Background and Rationale:

On December 30, 2011, the Federal Motor Carrier Safety Administration’s (FMCSA) new rule went into effect which restricted the use of hand-held mobile telephones by interstate Commercial Motor Vehicle (CMV) drivers.

 The main rationale for this rule, as advanced by the FMCSA, is to maintain safety by minimizing driver distraction that occurs when a driver reaches and dials a hand-held mobile telephone.  The agency claims using a hand-held mobile telephone may reduce a driver’s situational awareness, performance, and decision making.  Research purports to reflect that cell phones may pose a higher safety risk than other activities while driving such as eating or adjusting an instrument. 

Discussion of Rule:

The new rule amends regulations in certain provisions of Title 49 of the Code of Federal Regulations. The new rule restricts a CMV driver from holding a mobile telephone to conduct a voice communication, dialing by pressing more than one button, or reaching in an unsafe manner for a mobile telephone. For example, a driver may not reach for a mobile telephone that is in the passenger seat or under the driver’s seat. Therefore, if a driver of a CMV wants to use a mobile telephone, the driver needs to be able to comply with the rules, such as using a hands-free device or a single button located in close proximity to the driver.

The rule also adds a driver disqualification provision for: (1) interstate CMV drivers convicted of using a hand-held mobile telephone, and (2) Commercial Drivers License (CMD) holders convicted of two or more serious traffic violation of State or local laws or ordinances on motor vehicle traffic control, including using a hand held mobile telephone.  In addition, the rule requires interstate motor carriers to ensure their drivers are complying with the rule and prohibits motor carriers and employers from allowing or requiring CMV drivers to use hand-held mobile telephones. A limited exception allows CMV drivers to use a hand-held mobile telephone if it necessary to communicate with law enforcement officials or other emergency services.  The rule does not apply to CB radios, fleet management system, or GPS devices.   

 For further information about this rule and other transportation issues, contact John F. Fatino, fatino@whitfieldlaw.com, Chair, Transportation Practice Group.

This article was co-authored by attorney John F. Fatino and law clerk Mickie M. Damstetter.

Ashleigh received her Juris Doctorate with High Honors from Drake University Law School. During law school, Ashleigh was the Managing Editor for the Drake Law Review and an active member of the Moot Court Board.  She was also a student attorney at the Drake Legal Clinic and clerked for the Office of the Iowa Attorney General.  Ashleigh was admitted to the Iowa Bar in 2009.

Erik’s law experience with Whitfield & Eddy began in 2004 as a law clerk, where he was later hired as an associate and is now a member of the firm.  He is a 2005 graduate of the Drake University Law School.

Kim graduated from Drake University Law School in 2006 and began her law career with Whitfield & Eddy that same year as a law clerk and in 2007 she joined the firm as an associate attorney.  For eighteen years previous to starting her law career, Kim enjoyed a successful career in the medical field as a registered nurse in critical and emergency care. 

Diana joined the firm in 2008 as an associate in our Mt. Pleasant office.  Previous to joining the firm, she worked as an associate attorney in the Kansas City area for three years.  She is a graduate of the University of Iowa College of Law.

A recent decision of the United States Court of Appeals for the Eighth Circuit will be of interest to those involved in the transportation industry.  Owner-Operators Independent Drivers Association, Inc. v. Supervalu, Inc., 651 F.3d 857 (8th Cir. 2011).  

The Owner-Operators Independent Drivers Association, Inc. [hereinafter “OOIDA”][1]along with others brought suit against Supervalu, Inc. in the United States District Court for Minnesota.  As the case involves the application of federal law by the Eighth Circuit, the opinion is binding on other federal district courts in the Eighth Circuit–such as the Iowa based federal courts. 

 The Facts 

The facts of the case demonstrate that members of the OOIDA along with the OOIDA brought suit alleging that Supervalu’s practices violated 49 U.S.C. § 14103(a).  The statue is set out in the margin.[2]  In 2005, Supervalu implemented a policy which required that drivers either use Supervalu’s professional lumpers or be subject to certain insurance requirements established by Supervalu.  The facts reflect that Supervalu’s coverage requirements “significantly exceed[ed]” those required by 49 U.S.C. § 31139(b)(2) ($750,000).  As a result of the suit, Supervalu decreased the required amount to match federal law. 

Nonetheless, OOIDA continued with the lawsuit.  OOIDA’s theory was that “Supervalu’s insurance-coverage requirement effectively required OOIDA drivers to purchase Supervalu’s new lumping services, in violation of § 14103(a).”  Id. at 860. 

Supervalu argued that drivers maintained the right to unload provided the driver maintained the minimum required insurance.  Supervalu argued, alternatively, that even if drivers were required to hire Supervalu’s lumpers, OOIDA could not prove a violation of the code section because the drivers were reimbursed by shippers.  Finally, Supervalu argued the drivers were only entitled to injunctive relief under section 14704. 

Procedural Posture 

In a series of rulings concerning cross-motions for summary judgment (each party argued it was entitled to judgment as a matter of law), the district court first concluded that under section 14704 a suit for money damages could not be maintained based upon the plain language of the statute.  Second, the district court concluded that judgment in Supervalu’s favor was proper because OOIDA had not proven that the drivers were not reimbursed for lumping services.  Id. at 861. 

OOIDA appealed to the Eighth Circuit and argued, in part, that Supervalu, had an “unqualified duty…to provide compensation…” to drivers who are required to use unloading services. Id. at. 862.  The Eighth Circuit found that the case was one of first impression; that is, apparently no other court had addressed the issue.  Based upon the rules of statutory construction and the legislative history of the statute, the Court concluded that “Congress did not intend § 14103(a) to impose on any particular party an unqualified duty to reimburse incurred lumping fees.” Id.  at 866.  Thus, based upon the facts before the Court, the Court found judgment was appropriate in Supervalu’s favor because there was no evidence that the drivers at issue were not reimbursed by either the shipper or the receiver.  Id.  As a result, the Court determined that it need not reach the remaining issues.   

 To that end, at least one member of the panel, Judge Colloton (former United States Attorney for the Southern District of Iowa) wrote separately to concur in the judgment (that is, the judge found the result was correct but wrote to express a different logic).   Judge Colloton found, based upon the statute, when a “receiver requires an owner-operator to be assisted in unloading a motor vehicle, then the receiver is responsible for providing such assistance or compensating the owner-operator.”  Id. at 869.  Yet, Judge Colloton found an alternative ground existed to support the judgment of the district court.  That is, money damages are not an available form of relief under the statute and dismissal of the claims was appropriate. 

Consequently, as no party has sought review by the United States Supreme Court, the case is final.  Readers will want to watch the continued evolution of these legal theories in the other federal circuit courts of appeal.�

^[1]A review of the LEXIS databank, used by lawyers to track cases, reflects that the OOIDA has been a party to 120 federal cases.  

^[2] § 14103.  Loading and unloading motor vehicles. 

(a) Shipper responsible for assisting. Whenever a shipper or receiver of property requires that any person who owns or operates a motor vehicle transporting property in interstate commerce (whether or not such transportation is subject to jurisdiction under subchapter I of chapter 135) be assisted in the loading or unloading of such vehicle, the shipper or receiver shall be responsible for providing such assistance or shall compensate the owner or operator for all costs associated with securing and compensating the person or persons providing such assistance.

The forthcoming 2012 publication “Who’s Who of International Product Liability Defense Lawyers” has three W & E lawyers nominated for inclusion: David L. Phipps, Robert L. Fanter and Kevin M. Reynolds.  For the entire state of Iowa, only six attorneys were nominated.  It is notable that three of the six lawyers nominated in the state of Iowa practice law with W & E.  Who’s Who compiles its list of nominees based on peer reviews given by other lawyers, recommendations of in-house counsel, and members of the judiciary.  Congratulations to Dave, Bob and Kevin on this honor.

Recently, the United States Court of Appeals for the Seventh Circuit invalidated certain rules promulgated by the Federal Motor Carrier Safety Administration (FMCSA) concerning Electronic On-Board Recorders (EOBR).  See Owner-Operator Independent Drivers Association, Inc. v. Federal Motor Carrier Safety Administration, 656 F.3d 580 (7th Cir. 2011).  The time for a petition for writ of certiorari to the United States Supreme Court has expired and it appears no party has sought such relief from the United States Supreme Court.  See Ct. R. 13(1).

Background: 

The FMCSA adopted a final rule in 2010 concerning the use of electronic monitoring devices in commercial motor vehicles. For many years, federal regulators have limited the number of hours that a commercial driver may operate a commercial motor vehicle pursuant to the Hours of Service Rules (HOS).  In order to demonstrate compliance with these rules, drivers would record their hours in paper logbooks. However, as the argument goes, the paper based system was easy to manipulate and falsify. Under the new 2010 rule, motor carriers with a demonstrated serious noncompliance with the HOS rules would be subject to mandatory installation of EOBRs. An EOBR is an electronic device that is capable of recording a driver’s hours of service and duty status. It is installed in a commercial motor vehicle and records data about the truck’s location and duty status (among other things).  This satellite technology allows nearly instant electronic transmission to the driver’s employer (the motor carrier). Three commercial drivers and a drivers’ association, the Owner–Operator Independent Drivers Association (OOIDA), (plaintiffs/petitioners) sought review of this final rule issued by the FMCSA.

The Arguments:

Petitioners raised three issues for vacating the 2010 rule. (1) The regulation is arbitrary and capricious because it does not “ensure that the devices are not used to harass vehicle operators,” as required by 49 U.S.C. section 31137(a). (2) The Agency’s cost-benefit analysis is arbitrary and capricious because it fails to demonstrate the benefits of requiring EOBRs. (3) Mandating EOBRs violates the Fourth Amendment.

 Analysis:

The United States Court of Appeals for the Seventh Circuit addressed only the first issue.[1] The Seventh Circuit looked to well established federal precedent which holds that if Congress requires an agency to address something before issuing a regulation that factor, by definition, is an important aspect of the problem which the agency must address.  Congress foresaw that monitoring devices on commercial motor vehicles could also be used to harass drivers, and therefore, added the following provision:

 Use of Monitoring devices.-If the Secretary of Transportation prescribes a regulation about the use of monitoring devices on commercial motor vehicles to increase compliance by operators of the vehicles with hours of service regulations of the Secretary, the regulation shall ensure that the devices are not used to harass vehicle operators. However, the devices may be used to monitor productivity of the operators.  49 U.S.C. § 31137(a)

The Seventh Circuit concluded this section was mandatory and was binding on the FMCSA.  At the same time, the Court concluded that the provision had not been properly addressed by the FMCSA. Therefore, the rule was arbitrary and capricious.  Consequently, the rule was vacated. 

 The Court was also critical of the FMCSA’s position that it had adequately and expressly considered whether the EOBRs could harass drivers. However, the Court disagreed and concluded that the FMCSA should have revealed how it drew the line between legitimate measures designed to assure productivity and forbidden measures that harass. As the record lacked an adequate explanation addressing the distinction between productivity and harassment, the FMCSA’s position was rejected. 

 The Court’s position was fortified by the fact that the FMCSA had not addressed the harassment issue when it had been raised in response to a predecessor proposal.  The OOIDA had already raised the issue of harassment and had given examples illustrating the concerns of its members. Therefore, because the FMCSA did not respond to the concerns of harassment, which the statute required it to address, the rule was arbitrary and capricious. 

 At the present time, it appears that FMCSA will have to “go back to the drawing board” and thoroughly examine the issues Congress mandated that it consider when implementing the EOBR regime for monitoring HOS compliance.  For further information about this case and other transportation issues, contact John F. Fatino, fatino@whitfieldlaw.com, Chair, Transportation Practice Group.

[1] The reader will recall that in the federal system, review of a final order of an agency, is to the court of appeals.

This article was authored by Attorney John F. Fatino and Law Clerk Mickie M. Damstetter.

John has been an attorney with Whitfield & Eddy P.L.C. since 2006.   He is admitted into practice in all of Iowa’s state, federal and bankruptcy jurisdictions and is a member of the Iowa State Bar.  He served as a law clerk to the Hon. Robert W. Pratt, Chief Judge for the United States District Court for the Southern District of Iowa.

The Conference Chancellor serves as the legal advisor to the Bishop and the Annual Conference. A chancellor is nominated by the resident Bishop and elected by the annual Conference.

This fall, Ben Ullem was awarded the Drake University Drake Medal of Service, in recognition of  his “outstanding personal commitment and singular service to Drake University”.

Ben served as interim Dean of the Drake University Law School from 2008-2009, has served as Chairman on the Board of Trustees for Drake University, President of the Board of Counselors (Advisory Board to the Law School), Past President of the National Alumni Association, and many other areas of service for Drake University.

The M&A Advisor is pleased to announce a record 389 nominations representing over 500 companies have been submitted for the 10th Annual M&A Advisor Awards.

The winners for Major and Sector Transactions of the Year, Firms of the Year, M&A Product/Service of the Year and Dealmakers of the Year categories will be announced at the 10th Annual M&A Advisor Awards Gala on Tuesday, December 13th at the New York Athletic Club in New York City.