The ELD Mandates “Unconstitutional” Challenge Arguments are Set for a September 13 Court Hearing

The Owner-Operator Independent Drivers Association (OOIDA) and truckers Mark Elrod as well as Richard Pingel are plaintiffs in a lawsuit against the Federal Motor Carrier Safety Administration’s (FMCSA) Electronic Logging Device (ELD) mandate and against the broader U.S. Department of Transportation (DOT). The OOIDA is seeking to win an injunction against the 2015 Federal regulation requiring an implementation of electronic logs, instead of paper, by Dec. 18, 2017.

In March, the OOIDA filed initial arguments in its lawsuit disputing the constitutional validity of the ELD mandate’s final rules requiring electronic monitoring devices on commercial vehicles. They called the mandate both arbitrary and capricious, and attempted to also argue that the mandate rules may not actually improve safety.

“The [FMCSA] provided no proof of their claims that [the current ELD mandate] would improve highway safety,” said Jim Johnston, OOIDA President and CEO. “They didn’t even attempt to compare the safety records of trucking companies that use ELDs and those that do not.”

The ELD mandate, originally drafted in 2010 to require ELDs in commercial vehicles, outlines the rules and requirements for the new devices. The newest version of the mandate, aiming to make needed adjustments to the language as understood by the court’s decision in 2012, now devotes nearly a quarter of its length to antiharassment measures and provisions. Opponents of the new mandate say that the language does not go far enough to protect drivers from harassment.

“What’s being proposed as the standard for drivers isn’t even permissible for suspected felons without a court order,” said Todd Spencer, Executive Vice President of the Owner-Operator Independent Drivers Association.

However, in its 60 page court rebuttal, the FMCSA said that truckers should have lower expectations of privacy given the “long tradition of close government supervision” of their industry.

Additionally, with no involvement from the OOIDA, another driver, William Trescott, filed a motion with the 7th Circuit Court of Appeals, the court overseeing the current case, in an attempt to intervene on the side of the lawsuit’s plaintiffs. The 7th Circuit Court denied the motion.

Swift company driver William Trescott then appealed to the next highest court, the U.S. Supreme Court, in April, in an attempt to delay the proceedings and also add additional textual evidence to the lawsuit, knowing that the OOIDA was initially bound by a 14,000-word limit in its complaint.

Trescott hoped to add to the length and scope of the OOIDA’s original 14,000-word lawsuit but was denied that opportunity. On June 6, 2016, the Supreme Court denied the request to let William Trescott join the plaintiffs.

The truckers and the OOIDA’s key issue with the ELD mandate is that, as written, it requires tracking of driver hours of service, off duty hours, and tracking of the exact location of both the truck and driver within a one to ten mile radius at all times. The tracking limits and distances vary depending on whether the truck is being used for professional or personal use.

This seemingly unjustified constant tracking of trucks and drivers lies at the heart of a challenge to the electronic logging device mandate. Driver’s rights groups are challenging this part of the mandate as unconstitutional. The OOIDA lawsuit contends such tracking requirements are a violation of truckers’ 4th Amendment protections against illegal search and seizure.

“It’s unjustified because simple hours of service compliance doesn’t require tracking of drivers,” OOIDA
Executive Vice President Todd Spencer says. “They’ve tried to modify [the rule] a little bit to make it less
intrusive, but it’s still intrusive, and it’s a violation, from what we contend.”

The OOIDA expects the 7th Circuit Court to issue a decision in this case by year’s end, hoping for a decision in their favor.

“The court knocked it down before, therefore we are confident they will do so again,” said OOIDA Spokesperson, Norita Taylor.

The same plaintiffs were victorious in availing the 7th Circuit Court of Appeals to strike down the
2012-effective mandate due to the same constitutional violations. That mandate was essentially sent back to the U.S. Department of Transportation for edits and additional language safeguards to protect truckers from unconstitutional tracking.

Until there is an injunction, however, there will be upward pressure on trucking rates as shippers prepare for implementation. This may drive cargo transport away from trucks and onto rail tracks in order to save costs and move freight more effectively.

“As long as there’s not an injunction against ELD implementation or other changes to the regulatory landscape, we’re going to start seeing some tightening and that will work to intermodal’s benefit,” said Larry Gross, senior transportation analyst at FTR Associates.

With this new lawsuit, the OOIDA is cautious about sharing key arguments it plans to make as part of the ongoing litigation. The OOIDA has stated only that “Arguments will be provided in subsequent filings and during oral arguments in front of the court.” The OOIDA and truckers that filed a lawsuit challenging the DOT’s ELD mandate will begin oral arguments in the U.S. Court of Appeals for the 7th Circuit in Chicago on September 13.

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