In this episode, Attorney Lauren McLarney joins Terry and Nicky to discuss legal strategies in dealing with the conflict between military exchanges and Randolph-Sheppard. "
Intro Music (00:03):
We are Randolph Shepherd Podcast. We're Randolph Shepherd podcast.
Intro Music (00:16):
This is the we are Randolph Shepherd podcast, promoting blind entrepreneurship and Independence. And now here's the dynamic duo, Nikki Geicos and Terry Smith.
Nicky (00:26):
Welcome to, we are Randolph Shepherd, episode 22. And I want to thank the sponsors. Of course, without them we couldn't do this podcast. The National Association of Blind Merchants, Coca-Cola, PepsiCo Sodexo, you selected Southern Food, Tyler Technologies, Anderson Food Service, RSA Management Group, tight Line Wealth Management and Canal. Terry, how are you?
Terry (00:56):
I'm doing great Nikki, and I wanna apologize to our listeners. Uh, we're a little late getting this out. We had some, uh, a whole avalanche of things that went wrong, technology, miscommunication and everything else, but we are finally getting this done, getting it out late, and, uh, as they say, better late than never. So, uh, happy to be back this month with, with another episode of the We Are Randolph Shepherd podcast. And, uh, so we're, we just finished Thanksgiving, Nikki, and getting ready for the Christmas holidays, and I'm a big, big Christmas holidays person. And, uh, you got big plans,
Nicky (01:31):
Uh, not big plans, it's just spend time with the family some time at the shore. Um, you know, thank God it's been, um, busier at the post office. Um, they've added some new people, even though half the buildings still closed for renovations. But, um, so it's, it's a busy time of the year, but just a family and some time down the shore, it's some time to relax, to regenerate, you know, it's kind of, Christmas is a, a birth and, and like a, I think that, you know, gets si excited for 2024 already. What about you, Terry? What do you gotta plan?
Terry (02:02):
Well, we'll go spend a couple of days up at my mom's house with my nephews and, uh, their kids. And, uh, and then we're gonna take off to Hilton Head on Christmas day or the day after, and then I got all my kids and grandkids are flying in there, and we'll have them for about five days in South Carolina. It's what we did last year. It worked out very, very well. And so I'm looking forward to that. And, you know, pops has missed, uh, seeing those grandkids. This is the longest I've gone ever, uh, in, in not seeing them. So, uh, uh, it, uh, it's been four months since I've seen them. Wow. So, uh, um, gotta get back up there and, um, um, get ready to have a good time and c celebrate the, the season. So, um, looking, looking forward to it. You know, Nicky, there's some, Chris, I wanna ask you some Christmas questions. Okay. And lemme just let see, see, let let people get to know you a little bit better. And, uh, I got about five or six questions here I want to ask you, and you gotta be honest. Okay?
Nicky (03:07):
I'm always honest,
Nicky (03:08):
Terry (03:10):
Okay. Have you ever re-gifted a Christmas present?
Nicky (03:14):
Not that I know of.
Terry (03:15):
Not that you know of? Okay. Now, the, I gotta say that we had a, um, when we did Dirty Santa, uh, we had a, for years, for several years went around and somebody bought a pair, a green pair of elf boxers with a elf hat on a hanger. And for about three or four years, somebody would win that and it would get regifted. And, uh, I guess that, uh, I was the last per, I haven't been back to that party since then because for the last several years that has been hanging, uh, in my closet. So I keep waiting, getting invited to a dirty Santa Christmas party where I can re-gift that sucker. But, uh,
Nicky (04:05):
Christmas Carol gets stuck in my head. Well, I'm, I'm, I'm very anti the, uh, you know, I saw Bobby kissing Santa Claus and all that kind of stuff. I mean, are you talking one of my favorite Christmas Carol? Well, I like the traditional ones like Har, the Herald Angel Sing and First Noel and those type of things. Those are the ones that really get me excited when I hear those.
Terry (04:26):
Well, when I, um, I'm, I'm, I'm, I'm always humming and, and humming a song. And, and it's always funny because it may be July and I'll start humming a Christmas song. And, um, but I guess the one that gets stuck in my head that I will, that I hum a lot, will be, uh, little Drummer Boy, uh, that's sort of easy to get, get in there, and it just keeps going over round and around and around. So now, for your Christmas meal, uh, what traditional Christmas dish will you not be eating?
Nicky (04:58):
Christmas traditional meal is usually, uh, a a combination of Greek food and, uh, steak filet mignon that we cook with the family. So I don't know if there's anything I won't be eating. I know what I'll be drinking. I'll be red wine and bourbon, but
Terry (05:14):
So you won't be drinking beer. All right. Um, uh, so be honest. Is it really just the thought that counts?
Nicky (05:23):
No, not, not at all. With me,
Nicky (05:27):
Today happens to be a special day. It's actually, uh, St. Nicholas Day. Um, and, uh, I'm, you know, I tell my grandkids over Thanksgiving and stuff, and we were, we watched the, we had breakfast with the kids at Thanksgiving and we watched the parade, um, which, you know, which was pretty exciting. She, to see Cher out there at 78 years old, um, singing, you know, a Christmas album. And I told 'em that, you know, I still believe in Santa Claus now I know you know that stuff. And they go, Poppo, really? And I go, you know, some of the little ones still do too, but I believe in giving, and I think it's it that's important. So it's, it's, it's, um, not the thought that counts, it's, it's, you know, gotta believe in it. And I believe in these things stuff.
Terry (06:12):
Okay.
Nicky (06:14):
Happy St. Nicholas Day.
Terry (06:16):
So the last question I'll ask you is about all the hubbub that goes around Christmas. What's one thing you don't like about Christmas?
Nicky (06:26):
I don't like, is that too many people say happy holidays.
Terry (06:31):
Oh, that's a good one.
Nicky (06:34):
Um, to me, the reason we're off of work or celebrating is Christmas. Now it's okay to say Happy holidays if, if, because this is, this weekend is Hanukkah, there's some other holidays. I understand all that. But the holiday of Christmas, I always say to people, Merry Christmas. Um, it's, you know, it, I, I don't like to politically correct is, is it's, you can say Happy Holidays, but you also need to say Merry Christmas. And that's what I don't like, not enough people say Merry Christmas anymore.
Terry (07:09):
I, I guess I, if I was answering the question, it'd be, you know, the, it, it can be very stressful, you know, and, and, and, you know, I I, I probably will not be in a, a, a retail store all, all this whole Christmas season. I mean, we, we shop everything online, but, you know, I'm very anal about making sure that, you know, I've got spend about the same amount and get the same amount of gifts for all the grandkids and all that kind of stuff. And, you know, it's just really, you know, it drives me crazy trying to figure that out. And I don't know why I'm so anal about it, but, um, a it is what it is. So, um,
Nicky (07:42):
Yeah, I know. It's like Kathy's like that with the piles. Yeah. Oh my God. Jasmine's pile's too big. We gotta make sure that this one gets that. Oh geez. Probably, probably spend a thousand dollars on Jasmine. That's why our pile's small. She's got bigger kids.
Terry (08:00):
Uh, and you know, I think, I think the, the sad part is that, that you and I can totally relate, you use the word piles to describe the gifts.
Nicky (08:09):
Terry (08:11):
That's the way it is at my house. I mean, they'll, they'll have a huge pile and uh, um, they have to go figure out which one is theirs. And it's sort of, sort of, sort of fun. So, um, uh, hey, now Nick, I wanna ask you one last question. And let's see. There are eight Santa's reindeer. I'm going to give the over under at five and a half that you can't name more than five and a half reindeer of Santa's reindeer. So let me hear, how many name the reindeer for me
Nicky (08:51):
My Reindeer?
Terry (08:53):
Nicky (08:54):
Oh, Santa's Ray Deer. Okay, well, there's Dasher. Yeah, a dancer. Uhoh Vixen.
Terry (09:02):
Yeah.
Nicky (09:05):
Cupid,
Terry (09:06):
Yeah.
Nicky (09:07):
Comet, yeah. Trans
Terry (09:19):
Yeah, I think
Nicky (09:20):
Ed and Saint Dixon, I think Yeah,
Terry (09:22):
You're, you got, you beat the four and a half. Let's see. Dash.
Nicky (09:25):
Is there, Dunder? Is there D Yeah. Yes. I think I got 'em.
Terry (09:29):
You did?
Nicky (09:31):
Accurate. I'm tell you, I love, I love Christmas, man. Come on. St. Nichols
Terry (09:37):
Oh, you know that, that, that comes from towards the night before Christmas. And, um, I, I was reading that, you know, that date's back to 1825. That's a long time. That's when, that's when they, those eight reindeer really came into existence. And, uh, you know, that's, that's before Rudolph came, came, came into play. But, uh, if you can't root, I'm not, that's, that's number nine. But I'm absolutely, totally shocked. I'm glad I did not put any money, uh, on, on, on that. Just like, I'm glad I didn't put any money on our football picks because back in September you and I picked our Final four for college. And, uh, um, we did not, uh, we advised people not to take our advice in placing any betts. And if they took my advice, they're in trouble. 'cause I picked four finalists to make the final four to make the playoffs. Not all four of them made it. Not three of them, not two, not one. I had zero. Zero. How do you get zero out of four? Uh, you did better than me.
Nicky (10:32):
I think I have three. I think I have Michigan, Texas, um, that's it. I sent somebody from the Pac 10. I sent somebody I knew I the Pac 10.
Terry (10:42):
Yeah. Oregon.
Nicky (10:43):
Oregon, yeah.
Terry (10:44):
And, um,
Terry (10:45):
Um,
Terry (10:46):
Who was your other one? I can't remember. I went back and listened to it, but, uh, but yeah, you had, you had Michigan and Texas and you picked Michigan to win it all. So you, you may actually hit this thing. 'cause Michigan is looking pretty good. And, um, um, so, um, you, you got, you got two out of the four. That's better than, than, than, than I can. I can, I can say. So you got bragging rights for sure. And if Michigan ends up winning at all, you really have bragging rights.
Nicky (11:15):
So, you know what, and I hope Don James is listening, because I wanna tell him I did not pick Sc
Terry (11:26):
Yeah, there's an inside story there. Don and James was upset that Nikki picked Southern Cow to win the National championship when he should've picked Georgia. 'cause Don's from Georgia. Uh, and I didn't have the heart to tell him that I'm the one that picked Southern Cow. And, uh, which, which, which is a curse of death because Joe Blackstone is a Southern Cow fan. And so he never wants me to pick Southern Cow again. But, uh, been a good year. And I think it's gonna be, I think it's, I think it might be the best playoff, um, that, that,
Nicky (11:52):
Yeah, and I'm glad they're extended next year. I'm not upset about Florida State, but I, if they pick the reasoning that Alabama was better than Florida State, which they are, that Georgia should have been number five, and Florida State should been number six, because when the, the odds came out, Georgia's a 14 point favorite over Florida State. So what does that tell you? So, um, I feel sorry for 'em. They, they played their hearts out. They were undefeated, um, and, and that type of thing. But the four teams I have are, are much better teams. So, and that's what you want. You want the Betts four teams playing for the championship.
Terry (12:24):
So, well, you and I are getting ready to go to Florida. We're gonna be doing the training down there for the Committee of line vendors. And, um, and that's gonna be on Friday. We need to read the room before we bring up football. 'cause I'm sure there's some Florida State fans in there that are a little upset. But, uh,
Nicky (12:38):
I, I bring it up
Terry (12:42):
So Nikki, uh, we
Nicky (12:43):
Including Alan Fisk, including Alan Fisk
Terry (12:46):
Yeah. Oh yeah. I forgot about Alan. Yeah,
Nicky (12:49):
He played at Florida State. Yeah,
Terry (12:50):
Yeah, he did. He played there. Um, so every, every every month we do the WhatsApp section, and that's when you get about 20 seconds or 30 seconds to tell what's up. Uh, we ever had a chance to talk about. So Nikki, what's up?
Nicky (13:05):
Well, what's up is, I'm looking forward to, to 2024, Terry. I said, uh, uh, uh, I, I feel rejuve in a lot of ways. Um, uh, I wa I'm, I'm looking forward to, to innovation 24. You know, we're gonna, we're gonna start off by coming up with some new innovation and having some meetings, and we're gonna, uh, and Faia and have a blast, uh, in 24 the week before Thanksgiving. I, in Nashville, Tennessee, we haven't had one since before pandemic. So what's up with me is that I'm very excited about the change that we could have, because if things don't change, as we've talked about, we're not gonna be doing these podcasts anymore because it, there's just too many things that are going on. You know, last week we talked about, I'm mad as hell and I'm not gonna take it anymore. Well, I'm still mad, but because it's the holidays and we're gonna let it go till after, till January, but we're gonna come out swinging in 24, and we're gonna be fired up about getting things changed and making things better for people who are blind and putting blind people to work. So that's up with me. I'm gonna enjoy the holidays and come out in 24. What's up with you, Tara?
Terry (14:08):
Well, I'll use my se segment to give a shout out to one of the Kansas vendors, uh, Curtis Jackson, uh, who I met this past weekend when I was out there at their annual training conference. And Curtis is a podcaster too. He does a podcast. I just wanna plug it for you guys to go listen to, because he gets some pretty high, uh, high level guests on his show. And, uh, it's called Living the Dream with Curve Ball. And, uh, so Go pay, go, go give his, um, his, his podcast. He, he, he's ambitious. He does like three a week. Um, so, uh, and, and, and has some really good guests. So go check him out. It was nice meeting him and talking about our different podcast. And so, uh, check his podcast out. Nikki, let's get to today's topic. Um, this is something that you, you and I are both passionate about, and this one of the topics that you're probably still mad as hell about. Uh, and this is the, uh, army Air Force Exchange. And, you know, we've been talking about this for, for, for some time now, and, um, uh, I know it's been your desire to bring a lawsuit and try to take this thing to court 'cause we can't get satisfaction. And it's finally about to happen, isn't it?
Nicky (15:21):
It is. And we're very excited about it, and that's one of the things we're gonna be doing in 24. But make it, and I think we're gonna win this thing. I know we're gonna win
Terry (15:29):
This. Well, let's get to hear, uh, I, earlier, earlier today, I got to sit down with Lauren McCarney, who is our attorney, who is representing us in this case, and had a chance to talk to her about the ins and outs of the, of, of that whole issue. And so let's get, uh, to hear what Lauren has to say. We're fortunate tonight to have Lauren McLarney join us. Uh, Lauren is an attorney more, she's more than that. She is a partner with Rosenberg, Martin and Greenberg in Baltimore, Maryland. Welcome, Lauren.
Lauren McCarney (16:00):
Hi, Terry. Thanks for having me.
Terry (16:02):
I was happy to have you. Happy to have you here. Uh, many many of our listeners are, are, are familiar with you. I think you probably represented half of them in grievances,
Lauren McCarney (16:10):
Lauren McCarney (16:11):
Yeah. Some people are also probably sick of hearing from me at this point,
Terry (16:15):
Terry (16:17):
Um, but, um, I've known Lauren for, for a long time. I knew her before she even started law school. And, um, uh, Lauren, why don't you just start by telling us a little bit about yourself and, and then we'll jump into the topic for the night.
Lauren McCarney (16:30):
Sure. So, um, I was born in 19
Terry (17:47):
Yeah, I knew you back, um, when you were at NFB and I, I, I, I remember when at the Washington Seminars, and you guys would lead the, uh, great, the great gathering. And, and, and Lauren would get up there and, and, and man, this, this gal, she was so fiery, and she, she got the troops. I mean, she fired people up and she motivated them. And, uh, and, you know, I used say, wow, you know, she's this, this gal's something. And then she goes under law school, and now she's just as fiery as she was, was back then, and, and doing a great job. And we're glad that she is, uh, on, on our team and on our side. So, uh, Lauren, we're gonna, we're gonna talk tonight about, um, the, uh, whole issue with Randolph Shepherd versus the military exchanges. Uh, and, and, and, and what's been going on with that. And, you know, people who listen to our podcast, we've talked about it in the past, uh, but, uh, you know, now we're sort of embarking on somewhat of a legal strategy. And can, can you just sort of, for, for, you know, give us the very basics of, you know, exactly what are the exchanges and, you know, what, what is their role?
Lauren McCarney (18:49):
Sure. So the exchanges are technically stores, they're outlets, but specifically the Army and Air Force Exchange Service, or a fees is, it's called a nafi, a non appropriated fund, instrumentality, which I know that sounds very dry, but it's really just an arm of the Department of Defense that is self-funded. It's not funded by appropriations from Congress. Um, it, it generates its own profits and supports itself. And specifically it provides a fees, provides goods and services on Army and Air Force installations across the country to service members and their families at reduced rates. Um, their Dodd's largest retailer. So they operate thousands of retail stores all across mil, uh, military bases all across the country. And then from the profits that they generate, if they generate any, um, they give dividends back to the installations that those dividends are then used to fund MWR programs, which is, um, morale, welfare and recreation for service members and their families.
Lauren McCarney (19:54):
So think things like libraries, uh, gyms, childcare, et cetera. And so, um, AFIS is a nafi that then operates those exchange outlet stores. So the BX or the px, if you've ever been on base, it's where you would go to get merchandise at a reduced rate. Um, and the problem though with the exchanges is that they're in some ways a competitor of Randolph Shepherd vendors because Randolph Shepherd provides that blind vendors get priority to operate vending facilities on, on federal property. And so how do they co-exist? Well, they can, you can have an exchange outlet and you can have vending facilities operated by blind vendors, and they co-exist. And if blind vendors aren't available to operate a vending facility, the, um, AFIS can take over that other operation, not just the retail outlet. Um, but really that's, that hasn't happened quite that way. It hasn't panned out that way. And afis actually, uh, claims otherwise. And that's what we're here today to talk about. But they operate not just only the retail outlet stores that I was just talking about, the PX or the bx, but they also operate the majority of vending machines on all military bases, either directly or through contractors
Terry (21:04):
And fast food restaurants, bowling alleys Yep. Dry cleaners. Yep. About any retail business, you know, you, you, you know, falls under them. And, you know, you mentioned, I I think it was, you know, a good point that, you know, some of the money goes back into the, uh, MWR and, uh, and to the benefit of the troops and their families. So not only are we sort of competing for, from a priority standpoint, but we are also competing from a mission standpoint that, uh, you know, they don't wanna lose, lose that money. Um, what, what does the Randolph Shepherd Act, I mean, is the, is the exchange, um, well, I know it, there is a reference in the Randolph Shepherd Act or the regulations about the exchange. What, what does that say? What, how's that play into this?
Lauren McCarney (21:42):
So there's no exception about the exchanges when it comes to priority. There's no exception about the exchanges when it comes to notice to an SLA. There's only one exception in the Randolph Shepherd Act that even mentions the exchanges, or really, they're only mentioned once. And that's in it's section 1 0 7 D three, which is about vending machine income. And so for context, and I know a lot of the listeners know this, but for context, um, any vending machine income that is earned by somebody that's not a blind vendor, but it's op, the vending machine is being operated in direct competition with a blind vendor. Um, some of the, a percentage of that income, depending on the level of competition, has to then be given back to the blind vendor or to the SLA. And the purpose behind that was because back when the Randolph Shepherd Act was being amended, um, civilian employee welfare and recreation groups, they were utilizing the federal property on which they worked to put up vending machines to raise money for whatever they wanted.
Lauren McCarney (22:43):
And it was basically diverting money away from blind vendors, and it was causing agencies not to create vending opportunities for blind vendors. Um, and so the vending machine income sharing requirement of the Randolph Shepherd Act says that if you're operating in direct competition with a blind vendor, you will give a percentage of your income to that blind vendor. But there is an exemption that applies to the exchanges, and this is the only time they're mentioned in the entire statute. And it says this section, meaning the vending machine income section, shall not apply to income from vending machines within retail sales outlets under the control of the exchange or ship's stores systems. That's the only time that AFEs is mentioned in the Randolph Shepherd Act. But understandably, because of that mission we were just talking about, Congress decided to exempt vending machines that were within the retail, within the exchange stores from having to do that because those vending machines were being used to create profits and hopefully dividends for morale, welfare and recreation for the troops. Um, but there is no other exception. And unfortunately, the case law has in cases where, excuse me, judges have interpreted this section as meaning more than just vending machines within the retail stores, but also any vending machine across the base operated by afis. Um, and those decisions have given rise to some really problematic practices across the country by military installation commanders and by afis,
Terry (24:14):
I want you to help me understand the, a a a new word that I did, had never heard of until about a year ago. Mm-Hmm.
Lauren McCarney (24:58):
So the Randolph Shepherd Act says that blind vendors shall be given priority to operate vending facilities on federal property. And there's no exception, it doesn't, well, there are exceptions, but there's, they're few and far between. Basically, it has to be not feasible to establish a vending facility for a blind vendor, or the US Secretary of Education has to issue a written formal determination that placing a vending facility for a blind vendor to operate would be adverse to the interests of the United States. But AFEs has said the opposite. AFEs has in their manual specifically, which is, um, well, it's AR two 15 slash eight is what it's called, but it's the, basically it's the AFEs Operation manual. And paragraph two 11 says that a fees will ensure the primacy of a fees as the source of all non-food merchandise and patron services on military installations. And so if you look at the dictionary definition of priority, it says the quality or state of being prior or legal precedence in exercising of rights over the same subject matter, if you look up the definition of primacy, it's the state of being first as in importance, order or rank.
Lauren McCarney (26:19):
So there's no way a blind vendor can be, first, can have be the state of being prior legal precedence over the ability to operate vending facilities on federal property, while AFE simultaneously also enjoys the state of being first for those opportunities. Those two things can't be both be true. And so what's the genesis of this word, primacy? Well, I cannot find any statute or regulation relating to wine vendors relating to AFI or anywhere else that says that AFI has primacy over vending facility opportunities on military bases. And now there is a dodi or a, um, department of Defense instruction that does say something about primacy. Um, it's, it's the AFEs policy Dodi. Um, but that dodi, there's no, I have no idea the genesis of that. It has to come from a statute or a regulation or a directive from somewhere, and I can't find where that came from. And the reality is that, as far as I'm concerned, there is no legal basis for AFIS asserting that it has primacy and that cannot be reconciled with what the Randolph Shepherd Act says. So
Terry (27:36):
We're, what we're what you're saying is, I mean, from our perspective, we have a federal law, the Randolph Shepherd Act, we have federal regulations at 34 CFR 3 95, that support, uh, the, the, the our, our contention that we have priority, there's nothing comparable in either statute or regulation that supports their claim that they have promising. And the only thing they have would be sub subregulatory instructions. Is, is that what I'm understanding?
Lauren McCarney (28:02):
That's exactly right. And if you look at afis own materials, which they circulate to justify their claims of primacy, they always cite back to the, the manual that I just quoted. They don't cite any statute, they don't cite any regulation. And that's because one doesn't exist.
Terry (28:21):
Uh, uh, when Nikki and I had our telephone call with AFEs, uh, back in January, and I've, I've told this story before, but, uh, the attorney was, was, was making the argument for the AFEs attorney was making the argument that they had promising. And, uh, when I started reading the statute to him, his answer was, I'm an attorney. I don't have time to read the laws. I rely on the DOD instructions, which I thought that's what attorneys did. Do you ever, do you, do you read laws
Lauren McCarney (28:50):
I wouldn't have a job if I didn't. Yeah,
Terry (30:04):
Well, we've done a survey of, of, of the states to sort of see where we stand, and we know that, uh, there's probably at least 275 military bases out there, installations of some size that do not have even one Randolph Shepherd vending machine. So we know that if we, uh, you know, if we could address this thing with the, with the exchanges that it, that many opportunities would be created for, um, um, for blind vendors. Um, and it's just really not practical for state agencies. They have to go to arbitration over every one of those. Uh, it's just, it's just not gonna happen. They don't have the money, the resources, the time to, to, to do all the legwork and the legal work. So, so what are our options if we can't get, I mean, if the, if, if, if the traditional way of resolving disputes and our dispute in this case is, is with afis, how do, what are our options now?
Lauren McCarney (31:03):
Well, before I answer that, I wanna add, it's more than just a practical limitation for all the SLAs to pursue a, you know, arbitration against afis. The law says that the arbitration panel doesn't have authority to do anything about what it finds. So if the arbitration panel finds, okay, this is unlawful, the duty to fix it is on the very entity that did it in the first place.
Terry (31:31):
That's right
Lauren McCarney (31:31):
Right. The statute is read in a way that says, you a federal entity are tasked with fixing what this arbitration panel says needs fixing. Well, I mean, this is an organization that, A, their lawyer said they don't look at the law, but b they have manuals that say something illegal. So what is the panel gonna do? You could have 50 SLAs and 50 panels, but what are they gonna do? Ask AFIS to stop it? It just doesn't, AFIS isn't gonna be expected to do that when it's, it's the fox guardian, the henhouse type thing. And so there are ways to get around those limitations that you were talking about. And so our plan and our hope is to file a lawsuit contesting the validity of certain paragraphs in the AFEs operations manual and in Air Force Instruction 34 2 0 6, um, that particular, that last thing I just mentioned, um, air Force Instruction 34 2 0 6 literally says that commanders are to confer with a fees when they're making determinations about permit applications from SLAs, satisfactory site determinations, basically in administering the Randolph Shepherd Act, confer with a fees before you make any decisions to make sure that your decisions don't hurt the patronage and revenue of a fees.
Lauren McCarney (32:51):
And I mean, that's really remarkable that that's written down somewhere, but it is. And so we wanna file a lawsuit to contest those, the validity of those paragraphs, the primacy paragraphs, other paragraphs I haven't read for you today, and that Air Force instruction, um, and look, it's a relatively straightforward lawsuit because there's no factual disputes, really. The question is just, are these, are these provisions lawful or not? You know, you're just asking a judge to look and make that determination. Um, and now it's standard when you file any lawsuit that the other side is gonna file a motion to dismiss. It's just kind of a standard effort to get rid of the case before you have to litigate it. Um, and it wouldn't shock me if that happened here. Um, but presumably, like I said a minute ago, countless people took a look at these documents.
Lauren McCarney (33:43):
So if your a fees, you probably believe that this manual is lawful, and if you do, then it should be able to withstand some scrutiny by a federal judge. In fact, you should invite it, because then it would validate your point of view. I don't think AFEs is gonna do that though, because I think it, like I said, it doesn't take a lot of digging to get to the bottom of the fact that there is no, the genesis of these words are not in the law. I don't know where they come from, but they're not in the law.
Terry (34:13):
Well, and just so everybody knows, I don't, we're not gonna give away any, any legal secrets or strategy here, but, uh, you know, it, it, A BM is leading the charge. Nikki Gecos has been very upset with this whole thing. And, uh, so, you know, we need to get a determination, uh, one way or the other. And the thing that's unique about this lawsuit is something that's, uh, never happened before, is that we've had an attorney guarantee us a win. So, um,
Lauren McCarney (34:40):
No, we did not do that.
Terry (34:45):
Lauren McCarney (34:59):
Add, I I wanna add though, I really believe in our case, like, first of all, I love that you even trust me to do this, but second of all, I like doing things that are outside the box. I mean, a colleague once taught me his name is Chad Collette. He's a mentor and a friend, and he once told me that, and he was right, the sentencing guidelines were mandatory until someone a a lawyer decided to argue that they shouldn't be. You know, there's, there's not a harm here in us telling, asking a court to take a look at the absurdity of there being documents published by the Department of Defense and the military that are fundamentally and patently inconsistent with a different statute. And that should be allowed. And there are arguments to be made, and if you lose a case anytime you risk making bad law. But to be perfectly honest, I don't think the Randolph Shepherd jurisprudence is all that good. So I love an uphill battle. So I love that you trust me to do it, but I just wanted to add, I believe in our case,
Terry (35:58):
Well, I know Nikki and I appreciate you being willing to take it, take it on. 'cause when we, when we floated the idea to you, um, you know, you were, you said you had to look into it, and then you, the more you looked, the more excited you got. And so we are looking forward to it. Lauren, I appreciate you being with us. And you know, it's always great to, to get to ask an attorney questions rather than the attorney asking you questions, you know what I mean?
Lauren McCarney (36:21):
Uh, I do actually though, but I really like being the one to ask the questions.
Both (36:24):
Terry (36:26):
All right guys. Thank you, Lauren. Goodbye. Alright,
Lauren McCarney (36:28):
Thanks Terry.
Nicky (36:29):
Well, Terry and Lauren, thank you so much for doing that. Um, I think that was a great interview and I'm very excited about what the process is gonna be and I can't wait to report back to the Randolph Shepherd community. Terry, thank you.
Terry (36:42):
Well, I, I'm, I'm looking forward to it. Uh, you know, we started this thing out thinking it was a Hail Mary, and, um, you know, as we've gotten into it, it's not quite the Hail Mary that we thought it was. And, uh, I, I, I really think we have a legitimate chance. I, I went into it thinking it was, you know, more if nothing else, it was a shot over the bow to get their attention. Uh, but now I'm thinking, you know, we, we have a legitimate chance to, to pull this thing off and it would make a difference in terms of employment opportunities for, for people who are blind. And I know our goal is to have a blind vendor on every one of those military bases out there. And there's about 275 that do not have a, a blind vendor on them. And, you know, let's go make that happen. And as you said, we're gonna come out swinging in 24. That's gonna, that includes being in, uh, federal court in Dallas, Texas. And, uh, we'll, we'll, uh, see how that goes. So, uh, we're looking forward to it.
Nicky (37:36):
Me too.
Terry (37:38):
Alright, Nikki, it was good talking to you. And, uh, we will catch up, uh, next time. Uh, uh, encourage people to join us for the January, um, uh, podcast. That's when we will do the blitz. It's, it'll be time for that. So, uh,
Nicky (37:56):
And I think I'm gonna join you with January with that, just to get some updates to people about some dates to hold off for 24th to save the dates for some things that we'll be doing in 24th. And Terry, I'll end it by saying Merry Christmas, happy New Year, happy holidays, and God bless you and everyone. Thank you.
Terry (38:13):
Same to you. And thank you, Josh for all you do, and we will be talking to you next month. Bye.
Sponsors info (38:19):
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Support info (38:44):
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