GRAIN VALLEY, Mo. — Land Line, the magazine of the Owner-Operator Independent Drivers Association reports that OOIDA has filed a petition asking the Unites States Supreme Court to review the association’s case on the electronic logging mandate.
OOIDA’s litigation counsel, the Cullen Law Firm, filed a Petition for Writ of Certiorari Tuesday. The filing formally requests that the Supreme Court review the ruling handed down by the U.S. Court of Appeals for the Seventh Circuit in October 2016 that upheld the Federal Motor Carrier Safety Administration regulation requiring electronic logging devices in all trucks model year 2000 or newer.
OOIDA President and CEO Jim Johnston told Lane Line if the court agrees to hear the case, the association’s lawyers will argue that mandatory ELDs are unconstitutional under the search and seizure provisions of the Fourth Amendment.
“As you might imagine, we were very disappointed and surprised by the ruling against us by the Seventh Circuit Court of Appeals,” Johnston told Land Line. “We were surprised because this same court ruled in our favor on the earlier electronic log regulation that was designed to require monitoring systems on carriers that had accumulated a significant number of Hours of Service violations.”
The filing submitted to the Supreme Court alleges that the FMCSA failed to meet legal thresholds that would allow it to sidestep search and seizure protections in the Fourth Amendment.
Commercial truck drivers are restricted to a limited number of working and driving hours under current regulations. The FMCSA’s mandate requires that truck drivers use ELDs to track their driving and non-driving activities even though such devices can only track movement and location of a vehicle. OOIDA contends that requiring electronic monitoring devices on commercial vehicles does not advance safety since they are no more reliable than paper logbooks for recording compliance with hours-of-service regulations.
OOIDA claims that 24/7 monitoring of truck drivers via the electronic logs constitutes a form of surveillance.
“The Supreme Court really accepts only a very small percentage of cases presented to it, and one of their primary criteria for hearing cases is to maintain consistency between the various courts around the country in how similar legal issues are resolved by those courts,” Johnston told Land Line.
This case primarily involves warrantless searches and seizures under the Fourth Amendment, he explained.
“It is well established that the installation of monitoring or tracking devices on a person’s vehicle is a search and seizure under the Fourth Amendment. In most cases, it is done for law enforcement purposes and requires a warrant, signed by a judge, based on probable cause that laws are being broken,” Johnston said.
There are exceptions to that, however, Land Line reported.
One of those exceptions is what FMCSA hung its case on before the Seventh Circuit. That is in the case of a pervasively or highly regulated industry.
“The history of that exception is that it only applies to business premises and not individual persons. Also, it involves administrative searches and not searches for law enforcement purposes, which we believe would clearly require individual search warrants,” Johnston said.
According to the Lane Line article, in its petition to the Supreme Court, OOIDA also asks the court to determine whether the ELD rule violated the Fourth Amendment by failing to establish a regulatory structure at the state and federal levels that serves as a substitute for a warrant. In short, are there restrictions on the ways the data collected by the ELDs can be used by any law enforcement agency?
“We believe that the Seventh Circuit erred in allowing warrantless searches of 3.5 million drivers, designed specifically to uncover evidence of criminal activity,” Johnston said. “In doing so, the Seventh Circuit decision splits directly with rulings by both the Fifth and Eleventh Circuit Courts.
“This is also the first time that the pervasively regulated industry exception has been applied directly to the search of an individual to serve the ordinary needs of criminal law enforcement.”
According to the Supreme Court’s website, the court receives 7,000 to 8,000 petitions each term. The court grants and hears oral argument in only about 80. Granting a petition requires the votes of four justices. The court generally rules on a petition about six weeks after it’s filed.
Johnston told Land Line Now that OOIDA is not putting all its eggs in one basket with the legal petition.
Instead, he said OOIDA is also in touch with the Trump administration, which opposes unnecessary and costly regulations.