Unable to do the job as prescribed. No protection against harassment of drivers. No cost-benefit. Electronic logs erode drivers’ Fourth Amendment rights. And driver privacy is not protected.
Those are issues at the heart of five legal arguments the Owner-Operator Independent Drivers Association teed up in a reply brief challenging the electronic logging mandate implemented by the Federal Motor Carrier Safety Administration.
OOIDA filed a petition for reconsideration on Dec. 11, 2015, with the U.S. Court of Appeals for the 7th Circuit seeking to overturn the final rule mandating the use of electronic logs in the trucking industry. The Association filed its lawsuit the day after the agency published the final rule.
In the Aug. 12 reply brief, the Association’s litigation counsel, The Cullen Law Firm, comes out swinging, challenging everything from the devices’ inability to meet congressional directives to calling FMCSA out for crossing a line when misstating a statute detailing safeguards for drivers to be included in the final rule.
What the devices can’t do
Congress got into the action on the electronic logging mandate in the previous short-term highway bill, Moving Ahead for Progress in the 21st Century or MAP-21.
In MAP-21, Congress directed FMCSA to “prescribe regulations … requiring that a commercial motor vehicle … be equipped with an electronic logging device … capable of recording a driver’s hours of service and duty status accurately and automatically.”
“The Final Rule does not implement the statutory mandate,” OOIDA’s reply brief states. And, taking it a step further, OOIDA asserts that the devices fall short of the congressional measuring stick.
“FMCSA admits that the ELD in the Final Rule does not meet the requirements or definitions in the statute,” the brief states. “FMCSA, in its (previously filed) opposition brief, urges the court to ignore the plain meaning of the words used in the statute because Congress could not have meant what the words in this statute plainly say.”
Further dissecting FMCSA’s defense of the devices, OOIDA details an apparent change in position of the devices put forth by FMCSA.
In one filing, the agency asserts that ELDs “are ‘capable of recording a driver’s hour of service and duty status accurately and automatically’ and that is all that is required.” That was followed by FMCSA attempting to defend the rule by saying the devices did not need to automatically record “all” duty statues.
“FMCSA never explains how the goal of the statute (“to improve compliance…with hours-of-service regulations” can be accomplished without an accurate record of all changes in a driver’s duty status,” the reply brief states. “It is not possible without an accurate record of a driver’s non-driving on-duty time to determine whether any of the driver’s 11 hour driving time complies with the HOS regulations.”
This is a weakness in the rule that OOIDA has pointed out since the onset of the lawsuit. In its initial filing, OOIDA shows how the manual entry of inaccurate changes in non-driving duty status in an ELD can mask hours-of-service violations just as easily as paper logbooks.
To defend the devices, FMCSA plans to study their effectiveness after the rule goes into effect in December 2017, and not before, OOIDA’s reply brief points out.
Driver harassment ignored
Using its winning argument in the first legal battle with FMCSA over an electronic log mandate back in 2011, OOIDA’s reply brief states the agency still is not ensuring that the devices are not used to harass drivers.
“FMCSA takes the position that it is not required to address all instances of harassment, but only those related to HOS violations, and then only harassment perpetrated by motor carriers,” the brief states.
In its defense, the agency attempted to dodge the requirement to protect drivers against harassment because Congress did not define “harassment.”
“That is not the law. Absence of a statutory definition does not render a word ambiguous,” OOIDA’s reply brief states.
The Association says the language adopted into law by Congress in MAP-21 is not ambiguous. “The statutory language does not limit the term ‘harass’ or ‘harassment’ in any way. There is no gap here to fill,” the OOIDA brief states.
“Statutory language does not state that the harassment must be connected with HOS enforcement. It is, of course, true that ELD devices are intended to facilitate HOS compliance. But when used to harass drivers, ELD devices have a capacity for mischief that extends well beyond activities related to HOS compliance.”
Harassment was the one and only of three arguments OOIDA presented in its 2011 lawsuit against FMCSA’s first attempt to mandate ELDs that the court considered and subsequently vacated the rule over. OOIDA revisits that decision in the reply brief.
“This court recognized that Congress’ intent to ensure that electronic monitoring devices not be used to harass vehicle operators was broader than just activity related to HOS. This court expressly recognized a distinction between ‘legitimate measures designed to assure productivity and forbidden measures that harass,’” the brief states.
Benefits are overstated
As part of the rulemaking process to implement a rule such as the logging mandate, FMCSA is required by statute to conduct a cost-benefit analysis. OOIDA acknowledges in the reply brief that FMCSA did that, “flawed as it is.”
The reply brief continues OOIDA’s criticism of FMCSA’s cost-benefit analysis that started in the Association’s opening brief of the lawsuit.
OOIDA contends that the cost-benefit analysis is flawed because the study makes “assumptions and leaps of faith” to attempt to justify the final electronic log mandate.
“FMCSA has provided no valid evidentiary support for its conclusion that ELDs will reduce HOS violations or crash risk,” OOIDA’s reply brief states. “FMCSA has not provided, and cannot provide, any material analysis or statistical support directly related to the use of an ELD that shows any meaningful connection between the installation of the ELD in the Final Rule and enhanced HOS compliance and crash reduction.”
The flaws, according to OOIDA, exist because FMCSA has not studied the effectiveness of the devices prior to rollout in December 2017, but the agency also ignored a 2014 study it did conduct.
According to OOIDA’s reply brief, to the extent that the 2014 study was able to come to any conclusion, it reported that no differences were found between trucks using ELDs and the trucks not using them in recordable and fatigue-related crash rates.
“That … was the only safety study designed to address the precise concern identified by Congress, and FMCSA chose to ignore it,” OOIDA’s brief states.
The reply brief continues its relentless attack on FMCSA’s assertion of the devices’ benefits. In the brief, OOIDA highlights the fact that FMCSA has acknowledged it has insufficient evidence to determine how much ELDs would decrease the risk of fatigue-related crashes related to HOS noncompliance. That goal, according to OOIDA is “the stated purpose of the ELD rule.”
Use of electronic logs constitutes a search
OOIDA, in defense of the Fourth Amendment rights of truck drivers, levies an argument that mandatory installation of electronic logging devices is a warrantless search.
Backing up that argument, OOIDA’s reply brief points to a 2012 Supreme Court ruling. The case ruled against law enforcement agencies placing GPS or other tracking devices on private citizens’ vehicles without a warrant.
That case centered on the government physically occupying private property for purpose of obtaining information and the court concluded such an intrusion was invalid without a warrant. Concurring opinions in the case also pointed to lengthy monitoring constituted a search.
“Here, motor carriers and drivers are compelled to install ELDs in their trucks under the threat of forfeiting their ability to stay in business. When stopped by enforcement officials, drivers are required to turn over information stored in the ELDs to be used for law enforcement purposes,” OOIDA’s brief states.
OOIDA dismissed a previous argument put forth by FMCSA that trucking is a “pervasively regulated” industry and that drivers are giving their consent to search merely by agreeing to participate in the industry.
The Association rejects that argument in the reply brief, detailing court decisions in which administrative inspections, similar to the enforcement scheme in trucking, were not given a wholesale free pass from Fourth Amendment protections.
FMCSA misrepresents privacy directive
With the growing intrusion into drivers’ lives with various electronic monitoring systems, driver privacy concerns continue to mount.
Congress, in the MAP-21 language, took those concerns into account and directed the agency to “institute appropriate measures to preserve the confidentiality of any personal data contained in an electronic logging device” and to ensure that any data collected be used “by enforcement personnel only for the purpose of determining compliance with hours of service requirements.”
OOIDA fired back at FMCSA’s handling of that congressional directive in a brief the agency filed previously in the lawsuit.
“(FMCSA’s) brief slices the statutory language into small segments, omitting critical words and substituting their own words in a way that misleads the court,” OOIDA states in its reply brief. “First, FMCSA’s truncation of the statutory language conveniently omits reference to the words ‘shall institute appropriate measures’ and gratuitously represents that ‘Congress required the FMCSA to consider ‘appropriate measures.’
“We have no quarrel when opposing counsel argues that the words of a statute mean something other than what we contend they do. But an advocate goes over the line when he or she misstates the actual words of a statute,” the Association states in its brief.
The Association details ways data can be used to harass drivers, in unrelated criminal investigations for example. OOIDA contends that FMCSA should answer to the court for its dismissal of data use concerns and misrepresentation of the congressionally mandated driver privacy safeguards.
“The adequacy of FMCSA’s final rule on this subject and its approach to compliance with the statutory mandate is properly before this court. FMCSA has no basis to claim waiver, surprise or prejudice. The problem was placed precisely before the agency … and it must now justify its response to that problem,” OOIDA’s brief states.
The reply brief serves as a legal precursor to oral arguments on Sept. 13, in OOIDA’s lawsuit seeking to overturn a mandatory electronic logging mandate, set to go into effect December 2017.
For the sake of clarity, OOIDA is requesting that the court consider all of the arguments presented by the Association. The request follows the court’s decision to vacate the previous ELD mandate after considering only one of OOIDA’s arguments, leaving the other two to be decided when necessary.
“Petitioners respectfully submit that it is now time to address each of the issues raised here,” OOIDA’s brief states. “This will provide needed clarity and certainty for all parties if further administrative proceedings are conducted following the mandate.”
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