Parker

Motor Carrier Safety Rules:

Durham Challenges Delay: Following the Rauenhorst decision, a number of commercial truck drivers applied for vision waivers in other places in the Country. One such driver, James Durham of Tennessee, a Rinke Noonan client, like Raunhorst and Breth before him, had substantial commercial truck driving experience and a good safety record. Durham resided outside the Eighth Circuit, but he concluded that as an American he had the same rights to fair treatment as do drivers in the Eighth Circuit. While the FHWA acknowledged receipt of his application, he waited for over a year and still received no decision. Internally, it appears, the FHWA had decided that it would not act on applications outside the Eighth Circuit. After repeated requests for a decision, we brought a petition in the Sixth Circuit Court of Appeals seeking an order from the Court requiring FHWA to make a decision. The FHWA agreed to settle Durham's appeal by promising to decide his case within agreed time limits. His case was remanded by agreement to the agency for a decision.

Congress Sets Time Limits: Responding to the concerns of many other drivers Congress modernized the Motor Carrier Safety Act's waiver program in the 1999 Transportation Act. In many respects, the new legislation reconfirms the Rauenhorst decision, by making it clear that waiver applicants have a right to a decision on the merits and within reasonable time limits. Under the new legislation, all disabled drivers now have a right to a prompt decision, wherever they live.

FHWA Denies Durham Application: On remand, however, the FHWA made a rather remarkable decision. The vision experiment required monocular drivers to have recent driving experience. At the time that Durham applied for his waiver, he clearly met that criterion. But the FHWA had held Durham's application for so long without taking action, that Durham's driving experience was no longer "recent" within the FHWA's criterion. The FHWA had no direct evidence that the additional delay would make a difference. But it decided that it must adhere strictly to the principle that only persons who exactly met the waiver experiment's criteria would be granted waivers. In effect, FHWA was treating the original experimental criteria as if it were an officially promulgated rule. As a result, FHWA's decision sought to deny Durham the right to drive, solely as a result of the FHWA's own delay in acting on the application. Durham once again appealed to the Sixth Circuit Court of Appeals. After briefs were filed, the FHWA agreed once again to settle Durham's case by remanding for a decision in which the agency's own delay would not be used against Durham. Finally, on December 13, 1999, Durham actually received his waiver and is now eligible to drive in interstate commerce.

The Kirkingburg Case: In the 1999 Supreme Court term, the Court heard a number of cases involving what constitutes a disability for purposes of the Americans with Disability Act. In one of those cases, a monocular truck driver, Kirkingburg sued his employer, Albertsons, for firing him in 1992 when it was determined that his vision did not meet federal standards. Kirkingburg argued that his employer should have allowed him to attempt to get into the federal waiver experiment. The Kirkingburg decision is very narrow, and quite difficult to understand, because Kirkingburg was seeking entry into the experimental waiver program before the FHWA had made conclusive safety findings. The Court's decision specifically states that it will have no precedential value for drivers granted a waiver based on appropriate safety findings. It is our view that Congress intended to place primary responsibility for section 504 compliance on the Department of Transportation. Congress expected that disputes about individual capabilities would be solved through changes in regulations, the issuance of individualized determinations through the waiver or other process, and then through judicial review. It has been our experience that most disabled drivers can find suitable employment once they receive their commercial license, because employers recognize that qualified disabled drivers make good employees.

Drivers with combinations of Impairments; the Parker Case: But what about drivers who don't fit exactly the definitions of FHWA policy and regulations. We know that people are unique: they don't fit exactly into pre-defined molds. It is for this very reason that Section 504 requires "individualized determinations." Section 504 requires employers, and the government, to focus on what people can do, not what parts of their body work. When dealing with disabled persons, section 504 requires employers to identify essential job functions, not essential body parts. We are interested in whether a person can see, not whether he has two eyes. We are interested whether a person can hear, not whether he has two ears.

The Parker case involves a monocular driver, with a long history of safe driving commercial trucks, who had a single limb. Federal regulations allow limb impaired persons to drive commercial vehicles with proper equipment, because the FHWA has determined that a person with one limb retains the functional ability to manipulate controls and thus control a vehicle safely. And, FHWA has determined that a person with a single good eye retains the functional ability to see and drive. Thus, Parker argued to the FHWA that he has demonstrated the functional capability to drive in every respect. He further asserted that his long history of safe operation of a commercial truck within the borders of the State of Ohio likewise supported his right to a commercial license. Parker asserts that under the Buck test, he

The FHWA, however, denied Parker's application, because it had no statistical experimental evidence on the safety record of monocular drivers with a limb impairment. Parker, represented by Rinke-Noonan, filed an appeal with the United States Sixth Court of Appeals, and his appeal was argued on December 13, 1999. We will post the results, when the decision is issued.