Roadway Exp., Inc. v. Donovan, Civ. A. No. C85-997A.

• Decision Date: 11 February 1985
• Docket Number: Civ. A. No. C85-997A.
• Citation: 603 F. Supp. 249
• Parties: ROADWAY EXPRESS, INC., a Delaware corporation, v. Raymond J. DONOVAN, Secretary of Labor; Alan C. McMillan, Regional Administrator, Region Four, United States Department of Labor.
• Court: U.S. District Court — Northern District of Georgia

603 F. Supp. 249

ROADWAY EXPRESS, INC., a Delaware corporation, v. Raymond J. DONOVAN, Secretary of Labor; Alan C. McMillan, Regional Administrator, Region Four, United States Department of Labor.

Civ. A. No. C85-997A.

United States District Court, N.D. Georgia, Atlanta Division.

February 11, 1985.

John B. Gamble, Jr., Fisher & Phillips, Atlanta, Ga., for plaintiff.

J. William Boone, Asst. U.S. Atty., Atlanta, Ga., James L. Stine, David E. Jones, U.S. Dept. of Labor, Atlanta, Ga., for defendant.

ORDER

TIDWELL, District Judge.

The above-styled action is presently before the court on the plaintiff's motion for a temporary restraining order or for a preliminary injunction to order the defendants to withdraw that portion of the Secretary of Labor's preliminary order which requires the plaintiff to reinstate previously discharged employee Jerry W. Hufstetler. The plaintiff contends that the preliminary order is unconstitutional because it violates the plaintiff's right to procedural due process as guaranteed by the Fifth Amendment to the United States Constitution. After a hearing the parties have agreed that the present motion be treated as a motion for preliminary injunctive relief.

Prior to his dismissal on November 22, 1983, Jerry Hufstetler worked as a driver for the plaintiff. He was dismissed for allegedly intentionally creating a breakdown of his vehicle in order to collect compensation for the time he spent awaiting repair of the vehicle. Five days later Hufstetler filed a grievance, alleging that he had been discharged without just cause, in violation of the National Master Freight Agreement ("NMFA"). A NMFA arbitration panel considered the testimony presented by both Hufstetler and the plaintiff. The panel was composed of an equal number of representatives from a company and a union, none of which was a representative of the plaintiff. The panel rejected Hufstetler's claim that he had been dismissed in retaliation for his reporting of safety violations and determined that he had committed an act of dishonesty.

Subsequently Hufstetler contacted the Department of Labor and claimed that he had been dismissed for reporting safety violations, in violation of the Surface Transportation Assistance Act of 1982, 49 U.S.C. § 2305. The Secretary then conducted an investigation and determined that there was reasonable cause to believe that Hufstetler's complaint had merit. On January 21, 1985, the Secretary issued a preliminary order that required the plaintiff, inter alia, to pay backpay and to reinstate Hufstetler.

The plaintiff contends that the Secretary's preliminary order, issued pursuant to 49 U.S.C. § 2305(c)(2)(A), violates its right to procedural due process and causes the plaintiff to experience irreparable harm. Section 2305(c)(2)(A) provides that after the Secretary has issued a preliminary order either the employee or the employer within thirty days may file objections to the preliminary order and request a hearing, which is to be "expeditiously conducted." The statute specifically states that the request for a hearing does not stay that portion of the preliminary order that provides for reinstatement of an employee. After the conclusion of the requested hearing, the Secretary is to issue a final order within one hundred and twenty days.

To be entitled to preliminary injunctive relief, the movant must prove four elements: (1) there is a substantial likelihood that the movant will prevail on the merits; (2) the movant will suffer irreparable injury unless the injunction issues; (3) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction would not be adverse to the public interest. See Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir.1984). The requirement that the movant make a showing that there is a substantial likelihood of prevailing on the merits does not mean that the movant must actually succeed on the merits. See Johnson v. United States Department of Agriculture, 734 F.2d 774, 782 (11th Cir.1984). The issue is "likelihood" of success. Id.

"Due process is flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). "At a minimum, due process assures notice and a meaningful opportunity to be heard before a right or interest is forfeited." Johnson, 734 F.2d at 782. In Mathews, 424 U.S. at 335, 96 S.Ct. at 903, the United States Supreme Court stated that three factors should be considered in determining the scope of due process:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The balancing test outlined in Mathews requires a court to consider various factors. Although due process generally requires an opportunity for "some kind of hearing" prior to the deprivation of a significant property interest, a deprivation is not unconstitutional if the "potential length or severity of the deprivation does not indicate a likelihood of serious loss and where the procedures underlying the decision to act are sufficiently reliable to minimize the risk of erroneous determination." Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 19, 98 S.Ct. 1554, 1565, 56 L.Ed.2d 30 (1978). Deprivation is also permissible if it is necessary to prevent imminent danger to the public. See Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 300, 101 S.Ct. 2352, 2372, 69 L.Ed.2d 1 (1981); Burnley v. Thompson, 524 F.2d 1233, 1241 (5th Cir.1975).

Although no appellate court has examined the constitutionality of 49 U.S.C. § 2305(c)(2)(A), a federal district court has considered the constitutionality of regulations similar to the statute in the present case. See Southern Ohio Coal Company v. Donovan, 593 F.Supp. 1014, 1022-24 (S.D.Ohio 1984) ("Southern Ohio"). In Southern Ohio an employer challenged the constitutionality of procedures employed by the Mine and Health Review Commission, 29 C.F.R. §§ 2700 et seq. The employer contended that it was deprived of procedural due process when the Commission issued an ex parte order reinstating a discharged coal miner who had been dismissed for excessive absenteeism and who had alleged that he was discharged in violation of federal mine safety laws. The challenged regulations provided that when the Secretary issues an order of temporary reinstatement the employer may request a hearing and that a judge is to hold the requested hearing within five days. After considering the constitutionality of the regulations, the court declared that a hearing provided to an employer after five days of compelled reinstatement failed to meet the requirements of procedural due process, as articulated by the Supreme Court in Mathews. In an earlier decision involving the same parties, the court had granted injunctive relief to the employer who sought to enjoin enforcement of the order requiring reinstatement. See Southern Ohio Coal Company v. Marshall, 464 F.Supp. 450, 456 (S.D.Ohio 1978).

For relief to be proper in the present case, the plaintiff must satisfy the four elements of preliminary injunctive relief. The court will consider the elements seriatim.

1. Likelihood of Success on the Merits

The plaintiff's challenge to the constitutionality of 49 U.S.C. § 2305(c)(2)(A) requires this court to consider the three factors articulated by the Supreme Court in Mathews: the private interest affected by the government's action, the risk of erroneous deprivation, and the government's interest. 424 U.S. at 335, 96 S.Ct. at 903. In determining the plaintiff's interest, the court recognizes that property interests "are not created by the Constitution, but rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Arnett v. Kennedy, 416 U.S. 134, 151, 94 S.Ct. 1633, 1643, 40 L.Ed.2d 15 (1974), quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The...