Taking a last legal swing, the Owner-Operator Independent Drivers Assn. on Wednesday asked the U.S. Court of Appeals for the 7th Circuit to take another look at the electronic logging device rule due to take effect in one year.
The Rule 35 appeal requests an en banc rehearing—one before the full panel of the court’s members—of OOIDA’s petition to block the ELD mandate. In an Oct. 31 decision, a three-judge panel rejected the small-business trucking group’s arguments, referring broadly to the 80-year history of regulating the trucking industry and driver work limits. Specifically, the court said the application of electronic logs does not violate Fourth Amendment protections and that the rule adequately addresses confidentiality concerns.
In the new filing, however, OOIDA says that opinion “conflicts with controlling precedent” that has consistently limited the “pervasively regulated industry” exception to administrative searches of businesses, and has never extended it to the search of individuals for the “ordinary needs” of law enforcement.
Additionally, even when a warrantless search is permitted under the “pervasively regulated industry” exception, regulations authorizing the search must be carefully limited and sufficiently detailed.
“Such regulations must serve as a constitutionally adequate substitute for a warrant,” OOIDA contends, citing several precedents. “The regulatory scheme at issue here wholly fails to satisfy this requirement.”
As to confidentiality, the appeal argues that the Federal Motor Carrier Safety Administration has not taken any measures to ensure that state enforcement officers in the field abide by the statutory requirements.
“The record shows a complete default on the part of the Agency in implementing the driver protections,” OOIDA says.
Finally, OOIDA contends the case presents “an issue of exceptional importance,” sufficient to warrant a rehearing, based on the “profound implications” for the propriety of this and other joint federal-state enforcement schemes.
“FMCSA has consistently abused its authority to enforce HOS regulations,” the appeal concludes, pointing to previous court decisions blocking HOS and e-log rules. “Here, the Agency has ignored its responsibility to protect driver confidentiality and to limit the use of ELD data to HOS enforcement. Before subjecting 3.5 million drivers to constant surveillance pursuant to warrantless searches, the Agency ought to proceed with scrupulous attention to the statutory and constitutional requirements imposed on it. The ELD Rule represents the latest in a long line of FMCSA rules transgressing those requirements, and the panel’s opinion to the contrary is plainly erroneous.”
A majority of the court’s 12 judges must agree to the request for a rehearing.