The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DUSTIN BEMESDERFER,
Plaintiff,
v. Case No: 6:22-cv-270-PGB-EJK
UNITED PARCEL SERVICE,
INC.,
Defendant.
/
ORDER
This cause is before the Court on the Defendant’s Motion for
Reconsideration of Order Denying Rule 12(c) Motion (“Motion for
Reconsideration”) and Alternative Motion for Permissive Appeal
(“Alternative Motion for Permissive Appeal”). (Doc. 122). The Plaintiff
submitted a Response in Opposition. (Doc. 150). Upon due consideration, the
Defendant’s Motion for Reconsideration and Alternative Motion for Permissive
Appeal are denied.
I. BACKGROUND
Defendant United Parcel Service (“UPS”) moved for partial judgment on the
pleadings, arguing that the Federal Motor Carrier Safety Administration
(“FMCSA”) hearing exemption is an experimental program which does not
require the employer to depart from the generally applicable regulator standard
and accept an individual exemption. (Doc. 46, pp. 1–2). The Defendant relied
heavily on the Supreme Court’s holding in Albertson’s v. Kirkingburg, 527 U.S.
555, 558 (1999), for the proposition that the hearing exemption operates like the
waiver at issue in Albertson’s and does not purport to amend the substantive
regulatory standard. (Id. at p. 2). UPS reasoned that the Federal Motor Carrier
Safety Regulations (“FMCSRs”) establish a floor for commercial motor vehicle
drivers’ physical qualifications, and as such, UPS is free to set safety standards that
exceed the baseline. (Id.). To demonstrate the experimental nature of the hearing
exemption, UPS asserted that one may qualify for a two-year exemption simply by
submitting his or her personal driving record for the last three years. (Id. at pp. 3–
4). UPS also cited Albertson’s for the proposition that an employer need not justify
its general adherence to a “clearly applicable, unamended substantive regulatory
standard.” (Id. at p. 9 (quoting 527 U.S. at 577)).
In response, the Plaintiff submitted that the Secretary of the Department of
Transportation is empowered to create three kinds of programs: waivers, pilot
programs, and formal exemptions. (Doc. 51, p. 5); see 49 U.S.C. §§ 31315, 31136(e).
The Plaintiff contrasted a waiver with an exemption, noting that the hearing
exemption program is not experimental and constitutes a substantive rule. (Doc.
51, pp. 6, 9–12). For example, unlike the vision waiver program at issue in
Albertson’s, which was experimental,1 the hearing exemption was based on a
1 The Plaintiff notes that when this program was introduced, the Federal Register stated:
The program will allow the FHWA to conduct a study comparing a group of
experienced, visually deficient drivers with a control group of drivers who meet the
Federal vision standard for a finite period of time, and perform an in-depth
scientific review of the safety literature involving deaf drivers, over 100 hours of
interviews with the individuals who are deaf and hard of hearing, and an
individualized review of each applicant, including medical status and driving
records. (Id. at pp. 9–10) (citation to the Federal Register omitted). The Plaintiff
also cited the Federal Register for the proposition that follow-up studies and crash-
data confirmed hearing exemption holders have achieved a level of safety
equivalent to, or greater than, non-hearing impaired drivers. (Id.). The Plaintiff
observed that the hearing exemption program provides for notice-and-comment
which is “a very good indicator that Congress intended the regulation to carry the
force of law.” (Id. at p. 11) (citing Encino Motorcars, LLC v. Navarro, 579 U.S. 211,
220 (2016)). The Plaintiff thus distinguished Albertson’s, which confronted an
experimental waiver program, from the FMCSA hearing exemption program
enacted post-Albertson’s.
UPS submitted a reply in which it argued that Albertson’s applies to waivers
and exemptions, while challenging the Plaintiff’s characterization of the hearing
exemption as non-experimental. (Doc. 55). And the Plaintiff filed a surreply in
which he reiterated that the FMCSA considers its own internal data alongside an
applicant’s medical records and driving record. (Doc. 63). As a result, he argued,
the hearing exemption renders him a qualified individual with a disability. (Id. at
comparative analysis of both groups. It is anticipated that the FHWA will obtain
sufficient empirical data, which, when analyzed, will provide a reliable basis for
establishing visual requirements that are consistent with the goals of safety . . . .
(Doc. 51, p. 8); see 57 Fed. Reg. 10295 (Mar. 25, 1992) (emphasis added).
p. 4). The Court considered these competing arguments and concluded that the
FMCSA hearing exemption is distinct from a waiver, because the hearing
exemption “grants to a person or class of persons an exemption from the
regulation.” (Doc. 91, p. 5). Accordingly, “an employer cannot simply ignore the
exemption.” (Id.). The Court found that Albertson’s was not on point and held the
Plaintiff is a “qualified individual.” (Id. at p. 6).
In its Motion for Reconsideration, UPS seeks reconsideration of the Court’s
Order and reiterates the argument advanced in its reply brief. (Doc. 122). UPS
repeats its contention that waivers and exemptions are indistinguishable and that
the hearing exemption issued to the Plaintiff does not stem from an individualized
assessment. (Id. at pp. 5–6). In its Alternative Motion for Permissive Appeal, UPS
seeks leave to file an interlocutory appeal. (Id.).
II. LEGAL STANDARDS
A. Motion for Reconsideration
Reconsideration is an extraordinary remedy which will be granted only upon
a showing of one of the following: (1) an intervening change in law, (2) the
discovery of new evidence which was not available at the time the Court rendered
its decision, or (3) the need to correct clear error or manifest injustice. Fla. Coll. of
Osteopathic Med., Inc. v. Dean Witter Reynolds, Inc., 12 F. Supp. 2d 1306, 1308
(M.D. Fla. 1998). “A motion for reconsideration cannot be used to relitigate old
matters, raise argument or present evidence that could have been raised prior to
the entry of judgment.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th
Cir. 2009) (internal quotation marks omitted). It is inappropriate in a motion for
reconsideration to relitigate the merits of the case or to “vent dissatisfaction with
the Court’s reasoning.” Madura v. BAC Home Loans Servicing L.P., No. 8:11-cv-
2511, 2013 WL 4055851, at *2 (M.D. Fla. Aug. 12, 2013) (internal citation omitted).
Instead, the moving party must set forth “strongly convincing” reasons for the
Court to change its prior decision. Id. at *1. Thus, a court’s reconsideration of a
prior order is an “extraordinary remedy” that should be used “sparingly.” Taylor
Woodrow Constr. Corp. v. Sarasota/Manatee Airport Auth., 814 F. Supp. 1072,
1072–73 (M.D. Fla. 1993); accord Griffin v. Swim-Tech Corp., 722 F.2d 677, 680
(11th Cir. 1984).
B. Permissive Appeal
A permissive interlocutory appeal may be authorized by the trial court when
the order being appealed from involves a controlling question of law as to which
there is substantial ground for difference of opinion and an immediate appeal from
the order may materially advance the ultimate termination of the litigation. See 28
U.S.C. § 1292(b); Drummond Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324,
1336 (11th Cir. 2018). Certification is discretionary and is an exceptional remedy.
OFS Fitel, LLC v. Epstein, 549 F.3d 1344, 1358 (11th Cir. 2008).
III. DISCUSSION
In its Motion for Reconsideration, UPS has failed to establish entitlement to
reconsideration of the Court’s Order. Reiterating arguments unsuccessfully raised
in the original papers is not enough to warrant the extraordinary remedy of
reconsideration. The Court considered UPS’s contention that waiver and
exemption are synonymous and that the application of Albertson’s is dispositive
and rejected those arguments. The Defendant’s Motion for Reconsideration adds
nothing new. Accordingly, the Defendant’s Motion for Reconsideration is denied.
Section 1292(b) of Title 28 of the United States Code provides that an
application for leave to appeal must be filed with the Court of Appeals within ten
days after the district court issues an order approving the interlocutory appeal.
General Television Arts, Inc. v. Southern Railway Co., 725 F.2d 1327, 1330 (11th
Cir. 1984). While there is no specific time after the entry of the order to be appealed
within which a party must seek the district court’s permission to appeal, any delay
in seeking such permission must be reasonable. Id. The Court’s Order denying
UPS’s Partial Motion for Judgment on the Pleadings was entered on April 24,
2023. (Doc. 91). UPS’s Alternative Motion for Permissive Appeal was filed three
months later. (Doc. 122). The Defendant fails to explain this delay, and the Court
finds delaying three months before seeking the extraordinary remedy of
interlocutory appeal is not reasonable. The Court therefore declines the
Defendant’s request for a permissive appeal. Moreover, appellate review of the
issue raised by UPS will not dispose of the litigation. UPS’s Motion for Partial
Judgment on the Pleadings only affects Counts I, III, and IV. As a result, a
potentially long delay occasioned by an interlocutory appeal will elongate rather
than streamline the litigation.
IV. CONCLUSION
For these reasons, Defendant UPS’s Motion to Reconsider Order Denying
Rule 12(c) Motion and Alternative Motion for Permissive Appeal (Doc. 122) are
DENIED.
DONE AND ORDERED in Orlando, Florida on October 18, 2023.
<.
PAUL G.
UNITED STATES*DISTRICT JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties