by Charles S.P. Hodge
On February 1, Judge Gerald Bruce Lee of the U.S. District Court for the Eastern District of Virginia issued an opinion in the NISH court case challenging the validity of the Randolph-Sheppard Act and its priority in favor of licensed blind vendors. In a 12-page opinion, Judge Lee grants the petitions for intervention as parties defendant, which were filed by ACB, RSVA and NELDS, along with the NFB, the elected committee of blind vendors in Virginia, (VFVC), the Texas Commission for the Blind and the Oklahoma state licensing agency.
At first glance, I find the court to have determined that the petitioning intervenors all are advocacy organizations with members who are licensed Randolph-Sheppard blind vendors. Since these members could potentially be deprived of the opportunity to bid for and obtain locations in troop feeding facilities on military bases if NISH’s lawsuit were to succeed, Judge Lee finds that the petitioning intervenors have direct standing and interest in the subject matter of this litigation.
The court noted that the Texas Commission for the Blind and the Oklahoma state licensing agency — in their capacity as Randolph-Sheppard state licensing agencies — have a justifiably heightened direct interest in this litigation.
The only clinker in the court’s opinion is that the court orders all of the intervenors to confer and to choose one joint lead counsel in order to file one response to NISH’s previously filed motion for summary judgment and to file a single potential cross motion for summary judgment on behalf of all of the defendants. Under the so-called “rocket docket” in the Eastern District of Virginia, this joint response must be submitted within 11 days of the court’s order. So this places considerable pressure on the defendants to cooperate with one another to select their joint lead counsel, and to prepare and submit their joint response to NISH’s motion for summary judgment — under very tight time deadlines. Nevertheless, this initial victory for ACB, RSVA and NELDS is very good news which we can all celebrate!
As this issue went to press, the organizations and their attorneys who have resolved to counter this very serious threat to the Randolph-Sheppard priority had already met via conference call to map out their strategies and maneuvers. Count on “The Braille Forum” to keep you informed on this very important case and its ramifications.