concurring and dissenting.
I would affirm the district court’s judgment. I would hold both that the Act authorizes arbitration panels to assess compensatory damage awards against state agencies and that Congress has abrogated sovereign immunity for states which participate in the blind vendor program.
When Congress undertook in 1974 to revise and modernize the Randolph-Sheppard Act, it did so “by removing some of the major external obstacles to the growth of the blind vendor program operating thereunder, by centralizing the direction of the program, by providing for substantial uniformity in the administration of the program by the States, and by protecting the livelihood, rights, and economic interests of blind vendors." S.Rep. No. 937 to accompany S.2581, 93d Cong., 2d Sess. 3 (1974) (emphasis added). One of the means by which Congress sought to protect the rights and economic interests of blind vendors was by requiring participating states to agree to submit to arbitration of grievances raised by vendors. 20 U.S.C. § 107d-l(a) (1982); see also Delaware Dep’t of Health and Social Servs., Div. for the Visually Impaired v. United States Dep’t of Educ., 772 F.2d 1123, 1125-31 (3d Cir.1985) (describing background and legislative history of the Act and its 1954 and 1974 amendments). By providing for arbitration of disputes between states and vendors, Congress clearly must have foreseen and approved awards of compensatory relief against states. As succinctly and persuasively stated by the Third Circuit:
When Congress in 1974 provided that states desiring to gain access to blind vendor locations in federal facilities must agree to submit to arbitration their disputes with blind vendors, the term arbitration had a well-recognized meaning. Congress was surely aware that arbitrators proceeding under the authority of the Federal Arbitration Act or under the authority of the Uniform Arbitration Act, as a matter of course awarded retrospective compensatory relief in appropriate cases. See generally, G. Wilner, Domke on Commercial Arbitration, § 30.02 (rev. ed. 1984). Furthermore, awards of back-pay in arbitrations under collective bargaining agreements were, by then, commonplace. See, e.g., United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
* * * * * *
Since contract arbitration was in 1974 a legal concept with a well-settled content, there is no ambiguity in Senator Randolph’s choice of the term. Moreover there is not one iota of legislative history suggesting that, insofar as it dealt with the relief which arbitrators could award, the term was understood by any member of Congress to have any meaning other than the conventional one.
Id. at 1136. I agree, for the reasons thus stated by the Third Circuit, that Congress’s intent to provide Randolph-Sheppard arbitration panels with the full range of traditional remedial powers could not be clearer.1
*685I also agree with the Third Circuit’s conclusion that the eleventh amendment is not a bar to awarding compensatory relief against state agencies under the Randolph-Sheppard Act,2 although my reasons for so concluding are somewhat different from the Third Circuit’s. The Third Circuit stated that states waive their eleventh amendment immunity by applying to participate in the Randolph-Sheppard program and agreeing to submit to the grievance procedures and remedies the program requires. See id. at 1137-38; see also 20 U.S.C. § 107(b) (1982) (providing that states shall apply to participate in the program and agree to certain enumerated conditions). I find, however, that this is an instance of congressional intent to abrogate the eleventh amendment immunity of those states that participate in the program, and therefore do not reach the question whether the state has waived its immunity. See Welch v. State Dep’t of Highways and Pub. Transp., 483 U.S. 468, 107 S.Ct. 2941, 2946 & n. 4, 97 L.Ed.2d 389 (1987) (indicating that the question whether a state has waived its immunity is different from the question whether Congress has abrogated the states’ immunity).
Simply stated, when Congress mandated in the Randolph-Sheppard Act that blind vendors submit their grievances to arbitration, it contemplated that the arbitrators would have the authority to award compensatory relief. The only parties with whom blind vendors can have disputes to submit to arbitration are states. Hence, Congress must have contemplated that states would be subject to the full remedial relief traditionally available in arbitration proceedings. I submit this legislation demonstrates clear congressional intent to abrogate sovereign immunity of the participating states. See Welch, 107 S.Ct. at 2947-48.3
Finally, I would hold that the question whether the arbitration panel has the authority to award attorney’s fees as part of the compensatory damage is a question more properly decided in the first instance by the arbitration panel when it reconvenes. The Third Circuit’s opinion in Delaware reached this question because the arbitration panel in that case had addressed the issue and exercised its discretion. We have no occasion to address the question until the matter is fully arbitrated.
. In the Steelworkers Trilogy cases, the Supreme Court broadly defined an arbitrator's power to fashion remedies in labor dispute cases.
When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency.
United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960) (emphasis added).
The same power is recognized to be within an arbitrator’s authority in commercial arbitration cases. Totem Marine Tug & Barge, Inc. v. North Am. Towing, Inc., 607 F.2d 649, 651 (5th Cir.1979). The Commercial Arbitration Rules of the American Arbitration Association have long *685provided in section 42, which covers the scope of the award, that an arbitrator "may grant any remedy or relief which he deems just and equitable and within the scope of the agreement of the parties, including, but not limited to, specific performance of a contract.” Both areas of arbitration have recognized an arbitrator’s traditional authority to include broad remedial power.
. Since my view of the eleventh amendment is in the minority, for purposes of argument, I have assumed that an enforcement proceeding in federal courts of an arbitration award against the state would violate the eleventh amendment.
However, I submit this assumption is tenuous. The arbitration proceeding does not involve a suit in federal court against a state. There is no eleventh amendment issue actually before us. The issue here is whether the arbitrator can make an award involving money damages against the state in an arbitration proceeding.
. I would thus hold that the authority of Congress to subject states to suit in federal court is not limited to those instances when Congress acts pursuant to section 5 of the fourteenth amendment. Cf. Welch, 107 S.Ct. at 2946 (assuming without deciding that congressional power is not so limited); United States v. Union Gas Co., 832 F.2d 1343 (3d Cir.1987) (Congress may abrogate eleventh amendment immunity when it acts pursuant to its commerce clause. powers), cert. granted, - U.S. -, 108 S.Ct. 1219, 99 L.Ed.2d 420 (1988); McVey Trucking, Inc. v. Illinois (In re McVey Trucking, Inc.), 812 F.2d 311 (7th Cir.) (same, when Congress acts pursuant to Bankruptcy clause), cert. denied, -— U.S.-, 108 S.Ct. 227, 98 L.Ed.2d 186 (1987); see generally Note, More Plenary Than Thou: A Póst-Welch Compromise Theory of Congressional Power to Abrogate State Sovereign Immunity, 88 Colum.L.Rev. 1022 (1988).