Rauenhorst v. U.S. Department of Transp., Federal Highway Admin., 95-2841

• Decision Date: 12 September 1996
• Docket Number: No. 95-2841,95-2841
• Citation: 95 F.3d 715
• Parties: , 5 A.D. Cases 1621, 18 A.D.D. 82, 8 NDLR P 333 David R. RAUENHORST, Petitioner, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 715

95 F.3d 715

65 USLW 2256, 5 A.D. Cases 1621, 18

A.D.D. 82, 8 NDLR P 333

David R. RAUENHORST, Petitioner, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION, Respondent.

No. 95-2841.

United States Court of Appeals Eighth Circuit.

Submitted May 15, 1996.

Decided Sept. 12, 1996.

Jerald W. Von Korff, argued, St. Cloud, MN (Ilene R. Penn, Douglas L. Parker and Jason C. Brennan, Washington, DC, on the brief), for petitioner.

Matthew M. Collette, argued, Washington, DC (Michael Singer, on the brief), for respondent.

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN SICKLE ^*, Senior District Judge.

VAN SICKLE, Senior District Judge.

David Rauenhorst seeks review of the Federal Highway Administration's (FHWA) decision to deny his request for a waiver from the federal licensing standards for commercial truck drivers. We reverse the decision of the FHWA and direct the FHWA to consider the application on its merits.

I. BACKGROUND

Petitioner seeks review of the FHWA's decision to deny his application for a waiver of the federal regulation which requires binocular vision in order to qualify for a commercial driver's license. Waivers are permitted if the Secretary of Transportation or his agent "decides that the waiver is consistent with the public interest and safe operation of commercial motor vehicles." 49 U.S.C. § 31136(e)(1).

The current relevant federal regulation, which has been in existence since 1937 in some form, denies commercial licenses for truckers who lack 20/40 (Snellen) vision in each eye with or without corrective lenses. ¹ 49 C.F.R. § 391.41(b)(10) (emphasis added). The current rule has been unchanged since 1971. 57 Fed.Reg. 6793, 6794 (Feb. 28, 1992). For many years, however, drivers obtained commercial licenses under state laws even though they had the required vision in only one eye. These monocular drivers did not have accidents at greater rates than drivers with the requisite vision in both eyes.

In 1973, Congress passed the Rehabilitation Act to prevent discrimination against the disabled, including a provision to prevent discrimination against the disabled in federally assisted programs. 29 U.S.C. § 794(a). In 1978, Congress expanded this section to preclude discrimination in "any program or activity conducted by any Executive agency." Id. No "otherwise qualified individual with handicaps" would be subject to discrimination solely because of that handicap. Id. To answer the question of whether an individual is "otherwise qualified", the trier of fact will have to conduct an individualized inquiry in most cases. School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123, 1130-31, 94 L.Ed.2d 307 (1987).

In accordance with the 1978 amendment to 29 U.S.C. § 794(a), the Department of Transportation (DOT) conducted a review of monocular drivers in 1982. This study indicated that monocular drivers should be permitted to receive commercial licenses as long as they drove within their limitations. The DOT, however, did not commence a formal process to amend the regulation.

In 1984, Congress passed the Motor Carrier Safety Act (MCSA) in order to federalize traffic safety laws and to curtail the development of inconsistent safety regulations in neighboring states. While some states had allowed monocular drivers to operate commercial vehicles under state law, the federalization process began to limit job opportunities for these individuals due to 49 C.F.R. § 391.41(b)(10). ² See 59 Fed.Reg. 50887, 50888 (Oct. 6, 1994) ("Adoption of the federal standard by many States, along with stepped-up enforcement at both the State and Federal levels, exposed these drivers to disqualification determinations.... Congress has insisted on uniform standards consistent with Federal regulations issued pursuant to the MCSA of 1984."). This Act contained the provisions authorizing the Secretary of Transportation to waive a regulation if it was in the public interest and consistent with safety. 49 U.S.C. § 31136(e). The Senate Committee on Commerce, Science, and Transportation cautioned that the waiver provision "should be used with extreme care and should only be used if the Secretary has developed sufficient information to provide adequate assurance that such waiver will not adversely affect the safe operation of commercial motor vehicles." S.Rep. No. 424, 98th Cong., 2nd Sess. 8 (1994).

In 1990, the Americans with Disabilities Act (ADA) was signed into law in order to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). It was stated in the House of Representatives Education and Labor Committee report on the bill that within two years of the effective date of the ADA, the DOT would review its regulations regarding qualifications for drivers of certain vehicle classifications. H.R.Rep. No. 485, 101st Cong., 2nd Sess., pt. 2, at 57 (1990). Congress expected that the DOT would make the necessary changes to its regulations in order to end unwarranted discrimination against the disabled. ³ Id.

The FHWA initiated an advance notice of proposed rulemaking on possible changes to its vision requirements. Concurrently, the FHWA contracted with Ketron, Inc. to "study the relationship between visual disorders and commercial vehicle motor safety." 57 Fed.Reg. 23370 (Jun. 3, 1992).

In order to determine what the safety standards for truck drivers should be, the FHWA decided to conduct a study in which they could compare experienced, visually-challenged drivers versus drivers who met the federal standards. On March 25, 1992, the FHWA published a notice of intent to issue waivers for disabled drivers who met state safety standards but not federal regulations, pursuant to the 49 U.S.C. § 31136(e) waiver provision. To qualify as a driver one must have possessed 20/40 (Snellen) vision in the better eye. The FHWA found that there was a public interest in furthering the employment of qualified individuals with disabilities and the strict nature of the qualifications of the waivers would allow the FHWA to make sure they were consistent with the safe operation of motor vehicles. 57 Fed.Reg. 23370, 23371 (Jun. 3, 1992). See 49 U.S.C. § 31136(e).

On July 16, 1992, the FHWA declared that it would give waivers to this limited group of experienced commercial drivers with clean safety records. Petitioner never applied to be a member of this test group. He maintains that he was not aware of this program at the time. The deadline for applications was extended from September 21, 1992 until December 31, 1992. Therefore, a driver had nine months between the notice of intent for the commencement of the waiver program and the application deadline. Over 3,700 applications were received and the FHWA granted waivers to 2,411 drivers. 59 Fed.Reg. 50887 (Oct. 6, 1994).

The United States Court of Appeals for the District of Columbia Circuit vacated the waiver program and remanded the rule creating it in Advocates for Highway and Auto Safety v. Federal Highway Admin., 28 F.3d 1288 (D.C.Cir.1994). The court reasoned that since the FHWA acknowledged that its recent study failed to provide sufficient foundation upon which to propose a satisfactory vision standard for drivers, it was arbitrary and capricious for the FHWA to propose a waiver program as the agency could not satisfactorily determine whether the waiver would be contrary to public interest and consistent with the safe operation of commercial vehicles. Id. at 1294. See 49 U.S.C. § 31136(e). However, those who had already been issued waivers were "grandfathered" and continued to drive commercial vehicles after the court's decision. 59 Fed.Reg. 50887, 50889 (Oct. 6, 1994).

On remand from the United States Court of Appeals for the District of Columbia Circuit, the FHWA invited additional public comment and conducted a thorough review of the evidence. In an October 6, 1994 Notice of Determination, the FHWA announced that there was additional evidence to justify the issuance of waivers to experienced monocular drivers with clean safety records. Both information provided by the states and the FHWA's waiver study had demonstrated that the safety performance of monocular drivers actually exceeded the safety performance of drivers as a whole. 59 Fed.Reg. 50887, 50890 (Oct. 6, 1994). ⁴ The statistics confirmed that the granting of the waivers was consistent with public safety and that the public interest of making sure that commercial drivers were physically capable to drive these vehicles was met. Id. at 50891. After receiving comments from almost twenty interested parties, the FHWA made a final determination validating the waiver program on November 17, 1994. 59 Fed.Reg. 59386 (Nov. 17, 1994).

On February 22, 1995, the petitioner filed an application for a waiver of the vision requirements of 49 C.F.R. § 391.41(b)(10). He had driven for 22 years and for over 1 million miles without an accident. But on May 24, 1995, the FHWA Administrator denied the petitioner's request. The Administrator reasoned that even if a waiver was crafted so as to fit only the petitioner, the precedent created by this waiver would be the destruction of the relevant federal regulation. Thus, anyone who shared characteristics with the petitioner would be subject to the new lower waiver standard, not the requirement within the Code of Federal Regulations. Furthermore, the Administrator felt that a finding that the petitioner had many years of accident-free driving was not enough for the Administrator to determine if the public interest was being protected due to Congress' historical concern with driver safety. In essence, the Administrator believed that he could not justify the withdrawal of a 60 year old federal regulation based on one individual's petition.

The petitioner appeals the FHWA's denial of his petition for a waiver of 49 C.F.R. § 391.41...