Respondents Brief — Christina Alessio, Petitioner v. United Airlines, Inc., et al.

No. 23-224

In the

Supreme Court of the United States

__________________

CHRISTINA ALESSIO,

Petitioner,

v.

UNITED AIRLINES, INC.,

Respondent.

__________________

On Petition for Writ of Certiorari to the

Court of Appeals of Ohio, Cuyahoga County

__________________

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

__________________

NATALIE M. STEVENS

Counsel of Record

ZASHIN & RICH CO., LPA

950 Main Avenue, 4th Floor

Cleveland, OH 44113

(216) 696-4441

nms@zrlaw.com

Counsel for Respondent

United Airlines, Inc.

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

1. Whether Petitioner’s Ohio workers’ compensation

claims were properly disposed of by the lower

courts’ granting of Respondent’s motion for

summary judgment based on res judicata.

ii

PARTIES TO PROCEEDING

AND RULE 29.6 STATEMENT

The caption of the case lists Christina Alessio

and United Airlines, Inc. as the parties. The parent

company of Respondent United Airlines, Inc. is

United Airlines Holdings, Inc. Other than United

Airlines Holdings, Inc., no other parent or publicly

held company owns 10% or more of United Airlines,

Inc.’s stock. In the lower court proceedings, the

Administrator of the Ohio Bureau of Workers’

Compensation was also a party but was not included

as a Respondent in Alessio’s Petition.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

PARTIES TO PROCEEDING AND RULE 29.6

STATEMENT ............................................................. ii

TABLE OF AUTHORITIES ....................................... iv

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTE INVOLVED ............................................... 1

STATEMENT OF THE CASE .................................... 1

SUMMARY OF THE ARGUMENT ............................ 5

ARGUMENT / REASONS TO DENY PETITION...... 6

I.

The Petition should be denied because there

are no “compelling reasons” for granting

certiorari in this case ............................................ 6

II. The Petition should be denied because res

judicata applies to proceedings before the

Ohio Industrial Commission................................. 7

III. The Petition should also be denied because

the HMTA does not provide for a private

cause of action ..................................................... 10

CONCLUSION .......................................................... 11

APPENDIX

Appendix A

Ohio

Industrial

Commission

Record

of

Proceedings

(January 14, 2022) .............................................. App. 1

iv

TABLE OF AUTHORITIES

Cases

Alessio v. United Airlines, Inc.,

No. 18-4251, 2019 U.S. App. LEXIS 18881,

2019 WL 12631628 (6th Cir. June 24, 2019) ...... 5, 6

Alexander v. Sadoval,

532 U.S. 275, 121 S.Ct. 1511 (2001) ...................... 11

Christina Alessio, Petitioner v. United Airlines,

Inc., U.S. Supreme Court Case No. 19-395 ........... 11

Fisher v. Mayfield,

30 Ohio St.3d 8, 505 N.E.2d 975 (1987) .................. 8

Grava v. Parkman Twp.,

73 Ohio St.3d 379, 1995-Ohio-331,

653 N.E.2d 226 (1995).............................................. 9

Jenkins v. Keller,

6 Ohio St.2d 112, 216 N.E.2d 376 (1966) ................ 7

Office of Consumers' Counsel v. Pub. Util.

Comm. of Ohio, 16 Ohio St.3d 9,

475 N.E.2d 782 (1985).............................................. 9

Richardson v. Indus. Comm.,

2nd Dist. Montgomery No. 22797,

2009-Ohio-2548 .................................................... 8, 9

State ex rel. Prestige Delivery Sys. v. Schroeder,

10th Dist. Franklin No. 02AP-622,

2003-Ohio-3329 ........................................................ 8

Thomas v. Ohio Bur. of Workers' Comp.,

2nd Dist. Nos. 26805, 2016-Ohio-7246 .................... 9

Touche Ross & Co. v. Redington,

442 U.S. 560, 99 S.Ct. 2479 (1979) ........................ 11

v

Statutes

28 U.S.C. § 1257(a) ...................................................... 1

49 U.S.C. § 5123 ........................................................ 10

49 U.S.C. § 5124 ................................................ 1, 4, 10

O.R.C. § 4123.512 ........................................ 1, 2, 3, 8, 9

O.R.C. § 4123.512(A) ................................................... 8

Rules

Sup.Ct.R. 10 ............................................................. 6, 7

Sup.Ct.R. 13 ................................................................. 6

1

OPINIONS BELOW

The opinion of the Ohio Supreme Court is

available at 169 Ohio St.3d 1490, 2023-Ohio-1149,

2023 Ohio LEXIS 751, and reproduced in Petitioner’s

Appendix (“Pet. App.”) at App.1a. The opinion of the

Court of Appeals of Ohio Eighth Appellate District is

not published but is available at 2022-Ohio-4510,

2022 Ohio App. LEXIS 4243, 2022 WL 17685613, and

reproduced in Pet. App. at App.3a-12a. The opinion

of the Cuyahoga County Court of Common Pleas is

not published but is available at 2022 Ohio Misc.

LEXIS 3753 and reproduced in Pet. App. at App.15a16a.

JURISDICTION

The judgment of the Ohio Supreme Court was

entered on April 11, 2023. The Petition for Writ of

Certiorari was filed on September 1, 2023. Petitioner

invokes the jurisdiction of this Court pursuant to 28

U.S.C. § 1257(a).

STATUTE INVOLVED

Petitioner asserts that the Hazardous

Materials Transportation Act, 49 U.S.C. § 5124 is at

issue. (See Petition for Writ of Certiorari, pp. 2-4). It

is not. The statute involved herein is Ohio Revised

Code § 4123.512.

STATEMENT OF THE CASE

This matter concerns Petitioner Christina

Alessio’s (“Alessio” or “Petitioner”) request to

participate in the Ohio workers’ compensation fund

for injuries alleged to have been sustained in the

course of and arising out of her employment with

2

Respondent United Airlines, Inc. (“United” or

“Respondent”). Alessio is employed by United as a

flight attendant. For years, she has complained

about United’s use of chemical cleaning products and

air fresheners in the aircraft cabins within which she

works.

On October 24, 2019, Alessio filed an

application with the Ohio Bureau of Workers’

Compensation (assigned Claim No. 19-202076)

alleging that she sustained an injury to her bilateral

hands and wrists due to inhalation of chemical liquid

air-freshener sprayed inside the aircraft cabin. Claim

No. 19-202076 Record of Proceedings, Respondent’s

Appendix (“Res. App.”) at 3. She amended the

application to include the condition of “chemical

exposure” alleging a cumulative trauma injury that

occurred over a four-day period from October 5, 2019

through October 8, 2019. Id.

Her claim was

disallowed by the Industrial Commission of Ohio.

Res. App. at 1-10. Alessio did not appeal her claim

into the Cuyahoga County Court of Common Pleas

pursuant to Ohio Revised Code (“O.R.C.”) § 4123.512.

Pet. App. at App.6a.

Rather than exercise her right to appeal Claim

No. 19-202076 into court, Alessio filed three new

applications for workers’ compensation benefits. The

three applications are identical to Claim No. 19202076 with the exception that each application

alleges a distinct date of injury/exposure. Claim No.

20-194183 alleges an October 6, 2019 date of injury,

Claim No. 20-194185 alleges an October 7, 2019 date

of injury, and Claim No. 20-194187 alleges an

October 8, 2019 date of injury. Res. App. at 11-28;

3

Pet. Appendix at App.4a.

These dates of

injury/exposure are identical to those that were

previously adjudicated against her in Claim No. 19202076. The Industrial Commission adjudicated the

three new applications together and held:

The Hearing Officer finds that the

allegation in this claim has previously

been ruled on in Claim No. 19-202076.

As the Claimant has exhausted all

administrative remedies in Claim No.

19-202076, and the subject matter and

allegations in the former claim are the

same as the subject matter and

allegations in this docketed claim, the

Claimant’s request for an injury or

occupational disease allowance, as well

as the additional allowance request of

chemical

exposure

must

be

DISMISSED.

(Emphasis

in

the

original). Res. App. at 11-28.

On July 7, 2021, Alessio appealed Claim Nos.

20-194183, 20-194185, and 20-194187 into the

Cuyahoga County Common Pleas Court by filing a

Notice of Appeal pursuant to O.R.C. § 4123.512

requesting the right to participate in the Ohio

workers’ compensation fund for the alleged bilateral

hand and wrist injuries and chemical exposure.

United moved for summary judgment on January 14,

2022 based on res judicata. On March 31, 2022, the

Court granted judgment in favor of United and

against Alessio. Pet. App. at App. 15a. Alessio

appealed the adverse judgment to the Court of

Appeals of Ohio, Eighth Appellate District.

4

On December 15, 2022, the Court of Appeals

issued a Journal Entry and Opinion affirming the

trial court’s order granting judgment in favor of

United. The Court held:

Our review of the record reflects that

Alessio

asserted

identical

claims

encompassed by her prior claim No. 19202076, that the parties had ample

opportunity to litigate the matter in the

prior proceeding, and that the issue was

conclusively decided in a valid, final

decision on the merits.

Upon our

review, we conclude that claim Nos. 20194183, 20-194185, and 20-194187 are

barred by res judicata and affirm the

lower court’s decision to grant United

Airlines’ motion for summary judgment.

We are not persuaded by any other

argument presented by Alessio, and we

do not consider United Airlines’

arguments concerning the sufficiency of

the evidence to support her claims. Pet.

App. at App. 11a.

On January 19, 2023, Alessio appealed the

Court of Appeals’ Journal Entry and Opinion to the

Supreme Court of Ohio. On April 11, 2023, the

Supreme Court of Ohio declined jurisdiction of the

appeal. Pet. App. at App.1a.

Alessio filed her Petition with the United

States Supreme Court on September 1, 2023. (See

Petition for Writ of Certiorari.) In the Petition,

Alessio asserts vague claims under the Hazardous

Materials Transportation Act, 49 U.S.C. § 5124

5

(“HMTA”). Alessio’s Petition is essentially a refiling

of a Petition she filed with this Court on September

19, 2019 (Christina Alessio, Petitioner v. United

Airlines, Inc., U.S. Supreme Court Case No. 19-395)

that also asserted claims under the HMTA. Indeed,

Alessio acknowledges that she is seeking a second

bite at the apple in the present Petition in her

statement of Questions Presented Nos. 8, 9, and 10.

This Court rightfully denied the Petition in Case No.

19-395 on November 25, 2019.

SUMMARY OF THE ARGUMENT

Alessio ostensibly asks this Court to grant

certiorari to review the dismissal of her Complaint

requesting the right to participate in the Ohio

workers’ compensation fund for alleged bilateral

hand and wrist injuries and chemical exposure.

However, in her Petition, Alessio attempts to reassert

a claim under the HMTA which this Court rightfully

rejected in Case No. 19-395.

United respectfully opposes Alessio’s Petition.

As a threshold matter, the questions Alessio sets

forth do not involve a conflict of law or present a

compelling reason for this Court’s review.

In

addition, it is well-settled that the doctrine of res

judicata applies to administrative proceedings before

the Ohio Industrial Commission.

Further, the

HMTA does not provide for a private cause of action

and Alessio fails to articulate any authority to the

contrary. Moreover, her purported claim related to

the HMTA is derived from the June 24, 2019

judgment of the Sixth Circuit Court of Appeals in

Alessio v. United Airlines, Inc., No. 18-4251, 2019

U.S. App. LEXIS 18881, 2019 WL 12631628 (6th Cir.

6

June 24, 2019) and, therefore, is untimely. See

Sup.Ct.R. 13 (providing that a petition for a writ of

certiorari must be filed within 90 days after entry of

the judgment).

ARGUMENT / REASONS TO DENY PETITION

I.

The Petition should be denied because

there are no “compelling reasons” for

granting certiorari in this case.

Supreme Court Rule 10 provides that “[a]

petition for a writ of certiorari will be granted only

for compelling reasons.” Sup.Ct.R. 10. Rule 10 lists

the following examples of the types of cases in which

the Court may grant certiorari:

(a) a United States court of appeals has

entered a decision in conflict with the

decision of another United States court

of appeals on the same important

matter; has decided an important

federal question in a way that conflicts

with a decision by a state court of last

resort; or has so far departed from the

accepted and usual course of judicial

proceedings, or sanctioned such a

departure by a lower court, as to call for

an exercise of this Court’s supervisory

power;

(b) a state court of last resort has

decided an important federal question in

a way that conflicts with the decision of

another state court of last resort or of a

United States court of appeals;

7

(c) a state court or United States court

of appeals has decided an important

question of federal law that has not

been, but should be, settled by this

Court, or has decided an important

federal question in a way that conflicts

with relevant decisions of this Court.

Id. Rule 10 expressly states, “[a] petition for a writ of

certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” Id.

Alessio’s Petition should be denied because

there are no “compelling reasons” for granting

certiorari in this case. This case does not involve:

(1) a conflict among United States courts of appeals,

(2) a conflict between a United States court of

appeals and a state court of last resort, (3) a conflict

on an important federal question among state courts

of last resort, or (4) a conflict between this Court’s

decisions and the decisions of lower courts. Instead,

this case concerns an appellant that is either

attempting to (1) resurrect a dismissed Ohio workers’

compensation claim and/or (2) relitigate a purported

claim under the HMTA. The circumstances of this

case do not present “compelling circumstances”

sufficient for this Court to grant certiorari.

II. The Petition should be denied because res

judicata applies to proceedings before the

Ohio Industrial Commission.

Ohio courts do not have inherent jurisdiction

over workers’ compensation claims.

Jenkins v.

Keller, 6 Ohio St.2d 112, 126, 216 N.E.2d 376 (1966).

8

Rather, “the court’s subject matter jurisdiction is

provided only to the degree allowed by statute ...

[and] R.C. 4123.512 provides for the common pleas

court’s jurisdiction in limited circumstances.” State

ex rel. Prestige Delivery Sys. v. Schroeder, 10th Dist.

Franklin No. 02AP-622, 2003-Ohio-3329, ¶ 14.

O.R.C. § 4123.512(A), states that a claimant

may appeal an order “of a staff hearing officer made

under division (D) of section 4123.511 of the Revised

Code from which the commission has refused to hear

an appeal.” To do so, the claimant “shall file the

notice of appeal within sixty days after the date of

the receipt of the order appealed from or the date of

the receipt of the order of the commission refusing to

hear an appeal of a staff hearing officer’s decision

under division (D) of section 4123.511 of the Revised

Code.” O.R.C. § 4123.512(A). See Fisher v. Mayfield,

30 Ohio St.3d 8, 505 N.E.2d 975 (1987), syllabus

(confirming the jurisdictional requirements of R.C.

4123.512 are “satisfied by the filing of a timely notice

of appeal which is in substantial compliance with the

dictates of that statute.”). Accordingly, to vest the

Court of Common Pleas with jurisdiction over the

allegations set forth in Claim No. 19-202076, Plaintiff

had to file a notice of appeal within sixty (60) days of

her receipt of the Ohio Industrial Commission Record

of Proceedings mailed February 18, 2021 which

refused Plaintiff’s appeal of the staff order mailed on

January 27, 2021. Plaintiff failed to do so and her

right to participate in the Ohio workers’

compensation

fund

for

“chemical

exposure/inhalation,” and “bilateral wrist/hand/finger

injury” was forever barred. Richardson v. Indus.

Comm., 2nd Dist. Montgomery No. 22797, 2009-Ohio-

9

2548, ¶ 25 (confirming “failure to timely file [a notice

of appeal] is fatal.”)

Rather than appeal Claim No. 19-202076 into

the Court of Common Pleas pursuant to O.R.C.

§ 4123.512, Alessio filed three new workers’

compensation claims alleging the same facts, medical

conditions and dates of injury/exposure as alleged

and adjudicated in Claim No. 19-202076. Pursuant

to the doctrine of res judicata, “[a] valid, final

judgment rendered upon the merits bars all

subsequent actions based upon any claim arising out

of the transaction or occurrence that was the subject

matter of the previous action.” Grava v. Parkman

Twp., 73 Ohio St.3d 379, 1995-Ohio-331, 653 N.E.2d

226 (1995), syllabus.

Res judicata operates “to

preclude the relitigation of a point of law or fact that

was at issue in a former action between the same

parties and was passed upon by a court of competent

jurisdiction.” Office of Consumers’ Counsel v. Pub.

Util. Comm. of Ohio, 16 Ohio St.3d 9, 10, 475 N.E.2d

782 (1985). Res judicata bars workers’ compensation

claimants from “taking a second bite of the apple by

filing a second claim with the BWC claiming injuries

from the same incident that was alleged in the initial

claim.” Thomas v. Ohio Bur. of Workers' Comp., 2nd

Dist. Nos. 26805, 26813, 2016-Ohio-7246, ¶ 22.

The Court of Appeals of Ohio, Eighth

Appellate District, correctly determined that res

judicata barred Alessio from relitigating her claim for

injuries due to exposure to cleaning products and air

fresheners from October 5, 2019 through October 8,

2019. The Court held that Alessio was asserting

identical claims that were at issue in Claim No. 19-

10

202076 and that the parties had ample opportunity

to litigate those claims at that time.

III. The Petition should also be denied because

the HMTA does not provide for a private

cause of action.

The background related to Alessio’s purported

HMTA claim was addressed in United’s Brief in

Opposition to her Petition for a Writ of Certiorari in

Christina Alessio, Petitioner v. United Airlines, Inc.,

U.S. Supreme Court Case No. 19-395 and is not

restated herein to avoid unnecessary duplication.

However, it is important to note that the

HMTA does not provide for a private cause of action,

providing another basis for denial of her latest

Petition. 49 U.S.C. § 5124 provides for criminal

penalties, including fines and imprisonment, for

certain violations of Chapter 51 – “Transportation of

Hazardous Materials.” 49 U.S.C. § 5123 provides for

civil penalties, but those penalties may only be

assessed by the government. (“The Attorney General

may bring a civil action in an appropriate district

court of the United States to collect a civil penalty

under this section….”) There is nothing in 49 U.S.C.

§§ 5123-5124 indicating that Congress intended to

create a cause of action for private citizens, and no

court has recognized one. The statutory language of

the HMTA simply does not contain a civil

enforcement mechanism through which private

individuals may seek relief.

The Supreme Court has made clear that even

when a federal statute has been violated and an

individual harmed, which United denies in this

11

instance, it “does not automatically give rise to a

private cause of action in favor of that person.”

Touche Ross & Co. v. Redington, 442 U.S. 560, 568,

99 S.Ct. 2479 (1979). Rather, “[p]rivate rights of

action to enforce federal law must be created by

Congress.” Alexander v. Sadoval, 532 U.S. 275, 286,

121 S.Ct. 1511 (2001). Even if Alessio had been

harmed by an alleged violation of the HMTA – which

she has not – she would only be entitled to a private

right of action under the statute if Congressional

intent indicated a desire to create such remedy.

Here, there is no indication that Congress intended

to create a private cause of action under the HMTA,

and Alessio’s Petition fails to present evidence of

congressional intent to the contrary. As a result,

Alessio cannot state a plausible claim for relief

premised on this statute. Accordingly, the district

court appropriately dismissed Alessio’s claim under

the HMTA, and the Sixth Circuit appropriately

affirmed the dismissal. See Christina Alessio,

Petitioner v. United Airlines, Inc., U.S. Supreme

Court Case No. 19-395.

CONCLUSION

For all of the foregoing reasons, this Court

should deny Alessio’s Petition for a Writ of

Certiorari.

12

Respectfully submitted,

NATALIE M. STEVENS

Counsel of Record

ZASHIN & RICH CO., LPA

950 Main Avenue, 4th Floor

Cleveland, OH 44113

(216) 696-4441

nms@zrlaw.com

Counsel for Respondent

United Airlines, Inc.