Marshall v. Gordon Trucking, Inc.

Filing 45

Opinion and Order. The Court GRANTS Defendant's Motion 28 for Summary Judgment and REFERS the matter to the Department of Transportation for further administrative proceedings. The Court retains jurisdiction over this case pending the availa ble administrative process and STAYS this action pending the outcome of that process. The Court DIRECTS the parties to file a joint status report beginning 120 days from the date of this Opinion and Order and every 120 days thereafter regarding the status of the administrative process and to advise the Court immediately when the administrative process is complete. Signed on 10/17/2016 by Judge Anna J. Brown. See attached 21 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

STEVEN D. MARSHALL,
Plaintiff,

3:12-cv-01550-BR
OPINION AND ORDER

v.
GORDON TRUCKING, INC.,
Defendant.

ERIC J. FJELSTAD
Smith & Fjelstad
722 N. Main Avenue
Gresham, OR 97030
[phone]
Attorneys for Plaintiff
CHRISTINE A. SLATTERY
SCOTT OBERG OBORNE
Jackson Lewis LLP
1001 S.W. 5th Ave., Suite 1205
Portland, OR 97204
[phone]
Attorneys for Defendant
BROWN, Judge.
This matter comes before the Court on remand from the Ninth
Circuit dated June 1, 2016, regarding this Court's Opinion and
1 - OPINION AND ORDER

Order (#35) issued October 30, 2013, granting Defendant Gordon
Trucking Inc.'s Motion (#28) for Summary Judgment.

The Ninth

Circuit found this Court "understandably treated" Defendant's
Motion as an "unenumerated 12(b) motion" under the then-existing
case law and evaluated Defendant's Motion under that standard.
On remand the Ninth Circuit instructed the Court to follow
Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), which was

announced six months after this Court's decision on Defendant's
Motion.

In Albino the Ninth Circuit held a failure to exhaust

administrative remedies "is an affirmative defense that should
normally be raised through a summary judgment motion" and
evaluated under the applicable standard for such motions.
In addition, the Ninth Circuit held this Court erred when it
found it did not have subject-matter jurisdiction because of
Defendant's failure to exhaust his remedies under the United
States Department of Transportation (DOT) Federal Motor Carrier
Safety Administration regulations.

The Ninth Circuit also

directed this Court to consider whether to exercise its
discretion to excuse exhaustion or to invoke the doctrine of
primary jurisdiction.
Defendant moves for summary judgment on the grounds that
(1) Plaintiff Steven D. Marshall failed to exhaust the DOT
administrative remedies and (2) Plaintiff cannot prove he is a
"qualified individual" under the Americans with Disability Act

2 - OPINION AND ORDER

(ADA), 42 U.S.C.

§

12111.

For the reasons that follow, the Court GRANTS Defendant's
Motion.

FACTUAL BACKGROUND

The following facts, as set forth in the Court's Opinion and
Order (#35)

issued October 30, 2013, are undisputed unless

otherwise noted:
Defendant is an interstate long-haul trucking company based
in Pacific, Washington.

As an interstate carrier Defendant is

required to comply with federal regulations promulgated by the
DOT.
In December 2010 Defendant purchased Plaintiff's former
employer, Cascade Express.

Plaintiff applied for a position with

Defendant and was given a conditional job offer.

To complete the

application process Plaintiff was required to have a DOT medical
examination in order to be certified as medically qualified to
drive for Defendant.

Dr. Christopher Swan conducted the medical

examination, during which Plaintiff disclosed he suffered from a
bipolar disorder and was taking the medication lithium to treat
his illness.

In spite of Plaintiff's disclosure, Dr. Swan issued

a medical-examiner's certificate indicating Plaintiff was

3 - OPINION AND ORDER

physically qualified to drive a commercial vehicle.

Defendant

reviewed the results of Dr. Swan's medical examination and the
certificate of physical qualification.

Defendant also consulted

with its retained physician, Dr. Stephen Sorsby, to determine
whether Plaintiff was medically qualified to drive under DOT
regulations while taking lithium.

At that time Dr. Sorsby was

the Regional Medical Director at U.S. HealthWorks and a
specialist regarding DOT-regulated drivers.
Dr. Sorsby disagreed with Dr. Swan's conclusion that
Plaintiff was qualified to drive commercial vehicles.

Although

lithium is not a substance banned under DOT regulations,
Dr. Sorsby concluded Plaintiff was not medically qualified to be
a commercial driver under DOT regulations because Dr. Sorsby
believes lithium has a propensity to cause night blindness.

As a

result, Defendant excludes all individuals who take lithium from
driving a commercial motor vehicle for Defendant.

Defendant,

therefore, told Plaintiff that he was disqualified under DOT
regulations from driving for Defendant while taking lithium.
Defendant suggested Plaintiff speak with his personal physician
about an alternative medication.

Shortly thereafter Plaintiff

informed Defendant that his doctor refused to take him off of
lithium.

4 - OPINION AND ORDER

Defendant then terminated 1 Plaintiff's employment in light
of Dr. Sorsby's opinion that Plaintiff was not medically
qualified to drive commercial vehicles under DOT regulations
because Plaintiff was taking lithium.

PROCEDURAL BACKGROUND

In November 2011 Plaintiff filed a claim with the Oregon
Bureau of Labor and Industries (BOLI).

The filing of his claim

was, in effect, a joint filing with the federal Equal Employment
Opportunity Commission (EEOC) pursuant to a work-sharing
agreement between BOLI and EEOC.

In June 2012 the EEOC sent

Plaintiff a Right to Sue notice.
DOT regulations provide appeal procedures when there is a
"disagreement between the physician for the driver and the
physician for the motor carrier concerning the driver's
qualifications."

4 9 C. F. R.

§

391. 4 7 (b) ( 2) .

Nevertheless, even

though there was a disagreement between Plaintiff's physician and
Defendant's physician as to Plaintiff's qualifications, Plaintiff
did not seek a determination from DOT as to his medical

1

The Joint Statement of Agreed Facts (#26) states in FN 2:
"Although Plaintiff has alleged he was terminated, Plaintiff's
end of employment was more akin to a withdrawal of the
conditional job offer.
Plaintiff never drove for Gordon
Trucking.
Regardless, it is undisputed that Plaintiff was not
permitted to drive for Gordon Trucking by virtue of being
medically disqualified under DOT regulations." For purposes of
this Motion, therefore, the Court will refer to Plaintiff as
being "terminated."
5 - OPINION AND ORDER

qualifications to drive commercial vehicles pursuant to 49 C.F.R.
§

391.47.
Plaintiff filed this action against Defendant on August 28,

2012, asserting a claim for disability discrimination under the
Americans with Disability Act (ADA), 42 U.S.C.

§

12111.

Plaintiff seeks relief under three separate counts:

disparate

treatment (Count One), failure to engage in interactive process
(Count Two), and failure to accommodate (Count Three).
Defendant filed its original Motion (#28) for Summary
Judgment on June 24, 2013.

On October 30, 2013, the Court

granted Defendant's Motion and entered a Judgment on October 31,
2013, dismissing Plaintiff's action for lack of jurisdiction.
November 19, 2013, Plaintiff filed a Notice of Appeal to the
Ninth Circuit.
As noted, the Ninth Circuit issued its Mandate on June 1,
2016, reversing and remanding this case.

On July 29, 2016, the

Court again took Defendant's Motion for Summary Judgment under
advisement pursuant to the standards specified in that Mandate.

STANDARDS

Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."
States,

Washington Mut.

636 F.3d 1207, 1216 (9th Cir. 2011).

6 - OPINION AND ORDER

Ins. v. United
See also Fed. R.

On

Civ. P. 56(a).

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.

Id.

"This burden is not a light one

The non-moving party must do more than show there is
some 'metaphysical doubt' as to the material facts at issue."

In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine ''if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby,
Inc.,

477 U.S. 242, 248

(1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc.,

606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
381 F. 3d 948, 957

Easter v. Am. W.

(9th Cir. 2004) (citation omitted).

Fin.,

A "mere

disagreement or bald assertion" that a genuine dispute as to a
material fact exists "will not preclude the grant of summary
judgment."

Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
7 - OPINION AND ORDER

(citing Harper v. Wallingford,
1989)).

877 F.2d 728, 731

(9th Cir.

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009) (citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.

Prod., Inc.,

454 F.3d 975, 987

Miller v. Glenn Miller

(9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION

As noted, the failure to exhaust administrative remedies is
an affirmative defense that must be pled and proved by a
defendant.

Albino, 747 F.3d at 1168.

A defendant has the

initial burden to prove that there is an available administrative
remedy and that the plaintiff did not exhaust that available
remedy.

After the defendant has carried that burden, the

plaintiff must produce evidence showing there is something in his
particular case that made the existing and generally available
administrative remedy effectively unavailable to him.

Albino,

747 F.3d at 1172.
If the court determines the plaintiff has failed to exhaust
the administrative remedies available to him, the court may
8 - OPINION AND ORDER

excuse the plaintiff's failure or, in the exercise of its
discretion, invoke primary jurisdiction and direct the parties to
proceed before the agency.
I.

Defendant has shown an administrative remedy is available to
Plaintiff.

Congress has given the Secretary of Transportation the power
to prescribe the qualifications for drivers of commercial motor
carriers.

49 U.S.C.

§

31102(b)(l)(C).

The DOT sets minimum

standards for commercial drivers with respect to hiring,
qualifications, and safety.

See 49 C.F.R.

§

391.1, et seq.

As

noted, because Defendant is an interstate trucking company, it is
required to comply with DOT regulations.
"a motor carrier shall not .

Under these regulations

. permit a person to drive a

commercial motor vehicle unless that person is qualified to
drive" under the physical-qualification standards.
§

391.ll(a).

49 C.F.R.

When a dispute arises regarding a driver's medical

qualification based on a conflict of medical opinion, the DOT has
established an administrative process to address the dispute
under 49 C.F.R.

§

391.47.

The Ninth Circuit has not addressed the issue of a
plaintiff's failure to exhaust DOT administrative remedies in an
ADA case.

In Harris v. P.A.M. Transp., Inc., the leading case on

this issue, the Eighth Circuit explained the applicable DOT
regulations regarding the driver physical-qualification
requirements and the administrative procedure for settling
9 - OPINION AND ORDER

disputes as follows:
Congress has delegated to the Secretary of
Transportation the authority to prescribe
driver qualifications.
See 49 U.S.C.
§ 31102 (b) (1).
Pursuant to this authority,
the DOT promulgated the Federal Motor Carrier
Safety Regulations, under which a person
"shall not drive a commercial motor vehicle"
without a "medical examiner's certificate
that [the person] is physically qualified.''
49 C.F.R. § 391.41(a).
Specifically, ''the
medical examiner is required to certify that
the driver does not have any physical,
mental, or organic condition that might
affect the driver's ability to operate a
commercial motor vehicle safely." 49 C.F.R.
§ 391.43(f).
And, most importantly in this
case, DOT regulations provide appeal
procedures for instances of "disagreement
between the physician for the driver and the
physician for the motor carrier concerning
the driver's qualifications.'' 49 C.F.R.
§ 391.47 (b) (2).
339 F.3d 635, 638

(8th Cir. 2003).

The Court notes a plaintiff who contends his motor-carrier
employer violated his rights under the ADA is not specifically
required under any statute to exhaust the administrative remedies
provided under 49 C.F.R.

§

391.47 nor does 49 C.F.R.

refer specifically to ADA or discrimination claims.

§

391.47

Courts

following Harris have, nevertheless, found it prudent to impose
an exhaustion requirement because of the DOT's greater competence
in determining when its safety-regulation requirements are being
met.

See, e.g., EEOC v. P.A.M. Transp., Inc., No. 09-13851, 2011

WL 3919300 (E.D. Mich. May 10, 2011); Cliburn v. CUSA KBC, LLC,
No. SA-07-CV-0620, 2007 WL 4199605 (W.D. Tex. Nov. 25, 2007);
10 - OPINION AND ORDER

EEOC v. Celadon Trucking Serv., Inc., No. 1:12-cv-00275, 2015 WL
3961180 (S.D. Ind. June 30, 2015).

The Harris court noted:

Federal courts addressing claims similar to
[the plaintiff's] have held that
"[e]xhaustion of DOT procedures should be
required" in these circumstances because
driver fitness "falls squarely within the
regulatory scheme (and substantive expertise)
of DOT." Campbell v. Federal Express Corp.,
918 F. Supp. 912, 918 (D. Md. 1996).
See
also Prado v. Continental Air Transp. Co.,
982 F. Supp. 1304, 1308 (N.D. Ill. 1997) ("The
court will not abrogate clear congressional
intent which vests driver fitness issues in
the Secretary of Transportation.").
We
agree.
Id.

This Court agrees with the analysis in Harris and the cases

that follow it.

Here, as noted, to satisfy DOT requirements,

Plaintiff's physician performed a medical examination of
Plaintiff and issued a medical-examiner's certificate indicating
Plaintiff was medically qualified to drive a commercial vehicle.
Defendant's medical examiner disagreed and determined Plaintiff
was not medically qualified to drive as a result of his use of
lithium and its propensity to cause night blindness.

The Court

concludes this resulting "disagreement" concerning Plaintiff's
"ability to operate a commercial motor vehicle safely" should
have been resolved pursuant to the administrative process set out
in 49 C.F.R.

§

391.47.

On this record, therefore, the Court, adopting the reasoning
of Harris, concludes there is not a genuine dispute of material
fact that an administrative process exists to resolve the dispute
11 - OPINION AND ORDER

as to Plaintiff's medical qualifications to drive a commercial
vehicle.
II.

Defendant has shown Plaintiff did not exhaust the available
administrative remedies provided under 49 C.F.R. § 391.47.

With respect to Defendant's duty to establish that Plaintiff
failed to exhaust the available administrative remedy, the
parties' Joint Statement of Agreed Facts (#26)

indicates

"Defendant never received information that Plaintiff sought a
determination from the DOT of his medical qualifications pursuant
to 49 C.F.R.

§

391.47(a), and there is no evidence in the record

he has ever done so."
The Court, therefore, concludes it is undisputed that
Plaintiff did not exhaust the administrative remedies available
to him pursuant to 49 C.F.R.

§

391.47.

III. Plaintiff has not shown his failure to exhaust the available
administrative remedies was because those remedies were, in
effect, "unavailable" to him.

As noted, after a defendant has carried its burden to
establish the availability of and failure to exhaust
administrative remedies, a plaintiff has the burden to produce
evidence that shows there is something in his particular case
that made the existing administrative remedies effectively
unavailable to him.

See Albino, 747 F.3d at 1172.

Here

Plaintiff contends the Court should excuse his failure to exhaust
the available administrative process because such process would
have been futile and, in any event, he was a qualified person
12 - OPINION AND ORDER

with a disability who Defendant discriminated against in
violation of the ADA.
A.

Plaintiff has not shown the administrative procedures
under 49 C.F.R. § 391.47 were unavailable to him as a
practical matter.

Plaintiff contends when Defendant terminated him,
Defendant merely invoked its own policy that prohibited lithium
use by its drivers rather than any particular DOT regulation that
prohibits the use of lithium by commercial drivers.

Plaintiff

argues, therefore, the dispute does not turn on the disagreement
of medical examiners as required by the administrative process,
but instead on the application of Defendant's rules rather than
DOT regulations.

Defendant, however, asserts the decision to

terminate Plaintiff was based on the opinion of Dr. Sorsby,
Defendant's medical examiner, that Plaintiff was not medically
qualified to drive under DOT regulations as a result of
Plaintiff's use of lithium, a medication that Dr. Sorsby believed
had the side- effect of causing night blindness.
DOT regulations provide a person is medically
disqualified if he has a "mental, nervous, organic, or functional
disease or psychiatric disorder likely to interfere with his/her
ability to drive a commercial motor vehicle safely."
§

391.4l(b) (9).

49 C.F.R.

Here it is undisputed that Plaintiff takes

lithium for the treatment of his bipolar disorder.

Plaintiff's

physician, Dr. Swan, although aware of Plaintiff's use of lithium

13 - OPINION AND ORDER

to treat his illness, issued a medical-examiner's certificate
indicating Plaintiff was medically qualified to drive a
commercial vehicle pursuant to DOT regulations.

Dr. Sorsby,

Defendant's retained physician, provided his opinion that
Plaintiff is not medically qualified to drive pursuant to DOT
regulations because night-blindness, which could interfere with
Plaintiff's ability to drive safely, is a possible side-effect of
lithium.
In the Joint Statement of Agreed Facts (#26) the
parties agreed, in effect, that the issue at the heart of this
matter is precisely the type of disagreement that the DOT
administrative process is designed to address:

"Dr. Sorsby

disagreed with Dr. Swan's conclusion that Plaintiff was qualified
to drive commercial vehicles.

Despite Plaintiff's

disclosure that he was taking lithium, Dr. Swan issued
Plaintiff a medical examiner's certificate of physical
qualifications.

[I]n [Dr. Sorsby's] opinion, Plaintiff was

not medically qualified to drive pursuant to DOT regulations
because of the lithium he was taking."

Thus, as noted, the

opinions of the two physicians resulted in a conflict in the
interpretation and the application of the DOT

regulations that

the administrative process was intended to address.
Nevertheless, Plaintiff contends the DOT process was
futile as it was not well-known nor well-developed and, even more

14 - OPINION AND ORDER

significant, the administrative process did not provide the
remedy of re-hiring him if the outcome was in his favor.

The

issue, however, is whether a process is available "as a practical
matter" or "capable of use" rather than whether the process is
"well-known or well-developed."

Id. at 1171.

Plaintiff does not

submit any evidence to show the process was unavailable to him,
that he was incapable of utilizing it, or that a remedy was not
available under the administrative process.

In Brown v. Valoff

the Ninth Circuit held the obligation to exhaust "available"
remedies (in the context of a Prison Litigation Reform Act case)
persists as long as some remedy remains "available."
926 (9th Cir. 2015).

422 F.3d

Here the available remedy under the

administrative process certainly would have determined whether
Plaintiff was or was not medically qualified to be a commercial
driver pursuant to 49 C.F.R.
B.

§

391.47.

Plaintiff has not yet shown he was a "qualified" person
with a disability under the ADA.

Plaintiff next contends he is an "otherwise qualified"
person with a disability under the ADA.

Plaintiff argues he was

a qualified commercial driver under DOT medical standards, which
do not ban the use of lithium; that his termination by Defendant
was based on Plaintiff's use of lithium to treat his bipolar
medical condition; and, therefore, Plaintiff is a qualified
person with a disability.

Defendant, however, argues Plaintiff

cannot establish he was a qualified individual with a disability
15 - OPINION AND ORDER

under the ADA because it has not been established whether
Plaintiff was qualified under DOT regulations "to operate a
commercial motor vehicle safely."
Title I of the ADA prohibits employment discrimination
"on the basis of disability."

42 U.S.C.

§

12112(a).

Congress,

however, did not intend the ADA to bypass federal safety
regulations.

As the Supreme Court explained:
When Congress enacted the ADA, it recognized that
federal safety rules would limit application of
the ADA as a matter of law.
The Senate Labor and
Human Resources Committee Report on the ADA stated
that "a person with a disability applying for or
currently holding a job subject to [DOT standards
for drivers] must be able to satisfy these
physical qualification standards in order to be
considered a qualified individual with a
disability under Title I of this legislation."
The two primary House committees shared this
understanding.

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (alteration
in original) (citations omitted).

Thus, courts have held an

employment action based on an employee's or prospective
employee's inability to satisfy DOT medical standards does not
violate disability discrimination laws (Williams v. J.B. Hunt
Transp., Inc., 826 F.3d 806, 811

(5th Circ. 2016)) because

otherwise motor-carrier employers would face the dilemma of
risking ADA liability or violating the DOT's command that "a
motor carrier shall not .

. permit a person to drive a

commercial motor vehicle unless that person is qualified" under
the agency's safety regulations (49 C.F.R.
16 - OPINION AND ORDER

§

391.11).

Although the Ninth Circuit has not explicitly addressed
this issue, the Fifth Circuit Court of Appeals, relying on
Harris, did so in Williams v. J.B. Hunt Transp., Inc., 826 F.3d
806 (5th Cir. 2016).

Following a line of cases from other

circuits, the Fifth Circuit concluded the plaintiff "was not a
qualified individual under the ADA" because he lacked the
requisite DOT certification required by federal law and failed to
exhaust the administrative procedures under 49 C.F.R.
challenge that determination.

§

391.47 to

Id. at 812 (citing Harris v.

P.A.M. Transp., Inc., 339 F.3d 635 (8th Cir. 2003)).

See also

Bay v. Cassens Transp. Co., 212 F.3d 969 (7th Cir. 2000); King v.
Mrs. Grissom's Salads, Inc., No. 98-5258, 1999 WL 552512 (6th
Cir. 1999)).
Here Plaintiff contends he was a qualified person under
the ADA based on the medical certification of "his personal
doctor," but, as noted, his personal doctor's certification was
in conflict with the medical opinion of the Defendant's doctor
who determined Plaintiff was not medically qualified.

Like the

plaintiff in Williams, Plaintiff did not exhaust the
administrative procedures available to him under 49 C.F.R
§

391.47 to resolve the conflicting medical opinions, and,

therefore, it has not been established whether Plaintiff was a
"qualified individual" under the ADA.
On this record the Court concludes Plaintiff has not carried

17 - OPINION AND ORDER

his burden to show his failure to exhaust the available
administrative remedies was excused or would have been futile.
IV.

The dispute at issue is within the primary jurisdiction of
the DOT.

As noted, the Court has concluded an administrative remedy
is available, Plaintiff was required to avail himself of that
administrative process, and Plaintiff has not exhausted that
remedy.
The Ninth Circuit directed the Court on remand to consider
whether to exercise its discretion to excuse exhaustion, which
would allow Plaintiff to proceed in this Court or to invoke the
doctrine of primary jurisdiction and refer the matter to the DOT
for further administrative proceedings.
The Court notes the doctrine of primary jurisdiction is not
equivalent to the requirement of exhaustion of administrative
remedies.

Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d

1166, 1173 (9th Cir. 2002).

When "relief is available from an

administrative agency, the plaintiff is ordinarily required to
pursue that avenue or redress before proceeding to the courts;
and until that recourse is exhausted, suit is premature and must
be dismissed."

Syntek Semiconductor v. Microchip Tech., Inc.,

307 F.3d 775, 780, 781 (9th Cir. 2002) (citing Reiter v. Cooper,
507 U.S. 258, 269 (1993)).

In contrast, the doctrine of primary

jurisdiction "is a prudential doctrine under which courts may,
under appropriate circumstances, determine that the initial
18 - OPINION AND ORDER

decision making responsibility should be performed by the
relevant agency rather than the courts .

. when protection of

the integrity of a regulatory scheme dictates preliminary resort
to the agency which administers the scheme."
780-81.

When

Syntek,

307 F.3d at

considering this issue, courts have employed such

factors as (1) the need to resolve an issue that (2) has been
placed by Congress within the jurisdiction of an administrative
body having regulatory authority (3) pursuant to a statute that
subjects an industry or activity to a comprehensive regulatory
authority that (4) requires expertise or uniformity in
administration.

Id. at 781.

As the court noted in Harris, it is clear that congressional
intent vests the issue of driver fitness in the Secretary of
Transportation and squarely within the regulatory scheme and
substantive expertise of DOT.

Harris,

339 F.3d at 63.

Thus, the

Court concludes the administrative process set out in 49 C.F.R.
§

391.47 was established in part to resolve medical disputes

regarding driver qualifications.
On this record the Court concludes resolution of this
medical issue lies within the jurisdiction of the administrative
body that exercises regulatory authority over a national activity
that requires uniformity in administration.

The Court,

therefore, concludes application of the doctrine of primary
jurisdiction is appropriate and, accordingly, refers this matter

19 - OPINION AND ORDER

to the DOT.
Finally, although Plaintiff asserts the statute of
limitations would prevent him from refiling his claim in this
Court at the end of the administrative process, the Supreme Court
noted in Reiter that "referral of the issue to the administrative
agency does not deprive the court of jurisdiction; it has
discretion either to retain jurisdiction or, if the parties would
not be unfairly disadvantaged, to dismiss the case without
prejudice."

507 U.S. at 268-69.

Thus, because the statute of

limitations may preclude Plaintiff from refiling his claim at the
conclusion of the administrative process, this Court retains
jurisdiction over this matter and stays this case pending the
outcome of the administrative process available to the parties.

CONCLUSION

For these reasons, the Court GRANTS Defendant's Motion (#28)
for Summary Judgment and REFERS 2 the matter to the Department of
Transportation for further administrative proceedings.

The Court

retains jurisdiction over this case pending the available
administrative process and STAYS this action pending the outcome
of that process.

2

There is no formal transfer mechanism between federal
courts and the agency.
The parties, therefore, are responsible
for initiating the appropriate proceedings before the agency
pursuant to this Opinion and Order.
20 - OPINION AND ORDER

The Court DIRECTS the parties to file a joint status report
beginning 120 days from the date of this Opinion and Order and
every 120 days thereafter regarding the status of the
administrative process and to advise the Court immediately when
the administrative process is complete.
IT IS SO ORDERED.
DATED this

/'1 Iv day

of October, 2016.

ANNA J. BROWN
United States District Judge

21 - OPINION AND ORDER