[nfbmi-talk] plaintiff response inc nfb mi members

joe harcz Comcast joeharcz at comcast.net
Thu Jan 13 14:26:48 CST 2011


UNITED STATES DISTRICT COURT

 

WESTERN DISTRICT OF MICHIGAN

 

SOUTHERN DIVISION

 

______________________________

 

TERRY D. EAGLE,

                             Case No.: 1:10-cv-212  

          PLAINTIFF.

                             Hon. Judge Janet T. Neff

V         

                             Hon. Mag. Ellen S. Carmody

PATRICK D. CANNON 

          Individually and in

his Official capacity

                                PLAINTIFF’S RESPONSE IN

JO ANN PILARSKI                 OPPOSITION TO DEFENDANTS’,

Individually and in    EXCEPT KOSCH, MOTION FOR 

her Official capacity  SUMMARY JUDGMENT

 

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

 

GARY KOSCH

          Individually

 

          DEFENDANTS.

______________________________

 

TERRY D. EAGLE

Plaintiff in Pro Se

2000 Boston Blvd.

Apt. C19

Lansing  MI  48910-2448

Tel:  (517) 372-7552

 

Michael O. King, Jr. (P71345)

Cynthia Anne Arcaro  (P45013)

Attorneys for Defendant Cannon,

Pilarski, Zanger, Hull and Heibeck

Assistant Attorney General

Michigan Dept. of Attorney General
P.O. Box 30736 
Lansing, MI 48909-8236 
Tel:  (517) 373-6434 
______________________________/

 

     Now comes the plaintiff and states as follows in 

 

opposition to the motion to dismiss:

 

THRESHOLD ISSUE – STANDING
 

     The Court has requested the parties to address the 

 

threshold issue of standing to sue by the Plaintiff.

 

Issue  

 

Does the Plaintiff have standing to maintain the 

 

Present action?

 

     Short Answer:  Yes.

 

Applicable Standard

 

     The current standing standard is the two-part test 

 

announced by the Supreme Court in the companion cases of 

 

Data Processing Svc. Orgs. v Camp,[1] and Barlow v Collins.[2]  

 

To have standing, a plaintiff must show:  (1) that the 

 

challenged action has caused injury in fact, and (2) that 

 

the interest sought to be protected is within the zone of 

 

interests to be protected or regulated by the statutory or 

 

Constitutional guarantee in question.      

 

Application of Standard

 

     In Data Processing Svc. Orgs. v Camp, the plaintiffs, 

 

who sold data processing services to businesses, 

 

challenged a ruling of the comptroller of the Currency,

 

which permitted banks to provide data processing services 

 

to other banks and their customers, incidental to their 

 

banking services.  The district court ruled that the 

 

plaintiffs lacked standing, and the court of appeals 

 

affirmed.  The Supreme Court, in reversing the lower 

 

courts’ decisions held:  

 

(1)         The plaintiffs satisfied the “case” or “controversy” 

 

test of Article III of the Constitution, as they alleged that 

 

the competition by the banks caused economic injury,[3] and 

 

(2)         the interest sought to be protected was within the 

 

zone of interests to be protected or regulated by the 

 

statute,[4] thus, the plaintiffs had standing to maintain the 

 

action.[5]     

 

     In Barlow v Collins, the plaintiffs were tenant 

 

Farmers eligible for payments from a cotton picking 

 

program under the Food and Agriculture Act of 1965.  The 

 

plaintiffs challenged the validity of an amended regulation 

 

issued by the Secretary of Agriculture in 1966.  The 

 

amended regulation would have required the farmers to 

 

purchase goods from their landlords at high prices, thus 

 

causing personal injury by reduction in their income.    

 

The district court held that the plaintiffs lacked 

 

standing, and the court of appeals affirmed.  

 

     The Supreme Court, relying on the companion case of 

 

Data Processing Svc. Orgs. V Camp, held the plaintiffs did 

 

have standing,[6] stating (1) the plaintiffs had a “personal 

 

stake and interest” that imparts the adverseness required 

 

by Title III of the Constitution to challenge the validity 

 

of the amended regulation,[7] and (2) they were clearly within 

 

the “zone of interest’ protected by the Food and 

 

Agriculture Act, and were “persons aggrieved” by the 

 

agency action within the meaning of a relevant statute, as 

 

set forth in the Administrative Procedures Act.[8]  The 

 

statutory scheme shows a congressional intent that there 

 

may be judicial review of the agency action.[9]

 

     In appears based on the case law, the first part of the 

 

standing standard remains the most important part, and 

 

cases have primarily turned on the “injury” aspect of the 

 

standing issue.  One case in particular, a licensing case, 

 

Sierra Club v Morton,[10] the plaintiff challenged a licensing 

 

agreement between the Department of the Interior and Walt 

 

Disney Enterprises, :nc., to develop a part of the Sequoia 

 

National Forest into a ski resort.  The Supreme Court 

 

concluded that the environmentalist group did not have 

 

standing because they did not have personal injury or the 

 

injury alleged was not to a legally protected right.[11]      

 

     In the case before the court, with regard to the first 

 

part of the standing standard, unlike Sierra Club, and 

 

particularly in line with the Supreme Court’s decision in 

 

Data Processing and Barlow, the plaintiff has, and 

 

continues to, suffered personal injury in the form of 

 

economic loss of personal income and lost years of service 

 

credits for retirement purposes, as provided for under law 

 

to blind persons in the Business Enterprise Program.

 

     As to the second prong of the standing standard, the 

 

plaintiff is clearly within the zone of interest envisioned 

 

by the Randolph-Sheppard Act[12] and the Rehabilitation Act,[13] 

 

and their implementing regulations and rules, and 

 

congressional intent as protected rights for blind 

 

persons.

 

     The challenged action of licensing sighted persons, 

 

over blind persons by the defendant, and the rule 

 

upon which they rely was promulgated under authority of 

 

20 U.S.C. 107a(a)(6)(B) and 107b (5), for carrying out the 

 

provisions of the Act.  The Act at 20 U.S.C. 107(a), 

 

107(b), 107a(b), and 107a(d)(1)(A), all address the mandate  

 

that operation of vending facilities shall be by blind 

 

persons.  Section 107d (4) also addresses the utilization 

 

of the federal Rehabilitation Act of 1973, as amended, for 

 

the purpose of training and achieving the maximum 

 

vocational potential of blind persons.  All of these 

 

provisions go to the plaintiff being within the zone of 

 

interest envisioned to be protected by  the statutes.

 

     Therefore, the plaintiff has clearly met the two part 

 

standing standard established by the Supreme Court for 

 

standing, and the plaintiff is entitled to maintain the 

 

action.

 

MOTION FOR SUMMARY JUDGMENT

 

Trial by Paper

 

     By discretion of this Court, Motion to Dismiss by the 

 

Defendants’, except Kosch, has been converted to a Motion 

 

for Summary Judgment.  

 

ISSUE

 

     Are the Defendants’, except Kosch, entitled to summary 

 

Judgment?

  

     Short answer:  No.

 

APPLICABLE STANDARD

 

     Summary Judgment is governed by F.R.C.P. 56.  The 

 

standard for granting a motion for summary judgment is the 

 

nonexistence of a genuine issue of material fact for trial.

 

The burden of establishing the nonexistence of a genuine 

 

issue of material fact is on the party moving for summary 

 

judgment.  This burden has two distinct components:  An 

 

initial burden of production, which shifts to the nonmoving 

 

party if satisfied; and an ultimate burden of persuasion, 

 

which always remains on the moving party.  The court need 

 

not decide whether the moving party has satisfied its 

 

ultimate burden of persuasion unless and until the court 

 

finds the moving party has discharged its initial burden of 

 

production.

 

     If the moving party will bear the burden of persuasion 

 

at trial that party must support its motion with credible 

 

evidence, using any of the materials specified in Rule 56, 

 

that would entitle it to a directed verdict if not 

 

controverted at trial.  Such an affirmative showing shifts 

 

the burden to the opposing party for production of 

 

evidentiary material showing a genuine issue exists for 

 

trial, or submit an affidavit requesting additional time 

 

for discovery.

 

     If the burden of persuasion at trial would be on the 

 

nonmoving party, the party moving for summary judgment may 

 

satisfy Rule 56’s burden of production in either of two 

 

ways.  First, the moving party may submit affirmative 

 

evidence negating an essential element of the nonmoving 

 

party’s claim.  Second, the moving party may demonstrate to 

 

the court that the nonmoving party’s evidence is 

 

insufficient to establish that an essential element of the 

 

nonmoving party’s claim.  Either way, however, the moving 

 

party must affirmatively demonstrate that there is no 

 

evidence in the record to support a judgment for the 

 

nonmoving party.  If the moving party has not fully 

 

discharged the initial burden of production, the motion for 

 

summary judgment must be denied, and the court need not 

 

consider whether the moving party has met its ultimate 

 

burden of persuasion.  

 

A::LICATION OF STANDARD

 

     The defendants, except KOSCH, urge this Court to 

 

grant summary judgment on the Plaintiff’s cause of action 

 

under Rule 56 by the production of evidence through 

 

affidavits of defendants Constance Zanger and James Hull, 

 

and herein the plaintiff sets forth evidence through 

 

affidavits of Fred Wurtzel, David Robinson, and the 

 

plaintiff himself, and admissions that show there exists 

 

multiple genuine issues of material facts for trial and 

 

determination by a jury.   

 

The plaintiff invokes jurisdiction of this Court under 

 

28 U.S.C. § 1331, and 28 U.S.C. § 1343, as well as 

 

42 U.S.C. §§ 1983 and 1985. 

 

Defendants’ claim to immunity under the Eleventh Amendment
 

     In the defendants motion and brief seeking to dismiss 

 

The plaintiff’s Counts I, III, and VI.  The defendants 

 

assert the Eleventh Amendment’s prohibition against damage 

 

suits brought against a State.

 

Discussion
 

Plaintiff’s Intent as to Defendants’ Named Capacity
 

     The plaintiff brings this action against the 

 

defendants in their individual capacity for the purpose of 

 

recovering damages for economic injury arising from the 

 

violation of Constitutional and federal law rights and 

 

privileges set forth in the pleadings and discussed herein.  

 

Additionally, the plaintiff named the defendants in 

 

their official capacity solely for the purpose of obtaining 

 

prospective relief to prevent future violation of the 

 

rights and privileges granted, secured and guaranteed under 

 

the Constitution and laws of the United States. Nowhere has 

 

the plaintiff asserted or invoked the name of the State.  

 

The only reference closely associated to the State is to 

 

allege and establish that the defendants, at all times 

 

relevant to this cause of action, were all acting and in 

 

concert “under color of law” (Amended Complaint ¶ 12), and 

 

identified each of their names and titles (Amended 

 

Complaint ¶¶ 5-10)to establish and clarify that in fact all 

 

were acting under color of the laws, rules and regulations, 

 

policies, custom and usage of the State and United States. 

 

Analysis
 

     The defendants first rely on the case of Tenn. Dept. 

 

of Human Serv. v United States Dept. of Education.[14]  That 

 

case under the Randolph-Sheppard Act,[15] where a blind vendor 

 

as seeking federal court relief to enforce an federal 

 

arbitration panel award of compensatory damages against the 

 

State of Tennessee.  The court held that the district court

 

lacked jurisdiction to enforce a retrospective monetary 

 

damage award from an arbitration panel, as that would fall 

 

within the Eleventh Amendment’s prohibition of suits 

 

against a State, even though the court found the 

 

arbitration panel’s award within their authority.

 

     Here the plaintiff’s cause of action is distinguished 

 

from the Tennessee case in that the plaintiff’s action is 

 

neither an appeal to review or enforce an arbitration 

 

award, nor is it an action to recover damages from a State.   

 

Therefore, Tennessee should not be applied by this Court in 

 

this cause of action. 

 

     Further, it is under the original jurisdiction 

 

authorized under 42 U.S.C. §§ 1983, 1985, and 28 U.S.C. 

 

1331 and 1343 that the relief sought in this cause of 

 

action is derived. 

 

     Section 1331 states that “[t]he district court shall 

 

have original jurisdiction of all civil actions arising 

 

under the Constitution, laws, or treaties of the United 

 

States.”

 

The applicable provisions of Section 1343 states as 

 

follows:

 

(a)     The district court shall have 

original jurisdiction of any 

civil action authorized by law

to be commenced by any person:

 

(1)         To recover damages for injury 

to his person or property, or because 

of the deprivation of any right or 

privilege of a citizen of the United 

States, by any act done in furtherance 

of any conspiracy mentioned in section 

1985 of Title 42;

 

(2)         To recover damages from any person 

who fails to prevent or to aid in

preventing any wrongs mentioned in 

section 1985 which he had knowledge 

were about to occur and power to prevent;

 

(3)         To redress the deprivation, under 

Color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution of the United States or by 

any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

 

     This cause of action is also grounded in 42 U.S.C. 

 

§ 1983.  The pertinent part of Section 1983 states:

          

Every person who, under color of any 

statute, ordinance, regulation, custom 

or usage of any State or Territory or 

the District of Columbia, subjects, or 

causes to be subjected, any citizen of 

the United States or other person within 

the jurisdiction thereof to the deprivation 

of any rights, privileges, or immunities 

secured by the Constitution and laws, shall 

be liable to the party injured in an action 

at law, suit in equity, or other proper 

proceeding for redress, . . . 

 

     42 U.S.C. § 1985 is also applicable in conjunction 

 

with Section 1334 of Title 28. 

 

     Unlike the defendants assert, it is not the Randolph-

 

Sheppard Act that the plaintiff seeks to recover the 

 

damages and prospective relief sought in this cause of 

 

action.  While the relief sought is grounded in sections 

 

1983, 1985 of Title 42, and section 1343 of Title 28, these 

 

sections require an underlying federal law such as the 

 

Randolph-Sheppard Act and the federal Rehabilitation Act,[16] 

 

or provisions of the Constitution such as the Fourteenth 

 

Amendment, which confer upon citizens and other persons 

 

under the jurisdiction of the United States, rights, 

 

privileges, and immunities that are protected against 

 

unlawful violation and deprivation by individuals and 

 

States, acting under color of law. Without the Constitution 

 

or federal laws underlying the claim of rights, privilege, 

 

or immunities, the sections outlined above could not be 

 

invoked to obtain the available relief sought. 

 

     Next, the defendants rely on Cady v Arenac County.[17]  

 

In Cady the plaintiff brought a § 1983 action for damages 

 

against the county prosecutor in his individual and 

 

official capacity. The defendant sought dismissal on the 

 

defense of absolute immunity.

 

      On the issue of individual capacity the Court held 

 

that the prosecutor had absolute prosecutorial immunity, 

 

noting that courts will grant absolute immunity for even 

 

unquestionable or improper conduct, as long as the conduct 

 

is within the scope of his prosecutorial duties.

 

     With regard to the official capacity immunity, the 

 

Court stated that absolute immunity was only an individual 

 

defense and did not apply in an official capacity action.  

 

However since the § 1983 damage action was directed at a 

 

governmental entity, the Court held that the suit was barred 

 

by the Eleventh Amendment prohibition provision. 

 

     Again, the plaintiff’s case is distinguished from Cady 

 

in that none of the defendants have claimed neither that 

 

he/she is a prosecutor, nor is entitled to the defense of 

 

prosecutorial absolute immunity in his/her individual 

 

capacity. 

 

     In addition, the plaintiff has not brought his 

 

§§ 1983, 1985 damages action against a governmental entity.  

 

Therefore, Cady should not be applied in this case.

 

     Also the defendants cite the case of Ferritto v Ohio 

 

Dept. of Highway Safety.[18] In Ferritto the plaintiff brought 

 

a §1983 damage action naming three Ohio departments as 

 

defendants.  The Court held that a § 1983 damage action 

 

were a State, state agencies or departments are named as 

 

the defendants, the suit is barred by the Eleventh 

 

Amendment prohibition provision.        

 

     Once again, the plaintiff’s § 1983 and 1985 action 

 

does not seek damages against a State, a state agency or 

 

department.  As evidenced by the caption, no state entity 

 

has been named.  

 

     In sum, based on the facts and arguments above, this 

 

Court should deny and dismiss the defendants’ motion to 

 

Dismiss the Plaintiff’s Counts I, III, VI for immunity 

 

under the Eleventh Amendment prohibition for lack of 

 

subject matter jurisdiction.

 

 

Plaintiff’s Protected Liberty and Property Interests
 

     Prior to discussing the defendants defense of 

 

qualified immunity, it is best to discuss the plaintiff’s 

 

claims of substantive liberty and property interests 

 

protected by the Fourteenth Amendment, and which were 

 

violated by the defendants, and depriving the plaintiff 

 

of those important rights. 

 

     The first of these important interests is the liberty 

 

interest to employment opportunities and pursue one’s 

 

chosen career, for which a substantial investment of time 

 

and financial resources have been expended to become 

 

qualified to practice in a given field, namely 

 

hospitality/food service management.  

 

     Since rights and protected interests are established 

 

by statutes, it is reasonable to conclude that the 

 

Randolph-Sheppard Act is no exception.  Nearly seventy-five 

 

years ago in 1936 Congress in its wisdom saw fit to enact 

 

what is essentially an equal employment opportunity law for 

 

the blind of the nation.  Congress’ stated purpose in the 

 

Act is of providing blind persons with remunerative 

 

Employment, enlarging the economic opportunities of the 

 

blind, and stimulating the blind to greater efforts in 

 

striving to make themselves self-supporting.[19]  

 

Additionally, the Act gives and protects a priority for 

 

blind persons to operate food services on federal property, 

 

and gives a preference to blind persons in need of 

 

employment.

 

     The second important substantial protected interest is 

 

a property interest.  A property interest in a 

 

occupational license is one such protected property 

 

interest.  

 

Analysis
 

     The Sixth Circuit in Wilkerson v Johnson[20] Upheld a 

 

§ 1983 jury compensatory and punitive damage award, holding 

 

that an occupational license encompassed both a liberty and 

 

property interest protected by the Due Process Clause of 

 

the Fourteenth Amendment.  The Court quoted several Supreme 

 

Court cases from 1923 to the 1970s in reaching its’ 

 

holding.

 

     Like the plaintiffs in Wilkerson, this plaintiff was 

 

denied a occupational license without the benefit of any 

 

procedural due process being afforded him each and every 

 

time he attempted to be licensed.

     

The Requirements of Procedural Due Process
 

     Once a fundamental liberty or property interest 

 

exists, then some type of procedural due process is 

 

required for evenhanded fairness to protect the interest at 

 

stake.  Generally, procedural due process requires notice 

 

and an opportunity to be heard in a meaningful manner.  The 

 

determination of what constitutes meaningful due process is 

 

a matter of historical inquiry of what method or procedures 

 

have historically been employed to achieve meaningful 

 

notice and opportunity to be heard in similar 

 

circumstances.

 

     With regard to issues surrounding an occupational 

 

license, including a license denial, suspension, 

 

revocation, modification, or limitation, Michigan has 

 

historically achieved meaningful procedural due process 

 

through statutory requirement in the Michigan 

 

Administrative Procedures Act (APA).[21]  In the many 

 

Attempts that plaintiff made to be licensed, not once were 

 

The required due process procedures employed by the 

 

Defendants to protect the plaintiff’s protected interests.

 

     In sum, The defendants repeatedly violated the 

 

plaintiff’s protected liberty and property interests, and 

 

denied the plaintiff procedural due process, guaranteed and 

 

protected through the Fourteenth Amendment.

 

Defendants Claim to Qualified Immunity

 

Applicable Standard
 

     In their motion the defendants seek to have dismissed 

 

Counts I, III, and VI.  

 

The test to be applied in determining whether qualified 

 

immunity should be granted is, 1) whether clearly 

 

established law exists as to the protected interest, and 

 

2) whether the objective standard of a reasonable defendant 

 

should have known of the protected interest.

 

Application of Standard
 

     Heree, The language of both the Randolph-Sheppard Act, 

 

with its’ clear purpose stated above, and the State version 

 

of the vending facility program, with its’ clear language 

 

of blind persons “shall” operate vending facilities on 

 

federal and state property, clearly establishes a blind 

 

individual has a protected interest to the employment 

 

opportunities provided under the laws.

 

     In addition, the well established and the provisions 

 

of the Administrative Procedures Act, regularly used by the 

 

defendants, further supports that the defendants should 

 

have known of the interests denied to the plaintiff.  In 

 

addition, all of the defendants have been associated with 

 

the vending facility program for over 10 years, including 

 

management positions, as trainers in some capacity, and 

 

have attended state and national conferences and workshops 

 

on the purpose and goal of the employment opportunities for 

 

blind persons under the law.  

 

     Defendant Zanger asserts that the plaintiff is not 

 

qualified to reenter the program, despite his ten plus 

 

years as a former blind vendor, and possessing a bachelors 

 

degree in hospitality management; far exceeding the eight 

 

college level competencies required by the program to 

 

be “cafeteria certified”.  Yet, sighted persons are 

 

licensed and operate food facilities without even basic 

 

sanitation and proper health code training.  And the State 

 

says it has a rational interest in preserving jobs and 

 

continuity of facilities.  Yet, thee program has “closed” 

 

three of the cafeteria facilities for lack of a qualified 

 

blind person, and that the plaintiff sought to be licensed 

 

to operate.  

 

James Hull, in his affidavit, states that the McNamara 

 

federal building cafeteria was closed because it was no 

 

longer viable as a cafeteria in the Business Enterprise 

 

program.  Yet, it made a comfortable living for the prior 

 

licensed blind operator, Richard Kent, in accordance with 

 

profit standards of the Business Enterprise Program

 

 

In addition, James Hall states no qualified licensee 

 

Bid on the McNamara cafeteria, however, the law, rules and 

 

regulations do not require that bids for facilities only be 

 

filled by qualified “licensed” operators, but also by 

 

former and newly trained “potential” operators from a 

 

“potential licensee list”, in accordance with the program’s 

 

administrative rules.  There is also the illegal practice 

 

of licensing untrained, unqualified sighted persons from 

 

the defendants own personal favorite persons list.  The 

 

McNamara Cafeteria was closed and converted to a snack bar, 

 

As was the closing of other cafeterias and/or conversion of 

 

Cafeterias  to snack bars, to prevent the plaintiff from 

 

reentry and licensing into the program, not based on 

 

established law, regulation and rules, but on personal 

 

reasons of bias and prejudice and contempt for the 

 

plaintiff’s advocacy and representation of blind persons in 

 

enforcing their rights in administrative matters. 

 

James Hull’s affidavit is cleverly crafted in such a manner  

 

as to be misleading at best, and in bad faith at worse.    

                                                                                                                                   

 

     In Sum, the plaintiff believes the law is as to 

 

substantive and procedural due process is clearly 

 

established, and given the 10 plus years experience of each 

 

defendant in the blind vending facility field, is 

 

indicative that the defendants should know of the clearly 

 

established requirements of law, and therefore, qualified 

 

immunity should be denied.

 

Plaintiff’s Constitutional Challenge to the State Regulation Requirement of total retraining (3 Year Rule)
 

            The plaintiff seeks declaratory relief on whether the 3 Year total retraining 

 

requirement violates the Supremacy Clause, as it violates and frustrates the purpose of the 

 

Randolph-Sheppard Act, and provisions of the Rehabilitation Act of 1973, as amend, as it 

 

conflicts with and frustrates the purpose of the Act with respect to individual plans for 

 

employment.  The plaintiff urges this Court to permit discovery on this issue.

 

Motion Conclusion
 

     While this limited time and written forum provides 

 

some opportunity to clarify and discuss the legal issues, 

 

the plaintiff believes it is insufficient and inadequate to 

 

gather and present, and adequately rebut facts presented at 

 

this early stage inn the litigation, without prejudicing 

 

one party or the other.  Therefore the plaintiff 

 

respectively request this Court to allow discovery in this 

 

matter. 

 

     

 

Sixth Circuit Pro Se Standard
 

     The plaintiff respectively points out to the Court 

 

that the Sixth Circuit maintain and practices throughout the 

 

Circuit a pro se standard, whereby pleadings are 

 

to be construed liberally, since pro se litigants do not 

 

possess the technical skills of attorneys.[22]

 

 

                        Respectfully submitted,

 

 

 

Dated: 08-23-2010       __________________________

                        Terry D. Eagle

                        Plaintiff in Pro Se

                        2000 Boston Blvd.

                        Apt. C19

                        Lansing  MI  48910-2448

                        Tel: (517) 372-7552

 



                        CERTIFICATE OF SERVICE

 

     I, Terry D. Eagle, certify that I served upon the attorneys of Record and other parties a copy of Plaintiff’s Response in Opposition to Defendants Motion for Summary Judgment, by first-class mail, postage prepaid, and deposited in a U.S.P.S. mail depository at Lansing, Michigan, this 21st day of December, 2010.

 

 

                             __________________

                             Terry D. Eagle

+

 

 



UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

______________________________

 

TERRY D. EAGLE,

                        `                                                                       Case No.:   1:10-cv-212  

                        PLAINTIFF.

V                                                                                             Hon. Judge Janet T. Neff

 

PATRICK D. CANNON                                                       Hon. Mag. Ellen S. Carmody 

                        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

 

GARY KOSCH

                        Individually

 

                        DEFENDANTS.

______________________________

 

Terry D. Eagle

Plaintiff in Pro Se

2000 Boston Blvd.

Apt. C19

Lansing  MI  48910-2448

Tel:  (517) 372-7552

 

Michael O. King, Jr. (P71345)

Cynthia Anne Arcaro  (P45013)

Attorneys for Defendant Cannon,

Pilarski, Zanger, Hull and Heibeck

Assistant Attorney General

Michigan Dept. of Attorney General
P.O. Box 30736 
Lansing, MI 48909-8236 
Tel:  (517) 373-6434 
______________________________/

 

AFFIDAVIT OF FRED WURTZEL

 

            I, Fred Wurtzel, if called to testify, hereby state that I can competently 

 

testify with personal knowledge as to the following:

 

1.      From 1996 through June, 2006, I held the administrative program 

 

Manager position of the Business Enterprise Program within the Michigan Commission 

 

for the Blind.

 

2.      Prior to holding the position of Business Enterprise Program Manager I held 

 

the position of Assistant Program Manager.

 

3.      In the first part of 2006 I was contacted by Terry Eagle about reentry in 

 

the Business Enterprise Program as a returning licensed cafeteria operator

 

because his vision had deteriorated to the point that he would again qualify as 

 

blind for the purpose of eligibility under the federal Randolph-Sheppard Act and 

 

Michigan Public Act 260 of 1978, as amended.[23]   Also, Mr. Eagle had learned

 

there is a critical need for qualified blind cafeteria operators, and he believed he 

 

could assist in meeting that need since he was unemployed and actively seeking 

 

employment, and the Randolph-Sheppard Act provides for a “priority” to blind 

 

persons, and further a “preference” to unemployed blind persons in need of 

 

employment.  

 

4.      I have professionally and personally known Terry Eagle since the 

 

1980s because of his role as a successful cafeteria manager within the Michigan 

 

Business Enterprise Program; as an on-the-job-experience trainer of Business 

 

Enterprise Program cafeteria managers; as a former leader on the Elected 

 

Operators’ Committee, elected by blind licensees; and as an  advocate and 

 

representative of licensed blind vendors and blind persons rights, including 

 

affiliation with the National Federation of the Blind of Michigan.

 

5.      I suggested to Terry Eagle that he contact the Vocational   

 

Rehabilitation Division of the Michigan Comnission for the Blind to reopen  

 

his case as a client of rehabilitation services, primarily to certify his blindness.

 

Mr. Eagle proceeded to accomplish this task to return to the Business Enterprise 

 

Program and be licensed as a certified cafeteria manager. 

 

6.      Shortly before I retired in June 2006, Terry Eagle was referred to the 

 

Business Enterprise Program by his rehabilitation counselor Janis Benstead.

 

7.      Terry Eagle was certifieded to be blind as certified by a medical doctor

 

trained in disease of the eye.

 

8.      I understood from Janis Benstead that based on provisions of the 

 

federal Rehabilitation Act[24] with which the Rehabilitation Division must comply,

 

 based on Terry Eagle’s prior education, cafeteria certification, experience, etc., 

 

total retraining was unnecessary to achieve Mr. Eagle’s vocational and 

 

emoloyment goal outcome of again operating a Business Enterprise Program 

 

cafeteria, and the Rehabilitation Division was unwilling to pay the cost of totally 

 

retraining to achieve the employment goal.  Such a large expenditure would be a 

 

waste of limited financial resources available for preparing blind persons to be

 

employment ready.  

 

9.   Once a blind person is cafeteria certified by the Commission 

 

for the Blind, the certification remains valid, as the certification is based on 

 

successful completion of college level courses, less than an associates degree, 

 

in food service management related subjects.  Terry Eagle possesses both an 

 

associates and bachelors degree related to food service management, in 

 

addition to over ten years if cafeteria management within the Business Enterprise 

 

Program, whereas the Commission for the Blind only requires ten weeks of on-

 

the-job training with an experienced, cafeteria-certified cafeteria manager.

 

10.   In fact, Administrative Rule 393.45 (see attached) requires a 

 

cafeteria certified manager to complete a modified vending facility training 

 

program only when he/she desires to bid into another type of vending facility 

 

other than a cafeteria. 

 

11.   Additionally, Administrative Rule 393.44(2) (see attached) views 

 

cafeteria management as the most upward mobile position with the Business 

 

Enterprise Program, and by reference to Rule 393.44(4)(a), emphasizes that the 

 

cost of training or retraining will be paid by the Commission for the Blind only 

 

when it improves the skills of the manager, or for upward mobility within the 

 

program.  This rule is consistent with provisions of the federal Rehabilitation Act 

 

and the decision of the Commission’s Rehabilitation Division decision that further 

 

training would not improve the skills of Terry Eagle to be placed in a program cafeteria, 

 

and the cost of retraining would not be paid by the Commission.    

 

12.   In the weeks prior to my retirement, discussions and meetings were 

 

held, which included rehabilitation division staff and the Business Enterprise 

 

Program Trainer John McEntee, to identify and provide any appropriate training 

 

to Mr. Eagle within the provisions of Commission policy and administrative rules, 

 

as a well qualified returning certified cafeteria manager.

 

13.   Following my retirement, the Business Enterprise Program was

 

 operated under the direction of Acting Program Manager Constance Zanger and 

 

Business Services Manager Cheryl Heibeck, until at least March 2007, when 

 

Constance Zanger was appointed as Business Enterprise Program Manager.

 

14.   It is my professional opinion and belief that Mr. Eagle met all the 

 

requirements under the Randolph-Sheppard Act, and program rules 393.3, 

 

393.10, and 393.11 (see attachments), associated with implementation of the 

 

Randolph-Sheppard Act, and Mr. Eagle should have been placed on the potential 

 

licensee list, and once Mr. Eagle began bidding, should have been awarded a 

 

cafeteria facility and licensed under administrative rule 393.50 (see attached), 

 

rather than the awarding and licensing of cafeterias to untrained sighted persons, 

 

employed blind persons who are already employed and lack any cafeteria 

 

education, experience or training, and lack Commission certification to operate a 

 

cafeteria; or the closing of cafeterias to avoid awarding and licensing Terry Eagle 

 

as a certified cafeteria manager.  

 

15.   Based on my more than ten years of experience as Business 

 

Enterprise Program Manager, my extensive knowledge of the law and rules, and 

 

my statements above; the statements of Constance Zanger in paragraphs 5, 7, 

 

and 11 of her affidavit are erroneous, and present a genuine issue of material 

 

fact as to Terry Eagle’s claims.  As an example, Constance Zanger at paragraph 

 

7 of her affidavit, states that a former operator out of the program for more than 

 

three years or more must complete vending stand training before being allowed 

 

to bid on a program facility.  No such rule exists.  The only three year rule that 

 

exists is the provision in Rule 393.50(7) (see attached), that states if a 

 

potential licensee does not bid and accept a vending facility within three (3) years 

 

of being placed on the potential licensee list, then the potential licensse must 

 

complete a commission-designated retraining program.  Terry Eagle was denied 

 

his right per Rule 393.11(1)(b), to be placed on the potential licensee list by the 

 

defendants, as a blind crtified cafeteria manager, qualified to operate a cafeteria.  

 

Therefore, the only three year rule that exists does not apply in this matter, as 

 

Terry Eagle was never placed on the potential licensee list.    Further, Terry 

 

Eagle was denied due process by being denied a hearing each time he bid on a 

 

cafeteria facility and denied a license by the defendants, as a hearing is required 

 

by Chapter 5, Section 91 (see attached), of the Michigan Administrative 

 

Procedure Act,[25] when an application for a license is denied.

 

16.   Given the critical shotage of qualified, certified blind cafeteria 

 

managers within the Business Enterprise Program, I seriously question the  

 

defendants’ motives for not placing Terry Eagle in a cafeteria facility, and their 

 

lack of interest in finding a beneficial resolution for all concerned, as well as the 

 

benefit to the program by having Terry Eagle employed as a successful cafeteria 

 

manager and role model.

 

            Further the affiant sayeth not.

 

 

 

                                                                                    __________________________

                                                                                    Fred Wurtzel

 

Sworn and subscribed before me the ______ day of December, 2010.

 

 

__________________________

                                , Notary Public

 

State of Michigan, County of _____________________.

 

My commission expires _____________________.

 

 

 



Attachment - 393.45

 

 

DEPARTMENT OF LABOR AND ECONOMIC GROWTH                             COMMISSION FOR THE BLIND                             VENDING FACILITY PROGRAM  R 393.45   Vending facility training for existing cafeteria licensees.  Rule 45.  To be awarded a vending facility, an existing cafeteria  licensee who has  not  completed  classroom  and  on-the-job  snack  bar  and  vending training, shall complete the following training:  (a)  One week of classroom training, including both of the following:  (i)  Two days of training regarding the  Randolph-Sheppard  act  of   1936, P.L. 74-732, as amended by P.L. 83-565 and P.L. 93-516  (20  U.S.C.  §107  et seq.), the act, and rules promulgated under the act.  (ii)  Equipment certification on all program equipment.  (b)  Vending machine on-the-job training, as determined by the   commission board with the active participation of  the  committee.   Both  the  training report and the vending  facility  on-the-job  training  evaluation  shall  be submitted to the program administrator for approval before being eligible for the award of a vending facility.   History: 2004 AACS.  

Attachment – Rule 393.44

 

 

DEPARTMENT OF LABOR AND ECONOMIC GROWTH                             COMMISSION FOR THE BLIND                             VENDING FACILITY PROGRAM  

R 394.44   Licensee assistance and training generally.  Rule 44.  (1)  To ensure the maximum financial return and that   employment opportunities for successive blind persons are preserved,  a  licensee  shall receive reasonable systematic assistance and in-service training  in  all  of the following areas:  (a)  The keeping of accounts.  (b)  The selection and purchase of suitable merchandise.  (c)  The maintenance of a clean and attractive vending facility.  (d)  The proper cleaning, maintenance, and sanitation of equipment.  (e)  The utilization of sound business practices and methods.  (2)  A licensee shall receive upward mobility training  including   further education  and  additional  training  or   retraining   for   improved   work opportunities.  Upward mobility training includes training a vending facility licensee to become a cafeteria facility licensee, which is appropriate upward mobility training as described in subrule (4)(a) of this rule.  (3)  If a licensee and  his  or  her  promotional  agent  have   identified specific training needs that  would  improve  the  management  of  a  vending facility, then the promotional agent  may  arrange  for  the  training.   The following training is authorized:  (a)  Classroom training at the Michigan commission for the blind   training center in Kalamazoo.  (b)  On-the-job training, either at a licensee's facility  or  at   another program facility.  (c)  Regional group training classes.  (d)  Training  provided  by  a  third  person  that  is  approved  by   the commission or training provided by another preapproved source.  (4)  The commission shall reimburse a licensee for training only if all  of the following conditions are met:  (a)  The training improves management skills related to current   operation or leads to upward mobility within the program.  (b)  The training was requested in  writing  and  preapproved  by   program staff.  (c)  The training is completed successfully.  (5)  Ongoing vending machine training shall be offered periodically.  (6)  All commission-sponsored group training activities shall be  announced on the bid line or by other appropriate means.  (7)  It is the responsibility of the program licensee to make all  training requests.   History: 2004 AACS.  

Attachment – Rule 393.3

 

 

DEPARTMENT OF LABOR AND ECONOMIC GROWTH                             COMMISSION FOR THE BLIND                             VENDING FACILITY PROGRAM  

R 393.3   Program eligibility.  Rule 3.  (1)  A blind individual is  eligible  for  the  vending   facility program and is eligible for program training and assignments if  any  of  the following provisions apply:  (a)  The person is unemployed.  (b)  The person is earning a weekly wage less than or equal  to  40   hours times the current federal minimum wage.  (c)  The person is employed in a program vending facility.  (d)  The person  is  an  active  rehabilitation  client  whose   vocational objective is placement in the program, whose name is placed on the  potential licensees' list, and who takes employment while waiting to be placed  in  the program.  In this case, the  potential  licensee  remains  on  the  potential licensees' list with full rights as a potential licensee until either of  the following occurs:  (i)  The person is awarded a program vending facility.  (ii)  The person elects to have his or her name removed from the  potential licensees' list.     (2)  After 3 years on the potential licensees' list, an  individual   shall be retrained before being awarded a license.  (3)  An individual who does not meet the requirements contained in subrule  (1) of this rule is not eligible for program training or  placement.  All   of the following conditions also render  an   individual   ineligible   for   program training or placement:  (a)  A former program licensee who owes money to  the  commission  is   not eligible until the debt is paid in full.  (b)  A former program licensee who owes money to suppliers or  owes   state or federal taxes is not eligible until the former licensee's debts  are  paid in full.  (c)  A former program licensee who owes money for an inventory shortage  is not eligible until the debt is paid in full.  (d)  A licensee who has a repayment agreement in good standing  in   effect at the time these rules take effect is exempt from subrule (3) of this rule.However, if the licensee's repayment agreement is violated,  then  the  terms and conditions of this subrule shall apply.   History: 2004 AACS.   

 

 

 



Attachment - %ule 393.10

 

DEPARTMENT OF LABOR AND ECONOMIC GROWTH                             COMMISSION FOR THE BLIND                             VENDING FACILITY PROGRAM  

R 393.10   License issuance and eligibility requirements.  Rule 10.  A license shall be issued only to a person who, as determined  by the commission, meets all of the following requirements:  (a)  Is blind as certified by a licensed ophthalmologist or optometrist.If a licensee obtains corrective  surgery  or  his  or  her  vision  improves through other means, then the licensee shall be required to submit a new  eye exam.     (b)  Is not less than 18 years of age.  (c)  Is certified by the commission as  qualified  to  operate  a   vending facility.  (d)  Does not owe money under the circumstances described in R 393.3(3).   History: 2004 AACS.   

 

 

 

 



Attachment – Rule 393.11

 

DEPARTMENT OF LABOR AND ECONOMIC GROWTH                             COMMISSION FOR THE BLIND                             VENDING FACILITY PROGRAM R 393.11   Licensing procedure.  Rule 11.  (1)  To be licensed, a person  shall  comply  with  all  of   the following requirements:  (a)  Be certified by the commission as  qualified  to  operate  a   vending facility.  (b)  Be placed on the potential licensee list.  (c)  Bid on a facility.  (d)  Be awarded a facility.  (e)  Sign an inventory for the facility.  (f)  Successfully operate a facility for 6 months.  (2)  A license is valid on the date the  potential  licensee   successfully completes a 6?month probationary period in the vending facility and is  valid for an indefinite  period  but  subject  to  rules  regarding  suspension  or termination, as defined in R 393.13, R 393.14, R 393.15, and R  393.16.   The license is subject to suspension  or  termination  if,  after  affording  the licensee an opportunity for a full evidentiary hearing, the  state  licensing agency finds that the vending facility is not being  operated  in  accordance with its rules and regulations, the terms and conditions of the  permit,  and the terms and the conditions of the agreement with the licensee.  (3)  A license may be voluntarily  surrendered  by   a   licensee.      (4) Licensee seniority commences on the first day of the  probationary  period.Seniority is awarded retroactively at the end of the  successfully  completed probationary period.  Seniority continues to accrue uninterrupted unless  the license is suspended or revoked or unless 7 or more days elapse  between  the implementation of a current vending facility  agreement  and  a  new  vending facility agreement.  If 7 or more days elapse, then seniority is  interrupted until the new vending facility agreement is signed by both the  licensee  and the commission.  (5)  Before accepting another facility, a licensee shall  operate  his   or her facility for not less than 6 months.  (6)  For seniority purposes, ranking on the  potential  licensee  list   is based upon the first business day after completion of training, as  shown  by the documents submitted.  If a tie occurs, then the  following  criteria  are used to break the tie in a manner determined by the  commission  board,  with the active participation of the committee:  (a)  Rank?ordered scores from the educational foundation of  the   national restaurant association food service sanitation course exam.  (b)  Rank?ordered scores from the vending facility training final exam.  (c)  Rank?ordered scores from the Michigan community public health   agency food service sanitation course exam.  (d)  If a tie score  exists  after  the  first  3  criteria  specified   in subdivisions (a) to (c) of this subrule have  been  applied,  then  the  time stamp of the bid, as recorded on the bid line, determines  the  recipient  of the award.  (7)  Once a trainee's name has been placed  upon  the  potential   licensee list, he or she may begin bidding.   History: 2004 AACS.Attachment – Rule 393.50  

DEPARTMENT OF LABOR AND ECONOMIC GROWTH                             COMMISSION FOR THE BLIND                             VENDING FACILITY PROGRAM  

R 393.50   Bidding procedure.  Rule 50.  (1)  The bid line shall contain instructions for placing a bid.Program staff shall record the bid with the date and time it was placed.  (2)  A bid may be placed from 5 p.m. on the bid  day  until  noon  on   the following bid update day.  (3)  Program administrative staff shall offer the open vending facility  to the successful bidder.  The candidate shall  either  commit  to  the  vending facility or decline the offer in writing within 72 hours after the  close  of bids.  If the first candidate declines, then program staff shall continue the same award procedure, moving down the list of eligible licensees or potential licensees until the facility is awarded.  (4)  Failure to  make  a  commitment  by  the  noon  deadline   constitutes declining the offer and the opportunity shall be offered to the next licensee on the list.  (5)  A licensee who is awarded a vending facility shall  be  announced   in the week after the award.  (6)  A licensee is considered installed in  a  vending  facility  when   an agreement has been signed.  (7)  If a potential licensee does not bid and accept a facility  within   3 years, then he or she shall take a commission-designated retraining course as approved by the commission  board,  with  the  active  participation  of  the committee.  Failure to retake training results in deletion of  the  potential licensee's name from the potential list and the  potential  licensee  is  not eligible to bid or accept a facility within the program.   History: 2004 AACS.  

 

 

 



Attachment – MI APA NCL § 24.291

 

 

ADMINISTRATIVE PROCEDURES ACT OF 1969 (EXCERPT)
Act 306 of 1969



24.291 Licensing; applicability of contested case provisions; expiration of license. 

Sec. 91.

(1) When licensing is required to be preceded by notice and an opportunity for hearing, the provisions of this act governing a contested case apply.

(2) When a licensee makes timely and sufficient application for renewal of a license or a new license with reference to activity of a continuing nature, the existing license does not expire until a decision on the application is finally made by the agency, and if the application is denied or the terms of the new license are limited, until the last day for applying for judicial review of the agency order or a later date fixed by order of the reviewing court. This subsection does not affect valid agency action then in effect summarily suspending such license under section 92. 


History: 1969, Act 306, Eff. July 1, 1970 
Popular Name: Act 306
Popular Name: APA


© 2009 Legislative Council, State of Michigan

 

  



UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

______________________________

 

TERRY D. EAGLE,

                        `                                                                   Case No.:   1:10-cv-212  

                        PLAINTIFF.

V                                                                                         Hon. Judge Janet T. Neff

 

PATRICK D. CANNON                                               Hon. Mag. Ellen S. Carmody 

                        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

 

GARY KOSCH

                        Individually

 

                        DEFENDANTS.

______________________________

 

Terry D. Eagle

Plaintiff in Pro Se

2000 Boston Blvd.

Apt. C19

Lansing  MI  48910-2448

Tel:  (517) 372-7552

 

Michael O. King, Jr. (P71345)

Cynthia Anne Arcaro  (P45013)

Attorneys for Defendant Cannon,

Pilarski, Zanger, Hull and Heibeck

Assistant Attorney General

Michigan Dept. of Attorney General
P.O. Box 30736 
Lansing, MI 48909-8236 
Tel:  (517) 373-6434 
______________________________/

 

 

AFFIDAVIT OF DAVID ROBINSON

 

            I, David Robinson if called to testify, hereby state that I can competently 

 

Testify with personal knowledge as to the following:

 

9.      From 1998 through 2009, I held the position of Promotional Agent

 

 within the Business Enterprise Program within the Michigan Commission 

 

for the Blind, the state licensing agency for the Randolph-Sheppard vending 

 

facility program, established to give priority to blind individuals to operate 

 

concessions and cafeterias on federal and other properties, and a preference to 

 

those blind persons in need of employment.

 

10. I personally know Terry Eagle through his advocacy and

 

 Representation of licensed blind vendors, in matters related to the Michigan 

 

Randolph-Sheppard Business Enterprise Program, and his membership and 

 

Involvement in the Merchant’s Division, National Federation of the Blind of 

 

Michigan.

 

11. I also know Terry Eagle on a professional level as I once recruited him 

 

to operate a snack bar on a temporary basis from mid-May, 2007 through mid-

 

September, 2007, when I needed a blind vendor, in accordance with federal and 

 

state law, to operate a vending facility.  Because of a severe shortage of 

 

licensed blind vendors.  I chose Terry Eagle because of his prior extensive 

 

experience in, and superior knowledge of the Business Enterprise Program, and 

 

his strong desire to return to the program.

 

12. As a snack bar operator Terry Eagle performed in a superior fashion.

 

He completed all tasks necessary to operate the facility successfully and 

 

complied with all the rules and guidelines of the Business Enterprise 

 

Program.

 

13. Following the completion of Terry Eagle’s successful snack bar

 

 assignment, I was instructed by Cheryl Heibeck, Administrative Services 

 

Manager of the Michigan Commission for the Blind and 

 

Constance Zanger, Program Manager of the 

 

Business Enterprise Program  not to utilize Terry Eagle and two other qualified 

 

blind persons to operate program facilities on a temporary basis. 

 

14. That necessitated the employment of untrained sighted person to 

 

operate program food facilities on both a short-term and long-term basis.       

 

15. Federal funds, appropriated for the purpose of placing blind individuals 

 

in employment were diverted and illegally used to employ sighted persons and 

 

set those sighted persons in business with inventory and equipment 

 

maintenance.

 

16. Business inventories provided to sighted persons were severely 

 

compromised and lost because of poor business management by untrained 

 

sighted persons.

 

17. Additionally, many sighted persons operating Business Enterprise 

 

Program facilities failed to make set-aside payments; fees assessed to contribute 

 

to the ongoing operation of the program.  Also sales taxes, unemployment 

 

insurance, worker compensation, health license fees, Social Security and 

 

Medicare contributions, and state and federal withholding were not paid by 

 

sighted operators.  

 

18.   In addition, some cafeterias were arbitrarily reclassified to be a snack 

 

bar to make it possible for certain individuals to continue to operate a certain 

 

facility, after failing to complete requirements for cafeteria certification within the 

 

required time frame.  Also, cafeterias were arbitrarily closed and remain closed to 

 

prevent Terry Eagle or other blind persons from operating them.

 

            11.  The practices above were known to program management, and 

 

were repeated so that  certain sighted operators, when they were moved from 

 

one program facility to another facility, and back to the original facility, leaving 

 

behind a trail of unpaid obligations.  Such practices would not be tolerated of 

 

blind licensees, as a state interest to protect the treasury of the program and the 

 

state.

 

12.   he best interest of the state, the future of the Business Enterprise 

 

Program, and future employment for qualified blind persons is not being served 

 

by the employment of untrained sighted persons, and the exclusion of blind 

 

persons such as Terry Eagle and.            

 

            Further the affiant sayeth not.

 

 

 

                                                                                                                                                                                                                        ___________________________

                                                                        David Robinson

 

 

Sworn and subscribed before me the ______ day of December, 2010.

 

 

__________________________

                                , Notary Public

 

State of Michigan, County of _____________________.

 

My commission expires _____________________.

 

 



UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

______________________________

 

TERRY D. EAGLE,

                        `                                                                   Case No.:   1:10-cv-212  

                        PLAINTIFF.

V                                                                                         Hon. Judge Janet T. Neff

 

PATRICK D. CANNON                                               Hon. Mag. Ellen S. Carmody 

                        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

 

GARY KOSCH

                        Individually

 

                        DEFENDANTS.

______________________________

 

Terry D. Eagle

Plaintiff in Pro Se

2000 Boston Blvd.

Apt. C19

Lansing  MI  48910-2448

Tel:  (517) 372-7552

 

Michael O. King, Jr. (P71345)

Cynthia Anne Arcaro  (P45013)

Attorneys for Defendant Cannon,

Pilarski, Zanger, Hull and Heibeck

Assistant Attorney General

Michigan Dept. of Attorney General
P.O. Box 30736 
Lansing, MI 48909-8236 
Tel:  (517) 373-6434 
______________________________/

 

 

AFFIDAVIT OF TERRY EAGLE

 

            I, Terry Eagle, if called to testify, hereby state that I can competently 

 

Testify with personal knowledge as to the following:

 

1.      I am the plaintiff in the above-captioned cause of action.

 

2.  At all times relevant to this matter I am certified as being blind under 

 

law by a medical doctor specializing in disease of the eye.

 

2.       At all times relevant to this matter I have been unemployed and

 

Actively seeking employment.

 

4.       I have sought employment, among other places, within the 

 

BusinesEnterprise Program as a returning certified cafeteria manager within the 

 

Program with over ten years of employment, prior to corrective eye surgery that 

 

Ave me enough eyesight so that I was no longer blind for purposes of 

 

employment within the program.  I worked in the private employment sector for 

 

several years before glaucoma deteriorated my eyesight to the level of being 

 

certified blind once again, and currently there is no treatment to reverse or 

 

improve vision loss caused by glaucoma.

 

5.        Early in 2006 I learned that there was a severe shortage of qualified 

 

blind cafeteria certified individuals, and in fact, some cafeterias were being 

 

operated by licensed untrained sighted persons, who lacked the most basic 

 

sanitation and food safety training required to operate a food preparation 

 

operation.  So I decided and sought to return to employment within the Business 

 

Enterprise Program.     

 

6.      I was determined to be employment ready by the Rehabilitation

 

Division of the Commission for the Blind, to achieve the employment outcome of 

 

returning to management of a Business Enterprise Program cafeteria, based on 

 

my experience, education, a cafeteria certification.

 

7.       I began bidding on available cafeterias in early 2007, and have 

 

been denied a license each and every time by the defendants, without due 

 

process notice and hearing as required by law.

 

8.        I have made myself available even as a temporary operator, and from 

 

May, 2007 through September, 2007 I successfully operated a snack bar on  a 

 

temporary assignment.  I was imformed by David Robinson that he was told by 

 

Cheryl Heibeck and Constance Zanger to no longer employ me as a 

 

temporary operator.  There was no logical basis for such an instruction.  

 

Meanwhile, I sit availablr willing to be licensed and employed, as cafeterias are 

 

operated by licensed, untrained sighted persons or unqualified employed blind 

 

licensees, or as cafeterias are closed and/or converted to snack bars by the 

 

defendants in order to avoid licensing and placing me in a cafeteria management 

 

position.

 

9.         I have been told by the defendants that their position is that with my 

 

education and experience their belief is that I do not need to be employed in the 

 

Business Enterprise Program, however that is not the law with regard to the 

 

Randolph-Sheppard Act.  The only “need” tests associated with the Act is the “in 

 

need” of employment, as well as “need” to be blind, at least the age of eighteen,, 

 

and “certified” to operate a program facility, of which I meet all of the “need” test 

 

under the Act.

 

10.    As evidenced by the attached two Michigan Attorney General

 

Opions, which are legally binding upon the defendants, the defendants have 

 

been told more than once that blind persons have an “exclusive” right to the 

 

operation food service facilities..  While it is true the opinions speak to state law 

 

and state facilities, the state law and rules were written as a nirror reflection of 

 

the Randolph-Sheppard Act, and often are commonly referred to as the “State” 

 

“Mini” Randolph-Sheppard Act.  This evidence further shows that the law is 

 

clearly established, and the defendants knew or should have known that they 

 

were violating the law and the rights of the plaintiff, and therefore, should not be 

 

granted qualified immunity or summary judgment.

 

11.    Should the pleadings, attached brief, affidavits, attachments and

 

 other evidence in the record is insufficient to demonstrate that the defendants 

 

should be denied qualified immunity, and that there exists genuine issues of 

 

material fact for trial, then additional time should be granted to permit the plaintiff 

 

to produce additional affidavits of affiants and evidence which have not been 

 

available to the plaintiff because of lack of adequate time prior to the required 

 

submission date of this filing.

 

            Further the affiant sayeth not.

 

 

 

                                                                                                                                                                                                                        ___________________________

                                                                        Terry D. Eagle

 

 

Sworn and subscribed before me the ______ day of December, 2010.

 

 

__________________________

                                , Notary Public

 

State of Michigan, County of _____________________.

 

My commission expires _____________________.

 



Attachment – AG Opinion 6882

 

 

STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

 

Opinion No. 6882

November 29, 1995

COMMISSION FOR THE BLIND:

Operators of vending stands in government owned buildings

Blind vending stand operators under the Michigan Commission for the Blind Business Enterprise Program are not state employees.

Lowell W. Perry

Director

Michigan Department of Labor

P.O. Box 30015

Lansing, MI 48909

You have asked if blind vending stand operators under the Michigan Commission for the Blind Business Enterprise Program are state employees. You indicate your question is prompted by the claims of some operators that they are employees of the State of Michigan and, thus, do not have to comply with state laws applicable to employers concerning paying unemployment compensation taxes and providing workers' compensation insurance.

Under 1978 PA 260, MCL 393.351 et seq; MSA 17.581(1) et seq (Act), the Michigan Commission for the Blind operates a program designed to aid blind and visually handicapped individuals. Section 9 of the Act requires that "[a] concession in a building or on property owned or occupied by this state shall be operated by a blind person." I have previously concluded under this Act that blind persons have the exclusive authority to operate concessions in state owned buildings, OAG, 1989-1990, No 6651, p 356, 357 (July 24, 1990), and that the Department of Management and Budget may not charge rent for the operation of a concession by a blind person. OAG, 1981-1982, No 5940, p 279 (August 4, 1981).

In order to carry out the mandates of the Act, the Commission for the Blind has established a Business Enterprise Program (BEP). In section 13 of the Act, the Legislature has also designated the Commission to implement the Randolph Sheppard vending stand act, 20 USC Sec. 107 et seq. This is a federally funded state program that seeks to provide opportunities to blind individuals by placing them in vending facilities in various government buildings. Under section 5(g) of the Act, the Commission for the Blind has promulgated administrative rules to implement the BEP. 1983 AACS, R 393.101 et seq.

This office has been informed that following evaluation, training, and other services, a blind person is placed as an operator in the BEP running a concession in a government building. The operator and the Commission for the Blind enter into a contract that provides, among other things, that the operator will pay a certain percentage of the concession profits to the Commission in what is called a set-aside fee. The Commission, in turn, will provide supervision and advice, needed equipment, and an initial stock of goods. The operator sets his own prices and purchases his own stock after the initial stock is provided.

The operator must obtain a comprehensive liability insurance policy. The operator may hire other individuals as employees and is required to provide workers' disability compensation coverage for any employees hired. Rule 393.107(c).

Under the contract between the operator and the Commission for the Blind, the operator is not paid by the State of Michigan for performing work for the state. Rather, operators receive the proceeds from the operations of their vending facilities after paying their operating costs and set-aside fees. Rule 393.106(2).

If the blind vendors were state employees, it would be necessary for the Civil Service Commission to classify them in the classified state civil service in accordance with Const 1963, art 11, Sec. 5, which provides, in part:

The classified state civil service shall consist of all positions in the state service except those filled by popular election, heads of principal departments, members of boards and commissions, the principal executive officer of boards and commissions heading principal departments, employees of courts of record, employees of the legislature, employees of the state institutions of higher education, all persons in the armed forces of the state, eight exempt positions in the office of the governor, and within each principal department, when requested by the department head, two other exempt positions, one of which shall be policy-making. The civil service commission may exempt three additional positions of a policy-making nature within each principal department.

It has been held that except to the extent that a position may be exempt under this section, all employees of the state are required to be classified into the state civil service. Commissioner of Insurance v Michigan State Accident Fund, 173 Mich App 566, 582; 434 NW2d 433 (1988), lv den 433 Mich 872 (1989). The position of vending stand operator has never been exempted from the classified state civil service or classified in the state civil service by the Civil Service Commission.

Blind concession operators are included within the state employees' retirement system. Section 13a of 1943 PA 240, MCL 38.13a; MSA 3.981(13a) provides in part:

Effective January 1, 1973, blind or partially sighted persons licensed as vending stand operators within the controlled programs of the bureau of blind services are deemed to be employees within the meaning of this act for state retirement purposes only, and except as hereinafter provided are entitled to all the rights and benefits of state employees covered by the provisions of this act. [ Emphasis added.]

The language "for state retirement purposes only" evidences an intent that blind vending stand operators are not considered state employees for general purposes.

It is clear that blind vending operators in the BEP are clients rather than employees of the Michigan Commission for the Blind. With the exception of those services provided by the Commission in accordance with the Act and implementing administrative rules, the operators are independent concessionaires with the authority, in their capacities as employers, to employ other persons.

It is my opinion, therefore, that blind vending stand operators under the Michigan Commission for the Blind Business Enterprise Program are not state employees.

Frank J. Kelley

Attorney General

 

State of Michigan, Department of Attorney General
Last Updated 11/10/2008 15:49:34

 

 



Attachment – AG Opinion 6651

STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

 

Opinion No. 6651

July 24, 1990

BLIND PERSONS:

Operation of concessions in state-owned buildings leased to private corporations

TRANSPORTATION, DEPARTMENT OF:

Authority to charge rent to a blind concessionaire

A concession in a bus terminal facility owned by the Michigan Department of Transportation and leased by Greyhound Lines, Inc., must be operated by a blind person.

The Michigan Department of Transportation may not charge rent to a blind concessionaire in a bus terminal facility.

James P. Pitz

Director

Department of Transportation

425 West Ottawa

Lansing, Michigan 48913

You have asked for my opinion on two questions which may be phrased as follows:

1. Must a concession in a bus terminal facility be operated by a blind person if the terminal facility is owned by the Michigan Department of Transportation and leased by Greyhound Lines, Inc.?

2. Assuming that such a concession must be operated by a blind person, may the Michigan Department of Transportation charge rent to the blind concessionaire?

You explained the circumstance giving rise to your request as follows:

A bus terminal facility being constructed by the Michigan Department of Transportation will be owned by the Michigan Department of Transportation and leased to Greyhound Lines, Inc., as their Detroit terminal location. The land on which the bus terminal facility is being constructed was purchased by the Michigan Department of Transportation from the Department of Management and Budget for $950,000.00. With Greyhound Lines, Inc., conducting their transportation services operation out of the building, the Department estimates that:

"... some 500,000 members of the general public will utilize the building annually. In addition to this activity, the second floor of this building will house the Michigan Department of Transportation SCANDI operations which will require 25 to 30 employees. Primary use of the facility in terms of sheer numbers will be general public as compared to state employees.... A tobacco/news stand, as well as some sort of dining area (be it a cafeteria or a sit-down restaurant) could be part of this new facility since those are services attendant to the travel needs of the type of general public being served...."

With respect to your first question, Section 9 of 1978 PA 260, MCL 393.359; MSA 17.581(9) mandates:

"A concession in a building or on property owned or occupied by this state shall be operated by a blind person, regardless of race, creed, color, sex, marital status, or religious preference, except in cases provided for in section 10. The building division of the department of management and budget shall submit plans relative to concessions in state buildings or on state property to the commission, which shall have the final authority relative to the location of concessions." (Emphasis added.)

The exceptions contained in section 10 of the statute do not apply to a bus facility owned by the Michigan Department of Transportation.

A reading of MCL 393.359; MSA 17.581(9) reveals that a concession in a building or on property either owned or occupied by the State shall be operated by a blind person. Since the bus terminal facility will be owned by the Michigan Department of Transportation, a State department, any concession that operates in the bus terminal facility shall be operated by a blind person.

To determine what constitutes a "concession," reference must be made to the definitions set forth in MCL 393.351(c), (f); MSA 17.581(1)(c), (f):

"(c) 'Concession' means equipment or location which is being used, or may be used to sell retail confections, tobaccos, papers, periodicals, and other like merchandise, coffee, milk, soft drinks, wrapped ice cream, wrapped sandwiches, wrapped baked goods, packaged salads and other similar food items. It includes the operation of 'quickie lunch counters' for the dispensing of prepared foods in state buildings and vending facilities."

"(f) 'Vending facility' means an automatic vending machine, cafeteria, snack bar, cart service, shelter, counter, or any other appropriate auxiliary equipment as the director may prescribe by rule as being necessary for the sale of articles or services described in this act and which may be operated by a blind licensee." (Emphasis supplied.)

A tobacco/news stand or cafeteria falls within the definition of "concession" and must be operated by a blind person.

In answer to your first question, it is my opinion that a concession in a bus terminal facility owned by the Michigan Department of Transportation and leased by Greyhound Lines, Inc. must be operated by a blind person.

Since any concessions that are included in the bus terminal facility must be operated by a blind person, your second question must also be addressed.

Const 1963, art 9, Sec. 9, vests in the Legislature the authority to define by law what shall constitute "comprehensive transportation purposes" for which the funds restricted by that constitutional provision may be expended.

1951 PA 51, MCL 247.651, et seq; MSA 9.1097(1), et seq, is the law which implements Const 1963, art 9, Sec. 9. It creates a comprehensive transportation fund to be administered by the Michigan Department of Transportation. The fund is to finance "comprehensive transportation purposes," which has been defined at MCL 247.660c(h); MSA 9.1097(10d)(h), to include:

"... [T]he movement of people and goods by publicly or privately owned ... bus ..."

Furthermore, section 14 of the State Transportation Preservation Act of 1976, MCL 474.64; MSA 22.180(34), authorizes the Michigan Department of Transportation to:

"... purchase intercity bus equipment and related station and servicing facilities.... The department may acquire equipment and facilities to be utilized by intercity bus ... operations, under terms and conditions determined by the department."

Consistent with the above constitutional and statutory framework, funding authority for the Michigan Department of Transportation to construct and operate a bus terminal facility can be found as a line item in section 101 of the Department of Transportation Appropriations Act, 1989 PA 54, which appropriates $3,000,000 for intercity passenger terminals. Thus, the Michigan Department of Transportation has the constitutional and statutory authority to construct and operate a bus terminal facility.

The question that remains, therefore, is whether the Michigan Department of Transportation can impose terms and conditions requiring concessionaires in the bus terminal facility to pay rent to cover the cost of the long term maintenance of the facility.

This office has been informed that the historical practice has been that blind persons have not been charged rent to operate concessions in state buildings. Furthermore, OAG, 1981-1982, No 5940, p 279 (August 4, 1981), concluded that the Department of Management and Budget did not have authority pursuant to 1952 PA 53 to charge rent for the operation of a concession by a blind person in a state office building.

The title to 1978 PA 260, MCL 393.351 et seq; MSA 17.581(1) et seq; the statute requiring that concessions in state buildings be operated by blind persons, provides that it is:

"AN ACT to revise and codify the laws relating to blind persons and visually handicapped; to create a commission; to prescribe its powers and duties and those of other state agencies relative to blind persons; to provide services, education, training, and assistance to blind persons; to regulate concessions operated by blind persons; to transfer powers, duties, functions, and appropriations; and to repeal certain acts and parts of acts." (Emphasis supplied.)

Pursuant to this statute, the Commission for the Blind has the authority to regulate concessions operated by blind persons, to determine the location of concessions and to determine the qualifications to be an operator of a concession. See Secs. 5(f), 9 and 11 of 1978 PA 260, MCL 393.355; MSA 17.581(5); MCL 393.359; MSA 17.581(9); MCL 393.361; MSA 17.581(11). The Legislature has granted the Commission for the Blind substantial authority to regulate concessions operated by blind persons. In contrast, the Legislature has not granted the Michigan Department of Transportation any express statutory authority to charge rent to a blind concessionaire.

Given the historical practice of not charging rent to blind concessionaires, the prior opinion of this office that the Department of Management and Budget lacked authority to charge such rent, the substantial authority the Legislature has granted the Commission for the Blind to regulate concessions operated by blind persons, and the lack of any express statutory authority on the part of the Michigan Department of Transportation to charge this rent, it must be concluded that the Michigan Department of Transportation may not charge rent to a blind concessionaire in a bus terminal facility.

It is my opinion, therefore, that the Michigan Department of Transportation may not charge rent to a blind concessionaire in a bus terminal facility.

Frank J. Kelley

Attorney General

http://opinion/datafiles/1990s/op06651.htm    
State of Michigan, Department of Attorney General
Last Updated 11/10/2008 15:49:34

 

 

 

 

 

 



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[1]   Data Processing Svc. Orgs, v Camp, 397 U.S. 150, 90 S.Ct. 827, 

    25   L.Ed.2d 184 (1970).

[2]   Barlow v Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).

[3]   397 U.S.C. at 152-153.

[4]   397 U.S.C. at 153-156. 

[5]   397 U.S.C. at 151-156, 157.

[6]   397 U.S.C. at 150, 164-167.

[7]   397 U.S.C. at 164.

[8]   5 U.S.C. 701 (a) (1964 ed., Supp. IV); 397 U.S.C. at 165-165.

[9]   397 U.S.C. 165-167.

[10]   Suerra Club v Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). 

[11]   405 U.S. 732-33.

[12]   20 U.S.C. 107 et. Seq.

[13]   42 U.S.C. 794 et. Seq.

[14]  Tenn. Dept. of Human Serv. v United States Dept. of Educ., 979 F.2d 1162, 1167 (6th Cir. 1992). 

[15]  20 U.S.C. 107, et. Seq.

[16]  29 U.S.C. § 794 et. Seq.

[17]  Cady v Arenac County, 574 F.3d 334 (6Th Cir. 2009). 

[18]  Ferritto v Ohio Dept. of Highway Safety, 1991 U.S. App. LEXIS 4709 (6th Cir. Mar 19, 1991). 

[19]  20 U.S.C. 107(a).

[20]  Wilkerson v Johnson, 699 F.2d 325 (6th Cir. 1983).

[21]  Michigan APA, (1969) , M.C.L. 24.271, 24.291, 24.292.

[22]  Malone v Colyer,  710 F.2d 258 (6th Cir. 1983).

[23]   P.A. 260 ;f 1978, as amended, bein MCL 393.351 – 393.369.

[24]   Rehabilitation Act of 1973, as amended, being 29 U.S.C. § 794.

[25]   Michigan Administrative Procedures Act, being MCL 24.291.



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