卢詹案辩论中部分法官对非住所地规则表示怀疑

The normal level of judicial skepticism and questioning of attorneys last week in the oral arguments in Lujan vs. FMCSA.seemed to show more of that probing toward the counsel for the Department of Transportation than the other side.

In oral arguments before the U.S. Court of Appeals for the District of Columbia, it was Simon Jerome arguing for DOT who appeared to face more pushback than his counterpart for the Lujan side of the divide, Wendy Liu. 

Liu was representing a coalition of groups opposed to recent Federal Motor Carrier Safety Administration changes regulating the issuance of CDLs and commercial learner’s permits (CLPs) to non-domiciled drivers. King County, Washington is a plaintiff in the action and made arguments before the justices. 

Lead plaintiff Jorge Rivera Lujan is a DACA immigrant, defined as a child brought to the U.S. by his or her parents and still in the U.S. DACA recipients have no special waiver under the non-domiciled CDL rule.

Second time around for lawyer

It was the second time in September that Jerome gave oral arguments before the court over an issue involving CDLs. The other was in the case of California vs. DOT, where the issue is the federal government’s ability to strip funding from states over their adherence to federal rules on CDL issuance.

Jerome summed up the heart of the two key parts of the new rule, which went into effect in the spring. 

“One is a change in the substantive eligibility to apply for and obtain a non-domiciled CDL,” Jerome said in the oral arguments, a reference to the sharp narrowing of the acceptable immigration standards needed to qualify. “The other is the change in the acceptable documentation by which an immigrant may show that eligibility.”  

Jerome said those steps were taken by FMCSA to close a “safety gap that stemmed from the inaccessibility of foreign driving records. That is the problem that the agency was responding to.” Federal rules on obtaining a CDL require a driving history that spans 10 years. In its briefs on the case, the federal argument has been that obtaining that 10-year lookback is too challenging for states when they choose to issue a non-domiciled CDL.

The acceptable documentation in the new rule for a non-domiciled person to obtain a CDL has been narrowed to an unexpired passport and a form I-94. Employment Authorization Documents (EADs) are no longer accepted as proof of eligibility.

Was a change needed?

Almost right off the bat after Jerome’s opening arguments, he was asked by a member of the three-judge panel why previous requirements for a non-domiciled driver to obtain a CDL were insufficient and required an overhaul.

The I-94 is a record “that shows you entered the United States legally in a specific visa status and how long you are allowed to stay,” according to a definition of the document. “Most travelers receive an electronic I-94 that can be viewed online using their passport information.”

The passport/I-94 combo brought pushback from the three-judge panel. One judge said if a non-domiciled applicant could provide 10 years of driving history, “what’s the problem?”

(Note: transcripts and audio recordings of the oral arguments FreightWaves used in its reporting do not specify the identity of the individual judges who are questioning the attorneys.)

“The problem I think, your honor, is that it’s unreasonable to expect a state agency to interpret that,” Jerome replied.

The judges’ questioning was whether “do you not trust states to have an incentive to protect the safety of their citizens and residents?”

Jerome replied “we haven’t disputed that incentive.”

Records should be obtainable

But the judges did not seem to accept the federal government’s views that obtaining 10 years of history for a non-domiciled driver should be such a barrier as to negate the ability of many to driver. 

The ability of the states and employer to check safety records, according to the judges’ questioning, meant that the DOT’s rationale “just doesn’t make any sense to me as a rationale.” 

The back and forth between Jerome and the bench after that went into various federal rules regarding vetting of immigrant labor that at times seemed far away from the question of the FMCSA rule. 

But the core of the questioning from the judges came back to the confluence of the limited number of acceptable paths for a non-domiciled CDL under the new rule.

It led to a lengthy discussion between Jerome and the bench that appeared to leave the DOT lawyer on his heels as the judges questioned a wide range of hypotheticals and whether a non-domiciled person could obtain a CDL under those circumstances. 

At one point, a judge told Jerome he was “between a rock and a hard place.”

Jerome was asked why there is no provision in the rule that grandfathered in non-domiciled drivers who have been driving in the U.S. for ten years or more. 

“The agency said in doing so would disturb the purposes of the rule,” Jerome said. While a backward-looking history is valuable, he added, “there’s also a contemporaneous driving history that the agency expressed concern about, namely the possibility that an individual who has the ability to go to a foreign country where he or she may possess a license, the existence of which is a black box to agencies in the U.S.”

Plaintiffs’ case

Liu said the 10-year rule should not be confused with a minimum driving requirement. “There’s no minimum years of driving needed before you get a CDL, so somebody could have no driving history in the U.S.,” she said.

That led to a judge questioning whether a U.S. citizen living abroad for the last 10 years, even with a “terrible driving record,” could move back to the U.S. “and no inquiry into my foreign driving record is required, and no proxy for it either?”

Liu affirmed that situation. She also said that quirk in the rules is a “uniformity problem, because the foreign records aren’t checked for nationals or citizens, even though there are substantial numbers of people who have been driving abroad and who come back.”

She added “it also shows that there’s actually no safety problem because we the agency points to nothing, no evidence in the record showing that people who have driven in other countries cause more crashes in others.”

The court battles over changes and impacts from the FMCSA CDL rule aren’t even done for September. Oral arguments are set for September 28 in New York’s challenge to the rule. Like California, it is challenging a denial of federal funds over FMCSA’s dispute with New York procedures.

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