[nfbmi-talk] ag response to eagle v. cannon, et al

[joe harcz Comcast]

Table with 2 columns and 6 rowsUNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 TERRY D. EAGLE, 

  Plaintiff, 

v 

 PATRICK D. CANNON, individually and in his 

official capacity, JO ANN PILARSKI, individually 

and in her official capacity, CONSTANCE 

ZANGER, individually and in her official capacity, 

JAMES HULL, individually and in his official 

capacity CHERYL L. HEIBECK, individually and in 

her official capacity AND GARY KOSCH, 

individually, 

  Defendants. 

  No. 1:10-cv-212 

 HON. JANET T. NEFF 

 MAG. ELLEN S. CARMODY 

    Terry D. Eagle 

Plaintiff in pro per 

2000 Boston Blvd, Apt. C19 

Lansing, MI 48910-2448 

517-372-7552 

   Michael O. King, Jr. (P71345) 

Assistant Attorney General 

Attorney for Defendants Cannon, Pilarski, Zanger, 

Hull and Heibeck 

PO Box 30736 

Lansing, MI 48909 

517-373-6434 

    / 

Table end  DEFENDANTS CANNON, PILARSKI, ZANGER, HULL, AND HEIBECK'S REPLY TO 

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY 

JUDGMENT 

STATEMENT OF FACTS 

Eagle filed his Complaint on March 15, 2010. Defendants1 filed their first Motion to 

Dismiss on March 29, 2010. Eagle did not respond claiming that he did not receive proper 

service. Without ruling on the merits of Defendants' Motion to Dismiss, this Court denied the 

motion and allowed Eagle to file an amended complaint. That Amended Complaint was filed on 

July 6, 2010. Defendants filed their second Motion to Dismiss on July 22, 2010. Eagle did not file a 

response. At the hearing on November 22, 2010, this Court allowed Eagle an opportunity to file 

a response to Defendants' Motion to Dismiss.2 The Court gave Eagle twenty-eight days to 

respond. Eagle's deadline for responding was December 20, 2010. Eagle filed his response on 

December 22, 2010 – two days late. Considering this Court has allowed Eagle to twice ignore the deadlines established by the 

court rules with no consequence, Defendants urge this Court to strike Eagle's response as 

untimely and grant Defendants' Motion. 

ARGUMENT 

I.

 The affidavits attached to Eagle's Response do not create a genuine issue of material 

fact. 

Should this Court decline to strike Eagle's response as untimely, Defendants assert that 

the attached affidavits to Eagle's response do not create a genuine issue of material fact. In fact, 

two of the affidavits do not address the issues surrounding this case or add anything new. The 

remaining affidavit overlooks the controlling program rule and concentrates on rules that are 

important, but not dispositive to this issue. 

A.

 Fred Wurtzel's affidavit 

At first blush, Wurtzel's affidavit appears to create a genuine issue of material fact. 

Wurtzel spends a great deal of time detailing why Eagle is qualified to run a cafeteria under the 

BEP3 Administrative Rules. Specifically, Wurtzel explains his understanding of the BEP 

Administrative Rules and cites to a number of those rules. Wurtzel does not comment on the 

controlling rule, however. BEP Admin. Rule 393.154 controls license revocations and reentry. Rule 15 states that 

the Commission may revoke a license if an operator's vision improves so that he no longer 

qualifies for the program.5 The Commission also may revoke an operator's license if the 

operator voluntarily leaves the program.6 Moreover, "[t]ermination of participation in the 

program results in automatic license revocation."7 Furthermore, reentry into the program after a 

license revocation requires that the operator "shall again complete the full vending facility 

training program."8 Eagle admits that his vision improved such that he was no longer considered eligible for 

BEP under the Randolph-Sheppard Act. (Comp. ¶20). Therefore, his license was revoked under 

Rule 15(2). As cited above, Rule 15 outlines the requirements for reentry into the program – 

complete the full vending facility training. 

The rule does not make exceptions for those who have received the training previously or 

are otherwise qualified. In fact, all the individuals that this rule applies to would have received 

the training previously and have been qualified and certified. They were all operators who passed the training and became certified and operated facilities before having their licenses 

revoked. Therefore, there is no genuine issue of material fact – Eagle must complete the training 

before he reenters the program and is allowed to bid on program facilities. 

Defendants have not stopped Eagle from receiving the training. The problem is that 

Eagle cannot pay for the expense of the training. Vending facility training is typically paid for 

the Vocational Rehabilitation Division of the Commission. Eagle does not qualify for additional 

expenditures to receive training. (Wurtzel Affidavit ¶8). Wurtzel stated that "[s]uch a large 

expenditure would be a waste of limited financial resources available for preparing blind persons 

to be employment ready." (Wurtzel Affidavit ¶8). 

Finally, Wurtzel makes two statements that he is not qualified to make. First, he states 

that Eagle was due a hearing when his application for a license was denied. That is a legal issue 

and Wurtzel is not qualified to speak on the legal issues before this Court. Second, Wurtzel 

states that there is a lack of qualified cafeteria operators within BEP. By Wurtzel's own 

admission, he has not been with BEP since June 2006, over four and half years. He does not 

have personal knowledge as to whether there is a lack of qualified cafeteria operators in BEP or 

not. 

1 Here, "Defendants" refers to Defendants Cannon, Pilarski, Zanger, Hull, and Heibeck. 

2 This Court considered Defendants' Motion to Dismiss as a Motion for Summary Judgment 

under Fed. R. Civ. P. 56. 

3 Business Enterprise Program. 

4 Attachment 1. 

5 BEP Admin. R. 393.15(1)(a). 

6 BEP Admin R, 393.15(1)(b). 

7 BEP Admin. R. 393.15(2). 

8 BEP Admin R. 393.15(2). 

9 Fed. R. Civ. P. 56(e)(1). 

10 Lujan v. Defenders of Wildlife, 504 U.S. 555; 124 S. Ct. 2301; 119 L. Ed. 2d 351 (1992). 

11 Lujan, 504 U.S. at 560-561. 

12 There also is the issue of whether Eagle has standing to pursue this issue for third parties. 

Generally, Article III courts do not confer standing in such a situation. Sprint Communs. Co., 

L.P. v. APCC Servs., 554 U.S. 269, 290; 128 S. Ct. 2531; 171 L. Ed. 2d 424 (2008). 

 Based on the above, Wurtzel's affidavit does not create a genuine issue of material fact. 

Therefore, this Court should grant Defendants' Motion and dismiss Eagle's suit. 

B.

 David Robinson's affidavit 

Robinson's affidavit addresses issues not germane to this suit. Robinson decries the use 

of sighted, temporary operators instead of blind, temporary operators. As addressed below, 

Eagle lacks standing to bring this issue. 

Moreover, Robinson gives vague generalized accusations instead of concrete facts to 

support his baseless allegations. Robinson also purports to speak for what is in the best interest 

of the State of Michigan and BEP, neither of which his is qualified to speak for. Affidavits are 

not the forum for airing opinions and asserting baseless accusations, but facts of which the 

witness is competent to testify about from personal knowledge.9 C.

 Terry Eagle's affidavit 

Eagle's affidavit does not offer any new evidence than what is available in his Second 

Amended Complaint. The only two new things it offers is Eagle's interpretation of two Attorney 

General Opinions and his request for more time should the Court not find his response and 

affidavits persuasive. 

First, as admitted by Eagle, the Attorney General Opinions apply to state facilities. 

Moreover, this is not a suit about whether Defendants are violating state and federal law by 

allowing sighted operators to work temporarily. Eagle lacks standing to challenge that issue. 

Also, Eagle admits that the Attorney General Opinions apply only to state law not to the 

Randolph-Sheppard Act, the federal law which Eagle is claiming Defendants violated. 

Therefore, these Opinions are not germane to these proceedings. 

Second, Eagle begs for more time if the Court does not find his response persuasive. The 

Court has been overly patient with Eagle. This Court has allowed Eagle to show up to two 

hearings without responding to Defendants' Motions and plead for more time, which the Court 

has twice granted. The Court should require Eagle to stand on his pleadings and grant 

Defendants' Motion as no genuine issue of material fact exists. 

  II.

 Plaintiff lacks standing to bring this action 

Eagle lacks standing to bring his claims concerning his individual claims. This particular 

standing issue is analyzed under the case and controversy standard articulated in Lujan v. 

Defenders of Wildlife.10 Standing requires three elements: (a) an injury-in fact that is actual or 

imminent; (b) causal connection between the injury and the complained of activity; and (c) likely 

that a favorable ruling will address the injury.11 Under this same analysis, Eagle lacks standing 

to bring the issue of whether the Commission can use sighted, temporary operators. A.

 Eagle's individual claims 

Eagle's individual claims boil down to one thing: Defendants are not allowing him to bid 

on BEP facilities. By blocking his access to BEP facilities, Defendants have caused Eagle injury 

by frustrating his ability to pursue his employment goals. This misses the salient point, however. Eagle does not qualify under the rules to reenter 

the program without completing the vending facility training. Eagle cannot retake the training 

because he lacks the funds necessary to pay for the expense of training. Defendants have not 

kept Eagle from taking the training; his lack of funds has. Therefore, the injury is not fairly 

traceable to Defendants actions, as required by Lujan. Moroever, the Commission remains 

willing to pay for Eagle's training if his vocational rehabilitation counselor recommends him for 

the program. Upon information and belief, Eagle is not a client of the Commission's Vocational 

Rehabilitation Services ad his last stated career objective was to be a paralegal, not a BEP 

operator. 

Eagle argues that he should not have to complete the training because he has a bachelor's 

degree in hospitality management and experience in operating cafeterias. This is irrelevant as the rules provide for a specific type of training, or in this case re-training. An example may be 

illustrative. If an individual lives in California, he can enroll in a non-ABA law school. Upon 

completion of his studies, he may sit for the California Bar Exam. If that same individual moves 

to Michigan after graduating from a non-ABA law school, he may not sit for the Michigan Bar 

Exam. The issue is not whether he is "qualified" or has the taken all the correct classes. The 

issue is whether he has completed the required perquisite training to sit for the Michigan Bar 

Exam. He could not sue the State Bar of Michigan for refusing to allow him to take the exam – 

he would lack standing. It was the individual's decision that caused the injury (not attending a 

qualifying school), not the decision of the State Bar of Michigan. 

Likewise, Eagle does not meet the perquisite to bid on a BEP facility. Eagle voluntarily 

chose to undergo surgery that improved his eyesight. That decision had consequences. Eagle's 

eyesight improved and he could live without being visually impaired. It also meant that he had 

to leave the BEP facility and the program altogether. The rules provided for and Eagle had his 

license revoked. Alas, his vision improvement did not last and he sought reentry into the BEP 

program. Because of his earlier decision, Eagle faces certain consequences. Specifically, Eagle 

must complete the vending facility training before reentering BEP. 

Like the bar exam example, BEP sets the rules and enforces them. BEP is concerned that 

all operators have the same type of training. Moreover, BEP is authorized by the Randolph-

Sheppard Act to ensure that all operators are qualified. BEP has accomplished this goal by 

designing and implementing a vending facility training program, which it requires all potential 

operators to undergo for entry or reentry into the program. 

Also, like the bar exam seeker, Eagle must live by the consequences of his choices. His 

choice to seek improvement for his vision resulted in his license being revoked. That revocation 

had a consequence – it required him to complete training before reentering the program. 

Therefore, it is not Defendants who have caused Eagle the injury he claims (not allowing to bid 

on BEP facilities), but his own earlier choices. 

Thus, this Court should find that Eagle has no standing to bring this suit and grant 

Defendants' Motion. 

B.

 Eagle lacks standing to bring claims concerning the Commission's use of 

sighted, temporary operators. 

Again, the standing analysis is conducted under Lujan. As to this issue, there is no injury 

to Eagle. Eagle claims that he is injured (as well as other blind operators).12 Yet, Eagle's alleged 

injury is that he was not chosen to operate BEP facilities on a temporary basis. The rules do not 

address temporary operators. The Commission (even under Wurtzel's tenure) used sighted and 

blind temporary operators. Moreover, temporary operators do not have a BEP license; there are 

merely placeholders until a qualified blind individual takes over the facility. Furthermore, the temporary operators are drawn from the "marketplace." Eagle belongs 

to the marketplace and has the same rights and expectations of other temporary service providers 

– none as to the issue of being chosen to fill a facility on a temporary basis. The Commission is 

allowed to use their business judgment to determine which operators (sighted or blind) to fill 

those positions based on a host of legal considerations. Because he was not chosen does not 

mean that he was injured by Defendants. Therefore, this Court should find that eagle lacks 

standing and grant Defendants' Motion. 

CONCLUSION AND RELIEF SOUGHT 

For the above cited reasons as well as those articulated in Defendants' Motion, 

Defendants request that this Court dismiss Counts I, III, &VI with prejudice as Defendants have 

either Eleventh Amendment immunity or qualified immunity as to those claims and Eagle has 

failed to state a claim upon which this Court can grant relief. Since Counts I, III, &VI are the 

only federal claims espoused by Eagle, Defendants request this Court declines to exercise 

supplemental jurisdiction as to Counts II & IV-V. 

Respectfully submitted, 

 Bill Schuette 

Attorney General 

  /s/ Michael O. King, Jr. 

Michael O. King, Jr. (P71345) 

Assistant Attorney General 

Attorneys for Defendants Cannon, Pilarski, 

Zanger, Hull and Heibeck 

Public Employment, Elections, and Tort 

P.O. Box 30736 

Lansing, MI 48909 

(517) 373-6434 

KingM5 at michigan.gov 

P71345 

Dated: January 5, 2011 

 CERTIFICATE OF SERVICE 

I hereby certify that on January 5, 2011, I electronically filed the foregoing paper with the Clerk 

of the Court using the ECF system which will send notification of such filing of the foregoing. 

  s/Michael O. King, Jr. (P71345) 

 Michael O. King, Jr. (P71345) 

 Assistant Attorney General 

Attorneys for Defendants Cannon, Pilarski, 

Zanger, Hull and Heibeck 

 Public Employment, Elections & Tort Div. 

 P.O. Box 30736 

 Lansing, MI 48909 

 (517) 373-6434