OPINION
Respondent Oregon Commission for the Blind (“OCB”) appeals the district courts affirmation of an arbitration panels award of compensatory relief, attorneys fees, and costs in favor of Petitioner Jerry Bird. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the denial of sovereign immunity de novo, Ray v. County of Los Angeles, 935 F.3d 703, 708 (9th Cir. 2019), we reverse. Neither the Randolph-Sheppard Act (“RSA”) nor the parties operating agreements unequivocally waive a states sovereign immunity from liability for monetary damages, attorneys fees, or costs. In coming to this conclusion, we join the Sixth and Tenth Circuits and conclude that our holding in Premo v. Martin, 119 F.3d 764 (9th Cir. 1997), is no longer binding.
I. Factual and Procedural History
The RSA creates a cooperative federal-state program that gives preference to blind applicants for vending licenses at federal facilities. 20 U.S.C. §§ 107–107f. At the federal level, the Secretary of Education is responsible for administering the Act. 20 U.S.C. §§ 107(b), 107a(a). At the state level, state licensing agencies designated by the Secretary of Education implement the program. 20 U.S.C. § 107a(a)(5). Under the RSA, a blind licensee who is dissatisfied with “any action arising from the operation or administration of the vending facility program” may request an evidentiary hearing before the licensing agency. 20 U.S.C.§ 107d-1(a). If the licensee disagrees with the hearings result, he or she may file a complaint with the Secretary of Education, who will summon an arbitration panel to resolve the dispute. Id. The arbitration panels decision is “final and binding on the parties” and is reviewable by the district court as a final agency decision under the Administrative Procedures Act. Id. §§ 107d-1, 107d-2(a).
Oregons mini-RSA is the state equivalent of the RSA, applied to licenses at state buildings. See Or. Rev. Stat. §§ 346.510–346.570. OCB is a state licensing agency that executes the states version of the RSA by obtaining vending permits in state buildings, licensing blind vendors, and assigning blind vendors to vending sites. See id. §§ 346.120, 346.540. “State participation in the program is voluntary, and a state agency seeking to be designated as a[n RSA licensing agency] must apply to the Secretary of Education and agree to a number of conditions.” Premo, 119 F.3d at 767. Oregon agreed to have the OCB “[s]ubmit to an arbitration panel (upon its being convened by the Secretary [of Education]) those grievances of any vendor which the vendor believes to be unresolved after a full evidentiary hearing.”
Bird is a blind vendor who gave up his vending contract at the Oregon Lottery building in 2005 in response to OCBs promise to assign him to the vending contracts at Chemeketa Community College (“CCC”) and Santiam Correctional Facility. Despite its promise, OCB did not assign Bird to those locations, choosing instead to contract with another vendor.
In 2006, Bird filed a grievance alleging that he should have been assigned the vending contract at CCC. In 2009, an arbitration panel reviewed Birds grievance and determined that OCB had violated the RSA. The arbitration panel ordered OCB to: (1) “pay Bird an amount equal to the net revenues from vending at CCC”; (2) “award Bird the vending contract at CCC”; and (3) consult with an elected committee of blind vendors regarding any further actions for additional vending that might become available at CCC. OCB did not appeal that decision.
Bird later realized that OCB did not control all the vending contracts at CCC. Consequently, Bird asked OCB to commence “whatever action” was necessary to enforce CCCs compliance with state and federal laws. In March 2011, OCB filed a lawsuit against CCC. In response, CCC cancelled all vending contracts and voided the agreement with OCB in May 2011. CCC then opened up its vending opportunities for proposals. OCB submitted a response, but CCC selected a private vending company that offered CCC a percentage of the revenues.
In July 2011, Bird and six other blind vendors filed a formal complaint with OCB seeking arbitration, prospective relief, and attorneys fees as a consequence of OCBs alleged mishandling of vending contracts and representation of blind vendors interests. The arbitration panel denied relief, and Bird filed a petition for review in the Oregon District Court. The district court concluded that the Eleventh Amendment did not protect OCB from liability for compensatory damages. Bird v. U.S. Dept of Educ., No. 3:14-CV-00843-YY, 2017 WL 2365110, at *6 (D. Or. May 31, 2017). The district courts decision relied primarily upon the Ninth Circuit holding in Premo.
In Premo, we concluded that Eleventh Amendment sovereign immunity did not apply to an arbitration panels decision under the RSA, reasoning “[i]t has been widely recognized” that the RSA allows for “arbitration panels to award compensatory relief” because, when the arbitration provision was formulated, it was intended to resolve blind vendors disputes, which necessarily included “back pay and other forms of compensatory relief.” 119 F.3d at 769–70 (first citing Tenn. Dept of Hum. Servs. v. U.S. Dept of Educ., 979 F.2d 1162, 1165 (6th Cir. 1992); then citing Del. Dept of Health & Soc. Servs. v. U.S. Dept of Educ., 772 F.2d 1123, 1136–37 (3rd Cir. 1985)). We permitted judicial enforcement of the arbitration decisions granting compensatory relief because the RSA provided that any dispute could be arbitrated and that the arbitration panels decision would be binding on the parties. Id. Therefore, although waiver of sovereign immunity from compensatory relief was not expressly contained within the statutory text, we concluded a constructive waiver was sufficient given the “overwhelming implication of the statute.” Id. at 770–71.
After we issued Premo, however, the Supreme Court decided Sossamon v. Texas, 563 U.S. 277, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011). In Sossamon, the Court analyzed whether a state waives sovereign immunity from compensatory relief through acceptance of federal funding under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 114 Stat. 803, 42 U.S.C. § 2000cc, et seq. Id. at 280, 131 S.Ct. 1651. Although RLUIPA provides for “appropriate relief against a government” for violations of that statute, the Court held that a states waiver of sovereign immunity “must be ‘unequivocally expressed’ in the text of the relevant statute” and cannot be inferred from context. Id. at 282, 284, 131 S.Ct. 1651 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). In addition, the Court ruled that a states waiver of sovereign immunity from compensatory relief must be unambiguous, regardless of the waiver of sovereign immunity from any other form of relief. Id. at 285, 131 S.Ct. 1651. Therefore, the Court concluded, RLUIPAs reference to “appropriate relief” did not waive the states sovereign immunity as to damages because the reference was ambiguous. Id. at 286, 131 S.Ct. 1651.
The district court here considered Sossamon but ultimately distinguished the binding-arbitration text in the RSA from the text found in Sossamon. Bird, 2017 WL 2365110, at *6. The court concluded that the Eleventh Amendment did not preclude liability because states participating in the RSA grant “explicit consent” to binding arbitration of all disputes. Id. The district court considered Oregons consent to be explicit because of Premos observation that arbitration is commonly understood to permit compensatory relief. Id. Dismissing Sossamon as inapposite, the court remanded the matter to the arbitration panel for a determination of compensatory relief and attorneys fees and costs, if appropriate. Id. at *8. The arbitration panel, in turn, granted Bird both compensatory relief and attorneys fees and costs.
Bird petitioned for review of the arbitration panels second decision, and OCB filed a cross-petition arguing that OCB had not waived sovereign immunity from liability by participating in the RSA. The matter was referred to a magistrate judge, who issued Findings and a Recommendation that the district court reaffirm its original analysis about sovereign immunity from liability. Expanding upon the district courts previous order, the magistrate judge stated that the decision in Premo was binding and its reasoning “unequivocal.” The magistrate judge noted that the Ninth Circuit was not alone in reaching this conclusion; the Third Circuit came to the same conclusion in Delaware Department of Health and Social Services, 772 F.2d at 1138.
In so reasoning, the magistrate judge dismissed OCBs argument that the Supreme Courts decision in Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002) (FMC), was irreconcilable with Premo. In FMC, the Supreme Court determined that state sovereign immunity prevented an individual from forcing South Carolina to adjudicate a dispute in front of the Federal Maritime Commission for violations of the Shipping Act of 1984. 535 U.S. at 753, 122 S.Ct. 1864. The magistrate judge concluded that FMC did not concern a state that voluntarily participated in a statutory scheme such as the RSA, and therefore FMC was not relevant to the analysis in this case.
In addition, the magistrate judge reiterated that Sossamon considered the ambiguity of the phrase “appropriate relief” in RLUIPA, not the RSAs commitment to binding arbitration of all disputes. The magistrate judge observed that it was well known at the time of Premo that a waiver cannot be inferred but must be explicitly stated or overwhelmingly implied. Still, the Premo court concluded that the implications of the RSAs text overwhelmingly demonstrate a participating states waiver of sovereign immunity from liability. Thus, the magistrate judge decided that Premo remained binding precedent. The district court adopted the magistrate judges Findings and Recommendation.
On appeal, OCB challenges the arbitration panels award and seeks review of the district courts determination that participating in the RSA constitutes a waiver of sovereign immunity from compensatory relief and attorneys fees and costs.
II. Discussion
A state cannot be sued without its consent. See Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); U.S. Const. amend. XI. In general, constructive waiver is an insufficient indication of waiver of a states sovereign immunity. Coll. Savs. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680–86, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). Waiver of sovereign immunity must be unequivocally stated within the relevant statute and must be specific as to the type of relief waived. Sossamon, 563 U.S. at 284–85, 131 S.Ct. 1651. If ambiguous, “a waiver of the Governments sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (citations omitted). In light of the Supreme Courts holding in Sossamon, we are faced with the question whether Premo remains good law. We hold that it does not.
A circuit court may revisit controlling decisions only when a subsequent circuit or Supreme Court decision makes the two “clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). “It is not enough for there to be ‘some tension’ between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to ‘cast doubt’ on the prior circuit precedent. The intervening higher precedent must be ‘clearly inconsistent’ with the prior circuit precedent.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012) (citations omitted).
In Premo, we found constructive waiver of sovereign immunity, and held that it was common knowledge that arbitration included compensatory relief at the time the arbitration provision was added to the RSA. 119 F.3d at 769–770. But Sossamons declaration that a waiver must be explicit within the text of the statute leaves no room for Premos reliance on constructive waiver.
Although Premo found support in decisions from the Third and Sixth Circuits, Premo, 119 F.3d at 768, Sossamon changed this analysis. Those pre-Sossamon cases are also premised upon constructive waiver. See Del. Dept of Health & Soc. Servs., 772 F.2d at 1137–38; Tenn. Dept of Hum. Servs., 979 F.2d at 1166–68. In Delaware, for example, the Third Circuit concluded that the legislative history of the RSA and common meaning of the term “arbitration” unambiguously demonstrated that a state participating in the RSA agreed to waive sovereign immunity from monetary damages. 772 F.2d at 1136. But the Sixth Circuit subsequently reversed its decision on sovereign immunity from monetary damages and determined that, although Ohio voluntarily participated in the RSA program, “[t]he RSA does not mention any type of available remedy.” Ohio v. U.S. Dept of Educ., 986 F.3d 618, 630 (6th Cir. 2021). The Sixth Circuit noted that the text of the RSA was even more ambiguous than the term “appropriate relief,” which was found to be an insufficient expression of waiver in Sossamon. Id. at 629. As a result, the Sixth Circuit held that Ohio had not waived immunity from monetary damages. Id. at 630; see also Tyler v. United States Dept of Educ. Rehab. Servs. Admin., 904 F.3d 1167, 1172 (10th Cir. 2018) (holding “state sovereign immunity bars RSA arbitration panels from adjudicating complaints filed by a private party against a nonconsenting State). Thus, the cases upon which Premo relied are no longer controlling.
In conclusion, Premos analysis is clearly irreconcilable with Sossamons conclusion that sovereign immunity from monetary relief may not be waived through context and must be “ ‘unequivocally expressed’ in the text of the relevant statute.” 563 U.S. at 284, 131 S.Ct. 1651. After Sossamon, we can no longer assume waiver from contextual clues such as congressional intent or from a common understanding of the meaning of arbitration. We are bound by the holding in Sossamon and must conclude that Premos irreconcilable analysis is precluded. An agreement to arbitrate all disputes simply does not unequivocally waive sovereign immunity from liability for monetary damages. As a result, OCB did not waive immunity from compensatory damages, and the district courts decision to the contrary was in error.
Insofar as Bird argues that the operating agreements constituted waiver, those agreements, too, incorporated the text of the RSA and contained no express waiver of immunity from money damages. The agreements are, therefore, not proof that the state intended to permit compensatory relief. We now turn to the remaining question of attorneys fees.
III. Attorneys Fees and Costs
The American Rule is the “bedrock principle” applied to the award of attorneys fees. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252–53, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010). Under the American Rule, “[e]ach litigant pays his own attorneys fees, win or lose, unless a statute or contract provides otherwise.” Id. at 253, 130 S.Ct. 2149 (citations omitted) (emphasis added). Whether a statute “limits the availability of attorneys fees to a ‘prevailing party’ is a question of statutory construction.” Id. at 251, 130 S.Ct. 2149. Federal courts “will not deviate from the American rule ‘absent explicit statutory authority.’ ” Baker Botts L.L.P. v. ASARCO LLC, 576 U.S. 121, 126, 135 S.Ct. 2158, 192 L.Ed.2d 208 (2015) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept of Health & Hum. Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)).
Because no provision of the RSA or the operating agreements provides for attorneys fees, Bird is not entitled to attorneys fees.
REVERSED and REMANDED.
R. COLLINS, District Judge: