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

Tonya Smith tonyasmith75 at live.com
Mon Jan 17 04:02:22 UTC 2011


Hey Joe. Let me ask you this, this is Tanya? Are you a lawyer? Have you started law?. Or have you. You know, have you been studying in that field or. You've been, you know, watching too much (??). I don't know. I mean, I'm not making fun of you. I'm just wondering because there's a lot of people who think they know at all and what not and, you know, stuff like that and I don't know. I. I'm just kinda wondering about all this because people who like that, man, they scare me because I have known people like that who tried to (win?) me up, you know, on something and stop like that and it's like prove it, you know. I mean, I mean prove that you know what you're talking about. You know and. I don't know

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> Original Message:
> ---------------------------------
> 
> From: joe harcz Comcast <joeharcz at comcast.net> 
> Sent: January 16, 2011 10:18:27 PM
> To: NFB of Michigan Internet Mailing List <nfbmi-talk at nfbnet.org>
> Subject: Re: [nfbmi-talk] ag response to eagle v. cannon, et al
> 
> 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
> > _______________________________________________
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> 
> 
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