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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 951

## Text

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:

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oe PE ED oS in tect ee e e :
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1749%3A5. Public record. Not legal advice.