A lawsuit in the U.S. District Court for the D.C. Circuit says FMCSA’s interim final rule on non-domiciled CDLs isn’t an emergency and will cause “irreparable harm” to drivers.
On behalf of truck driver Jorge Rivera Lujan, 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.
Then on Oct. 24, the groups filed an emergency motion that asked the court to delay the rule’s effective date until the lawsuit plays out.
Following responses from FMCSA on Oct. 31 and from the plaintiffs on Nov. 3, the court will soon decide whether or not to let the rule remain in effect.
What does FMCSA’s emergency non-domiciled CDL interim final rule do?
The rule, which was announced by Transportation Secretary Sean Duffy in late September, significantly limits the authority of state driver’s license agencies to issue and renew non-domiciled CDLs for individuals from foreign jurisdictions.
Pointing to recent high-profile crashes and an internal audit, Duffy called it a “national emergency” and made the rule effective immediately.
Under the rule, an Employment Authorization Document (EAD) would no longer be 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. The majority of current non-domiciled CDL-holders possessed an EAD. FMCSA estimated that the changes would take about 194,000 current non-domiciled CDL holders out of the trucking industry. Many of the individuals may be eligible for other employment in the United States.
While the rule is already in effect, the agency is accepting comments through Nov. 28. The agency has already received nearly 4,300 comments, with many of them coming from truck drivers who say the rule is taking away their livelihood.
FMCSA’s response to lawsuit
The agency argued that much of the danger surrounding issuing non-domiciled CDLs to foreign drivers is that there is no way to review their driving records.
“Without a verified driving record, there is a serious risk that unsafe or high-risk drivers – who may have prior violations, suspensions or a history of crashes in foreign jurisdictions – could be granted non-domiciled CDLs and operate large trucks and buses on U.S. roadways,” attorneys for FMCSA wrote in the Oct. 31 response brief. “Thus, limiting the eligibility of classes of potential applicants whose driving history cannot be ascertained will increase safety by appreciably reducing the number of non-domiciled CDL drivers with unknown driver safety records on the nation’s highways.”
Instead of arguing that there is a direct link between immigration status and a driver’s ability to safely operate a commercial motor vehicle, FMCSA argues that it is reasonable for them to determine that “credentialing individuals whose driving history is largely or entirely unknown does not provide an appropriate margin of safety.”
Plaintiffs’ arguments
Rivera Lujan has been a truck driver for 11 years.
According to the groups, Rivera Lujan is a DACA recipient who has lived in the United States since he was 2 years old. He said he tried to renew his CDL on Sept. 30 but was told he could not do so because of the interim final rule.
“Without a commercial driver’s license, I will lose my business and the income that allows me to provide for my family,” Rivera Lujan said in a news release. “I have followed all the rules and complied with all requirements set by the government.”
During its reply to the court on Nov. 3, the plaintiffs said that FMCSA did not justify its decision to make the rule effective before going through a typical rulemaking process.
“FMCSA does not meaningfully contest that the factual evidence it cited does not demonstrate an emergency,” the plaintiffs wrote. “And FMCSA has expressly disclaimed ‘a direct link between immigration status and a driver’s ability to safely operate a commercial motor vehicle.’”
The groups contend that the interim final rule already is causing significant harm to truck drivers like Rivera Lujan.
“Absent a stay, the rule, issued without notice and put into immediate effect, will promptly harm thousands of individual drivers, their families and the public,” the plaintiffs wrote. “Thousands of individuals lawfully working in the United States will lose their livelihoods and their ability to provide for their families.” LL
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