ELD LAWSUIT: OOIDA, FMCSA argue case before Circuit Court

By Jami Jones, Land Line managing editor | Tuesday, September 13, 2016

CHICAGO -- A three-judge panel with the U.S. Court of Appeals for 7th Circuit in Chicago heard oral arguments on Tuesday, Sept. 13, in the Owner-Operator Independent Drivers Association’s lawsuit seeking to block mandatory use of electronic logging devices.

This is the second time OOIDA’s litigation team, The Cullen Law Firm, has argued before the 7th Circuit seeking to block mandated use of electronic logs. The first time in 2011, the Association was successful in blocking a partial mandate of the devices on motor carriers with chronic hours-of-service noncompliance.

While the panel of judges was not the same as the 2011 case, the amount of questioning from the three-judge panel was similar. Arguing OOIDA’s case was Paul Cullen Sr. with The Cullen Law Firm. Joshua Waldman argued the case for the Federal Motor Carrier Safety Administration.

Judge David F. Hamilton had numerous questions for both counsel and focused primarily on the ability of electronic logs to ensure compliance and on what level they would be an improvement over paper logs; the use of collected data for anything but determining HOS compliance; Fourth Amendment arguments; and FMCSA’s lack of a cost-benefit analysis.

Judges Michael S. Kanne and William J. Bauer remained largely silent throughout the hourlong proceedings.

Hamilton pressed Cullen on OOIDA’s contention that electronic logs are no better at ensuring compliance with hours-of-service regulations than paper logs.

Cullen explained that so much of noncompliance happens in the time when the truck is not moving.

“Electronic logging device creates illusion of compliance. It masks noncompliance,” he said.

The truncated time of 30 minutes to present arguments and answer questions prevented Cullen from delving into nuances of noncompliance. Instead, he directed the court back to OOIDA’s written arguments, which included detailed examples of how electronic logs could be used to falsify on-duty time.

One of the other arguments Cullen raised in his prepared remarks sparked a line of questioning for the FMCSA counsel: What assurances are there that the devices can only be used for hours-of-service compliance enforcement?

Hamilton drilled down into the final rule with FMCSA’s counsel, inquiring what would keep local law enforcement from moving beyond HOS compliance and issuing, for example, a speeding ticket.

Waldman was not able to present a publicly available document, but offered to file with the court guidance that he says FMCSA has sent to its state partners regarding the use of electronic log data.

This line of questioning from Hamilton was a recurring theme on privacy. The judge alternated between questions of how much privacy is expected as opposed to how invasive would the devices be and need to be to perform up to the congressionally mandated standards.

Hand-in-hand with the questions on privacy, Hamilton also peppered FMCSA’s counsel on the Fourth Amendment. FMCSA contends that trucking is a highly regulated industry, and because of that enforcement is not required to get warrants before pursuing electronic monitoring. Hamilton asked why the agency chose that argument in particular.

Finally, the issue of a lack of a cost-benefit analysis drew a series of questions from Hamilton. He asked FMCSA’s counsel why the agency proceeded without presenting one. Waldman argued that the agency was directed by Congress to mandate the devices, and because of that directive the agency was not required to evaluate the costs and benefits of the devices.

“If you’re right about that,” Hamilton said following Waldman explanation.

The three-judge panel will now consider the written and oral arguments presented by both OOIDA and FMCSA in the coming weeks and months. Decisions in this case can range from the whole rule being thrown out, part of it being removed, or the rule as a whole standing.

There is no set deadline on when the judges must return an opinion. It’s not uncommon for some decisions to be reached in three to six months and others to take a year or more.

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