Opposition Brief — Parry v. Mohawk Motors of Michigan, Inc.

No. 00-1655 | JUN 4 2008

| { PRICE Ur CHE ¢ b oS hus

IN THE . =

Supreme Court of the United States

CHRISTOPHER J. PARRY,

Petitioner,

v.

MOHAWK MOTORS OF MICHIGAN, INC., et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

DRUG FREE, INC.

ERNEST L. WILKERSON, JR.

KATHRYN M. MILeEy*

WILKERSON AND ASSOCIATES Co., LPA

Attorneys for Respondent

Drug Free, Inc.

1422 Euclid Ave., Suite 248

Cleveland, Ohio 44115

(216) 696-0808

* Counsel of Record

7336 cP]

COUNSEL PRESS

16

(S00) 274-3321] © (800) 359-6859

l

QUESTIONS PRESENTED FOR REVIEW

1. Whether the trial court properly held that the

Department of Transportation Regulations do not create an

express private cause of action or support the existence of

an implied cause of action.

2. Whether the trial court properly denied Petitioner’s

Second Motion for Leave to Amend the Complaint since he

had not shown just cause for the amendment or that the new

complaint would survive a motion to dismiss.

il

PARTIES TO THE PROCEEDING AND

STATEMENT PURSUANT TO RULE 29.6

Petitioner Christopher Parry was an independent

contractor of A.P.I.C. Petitioner’s services were leased to

Respondent Mohawk Motors of Michigan. Petitioner was

selected for a random drug test required by the federal

Department of Transportation Regulations. Respondent

Austintown Ambulatory Emergency Room served as the

collection site; Respondent MedExpress was the laboratory

analyzing the sample; Respondent Defendant Drug Free, Inc.

and its employee Dr. James Baber' served as the Medical

Review Officer.

Respondent, Drug Free, Inc., has no parent corporation

and no publicly held company owns 10% or more of its stock.

TelePrdcsae A ah at 5 Nan os

1. Petitioner, the Court of Appeals, and the trial court

incorrectly identify Dr. Baber as Dr. Haber.

ee ee

lil

TABLE OF CONTENTS

Page

Questions Presented for Review ............... 1

Parties to the Proceeding and Statement Pursuant to

yr eo il

tt ill

Table of Cited Authorities .................... Vv

Reasons for Denying the Writ .............._.. l

I. Petitioner has not met the Standards for a

petition for certiorari. .................. l

Il. The Department Of Transportation Regulations

Do Not Create An Implied Private Cause Of

Action For Drivers. .:................... 2

A. The Petitioner is not part of the class of

individuals that the statute was desi gned

SNE See nee 2

B. The legislative history does not indicate

congressional intent to confer a private

oan an OO TO Pe an 3

C. Creating a private remedy would defeat

the purpose of the statute and regulations.

iv

Contents

Page

Ill. The Trial Court Properly Denied Petitioner’s

Motion For Leave To Amend His Complaint

oe | re re rere eS 7

A. Petitioner’s Motion for Leave to File

Second Amended Complaint was

untimely and prejudicial. ........... 7

B. Petiticner’s Second Amended

Complaint would be futile. .......... 8

NE og oie aed se yok haat eee 11

VY

TABLE OF CITED AUTHORITIES

Page

Cases:

Bethany Pharmacal Company, Incorporated, vy.

OVC, Incorporated, 241 F.3d 854 (7th Cir. 2001)

ee R eee Le Ge ire hee ue A 7

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) ..7, 8,9, 10

California v. Sierra Club, 451 U.S. 287 (1981) ... 2

Carlson v. Green, 446 U.S. POLIO hie 10

Chan v. City of New York, 1 F.3d 96 (2d Cir. 1993)

(NA+ sah behets s ohud wee One eee a penn *

Cort v. Ash, 422 U.S. 66 Cy: Sapper tt ge Wikio 3b Re

Davis v. Passman, 442 U.S. sen ire 10

Drake v. Delta Airlines. Inc., 923 F. Supp. 387

ONY 10) ee 1,4

_ Drake v. Delta Airlines, Inc., 147 F.3d 169 (2d Cir.

FOOD Secs ee ee ae eth oe ee ee aa 9,10

First Pacific Bancorp, Inc. vy. Helfer, 224 F.3d 1117

OM Ce. BORD 3,4, 5

Fisher vy. Roberts, 125 F.3d 974 (6th Cir. 1997)... 8

vi

Cited Authorities

Foman v. Davis, 371 U.S. 178 (1962) ...........

Hall v. United Labs, Inc., 31 F. Supp. 2d 1039 (N.D.

Obshe 1990) .« ovksucosavbsaus tesa err

Merrill Dow Pharmaceuticals, Inc. v. Thompson,

478 US. GRU CIGES én benéesctntkadetndaenss

National Treasury Employees Union v. Von Raab,

409 U.S. GEG CIS «6600 ts 0b ckucner seas

Perrian v. O'Grady, 958 F.2d 192 (7th Cir. 1992)

BREaQ@UweenRBeeeeawernrrerpasyye ew ys 2. ey ey a ee oy We le

Salomon v. Roche Compuchem Laboratories, Inc.,

909 F. Supp. 126 (E.D.N.Y. 1995) ...........

Schmeling v. Nordam, 97 F.3d 1336 (10th Cir. 1996)

Rea eaeREeRaSaeewwwenterLe ae eR oT ev eT ee Oe me ee Oe aT

Schweiker v. Chilicky, 487 U.S. 412 (1988) ......

Skinner v. Railway Labor Executives’ Ass'n, 489

US. GRE CHS oo. 60n5 hana sseseeee es

Stueart v. Arkansas Police Commission, 329 Ark.

S6 (hak. ISBT PE oc 6 iveeivetesesceeeeee

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

CIDTS) «. oous os cv aencnsenesaneee eee

10

vil

Cited Authorities

Page

Villa v. City of Chicago, 924 F.2d 629 (7th Cir. 1991)

(00 TREES DSN RES OES ERS Oa eRe ae 7

Wheeldin v. Wheeler, 373 U.S. 647 i eer: 4

United States Constitution:

Fourth Amendment ......................... 8,9,10

Statutes:

ihe ecg | Se Te en Re ae aN y :

oe PE ED oS in tect ee e e :

OP Sin B SONEE ako ckeeioues ase a

Oe Ws BOWEN ih cc te ee 3,5

RM RRO hie ea nae 3,5

WF STAs © BRNO sooo ose ve Sncove cee poke 4,5

TF anes Eo x Sewn oka ee 2

WP Sian, GORE 6 oy ond ct K ecdc ee 4,5

WS. 9 QONGID 66. ines kn 2

vill

Cited Authorities

Page

Rules:

RiGee oe ae 7 |

ee Oe a Os OE is i oss o6 kc vd ad ea eee ees 7

Sie, a es seks ces 0 6wek eee ee Oe l

Other Authorities:

SPR debe cau as becuase eer eree sia 6

Sr es ee I ac nace oe ee eae es 2

og eS eS. a ee en re Ce ee ean 6

eC a ee od iw ccd decetsatereees 3

SCD BO ih oo See, <a

Rr ie a ais Ra ee Ba be sae een 4,5

tt fe Rr rere e rrr rrr ore 3

Procedures for Transportation Workplace Drug and

Alcohol Testing Programs, 65 Fed. Reg. 79461

Fo Prey Perr er et rrr Pa Pe frre 6

Workplace Drug and Alcohol Testing Programs;

Amendments to DOT Agency Rules Conforming

to Department of Transportation Final Rule;

Proposed Rules, 66 Fed. Reg. 21491 (2000) .... 6

l

REASONS FOR DENYING THE WRIT

I. Petitioner has not met the standards for a petition

for certiorari.

In his Petition for Certiorari, Petitioner does not offer

any compelling reasons for this Court to grant certiorari as

required by the Rules of the Supreme Court. Sup. Ct. R. 10.

There is not a conflict between federal courts on an

employee’s right to bring a private cause of action under the

Department of Transportation Regulations. In fact, the lower

courts’ rulings in this case conformed with the decisions of

all courts who have addressed the issue, finding that there is

no private right of action under the regulations promulgated

pursuant to the Federal Omnibus Transportation Employee

Testing Act (hereinafter “FOTETA”). Salomon v. Roche

Compuchem Laboratories, Inc.,909 F. Supp. 126(E.D.N.Y.

1995); Schmeling v. Nordam, 97 F.3d 1336 (10th Cir. 1996);

Hall v. United Labs, Inc., 31 F. Supp. 2d 1039 (N.D. Ohio

1998); Drake v. Delta Airlines, Inc., 923 F. Supp. 387, 391

(N.D. N.Y. 1996).

Petitioner is, in fact, arguing that the trial and appellate

courts’ misapplied the Cort v. Ash test in considering whether

there was a private cause of action for violation of the

FOTETA Regulations and whether the trial court abused its

discretion in refusing to allow him to amend his Complaint

for the second time. See Petition for Writ of Certiorari, pages

9 & 22. Such issues are not appropriate for consideration by

this Court since they do not raise any significant federal

questions or seek to resolve a conflict between the lower

courts. The Sixth Circuit’s ruling was a correct application

of the law, and, therefore, Respondent Drug Free, Inc. urges

this Honorable Court to deny the Petition for Writ of

Certiorari.

2

Il. The Department Of Transportation Regulations Do

Not Create An Implied Private Cause Of Action For

Drivers.

Neither the Federal Omnibus Transportation Employee

Testing Act (“FOTETA”) nor the regulations promulgated

thereunder expressly create a private cause of action.

See 49 U.S.C. § 45102(a) & 49 C.F_R. §§ 40.21-40.39. Since

a private cause of action is not expressly created by these

provisions, the plaintiff must be able to demonstrate a

clear Congressional intent to create a private remedy by

the legislative scheme. Salomon v. Roche Compuchem

Laboratories, Inc., 909 F. Supp. 126, 128 (E.D.N.Y. 1995).

The standard for determining whether an implied right of

action exists under any federal statute: is (1) whether the

plaintiff is part of the class of individuals that the statute

was designed to benefit; (2) whether the legislative history

indicates congressional intent to confer a private remedy;

(3) whether creating a private remedy would further the

purpose of the statute; and (4) whether plaintiff's cause of

action is more related to state law. Salomon, 909 F. Supp. at

128 (citing Merrill Dow Pharmaceuticals, Inc. v. Thompson,

478 U.S. 804 (1986); California v. Sierra Club, 451 U.S.

287, 293 (1981); Cort v. Ash, 422 U.S. 66, 78 (1975)). These

factors are used to determine whether Congress intended to

create a private cause of action. California v. Sierra Club,

451 U.S. 287, 293 (1981).

A. The Petitioner is not part of the class of individuals

that the statute was designed to benefit.

FOTETA authorized the Department of Transportation

to establish drug testing programs “in the interest of motor

safety.” 49 U.S.C. § 31306(b). The Regulations state that

3

they are intended to prVent accidents and injuries from

the use or misuse of alcohol and controlled substances.

49 C.F.R. § 382.101.

The statute and Regulations were not intended to benefit

the privacy rights of individual drivers, but expressly

authorized the invasion of those privacy rights. For example,

if the circumstances warrant it, the employer can require an

observed collection. 49 C.F.R. §§ 40.25(e)(1i) & (f)(16).

The fact that the statute and regulations mention the

individual drivers does not establish that they were the

intended beneficiaries of the statute. Petitioner’s reliance

on First Pacific Bancorp, Inc. v. Helfer is misplaced.

See Petition, page 13 (citing 224 F.3d 1117 (9th Cir. 2000)).

First Pacific analyzed whether shareholders had a private

cause of action against the FDIC. Jd.

In First Pacific, the court found that the individual

shareholders were placed “on the same footing as the

governmental authorities and with the general public . . z

in the statute. Jd. 1121. There is no statutory or regulatory

language in FOTETA or the regulations giving such status

to truck drivers.

B. The legislative history does not indicate

congressional intent to confer a private remedy.

The legislative history of FOTETA does not

offer any indication of congressional intent to create

a private cause of action for drivers. Congress specifically

allowed for administrative enforcement of drug testing

regulations through the administrative mechanism.

See, e.g., 49 U.S.C. §§ 507, 521, 31133, 31136, 31143,

4

31144, 31502. See also 49 C.F.R. § 382.1. “Such enforcement

mechanisms are strong indicia that Congress did not envision

a private right of action under the FAA’s drug testing

regulations .. .” Drake v. Delta Airlines, Inc., 923 F. Supp.

387, 391 (E.D.N.Y. 1996) (citing Chan v. City of New York,

1 F.3d 96, 102 (2d Cir. 1993).

This analysis has been repeated by various courts with

the same result. In Schmeling v. Nordam, the Tenth Circuit

Court of Appeals concluded that:

Nowhere has Congress manifested an intent to

allow a person other than the FAA Administrator

or the Attorney General to enforce the drug-testing

laws ... we find no evidence that Congress

intended to create a cause of action asserted by

Schmeling, and we conclude that such a right does

not exist.

97 F.3d 1336, 1337 (10th Cir. 1996). See also Hall v. United

Labs, Inc., 31 F. Supp. 2d 1039, 1042 (N.D. Ohio 1998).

Petitioner again relies on First Pacific for the proposition

that when there is Congressional silence, the Court is free

to create an implied cause of action. See Petition, page 13

(citing First Pacific, 224 F.3d at 1125). But as this Court

has stated, “implying a private right of action on the basis of

congressional silence is a hazardous enterprise at best.”

Touche Ross & Co. v. Redington, 442 U.S. 560, 573 (1979).

If there is to be a private right of action under a federal statute,

“Congress must provide it. ‘[I]t is not for [the Court] to fill

any hiatus Congress has left in this area.’ ” /d. at 578 (quoting

Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963).

Pe ee ee ee ee en ha ef

Re eae ee

5

The legislative history is silent on whether there is a

private cause of action under FOTETA. However Congress

specifically created an administrative enforcement

mechanism. This is sufficient evidence that Congress did

not intend to create a private cause of action under the statute.

C. Creating a private remedy would defeat the

purpose of the statute and regulations.

Petitioner refers yet again to First Pacific to establish

that a private remedy is consistent with the statute.

See Petition, page 15. However, First Pacific actually

demonstrates that a private remedy in the drug testing field

would defeat the purposes of the statute and regulations.

In First Pacific, the court found that since there was not

an administrative remedy, there must be a private remedy.

224 F.3d at 1126. In this case, there is an administrative

remedy. See, e.g., 49 U.S.C. §§ 507, 521, 31133, 31136,

31143, 31144, 31502. See also 49 C.F.R. § 382.1.

In addition, the First Pacific plaintiff sought an equitable

remedy which would not defeat the Congressional intent or

the administrative authority. 224 F.3d at 1125. Here, if

Petitioner was awardéd any equitable relief, it would be in

direct conflict with the administrative regulations. The trial

court would have to order the other parties to directly defy

the regulations and the statute. Allowing a private remedy

under FOTETA and the regulations would defeat the purpose

of the statute, since drivers could circumvent regulations by

seeking other remedies from a judge or jury.

The regulations’ language regarding waiver does not

establish that the Department of Transportation intended to

6

create a private cause of action. See Petition, page 20.

The language cited only states that employees cannot be

forced to waive liability. 49 C.F.R. § 40.25. Even if an

employee cannot maintain a cause of action directly under

the federal statutes and regulations, he or she can attempt to

maintain a common law cause of action, which Appellant

did in this case in his pendent claims.’ See First Amended

Compla.nt.

Neither Congress nor the Department of Transportation

intended to create a private cause of action for individual

drivers under FOTETA or the drug testing regulations.

Therefore, this Court should decline to create such a cause

of action now.

2. Incidentally, if the Department of Transportation intended

the regulations to create a private right of action, it almost certainly

would have intervened in this action when requested by Petitioner

or in one of the other cases on this issue across the county.

See Plaintiff-Appellant Parry’s Motion for Enlargement of Time to

File Proof Brief, filed in the Sixth Circuit. It is also interesting to

note that the Department of Transportation did not add any

regulations on judicial remedy when the subject regulations were

amended this past year. See Procedures for Transportation

Workplace Drug and Alcohol Testing Programs, 65 Fed. Reg. 79461

(2000) (to be codified at 49 C.F.R., Part 40). See also Workplace

Drug and Alcohol Testing Programs; Amendments to DOT Agency

Rules Conforming to Department of Transportation Final Rule;

Proposed Rules, 66 Fed. Reg. 21491 (2000).

7

Hl, THE TRIAL COURT PROPERLY DENIED

PETITIONER’S MOTION FOR LEAVE TO

AMEND HIS COMPLAINT FOR THE SECOND

TIME.

Rule 15 of the Federal Rules of Civil Procedure dictates

the requirements of amending pleadings. After responsive

pleadings have been filed, leave of the court is required to

amend. Fed. R. Civ. P. 15(a) “[L]eave shall be freely given

when justice so requires.” /d. The court is not required to

allow an amendment when there is undue delay, bad faith,

dilatory motives, undue prejudice to the opposing party, or

when the amendment would be futile. Bethany Pharmacal

Company, Incorporated, v. QVC, Incorporated, 241 F.3d

854, 861 (7th Cir. 2001) (citing Foman vy. Davis, 371 U.S.

178, 182 (1962); Perrian v. O'Grady, 958 F.2d 192, 194

(7th Cir. 1992); Villa v. City of Chicago, 924 F.2d 629, 632

(7th Cir. 1991)).

A. Petitioner’s Motion for Leave to File Second

Amended Complaint was untimely and prejudicial.

in this case, Petitioner did not demonstrate that justice

required that he be granted leave to amend. He had been

given leave to amend once, resulting in further delay and an

even more confusing Complaint. See First Amended

Complaint. The First Amended Complaint gave no notice of

a future Bivens action. Then, Petitioner delayed nine more

months and waited until the Motions for Summary Judgment

were granted and a Motion for Reconsideration was denied

to attempt to amend his Complaint again. See Motion for

Leave to File Second Amended Complaint. This Motion

caused undue delay and was made in bad faith.

8

In neither his Petition nor his Motion for Leave did

Petitioner make an effort to demonstrate that justice required

that he be given leave to amend. See Motion for Leave to

File Second Amended Complaint and Petition, page 22.

Both the trial court and the Court of Appeals found it

significant that Petitioner waited until

nine months after he filed his first amended

complaint and well over a year after he filed his

original complaint. Moreover, at the time Plaintiff

filed his motion to amend, the district court had

granted summary judgment to Defendants two and

one-half months earlier as well as denied

Plaintiff's motion for reconsideration.

Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299,

306 (2000). Since an additional amendment would result in

undue delay, bad faith, dilatory motives, and undue prejudice

to the opposing party, the Motion for Leave to Amend was

properly denied.

B. Petitioner’s Second Amended Complaint would

be futile.

Finally, “leave to amend should not be granted if the

amended complaint should not withstand a motion to

dismiss.” Fisher v. Roberts, 125 F.3d 974, 978 (6th Cir.

1997). Petitioner claims that he is attempting to maintain a

Bivens action in his proposed Second Amended Complaint

for violations of his Fourth Amendment rights. See Petition,

page 22. The Bivens Court held that when a “federal agent

acting under color of his authority” violates the Constitution,

the victim may recover damages from the agent. Bivens v.

9

Six Unknown Named Agents of the Fed. Bureau of Narcotics,

403 U.S. 388, 389 (1971).

Drug testing regimes are clearly within the parameters

of the protection of the Fourth Amendment. See Skinmer v.

Railway Labor Executives’ Ass'n, 489 U.S. 602, 677-18

(1989); National Treasury Employees Union v. Von Raab,

489 U.S. 656, 676-79 (1989). The Fourth Amendment,

however, bars only unreasonable searches. Skinner, 489 U.S.

at 619.

What is reasonable, of course, “depends on all of

the circumstances surrounding the search or

seizure and the nature of the search or seizure

itself.” Thus, the permissibility of a particular

practice “is judged by balancing its intrusion on

the individual’s Fourth Amendment interests

against its promotion of legitimate governmental

interests.”

Id. at 619 (citations omitted).

Petitioner argues that a violation of the drug testing

regulation is, in itself, an abuse of process constituting

a Fourth Amendment violation. See Petition, page 23. The

Second Circuit discussed the distinction between a violation

of drug testing procedures and a Fourth Amendment

violation. Drake v. Delta Airlines, Inc., 147 F.3d 169, 171-

72 (2d Cir. 1998). There is a distinction between

impermissible abuse of discretion in requiring an employee

to submit to a drug test contrary to a systematic, uniformly

applied testing program, and alleged violations of urine

specimen collection and testing procedures. /d. at 171-72.

While the former category is adequate to make out prima

10

facie claim of a constitutional violation, the latter fails to state

a claim upon which relief can be granted. /d.’

Finally, the facts of the present case counsel hesitation by

this Court. A Bivens action is not created in situations where

special factors “counsel hesitation.” Carlson v. Green, 446 U.S.

14, 16-20 (1980); Davis v. Passman, 442 U.S. 228, 245-46

(1979). This analysis includes judicial deference to indications

that Congressional inaction was intentional. Schweiker v.

Chilicky, 487 U.S. 412, 423 (1988). When a program framework

suggests that Congress has provided all enforcement mechanism

that it deemed necessary, the Supreme Court has declined to

provide new Bivens remedies. /d.

A Bivens action is inapplicable to the present matter.

Petitioner’s claim that the regulations were not followed does

not automatically establish a Fourth Amendment violation.

In addition, special circumstances counsel against extending

this cause of action to the present situation since Congress

clearly did not intent to create a private cause of action, but to

leave enforcement to the Department of Transportation.

Since Petitioner’s motion to amend his Complaint was

untimely, unduly prejudicial, and futile, the Motion was properly

denied. The issue raises no significant federal question that must

be resolved by this Court. Therefore, Respondent requests that

this Court deny certiorari on this issue as well.

3. The Stueart case is completely irrelevant to the present

action. Stueart v. Arkansas Police Commission, 329 Ark. 46

(Ark. 1997). While the Arkansas Supreme Court acknowledged that

drug testing has serious Fourth Amendment implications, the case

was a wrongful termination case. /d. The plaintiff was reinstated

since his employer did not follow its own procedure in handling his -

drug test and subsequently terminating him. /d. at 53.

11

CONCLUSION

For all of the foregoing reasons, Respondent Drug Free,

Inc. respectfully requests that this Court deny the Petition

for Certiorart.

Respectfully submitted,

Ernest L. WILKERSON, JR.

KATHRYN M. MILEY*

WILKERSON AND ASSOCIATES Co., LPA

Attorneys for Respondent

Drug Free, Inc.

1422 Euclid Ave., Suite 248

Cleveland, Ohio 44115

(216) 696-0808

* Counsel of Record