Owner Operator Indep. Drivers Ass'n, Inc. v. Calhoun
| Decision Date | 31 December 2018 |
| Docket Number | 900445-18 |
| Citation | 62 Misc.3d 909,93 N.Y.S.3d 802 |
| Parties | OWNER OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., Douglas J. Hasner, Robert B. Spoon, d/b/a Spoon Trucking, David D. Winn, d/b/a Dave-Lin Enterprises and Gary L. O'Brien, d/b/a Blue Eagle Express, Plaintiffs, v. Cathy CALHOUN, Acting New York State Commissioner of Transportation, George P. Beach, II, Superintendent of the New York State Division of State Police, and Theresa L. Egan, Executive Deputy Commissioner for the New York State Department of Motor Vehicles, Defendants. |
| Court | New York Supreme Court |
Barbara D. Underwood, Attorney General, Attorney for Defendants, (Helena Lynch, of counsel), The Capitol, Albany, New York 12224-0341
Tabner, Ryan & Keniry, LLP, Local Attorneys for Plaintiffs, (Thomas R. Fallati, of counsel), 18 Corporate Woods Boulevard, Suite 8 Albany, New York 12211
The Cullen Law Firm, PLLC, Lead Attorneys for Plaintiffs, (Paul D. Cullen, Daniel E. Cohen and Katherine L. Quiniola, of counsel), 1101 30th Street, NW, Suite 300, Washington, D.C. 20007
Richard M. Platkin, J.Plaintiffs Owner Operator Independent Drivers Association, Inc., Douglas J. Hasner, Robert B. Spoon d/b/a Spoon Trucking, David D. Winn d/b/a Dave-Lin Enterprises and Gary L. O'Brien d/b/a Blue Eagle Express commenced this action seeking to restrain New York State ("State") officials from enforcing a new federal rule that requires commercial truckers to use an electronic logging device to record their hours of service.
Defendants Cathy Calhoun, sued as Acting Commissioner of the New York State Department of Transportation, George P. Beach, II, the Superintendent of the New York State Police, and Theresa L. Egan, the Executive Deputy Commissioner for the New York State Department of Motor Vehicles, moved, pre-answer, for the dismissal of plaintiffs' complaint under CPLR 3211(a)(2) and (7).1 Following final submission of the motion, the Court gave notice of its intention to treat the motion as one for summary judgment (see NY St Cts Elec Filing [NYSCEF] Doc No. 42; CPLR 3211 [c] ).
The parties thereafter engaged in paper discovery pursuant to stipulation. Defendants then filed a supplemental submission in support of the motion, and plaintiffs cross-moved for summary judgment on their complaint (see NYSCEF Doc No. 18, ¶ 2 ["Complaint"] ). This Decision, Order & Judgment follows.
Plaintiff Owner Operator Independent Drivers Association, Inc. ("OOIDA") is a not-for-profit corporation whose membership includes the owners and operators of commercial motor vehicles ("CMVs") and commercial trucking businesses operating as federally-regulated motor carriers. The four individual plaintiffs are owner-operators who conduct at least a portion of their business activities in the State.
The United States Department of Transportation, Federal Motor Carrier Safety Administration ("FMCSA") establishes and enforces federal safety standards for CMVs and their operators (see 49 CFR parts 350-399). "In order to supplement scarce enforcement assets at the federal level, FMCSA provides grants to individual states who agree both to incorporate ... the Federal Motor Carrier Safety Regulations (‘FMCSR’) into state law and to enforce those regulations against CMVs and their drivers under state law" (Complaint, ¶ 1; see id. , ¶ 16). This grant program is known as the Motor Carrier Safety Assistance Program ("MCSAP") (see 49 USC § 31102 ; 49 CFR 350.211 [a], [b] ).
Plaintiffs allege that "New York is a participant in MCSAP but has not adopted into state law recent amendments and additions to the FMCSRs that require installation and use of Electronic Logging Devices (‘ELDs’) to track driver compliance with hours-of-service (‘HOS’) requirements" (Complaint, ¶ 2; see 49 CFR 395.8 ["ELD Rule"] ).2 Pursuant to the ELD Rule, which presently is in effect and enforced by the federal government, carriers must install ELDs and require each driver to record his or her duty status using the ELD for purposes of ensuring compliance with HOS rules (Complaint, ¶¶ 29-32). Prior to the adoption of the ELD Rule, drivers were permitted to use either paper logs or automated on-board recording devices ("AOBRDs") to record HOS (see former 49 CFR 395.8 [a]; NYSCEF Doc No. 54).
Despite the lack of incorporation of the ELD Rule into State law, plaintiffs allege that "[d]efendants are nevertheless prepared to take enforcement action against motor carriers and drivers for putative violations of the ELD mandate" (Complaint, ¶ 2). Plaintiffs further allege that "even if New York were to incorporate recent additions and amendments to the FMCSRs into state law, enforcement of those provisions violates Article I, § 12 of the New York State Constitution related to warrantless searches and seizures" (id. ).
In alleging that defendants began enforcement of the ELD Rule on December 18, 2017 — the same date on which the federal government began enforcement — the Complaint cites statements allegedly made to FMCSA by the Commercial Vehicle Safety Alliance ("CVSA"), a non-profit organization comprised of local, state and federal CMV enforcement officials and organizations, including the New York State Department of Transportation ("DOT") and the New York State Police ("NYSP") (see id. , ¶¶ 37-38). According to plaintiffs, CVSA's statements to FMCSA "mean[ ] that [d]efendants are implementing a policy of enforcing the FMCSRs without respect to whether the equivalent to those federal regulations ha[s] been incorporated into New York law" (id. , ¶ 38).
Plaintiffs, on behalf of themselves and as representatives of a putative class of others similarly situated, seek an order and judgment: (1) restraining defendants from enforcing the ELD Rule until the rule has been properly incorporated into State law; (2) restraining defendants from conducting warrantless inspections of ELD data; (3) declaring that defendants' planned enforcement activities "would" violate (i) Article IV, § 8 of the New York Constitution (), (ii) Article I, § 6 (due process) and (iii) Article I, § 12 ().
While acknowledging that DOT was proceeding with rulemaking to incorporate the October 1, 2016 edition of the FMCSA regulations, including the ELD Rule, into State law, defendants asserted in their motion to dismiss that (1) the incorporation rule had not yet been adopted and filed with the Department of State and (2) until such a rule was adopted and filed, defendants were not, and would not, enforce the ELD Rule under State law. On this basis, defendants argued that plaintiffs' claims were not ripe for judicial review. Defendants further argued that plaintiffs' causes of action under Article I, §§ 6 and 12 fail to state a claim upon which relief can be granted.
In opposing the motion, plaintiffs argued that their challenge to defendants' enforcement of the ELD Rule is ripe for judicial review inasmuch as defendants are enforcing the ELD Rule by executing searches and seizures of drivers and reporting purported violations to federal authorities. Plaintiffs further argued that defendants' alleged enforcement activities constitute unreasonable searches and seizures and violations of due process under the State Constitution.
Following the submission of defendants' motion, plaintiffs notified the Court on June 15, 2018 that DOT had withdrawn the proposed rulemaking.
Upon the conversion of defendants' motion into one for summary judgment, the parties entered into stipulations providing for the exchange of paper discovery and supplemental briefing (see NYSCEF Docs. 47, 58). As part of that process, plaintiffs cross-moved for summary judgment on its second and third causes of action.
Plaintiffs' first cause of action alleges that DOT has not incorporated the October 1, 2016 edition of the FMCSA regulations into State law, and, therefore, any action taken to enforce the ELD Rule would run afoul of Article IV, § 8 of the New York Constitution, which provides that "[n]o rule or regulation made by any state department ... shall be effective until it is filed in the office of the department of state." Petitioners seek, among other things, a judgment declaring that defendants lack authority to enforce the ELD Rule pending its incorporation into State law.
Defendants acknowledge that the ELD Rule has not been incorporated into State law, and they do not dispute plaintiffs' contention that " ‘any action taken to enforce [the ELD Rule] would be ultra vires and a violation of NY Const. art. IV, § 8 ’ " (NYSCEF Doc No. 12 ["MOL"], p. 14, quoting Complaint, ¶ 92). Rather, in seeking dismissal of the first cause of action, defendants argue that plaintiffs "do not allege that any enforcement action has occurred," and, in fact, "[p]laintiffs expressly admit that no enforcement action has occurred" (id. ). Thus, defendants dismiss as unripe plaintiffs' attempt to challenge "hypothetical, possible future enforcement" of the ELD Rule (id. , p. 13).
As defendants observe, the Complaint is directed largely at defendants' anticipated enforcement of the ELD Rule. Thus, plaintiffs allege that defendants are "prepared to take enforcement action" with respect to the ELD Rule (Complaint, ¶ 2), and they seek to challenge defendants' "planned enforcement activity" and "impending enforcement" (id. , ¶¶ 4, 23). Nonetheless, the Complaint does include one allegation, made solely upon information and belief, that defendants began enforcing the ELD Rule on December 18, 2017 (id. , ¶¶ 37-38).
In seeking to demonstrate that the State is not enforcing the ELD Rule, defendants submit affidavits from officials with DOT, NYSP and the Department of Motor Vehicles ("DMV").
Marc Berger serves as the chief motor-carrier investigator for DOT, which is the State's lead MCSAP agency (see NYSCEF Doc No. 13,...
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