Rauenhorst

Motor Carrier Safety Rules:

This continues our discussion of the application of the rehabilitation act to drivers with disabilities.

Breth v. Federal Highway Administration. The FHWA originally announced a notice of proposed rulemaking which would have revised the federal vision standard, and probably would have permitted monocular drivers to receive commercial licenses. However, FHWA changed course and decided to initiate an experiment, providing motor carrier safety act waivers to about 2000 monocular drivers. Under this experiment, FHWA published its intent to grant waivers in the federal register, and then to monitor the performance of the waived drivers. In order to receive an experimental waiver, the driver would have to provide evidence of three years of recent driving experience and a "clean safety record." The FHWA set an application deadline: after the expiration of the deadline, no further waivers would be accepted.

The waiver experiment resulted in two simultaneous challenges, one in the District of Columbia Circuit and one in the Eight Circuit Court of Appeals. In the Advocates for Highway Safety case a group of insurance companies challenged the waiver experiment. They argued that waivers from safety regulations could not be issued unless the agency could make safety findings. Here the FHWA had merely found that it lacked sufficient information. Such waivers failed to comply with the statutory waiver requirement. Significantly, neither Advocates, the appellant, nor the Department of Transportation argued that section 504 afforded monocular drivers a right to be licensed. The Advocates case thus does not represent a true test of section 504 rights.

At the same time, a Minnesota monocular driver, Tom Breth, applied for a vision waiver. The agency responded that it would not consider his application, because the deadline for admission to the experiment had expired. Breth had millions of miles of safe commercial truck driving experience. He had repeatedly received safety awards from his employer, a national carrier, and from his insurance company. He had twice been cited as Minnesota safe driver of the month. Represented by Rinke-Noonan, Breth appealed to the Eighth Circuit. He argued that he had a right to be treated like the rest of the waived drivers, and further argued that the FHWA had an obligation under section 504 and the Motor Carrier Safety Act to consider his application on the merits.

After Breth's case was argued to the Eighth Circuit, the District of Columbia Circuit ruled in Advocates for Highway Safety that the FHWA had not made appropriate findings to support the vision waiver experiment. The case was remanded to the agency. In an unpublished decision, the Eighth Circuit then dismissed Breth's claim to be admitted to the experiment as moot. But it remanded to the agency his application for a waiver--Breth had a right under federal law to have his application processed on the merits.

By the time these two decisions were issued, however, the FHWA had received results from the waiver experiment. The research studies showed that the monocular drivers had been safer than the general truck driving population. Now that FHWA had substantial evidence to support reissuance of the waivers to the same drivers who had been previously granted waivers. At about the same time, FHWA settled Tom Breth's case on remand by issuing him a waiver, essentially retroactively admitting him into the original group of waived drivers. However, despite the safety findings, the FHWA steadfastly refused to issue any new waivers to monocular drivers. This set the stage for the next monocular vision case, Rauenhorst v. FHWA. See Heavy Duty Trucking Article.

By the time Dave Rauenhorst applied to the FHWA for a vision waiver, the FHWA had reauthorized all drivers in the vision waiver program, this time properly finding that statistical evidence established that drivers with three year clean safety records could safely drive. Rauenhorst's application for waiver seemed relatively straightforward. He had been driving commercial vehicles for many years; he had an outstanding safety record. It is fundamental to the American system of justice that similarly situated individuals receive equal treatment. Having found that other monocular drivers were safe, how then could FHWA possibly find Rauenhorst unworthy. The FHWA nonetheless rejected Rauenhorst's application. FHWA's decision was concerned that granting a waiver to Rauenhorst would effectively amend its vision regulation without actually conducting rule-making proceedings. Granting Rauenhorst's application, FHWA wrote, would set a new and different standard. This position seemed ironic, to say the least, since Congress has previously urged the FHWA to conduct a rule-making. FHWA was creating another catch-22 situation: it would neither grant waivers nor conduct a rule-making.

In Rauenhorst v FHWA, the 8th Circuit Court of Appeals found that FHWA denial had been arbitrary and capricious. FHWA had a duty to decide Rauenhorst's application on the merits. FHWA had recently granted waivers to the drivers in the waiver experiment. In the absence of facts showing that Rauenhorst was differently situated, FHWA had a duty to apply the same line of reasoning to Rauenhorst. The Court remanded Rauenhorst's case to the FHWA for a new decision. On remand the FHWA granted Rauenhorst a vision waiver, and the Eighth Circuit awarded attorneys fees under Section 504.

What Next? The FHWA now recognized that within the Eighth Circuit, at least, it now had a duty to accept and process vision waiver applications. Several issues remained after Rauenhorst:

• Would FHWA follow Rauenhorst in other parts of the United States outside the Eighth Circuit
• The FHWA historically had taken extremely long time to act on applications. Would FHWA now process applications within some reasonable time period.
• What would FHWA do with drivers with other disabilities, or to monocular drivers who didn't fit the exact criteria of the original waiver experiment. Would the logic of Rauenhorst apply to other disabilities, or would FHWA only grant waivers to drivers who could have been admitted into the original experimental waiver group.

The answers to these questions are discussed in the next panel.