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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1106

## Text

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NOV 21 2002

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No. 02-605
< ements

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
te IE oxic hinsnndonsausdisnnnisainnntoieeees 5
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
ioscan iiscabauanso 12

I ia a acsiesicicbirniane 10, 11

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0596%3A2. Public record. Not legal advice.