissions from the gross income generated by their vending facilities, for
purposes not permitted by the RSA. The Vendors filed a complaint in this court,
seeking money damages equal to the commissions they have paid to the government
over the past six years. The government moved to dismiss the case under Rule
12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC), arguing
that this court lacks subject-matter jurisdiction over the matter because the
Vendors failed to exhaust administrative remedies provided for in the RSA and
because there is no contract between the government and the Vendors that could
bring the claim within the purview of the Tucker Act, 28 U.S.C. § 1491 (2018). The
government also moved to dismiss under RCFC 12(b)(6), arguing that the Vendors
failed to state a claim for breach of an implied-in-fact contract.
I. BACKGROUND
A. Statutory and Regulatory Context
The RSA is a federal statute that is intended to “provid[e] blind persons with
remunerative employment, enlarg[e] the economic opportunities of the blind, and
stimulat[e] the blind to greater efforts in striving to make themselves self-
supporting,” by establishing a system by which blind Americans may become
licensed to provide vending services on federal property. 20 U.S.C. § 107. In order
to achieve this, the RSA and its implementing regulations establish a regime in
which the Secretary of Education designates, for each state, a state licensing agency
(SLA) “to issue licenses to blind persons who are citizens of the United States for
the operating of vending facilities on Federal and other property in such State for
the vending of newspapers, periodicals, confections, tobacco products, foods,
beverages, and other articles or services,” Id. § 107a(a)(5).
The SLAs form contracts with state and federal agencies for the rights to
operate vending facilities, and form contracts with licensed blind vendors, assigning
them those rights. The RSA allows SLAs to set aside certain funds from the
vending facilities they oversee, but only for limited purposes:
“[I]f any funds are set aside, or caused to be set aside, from the net
proceeds of the operation of the vending facilities such funds shall be
set aside, or caused to be set aside, only to the extent necessary for and
may be used only for the purposes of (A) maintenance and replacement
of equipment; (B) the purchase of new equipment; (C) management
services; (D) assuring a fair minimum return to operators of vending
facilities; and (E) retirement or pension funds, health insurance
contributions, and provision for paid sick leave and vacation time.”
20 U.S.C. § 107b(3). See also 34 C.F.R. § 395.9(b).
The RSA and its implementing regulations establish different procedures and
processes for individual vendors grievances and complaints brought by SLAs. In
any action brought by a vendor before either an SLA or the Secretary of Education
they are required “to provide to any blind licensee dissatisfied with any action
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arising from the operation or administration of the vending facility program an
opportunity for a fair hearing, and to agree to submit the grievances of any blind
licensee not otherwise resolved by such hearing to arbitration.” 20 U.S.C. § 107b(6);
107d-1(a).
The section of the RSA relating to grievance procedures contains two
provisions, one for claims brought by vendors, the other for those brought by SLAs.
The one titled “Hearing and arbitration,” provides procedures for complaining
vendors. It provides that “[a]ny blind licensee who is dissatisfied with any action
arising from the operation or administration of the vending facility program may
submit to a [SLA] a request for a full evidentiary hearing, which shall be provided
by such agency . . . If such blind licensee is dissatisfied with any action taken or
decision rendered as a result of such hearing, he may file a complaint with the
Secretary who shall convene a panel to arbitrate the dispute . . . and the decision of
such panel shall be final and binding on the parties except as otherwise provided in
[the RSA].” Id. § 107d-1(a). The corollary federal regulation is similar, but specifies
that SLAs are required to provide hearing procedures for “each blind vendor …
dissatisfied with any State licensing agency action arising from the operation or
administration of the vending facility program,” 34 C.F.R. § 395.13(a) (emphasis
added), rather than the statute’s broader wording of “any action arising from the
operation or administration of the vending facility program.” 20 U.S.C. § 107d-1(a)
(emphasis added).
The RSA’s second complaint provision provides procedures for disputes
brought by SLAs and is titled “Noncompliance by Federal departments and
agencies; complaints by State licensing agencies; arbitration.” It provides that
“[w]henever any [SLA] determines that any department, agency, or instrumentality
of the United States that has control of the maintenance, operation, and protection
of Federal property is failing to comply with the provisions of this chapter or any
regulations issued thereunder . . . such licensing agency may file a complaint with
the Secretary who shall convene a panel to arbitrate the dispute . . . and the
decision of such panel shall be final and binding on the parties except as otherwise
provided in [the RSA]. Id. § 107d-1(b).
The RSA’s section on arbitration provides different procedures for panels
convened by the Secretary of Education “to hear grievances of blind licensees,” id.
§ 107d-2(b)(1), and panels convened “to hear complaints filed by a State licensing
agency.” Id. § 107d-2(b)(2). Arbitration panels convened under the vendor-
grievance provision of the RSA and its implementing regulation are to consist of a
member designated by the vendor, a member designated by the SLA, and a neutral
chairperson on whom the two parties agree. Id. § 107d-2(b)(1). See also 34 C.F.R.
§ 395.13(a). Panels convened under the SLA-complaint provision and its
implementing regulation are to consist of a member designated by the SLA, a
member “designated by the head of the Federal department, agency, or
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instrumentality controlling the Federal property over which the dispute arose,” and
a neutral chairperson on whom the two parties agree. 20 U.S.C. § 107d-2(b)(2). See
also 34 C.F.R. § 395.37(b).
B. Procedural History
The Vendors are blind persons who are licensed by Ohio’s SLA, the Bureau of
Services for the Visually Impaired (BSVI), to provide vending services to Defense
Supply Center Columbus (DSCC), a federal property.1 The BSVI formed a bureau-
grantor agreement (BGA) with DSCC for the provision of vending services in
various facilities on the property, in which the BSVI agreed “[t]o pay to the DSCC
non-appropriated fund activity a commission of 4.8% of gross revenue after taxes
from all present and future BSVI operations” in the DSCC buildings at issue. Pls.’
Not. of Filing of Exs. (ECF No.18) (Plaintiffs’ Exhibits) 2.2 Vendors Laura Kolb and
Yvette Shackleford signed bureau-operator agreements (BOAs) with the BSVI in
2014 and 2010, respectively, permitting them to operate vending facilities on DSCC.
These BOAs require Vendors to “[c]omply with all provisions of the Ohio
Administrative Code Chapter 3304:1-21, including but not limited to operating the
[BSVI] Facility in accordance with said Administrative Code, [BGA], facility
permit(s), and any other agreements related to the facility.” Id. at 3, 9. The BOAs
further require the BSVI to “[c]omply with all provisions of the Ohio Administrative
Code Chapter 3304:1-21 as it relates to the relationship between [the BSVI] and the
Operator.” Id. at 4, 10. Chapter 3304:1-21 of the Ohio Administrative Code
establishes and outlines the operation of the BSVI. It includes a requirement that
operators “[o]perate facilities in accordance with the BGA or permit,” and “[o]perate
the facility in accordance with the requirements of the administrative rules, BOA,
. . . BGA, facility permit, or other agreement for that facility.” The Code also
authorizes the BSVI to terminate a BOA for “[f]ailure of the operator to pay any fee
1 The BSVI is a division of Opportunities for Ohioans with Disabilities, a state
agency that aims to “empower [ ] Ohioans with disabilities through employment,
disability determinations, and independence.” Opportunities for Ohioans with
Disabilities, https://ood.ohio.gov/wps/portal/gov/ood/home (last visited Nov. 4, 2021).
The BSVI administers the Business Enterprise Program, which handles Ohio’s
program for blind vendors, among other programs. Opportunities for Ohioans with
Disabilities, Business Enterprise Program,
https://ood.ohio.gov/wps/portal/gov/ood/about-us/programs-and-
partnerships/business-enterprise-program (last visited Nov. 4, 2021). Although
each of these entities is referred to separately in the parties’ filings and exhibits, the
Court will refer to the BSVI throughout because it is Ohio’s SLA.
2With the exception of the complaint, citations to Vendors’ filings are to Electronic
Case Filing System (ECF) page numbers.
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required through the BOA, BGA, or permit.” Ohio Admin. Code § 2204:21-1.
Because the BGA requires DSCC to receive a 4.8 percent commission on sales, and
the BOA and state regulation require vendors to act in accordance with the BGA,
Vendors have paid these commissions directly to the government. Complaint
¶¶ 29–31, 37.
In the spring of 2020, both Vendors filed grievances with the BSVI, arguing
that the 4.8 percent commission imposed by the BGA is unlawful. Pls.’ Notice of
Filing Supplemental Evidence (ECF No. 20) (Plaintiffs’ Evidence) 4–5, 9–10, 48–49.3
Although Ms. Shackleford only implicitly referred to the RSA, Ms. Kolb complained
that “[t]he Randolph Shepard Act does not authorize use of a vendor’s funds to pay
commissions to a grantor” and argued that the 4.8 percent commission on gross
sales required by the BGA between the BSVI and DSCC violates the RSA’s
limitation on purposes for which “funds [may be] set aside, or caused to be set aside,
from the net proceeds of the operation of the vending facilities.” Id. at 4–5 (quoting
20 U.S.C. § 107b(3)). The Vendors requested that the BSVI stop the obligation to
pay commissions and reimburse or recover the amounts already paid to DSCC. Id.
at 9–10, 49. Both complained that the BSVI “failed in its duty to advocate on [their]
behalf by requiring [them] to continue to pay commissions and failing to take action
on [their] behalf to prevent any further obligation on [their] part to pay commissions
that are both illegal and an extreme financial burden.” Id. at 9, 48. The BSVI
refused each of these grievances, explaining that it only had jurisdiction over
grievances filed within 45 days from the date a licensee becomes or reasonably
should become aware of an action taken against a licensee. Id. at 6, 8, 11–13, 50.
See also Ohio Admin. Code § 3304:1-21-14(A). The Vendors then filed grievances
regarding the process by which the BSVI determined that the initial grievances
were time-barred. Plaintiffs’ Evidence. at 14–16, 41.4
3 Grievances from Ms. Kolb regarding the commission payments are dated March
31 and May 7, 2020. A single grievance on the subject from Ms. Shackleford is
dated May 7, 2020. Plaintiffs’ Evidence 4, 9, 48. Vendors’ complaint, and
correspondence within their exhibits, refer to prior outreach to the BSVI about
commission payments. See, e.g., Complaint ¶ 6; Plaintiffs’ Evidence 4–5, 9–10. This
correspondence is not in the record, but is not necessary to the Court’s consideration
of this case.
4 The grievance from Ms. Kolb on this matter is dated June 11, 2020. Plaintiffs’
Evidence. at 14. The BSVI conducted hearings on this issue. Id. at 30–47. A
scheduling order from the hearing officer notes Ms. Kolb and Ms. Shackleford as
two of thirteen grievants whose grievances were consolidated on the issue of
whether the BSVI “ha[s] the authority to deny, without a hearing, a grievance
(submitted pursuant to OAC 3304:1-21-14), that, in [BSVI’s] sole opinion . . . is not
timely; or concerns a ministerial matter or otherwise is not appropriate for
hearing.” Id. at 41–42. The hearing officer indicated that each grievant would
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While their state-level administrative proceedings on the issue of the BSVI’s
authority to refuse grievances were still pending, and without having requested
arbitration by the Department of Education, the Vendors filed the complaint in the
present case, on June 26, 2020. See Complaint. They make two claims: first, they
claim that the requirement to pay a commission to DSCC is an illegal exaction by
the government, and second, they claim that the commission payments constitute a
breach of an implied-in-fact contract between the government and themselves.
Complaint ¶¶ 10, 12. The Vendors seek damages equal to the respective
commissions that they claim have been illegally exacted from them over the past six
years. Id. at 13. Defendant moved to dismiss the case under RCFC 12(b)(1),
arguing that this court lacks subject-matter jurisdiction over the matter because the
Vendors failed to exhaust administrative remedies and because there is no contract
between the government and the Vendors that could bring the claim within the
purview of the Tucker Act. Defendant’s Motion to Dismiss (Defendant’s Motion) 5–
7. Defendant also moved to dismiss under RCFC 12(b)(6), arguing that the Vendors
failed to state a claim for breach of an implied-in-fact contract. Id. at 7–8. Vendors
filed a response to the government’s motion on November 12, 2020. Plaintiffs’
Memorandum in Opposition to Defendant’s Motion to Dismiss (ECF No. 12)
(Plaintiffs’ Opposition). Defendant replied in turn on November 30, 2020.
Defendant’s Reply in Support of Motion to Dismiss (ECF No. 13) (Defendant Reply).
Oral argument was conducted on September 14, 2021. Tr. of Oral Arg. (ECF No.
23).
II. DISCUSSION
A. Legal Standards
The government’s assertion that this Court lacks subject-matter jurisdiction
over Vendors’ claims under RCFC 12(b)(1) rests primarily on the argument that the
Vendors have not exhausted their administrative remedies as provided by the RSA.
Defendant’s Motion 5. Defendant points to precedent that, it argues, stands for the
proposition that a vendor is required to file a grievance with an SLA and then
request arbitration by the Secretary of Education before a vendor may seek relief
from this Court for a violation of the RSA. Defendant’s Motion 4–6; Defendant’s
Reply 1–5.
Under either RCFC 12(b)(1) or 12(b)(6), the Court normally accepts as true
all factual allegations in the complaint and draws all reasonable inferences in a
receive an individual report and recommendation, id. at 44, and eventually
recommended that Ms. Kolb’s grievance regarding the time bar be denied. Id. at 40.
No such report regarding Ms. Shackleford and no final order regarding either is in
the record.
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light most favorable to the pleader. See Leatherman v. Tarrant Cnty. Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d
517 (1993); Inter-Tribal Council of Arizona, Inc. v. United States, 956 F.3d 1328,
1338 (Fed.Cir. 2020); Englewood Terrace Ltd. P'ship v. U.S., 61 Fed.Cl. 583, 584
(2004). Vendors assert that jurisdiction is proper under the Tucker Act, which
provides that the court has “jurisdiction to render judgment upon any claim against
the United States founded either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any express or implied contract
with the United States, or for liquidated or unliquidated damages.” Complaint. ¶ 5
(quoting 28 U.S.C. § 1491(a)(1)). The Vendors add that they are not required to
arbitrate because RSA provides no mechanism by which a vendor may bring an
arbitration claim against a federal grantor, id. ¶ 6, and that their illegal exaction
claim is not arbitrable. Plaintiffs’ Opposition at 2–3.
The United States Court of Appeals for the Federal Circuit (Federal Circuit)
considered whether or not the RSA’s arbitration procedure is a mandatory bar to
this court’s jurisdiction in Kentucky v. United States, 424 F.3d 1222 (Fed. Cir. 2005)
(Kentucky). In that case, an SLA filed a post-bid protest—without first seeking
arbitration—claiming that the government violated the RSA by failing to give it
preference before eliminating its bid from the competitive range for a vending
contract. In affirming the dismissal, the Federal Circuit held that claims alleging a
breach of the RSA itself, such as the bid protest before it, required mandatory
arbitration before they could be brought in the Court of Federal Claims. Kentucky,
424 F.3d at 1226, 1229.5
In Oklahoma v. United States, the state of Oklahoma and its SLA sought a
temporary restraining order (TRO) in the course of a post-award bid protest against
the Army. 144 Fed. Cl. 263 (2019). After an initial complaint that alleged
violations of the RSA, the SLA filed an amended complaint that “omitted any
reliance on the [RSA], and . . . advance[d] four purely bid protest claims against the
government.” Id. at 268. The court stated that “[t]he case law is unequivocal that
the Court of Federal Claims lacks Tucker Act jurisdiction whenever a plaintiff
alleges that a federal agency violated the [RSA] or its attendant regulations and the
plaintiff has yet to arbitrate those claims,” id. at 275 (internal quotations omitted)
(collecting cases). But it decided that, because the SLA had dropped its reliance on
the RSA in its amended complaint, the “case [did] not fit within that established
pattern,” and concluded that the court had jurisdiction over the matter as a
violation of the RSA was no longer at issue. Id. at 275–76.
B. Vendors’ Claims are Subject to Mandatory Arbitration under the RSA
5 The Court of Federal Claims, in a decision by Judge Lawrence Block, had
dismissed the bid protest on a slightly broader theory of the RSA’s jurisdictional
bar. Kentucky v. United States, 62 Fed. Cl. 445, 462–64 (2004),
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The Vendors argue that their claims are not subject to the arbitration
requirement because they are brought by on their own behalf, not by an SLA, and
because they allege an illegal exaction and breach of contract, rather than a
violation of the RSA. They content that their “illegal exaction claim . . . is not
arbitrable as a matter of logic and law,” and emphasize that the Court of Federal
Claims has exclusive jurisdiction over illegal exaction claims for which the amount
in controversy exceeds $10,000. Plaintiffs’ Opposition at 2–3. But the relevant
question is only whether the claim “allege[s] a violation of the RSA” and therefore
“fall[s] within the scope of RSA-prescribed arbitration.” Kentucky, 424 F.3d at 1227.
Vendors’ illegal exaction claim falls squarely within the ambit of this rule, as the
sole grounds for the purported illegality of the commissions is the RSA itself. See
Complaint. ¶¶ 43, 45 47 (citing 20 U.S.C. § 107b(3)). Such a claim is self-evidently
based on the RSA.
Vendors’ breach of contract claim is similarly based on an allegation that the
government violated the RSA. Complaint ¶ 51. A breach-of-contract claim could be
brought in this court, without the need to first arbitrate it, provided that such claim
did “not allege a violation of the [RSA].” Colo. Dep’t of Hum. Serv., 74 Fed.Cl. at 345
(2006). Again, the sole grounds for the Vendor’s claim that defendant breached
their purported implied in fact contract is that it contained a term that was a
violation of the RSA. Complaint ¶ 51. Though it is not obvious how this could state
a breach of contract claim, whatever claim it would state would be based on the
RSA. Accordingly, Vendors breach of contract claim is also based on the RSA and
subject to its arbitration requirements.
In the alternative, Vendors argue that, even if SLAs are subject to a
mandatory-arbitration rule, such a rule does not apply to vendors who seek to
complain about federal agency action under the RSA. Plaintiffs’ Evidence 4–5.
They contend that both Kentucky and Oklahoma arose from litigation brought by an
SLA on its own behalf and neither mentions claims brought by individual vendors
against the federal government. Id. at 4. Although Vendors are correct that
Kentucky and Oklahoma did not directly address § 107d-1(a), the vendor grievance
provision of the RSA, the language and reasoning of those cases applies equally to
both. The Vendors’ contend that when the Court in Kentucky said that the RSA’s
mandatory arbitration provision applies “only” to SLAs complaint about violations
of the RSA, that “only” was modifying “complaints brought by SLAs.” Plaintiffs’
Opposition at 5. As Kentucky was a case brought by an SLA, the only question
before the court was the scope of claims to which the RSA’s arbitration requirement
applied, not scope of potential plaintiffs to whom that requirement applied. See
Kentucky, 424 F.3d at 1225.
In fact, both courts elsewhere treat vendors and SLAs similarly in analyzing
the contours of the obligation to exhaust administrative remedies. The Federal
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Circuit in Kentucky noted that “it would be odd to interpret the statute to direct
vendors and state licensing agencies into arbitration even if their complaints had
nothing to do with a federal agency’s violation of the RSA.” Id. (emphasis added).
The Oklahoma court similarly found that “[t]he case law is unequivocal that the
Court of Federal Claims lacks Tucker Act jurisdiction whenever a plaintiff alleges
that a federal agency violated the [RSA] or its attendant regulations and the
plaintiff has yet to arbitrate those claims,” without differentiating between vendor
or SLA plaintiffs. Oklahoma, 144 Fed. Cl. at 275 (internal quotations omitted).
In addition to their arguments related to precedent, the Vendors also make
an argument based on the structure of the RSA’s arbitration regime and the
language of its implementing regulations. While the RSA provides a right to a
hearing for “[a]ny blind licensee who is dissatisfied with any action arising from the
operation or administration of the vending facility program,” 20 U.S.C. § 107d-1(a),
implementing guidance specifies that SLAs are required to provide hearing
procedures for “each blind vendor … dissatisfied with any State licensing agency
action arising from the operation or administration of the vending facility program,”
34 C.F.R. § 395.13(a) (emphasis added). Additionally, the Vendors point out,
arbitration panels convened to address vendor grievances are required only to
include representatives for the vendor and the SLA, and a neutral chairman. Id.§ 107d-2(b); 34 C.F.R. § 395.13(d). Given the narrower language in the C.F.R.
provision and the absence of any arbitration provision as between a vendor and a
federal agency, Vendors argue that arbitration would be wasteful because the
federal government would neither be involved nor bound by the decision. Plaintiffs’
Opposition at 3.
Although Vendors claim that requiring arbitration with the SLA would leave
vendors without recourse when the government violates the RSA, Vendors own
actions in this case demonstrate that they still have opportunities to seek redress of
grievances through RSA arbitration. Both Vendors filed grievances complaining
that the BSVI “failed in its duty to advocate on [their] behalf.” Plaintiffs’ Evidence
9, 48. Indeed, courts considering the RSA’s arbitration provisions have emphasized
the right of vendors, after an evidentiary hearing, to bring SLAs to arbitration in
order to attempt to persuade them to take action against a federal agency for RSA
violations. See Ga. Dep’t of Hum. Res. v. Nash, 915 F.2d 1482, 1488 (11th Cir. 1990)
(holding that subsection (a) of 20 U.S.C. § 107d-1 “guarantees the vendor an
opportunity to convince the state agency to take action—to file a complaint
pursuant to subsection (b)—even though the agency has discretion not to act”). See
also Ala. Dep’t of Rehab. Serv. v. U.S. Dep’t of Veterans’ Aff., 165 F.Supp.2d 1262,
1267 (M.D. Ala. 2001) (describing vendors’ “opportunity to convince a [SLA] to take
action” through subsection (a)); Sauer v. U.S. Dep’t of Educ., 2010 WL 986774 (C.D.
Cal. Mar. 17, 2010) (finding enforceable a § 107d-1(a) arbitration panel’s order that
an SLA pay damages to a vendor for the SLA’s failure to sue a federal agency that
had eliminated the vendor’s vending facility); Ga. ex rel. Ga. Vocational
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Rehabilitation Agency v. Spencer, 398 F.Supp.3d 1330, 1357 (S.D.Ga. 2019)
(describing a SLA’s actions to “pursue its rights in arbitration on behalf of itself and
[a vendor]”). This right is not without substance. The language of the RSA’s vendor
and SLA provisions is essentially identical, and the precedent is clear that the SLA
provision creates a mandatory predicate to this court’s jurisdiction. The additional
administrative burdens on vendors who take issue with federal agencies is not a
sufficient reason to interpret the vendor provision as imposing less of an obligation.
Lastly, Vendors point to State v. United States, 986 F.3d 618, 622 (6th Cir.
2021) as a supporting both their claim on the merits and indicating that forcing
them into arbitration may leave them without an effective remedy. See Plaintiff’s
Notice of Supplemental Authority. In that case the United States Court of Appeals
for the Sixth Circuit held that a commission scheme similar to the one challenged
here by Vendors was a violation of the RSA. Id. at 624–625. As the motion before
the Court does not concern the merits of the claim, however, that is of no relevance.
Concerning the question of remedy, in that case the plaintiffs were left without a
retrospective remedy because the entity which received (and retained) the improper
commissions was a state entity entitled to immunity under the Eleventh
Amendment. Id. at 629–630. Whether the Vendors would be able to obtain
complete relief in an arbitration before the SLA, the Department of Education, or
post arbitration litigation is a question for another day, and one on which the
Eleventh Amendment obviously has no bearing. Accordingly, State is irrelevant to
the motion before the Court.
As the vendors have failed to exhaust the required arbitration remedies
under the RSA, therefore the Court must dismiss their claims for breach of an
implied-in-fact contract and for an illegal exaction for lack of subject-matter
jurisdiction.
III. CONCLUSION
For the above stated reasons, defendant’s motion to dismiss for lack of
subject-matter jurisdiction is GRANTED.
The Clerk is directed to enter judgment accordingly. No costs.
IT IS SO ORDERED.
s/ Bohdan A. Futey
BOHDAN A. FUTEY
Senior Judge
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