The federal government is asking the U.S. Court of Appeals for the D.C. Circuit to hold petitions involving FMCSA’s actions on non-domiciled CDLs in abeyance until a final rule is issued.
The motion was submitted by attorneys representing the U.S. Department of Justice on Wednesday, Nov. 20. If granted, the motion would essentially put the case on hold while the rulemaking process plays out.
How did we get here?
In late September, the Federal Motor Carrier Safety Administration issued an emergency interim final rule that would drastically reduce the number of people eligible for a non-domiciled CDL. Transportation Secretary Sean Duffy called it a “national emergency,” saying that an audit revealed states were issuing large amounts of CDLs to foreign drivers who were unqualified or in the country illegally.
The rule, which took effect immediately, was expected to remove about 194,000 non-domiciled CDLs. Under the interim rule, an Employee Authorization Document (EAD) was no longer enough to obtain a non-domiciled CDL. Additionally, asylum seekers, asylees, refugees and Deferred Action for Childhood Arrivals (DACA) recipients would be excluded from eligibility.
Although the emergency rule took effect in late September, the agency was still going through the rulemaking process and accepting comments through Nov. 28.
In October, a lawsuit was filed, saying that the rule would have “devastating consequences” for hundreds of thousands of CDL holders.
The lawsuit was filed on Oct. 20 by the Public Citizen Litigation Group, the American Federation of Teachers and the American Federation of State, County and Municipal Employees.
On Oct. 24, the groups filed an emergency motion to stay the rule while the litigation is ongoing.
The plaintiffs said that FMCSA did not justify its decision to make the rule effective before going through a typical rulemaking process.
On Nov. 10, the court hit pause on the emergency action by “administratively staying” the rule pending further order of the court. On Nov. 13, the D.C. Circuit updated the administrative stay to a full emergency stay of the interim final rule.
What now?
Considering that the comment period on the proposal is nearly over, the government is asking the D.C. Court to delay any proceedings in the case until FMCSA issues a permanent final rule.
“In anticipation of promulgating a final rule, the government respectfully moves to hold these cases in abeyance,” the DOT attorneys wrote on Nov. 19. “The comment period on the interim final rule at issue closes in just nine days, on Nov. 28. The agency intends to review the comments received, respond to those comments (including changes to the rule, to the extent appropriate) and issue a final rule. An abeyance will conserve judicial and party resources and promote the efficient and orderly disposition of the pending petitions, including by ensuring the parties do not unnecessarily brief issues rendered moot or otherwise changed by the promulgation of a final rule.”
Comments can be submitted by going to Regulations.gov and entering Docket No. FMCSA-2025-0622. As of Nov. 20, the agency had received more than 6,500 comments. LL
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