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

joe harcz Comcast joeharcz at comcast.net
Sun Jan 16 21:18:27 CST 2011


I thought so as well. Of course, I also think there are some issues of both 
the "supremacy clause" and the "spending clause" of the U.S. Constitution at 
play here as we're discussing both the Rehabilitation Act and the 
Randolph-Shepard Act.

I also think that Mr. Eagle's counters were deft, properly cited, and in a 
word "brilliant". Terry would indeed as the Assistant Attorney General did 
point out with prior arguments would make an able attorney at law.

But, all of the arguments made by the A.G.'s ofdfice on all its cases have 
been stated at cross purposes and are openly contradictory to each other. I 
do think that others should employ these things in their own cases.

Peace Only Commes with Justice,

Joe
----- Original Message ----- 
From: "Christine Boone" <christine_boone at comcast.net>
To: "NFB of Michigan Internet Mailing List" <nfbmi-talk at nfbnet.org>
Sent: Sunday, January 16, 2011 9:46 PM
Subject: Re: [nfbmi-talk] ag response to eagle v. cannon, et al


the attorney for the defendant might want to spend some time reading the 
Rehabilitation Act of 1973 as amended.  The arguments set forth here cannot 
stand againsty the clear and plain language thereof.

 defendant's assertion that Terry does not  qualify for further expenditures 
under the  Actand must therefore pay for his own BEP training,  is quite 
remarkable.
On Jan 13, 2011, at 3:20 PM, joe harcz Comcast wrote:

>
>
> 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
> _______________________________________________
> nfbmi-talk mailing list
> nfbmi-talk at nfbnet.org
> http://www.nfbnet.org/mailman/listinfo/nfbmi-talk_nfbnet.org
> To unsubscribe, change your list options or get your account info for 
> nfbmi-talk:
> http://www.nfbnet.org/mailman/options/nfbmi-talk_nfbnet.org/christine_boone%40comcast.net


_______________________________________________
nfbmi-talk mailing list
nfbmi-talk at nfbnet.org
http://www.nfbnet.org/mailman/listinfo/nfbmi-talk_nfbnet.org
To unsubscribe, change your list options or get your account info for 
nfbmi-talk:
http://www.nfbnet.org/mailman/options/nfbmi-talk_nfbnet.org/joeharcz%40comcast.net 





More information about the nfbmi-talk mailing list