Opposition Brief — Hutson v. Rent-A-Center, Inc.

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NOV 21 2002

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No. 02-605

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In THE

Supreme Court of the Anited States

R. Scotr Hutson,

Petitioner,

V.

RENT-A-CENTER, INC.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION

FRANKLIN E.. WRIGHT

(COUNSEL OF RECORD)

RoBERT F.. FRIEDMAN

WINSTEAD SECHREST &

MINICK P.C.

1201 ELM STREET, SUITE 5400

DALLAS, TX 75270

(214) 745-5400

ATTORNEYS FOR RESPONDENT

St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477

TABLE OF CONTENTS

REASONS FOR DENYING THE PETITION ...

I.

II.

ITI.

THE ELEVENTH CIRCUIT’S OPINION

DOES NOT CONFLICT WITH ANY

CASELAW FROM ANY COURT OR WITH

ANY STATUTORY AUTHORITY ..............

A. The Eleventh Circuit Opinion Does Not

Conflict with Any Caselaw .............0....

B. The Eleventh Circuit Opinion Does Not

Conflict with Brooks or Red Bail.........

C. Statutory Authority Supports

Respondent’s Position Without Conflict

D. The Recodification of §10524 Has Been

Addressed By the Courts Without

| EERIE NEN a ane

PETITIONER’S FAILURE TO PRESENT

HIS POSITION WITH ACCURACY IS

SUFFICIENT REASON FOR THE COURT

TO DENY HIS PETITION .....00....ccccccceeees.

PETITIONER HAS ABANDONED HIS

APPEAL OF THE LOWER COURTS’

DENIAL OF PETITIONER’S MOTION TO

PP di ieiahcanskistiayasinstg ocieniecicuncace

10

11

12

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TABLE OF AUTHORITIES

CASES

Page Nos.

Bilyou v. Duchess Beer Distrib., Inc.,

300 F.3d 217 (2d Cir. 2002)............... 3,7,9,10,11

Brooks Transp. Co., Inc. v. U.S.,

93 F. Supp. 517 (E.D. Va. 1950), affd, 340

US. CE5 GR0Oe) ick 4

Friedrich v. U.S. Computer Svc’s.,

974 F.2d 409 (3d Cir. 1992)... eee 3,7

Griffin v. Cosolidated Foods Corp.,

771 F.2d 826 (4th Cir. 1985) .......... ees 3

Helvering v. R.J. Reynolds Tobacco Co.,

DOS UE. RAP Cee Gristestciennnens 8

Hutson v. Rent-A-Center, Inc.,

209 F. Supp. 2d 1353 (M.D. Ga. 2001)........ 1

Klitzke v. Steiner Corp.,

110 F.3d 1465 (9th Cir. 1997) .............. 3,7, 8,9

Lorillard v. Pons,

S06 SE: Fe CPOE sicivicinstimiccanice 8

McGuiggan v. CPC Int'l. Inc.,

84 F. Supp. 2d 470 (S.D.N.Y. 2000) ............ 4

Opellika Royal Crown Bottling Co. v. Goldberg,

299 F.2d 37 (Sth-Cir. 1962) ...........c.ccsercseess 3

Red Ball Motor Freight, Inc. v. Shannon,

See Ges Re CED Siiestiienlaisecievsiaivcintcecionaten 4

Ryder Truck Lines, Inc. v U.S.,

716 F.2d 1369 (11th Cir. 1983), cert. denied,

SB UT. Te CD eitkkenisisinvvsdnisshctmceiane 7

— il—

Sinclair v. Beacon Gasoline Co.,

447 F. Supp. 5 (W.D. La. 1976), affd, 571

Fe EO CEE GEE, BIE) cevensevnsvcescesnseesencnsens 3

| Thomas v. Wichita Coca-Cola Bottling Co.,

| 968 F.2d 1022 (10th Cir. 1992), cert. denied,

I, MEE AID cscnbsiscresienresarsencsnensevens 3

| Webb v. Athens Newspapers, Inc.,

999 F. Supp. 1464 (M.D. Ga. 1998)............. 4

STATUTES AND RULES

29 U.S.C. §213(b)(1) (“13(b)(1)”)

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IIE TED ssi vssavnevencnutdesthauerasancsensonenes 7

di saan svchssunvaeunbucnenanens 5, 7, 8,9, 11

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sacs ccc ca dccsanuueketannansinenis 6

A is sniadsnddiaseatiocsonsinsonintn 5, 7, 8,9, 10,11

EE SI sn cvisnrcesncoresvdnvancvensues 1, 3, 4, 5, 6, 7, 10

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RULE 29.6 STATEMENT

Respondent Rent-A-Center, Inc. has no parent corpo-

ration, and there are no publicly traded companies that

own 10% or more of Respondent’s stock.

RESPONDENT’S BRIEF IN OPPOSITION

Respondent Rent-A-Center, Inc. respectfully sug-

gests that the Court should deny the Petition for Writ

of Certiorari seeking review of the decision of the

United States Court of Appeals for the Eleventh Circuit.

STATEMENT OF THE CASE

As does Petitioner, Respondent adopts the District

Court’s Findings of Fact as a sufficient Statement of the

Case for the purposes of this Petition. The District

Court’s Opinion is published at 209 F. — 2d 1353

(M.D. Ga. 2001).

REASONS FOR DENYING THE PETITION

The sole question presented by the Petition is whether

employees of “motor private carriers” are subject to the

jurisdiction of the Secretary of Transportation and,

therefore, are exempt from overtime pay under the Fair

Labor Standards Act (“FLSA”) Section 29 U.S.C.

213(b)(1) (“13(b)(1)”). Petitioner argues that the Elev-

enth Circuit Court of Appeals and the District Court

erred because “case law precedent by this Court or by

statutory enactment” has never included the Secretary's

jurisdiction over “motor private carriers”. (Petitioner’s

Brief ati). Contrary to Petitioner’s assertion, Congress

has explicitly authorized the Secretary of Transporta-

tion to establish qualifications and maximum hours of

service for employees of “motor private carriers.” 49

U.S.C. §31502. Moreover, courts throughout the United

States have uniformly applied the Section 13(b)(1)

exemption to motor private carriers — carriers whose

primary business is not transportation.

Neither the Eleventh Circuit’s unpublished opinion

nor the Middle District of Georgia’s published opinion

conflicts with any statutory authority orcaselaw. Each

_—

United States Court of Appeals that has addressed this

specific issue has ruled that “motor private carriers”

are entitled to the exemption. No precedent from this

Court or any statutory authority conflicts with the

ruling of the lower courts. In short, Petitioner has

presented no genuine conflict between the Circuits to

be resolved by this Court, nor has Petitioner shown that

the Eleventh Circuit has decided an important ques-

tion of federal law that should be addressed by this

Court. The Eleventh Circuit’s ruling was proper in all

respects, and was consistent with the decisions of the

other Circuits and of this Court. Respondent respect-

fully urges this Honorable Court to deny the Petition for

Writ of Certiorari.

I.

THE ELEVENTH CIRCUIT’S OPINION DOES

NOT CONFLICT WITH ANY CASELAW FROM

ANY COURT OR WITH ANY STATUTORY

AUTHORITY

Petitioner argues that the Eleventh Circuit’s ruling

is based on no caselaw or statutory authority and

contradicts precedent from this Court. In making this

argument, Petitioner simply ignores significant au-

thority and caselaw considered and cited by the Courts

below, and in so doing seriously misleads the Court.

A. The Eleventh Circuit Opinion Does Not

Conflict with Any Caselaw.

Apart from Petitioner’s unsupported declaration, he

can offer no authority that supports his position or

conflicts with the caselaw that supports Respondent’s

position. FLSA Section 13(b)(1) — the motor carrier

exemption! — exempts from the overtime requirements

‘The 13(bX1) exemption and the “motor carrier exemption” are

used interchangeably by the Courts and throughout this brief.

— yom

of the FLSA those employees “with respect to whom the

Secretary of Transportation has power to establish

qualifications and maximum hours of service pursuant

to the provisions of Section 31502 of Title 49...” 29

U.S.C. §213(b)(1).

Courts throughout the United States have uniformly

applied the motor carrier exemption to motor private

carriers - carriers whose primary business is not trans-

portation.? Opellika Royal Crown Bottling Co. uv.

Goldberg, 299 F.2d 37, 42-43 (5th Cir. 1962) (driver-

salesman for beverage distributor exempt pursuant to

13(b)(1)); Griffin v. Cosolidated Foods Corp., 771 F.2d

826, 827-28 (4th Cir. 1985) (driver salesman for panty

hose manufacturer and distributor exempt pursuant to

13(b\(1); Thomas v. Wichita Coca-Cola Bottling Co.,

968 F.2d 1022, 1026 (10th Cir. 1992), cert. denied, 506

U.S. 1013 (1992) (route drivers for beverage bottling

company exempt pursuant to 13(b)(1)); Friedrich v.

U.S. Computer Suc’s., 974 F.2d 409, 419 (3d Cir. 1992)

(computer field engineers who drive passenger cars

with tools and equipment in interstate commerce are

subject to the Secretary of Transportation’s jurisdiction

and are therefore exempt from overtime pursuant to

13(b)(1)); Klitzke v. Steiner Corp., 110 F.3d 1465, 1467-

69 (9th Cir. 1997) (delivery drivers for linen distributor

exempt pursuant to 13(b)(1)); Bilyou v. Duchess Beer

Distrib., Inc., 300 F.3d 217, 225 (2d Cir. 2002) (route

driver for beverage distributor exempt pursuant to

13(b)(1)); Sinclair v. Beacon Gasoline Co., 447 F. Supp.

5, 10(W.D. La. 1976), affd, 571 F.2d 978 (5th Cir. 1978)

(employees of natural gas well servicing company who

drive tools and equipment in company-furnished pick-

up trucks in interstate commerce exempt pursuant to

2 In addition to these cases, many other decisions of the Courts of

Appeal and District Courts have applied the 13(b)(1) exemption to

motor private carriers.

sation

13(b)(1)); Webb v. Athens Newspapers, Inc., 999 F.

Supp. 1464, 1468 (M.D. Ga. 1998) (newspaper delivery

drivers are exempt pursuant to 13(b)(1)); McGuiggan

v. CPC Intl Inc., 84 F. Supp.2d 470, 482 (S.D.N.Y. 2000)

(delivery drivers for bakery products distributor ex-

empt pursuant to 13(b)(1)).

Petitioner’s Brief does not identify even one case that

conflicts with the holdings of those cases that have

applied the overtime exemption to “motor private car-

riers’. Therefore, it is evident that no conflict exists

between the instant Eleventh Circuit opinion and that

of any other Circuit.

B. The Eleventh Circuit Opinion Does Not

Conflict with Brooks or Red Ball.

Petitioner attributes new and remarkable meanings

to this Court’s ruling in Red Ball Motor Freight, Inc. v.

Shannon, 377 U.S. 311 (1964) and the district court’s

ruling in Brooks Transp. Co., Inc. v. U.S., 93 F. Supp.

517 (E.D. Va. 1950), affd, 340 U.S. 925 (1951), in a

failed attempt to create conflict where none exists.

These cases do not support Petitioner’s position, nor do

they create any conflict whatsoever.

Both Petitioner and Respondent agree that the ques-

tion presented concerns whether “motor private carri-

ers” are subject to the motor carrier exemption to the

FLSA. Neither Brooks or Red Bali mentions the Fair

Labor Standards Act, overtime, or exemption from

overtime. Specifically, they do not address the 13(b)(1)

exemption from overtime. Rather, the Brooks and Red

Ball cases address whether motor private carriers are

subject to Interstate Commerce Commission (“ICC”)

* The terms “private motor carrier” and “motor private carrier”

have the identical meaning and are used interchangeably in the

relevant statutes. See 49 U.S.C. §31502(b).

_

regulation (e.g., licenses and permits). These decisions

merely hold that the ICC (now Surface Transportation

Board (“STB”)) does not have jurisdiction over motor ~

private carriers for purposes of regulation (i.e., licenses

and permit requirements).

The cases cited by Petitioner merely hold that motor

private carriers are eligible for a “primary business”

exemption from the Secretary of Transportation’s regu-

latory burden such as licensing and permit require-

ments. However, Petitioner misconstrues these cases

and wrongly concludes that the “primary business”

exemption of 49 U.S.C. §13505 [formerly §10524] also

denies the Secretary of Transportation the power to

establish qualifications and maximum hours of service

of employees when needed to promote safety of opera-

tion — despite the fact that an entirely separate section

of the Motor Carrier Act explicitly grants such author-

ity to the Secretary of Transportation (49 U.S.C. §31502)

and makes it applicable to motor private carriers like

Rent-A-Center.‘

C. Statutory Authority Supports Respondent’s

Position Without Conflict.

Petitioner fails to bring to the Court’s attention 49

U.S.C. §31502 — the statutory provision that explicitly

grants the Secretary of Transportation the authority to

* The term “motor private carrier” means a person, other than a

motor carrier, transporting property by motor vehicle when

(A) the transportation is as provided in section 13501 of

this title;

(B) the person is the owner, lessee, or bailee of the property

being transported; and

(C) the property is being transported for sale, lease, rent,

or bailment or to further a commercial enterprise.

49 U.S.C. §13102(13).

—

prescribe requirements for qualifications and maxi-

mum hours of service for employees of “motor private

carriers” (49 U.S.C. §31502).

The FLSA overtime exemption in Section 13(b)(1)

refers to employees over whom the Secretary of Trans-

portation has the “power to establish qualifications and

maximum hours of service pursuant to the provisions of

Section 31502 of Title 49.” Section 31502 states in part:

(a) Application.-This section applies to transpor-

tation-

(1) described in sections 135015 and 13502 of

this title...

* * * * *

(b) Motor carrier and private motor carrier

requirements.-The Secretary of Transporta-

tion may prescribe requirements for-

(1) qualifications and maximum hours of ser-

vice of employees of, and safety of opera-

tion and equipment of, a motor carrier;

and

(2) qualifications and maximum hours of ser-

vice of employees of, and standards of equip-

ment of, a motor private carrier, when

needed to promote safety of operation.

49 U.S.C. §31502(a), (b) [emphasis supplied]

5 Title 49 U.S.C. §13501 provides in part: “The Secretary and the

[Surface Transportation] Board have jurisdiction, as specified in

this part, over transportation by motor carrier and the procure-

ment of that transportation, to the extent that passengers, prop-

erty, or both, are transported by motor carrier (1) between a place

in (A) a State and a place in another State; (B) a State and another

place in the same State through another State...”

= =

Thus, Congress has specifically delegated to the Secre-

tary of Transportation the power to regulate employees of

motor carriers and motor private carriers whose duties

affect safety on the highways when interstate shipments

of property are involved. 49 U.S.C. §31502.

In the face of this explicit statutory language, Peti-

tioner argues that 49 U.S.C. §13505 (and its predeces-

sor §10524) excludes employees of motor private carri-

ers from the 13(b)(1) exemption. The “primary busi-

ness” test of §13505 and its predecessor §10524, how-

ever, merely applies to licensing, permit and certificate

requirements. Friedrich, 974 F.2d at 413 (citing Ryder

Truck Lines, Inc. v. U.S.,716 F.2d 1369, 1373, n.4 (11th

Cir. 1983), cert. denied, 466 U.S. 927 (1984)); Klitzke,

110 F.3d at 1468; Bilyou, 300 F.3d at 226.

Petitioner cites no authority that supports his inter-

pretation of §13505. All the Courts of Appeals that have

addressed this specific issue have uniformly held that

Section 10524 (now Section 13505) has no effect on the

overtime exemption under 13(b)(1).

In Friedrich, the Third Circuit rejected the very argu-

ment Petitioner makes here: 7

Section 10524(a) has no application in this case.

The section merely exempts motor private carriers

from the licensing, permit, and certificate require-

ments imposed upon motor carriers by the ICC

pursuant to 49 U.S.C. §§ 10921-10935; it does not

serve to deprive the DOT of its power to regulate the

qualifications and maximum hours of service of

employees of a motor private carrier pursuant to 49

U.S.C. $3102(b)(2).®

Friedrich, 974 F.2d at 413. [emphasis supplied]

6 49 U.S.C. §3102 was recodified at 49 U.S.C. §31502 in 1996.

= =

In Klitzke, the Ninth Circuit also rejected

Petitioner’s faulty hypothesis:

The subchapter to which it refers deals only

with regulation by the ICC. See 49 U.S.C.

§10521. Thus, “the section [10524, now 13505]

merely exempts motor private carriers from

the licensing, permit and certificate require-

ments imposed upon motor carriers by the ICC

pursuant to 49 U.S.C. 10921-10935; it does not

serve to deprive the [Department of Transpor-

tation] of its power to regulate the qualifica-

tions and maximum hours of service of employ-

ees of motor private carriers pursuant to 49

U.S.C. §3102(b)(2).”

Klitzke, 110 F.3d at 1468 [emphasis supplied] (quoting

Friedrich, 974 F.2d at 413).

D. The Recodification of § 10524 Has Been

Addressed By the Courts Without Conflict.

Petitioner’s assertion that the recodification of §10524

in 1996 somehow changes the analysis of the 13(b)(1)

exemption as it applies to motor private carriers has

been explicitly rejected. Petitioner represents to this

Court that no court has addressed this issue since the

recodification. This assertion is simply not true.

The Klitzke Court issued its opinion in 1997 after the

recodification of §10524 and the Court specifically rec-

ognized that §10524 was recodified as §13505.”7 More-

over, the Klitzke court specifically held that the change

7 Where Congress reenacts a statute without substantive change,

it generally is presumed to be aware of and to adopt any admin-

istrative or judicial interpretations by reenactment. See Lorillard

v. Pons, 434 U.S. 575, 580-81 (1978); See also Helvering v. R.J.

Reynolds Tobacco Co., 306 U.S. 110, 115 (1939) (Reenactment

without change gives such interpretations the force of law).

—

and reenactment would not have affected the outcome

of the case. Id. at 1467 n. 2, 1468n.5. Thus, Petitioner’s

argument that the 1996 recodification of §10524 as

§13505 changes the previous analysis of the Courts was

specifically rejected by Klitzke.

Recently, the United States Court of Appeals for the

Second Circuit thoroughly addressed and rejected

Petitioner’s position upon which this appeal is pre-

mised. In Bilyou v. Duchess Beer Distrib., Inc., 300 F.3d

217 (2d Cir. 2002), the Court specifically held that

Section 13505 has no bearing on the overtime exemp-

tion under 13(b)(1).

On the basis of [Defendant’s] involvement in an-

other primary business other than transportation,

§13505 exempts it from the Secretary’s jurisdic-

tion, as specified “in this part, over transportation

of property by motor vehicle.” 49 U.S.C. §13505

(emphasis added). Section 13505 is a provision of

Part B of Subtitle IV of Title 49, 49 U.S.C. §§ 13101-

14914. That Part contains provisions authorizing

the DOT to enact registration and security (insur-

ance and bonding) requirements for motor carri-

ers, freight forwarders, and brokers. See 49 U.S.C.

§13902 (registration requirements for motor carri-

ers); 13903 (registration requirements for freight

forwarders); §13904 (registration requirements for

brokers); see also §13906 (bonding and insurance

requirements for motor carriers, freight forward-

ers, and brokers).

Section 13505 has no bearing on the Secretary’s

power, as described in 29 U.S.C. §213(b)(1), “to

establish qualifications and maximum hours of

service pursuant to the provisions of section 31502

of Title 49.” Section 31502 falls under a different

part of Title 49. It falls in Part B of Subtitle VI

— wn

relating to “Motor Vehicle and Driver Programs.”

The fact that § 13505 denies the Secretary power to

prescribe economic and licensing regulations of the

sort covered in Subtitle IV, Part B, in no way

contradicts the Secretary’s authority, established

in a different part of the Motor Carrier Act, to set

qualifications and maximum hours of service for

drivers to promote safety of operations. That is the

crucial inquiry under FLSA’s §213(b)(1), and, as

shown above, [Defendant] satisfies those criteria.

Bilyou, 300 F.3d at 226.8

Therefore, the Third, Ninth, and Second Circuits,

and now the Eleventh Circuit in the instant matter,

have explicitly and uniformly rejected Petitioner’s faulty

premise. There is no conflict whatsoever between the

Circuits on this issue.

II.

PETITIONER’S FAILURE TO PRESENT HIS

POSITION WITH ACCURACY IS SUFFICIENT

REASON FOR THE COURT TO DENY HIS

PETITION

Supreme Court Rule 14.4 states that “[t]he failure of

a petitioner to present with accuracy, brevity, and

clarity whatever is essential to ready and adequate

understanding of the points requiring consideration is

sufficient reason for the Court to deny a petition.” Here,

Petitioner has presented deceptive and inaccurate ar-

guments to the Court.

In his Petition, Petitioner fails even to mention 49

U.S.C. §31502, which explicitly grants authority to the

8 See Bilyou, 300 F.3d at 226-229 for an excellent discussion of the

history and purpose of the precursor provisions of the Motor

Carrier Act.

Secretary of Transportation to establish qualifications

and maximum hour requirements for employees of

motor private carriers. This section is essential to an

adequate understanding of the issues relevant to this

case, yet Petitioner inexcusably makes no mention of

this statute whatsoever. Instead, Petitioner cites to 49

U.S.C. §13505, which he incorrectly represents as the

relevant statutory provision.

Petitioner’s statement that the District Court opin-

ion in the instant case deviates from statutory and

caselaw authority (See Petitioner’s Brief at i, 4, 11) is

simply wrong. As stated above, the courts have uni-

formly applied the 13(b)(1) exemption to motor private

carriers.

Finally, Petitioner’s assertion (See Petitioner’s Brief

at p.8) that courts have not analyzed the exemption

since the recodification of §10524 is completely untrue.

| The Ninth Circuit addressed the effect of the recodifica-

tion in Klitzke, 110 F.3d at 1467 n.2, 1468 n.5, which

holding Petitioner misrepresents. Most recently the

Second Circuit in Bilyou specifically addressed this

| Petitioner’s argument, and rejected it completely, Bilyou,

300 F.3d at 225-229, which Petitioner simply ignores.

Obviously Petitioner did not accurately present the

Court with “whatever is essential to ready and ad-

equate understanding of the points requiring consider-

ation.” Therefore, this failure alone is “sufficient rea-

son for the Court to deny...” the Petition. Sup. Cr. R.

14.4,

Il.

PETITIONER HAS ABANDONED HIS APPEAL

OF THE LOWER COURTS’ DENIAL OF

PETITIONER’S MOTION TO AMEND

The District Court denied Petitioner’s motion to

—_ on

amend his complaint to add class allegations. The

Eleventh Circuit affirmed. Petitioner makes sporadic

comments throughout his Brief in Support of his Peti-

tion about this refusal to permit amendment but does

not present it as a “Question Presented” for this Court

to consider. Therefore, Petitioner has abandoned this

claim. Sup. CT. R. 14.1(a). In any event, Petitioner has

presented no reasons why the lower courts’ denial of his

motion was error.

IV.

CONCLUSION

For the foregoing reasons, Respondent prays that

Petitioner’s petition for a writ of certiorari be denied.

Respectfully submitted,

WINSTEAD SECHREST & MInIck P.C.

1201 Elm Street

Suite 5400

Dallas, Texas 75270

(214) 745-5400 — Telephone

(214) 745-5390 — Facsimile

FRANKLIN E. WRIGHT

ROBERT F. FRIEDMAN

Attorneys for Respondent