The federal government faced pointed questioning last week during oral arguments in Lujan vs. FMCSA, with the U.S. Court of Appeals for the District of Columbia appearing, at several points, more skeptical of the Department of Transportation’s position than that of the plaintiffs challenging the rule.
Simon Jerome, representing the Department of Transportation, encountered repeated pushback from the three-judge panel, while Wendy Liu, arguing for the coalition opposing the rule, appeared to face fewer challenges from the bench.
Liu represents a group of organizations challenging recent Federal Motor Carrier Safety Administration changes governing the issuance of commercial driver’s licenses (CDLs) and commercial learner’s permits (CLPs) to non-domiciled drivers. King County, Washington, is among the plaintiffs and also presented arguments before the court.
The lead plaintiff, Jorge Rivera Lujan, is a DACA immigrant — a person brought to the United States as a child by their parents and who remains in the country. DACA recipients are not covered by any special waiver under the FMCSA’s non-domiciled CDL rule.
A second September court appearance for the DOT lawyer
The hearing marked the second time in September that Jerome had appeared before the court to argue a case involving CDL regulations.
Earlier in the month, he represented the federal government in California vs. DOT, a separate dispute centered on whether the federal government can withhold funding from states based on their compliance with federal CDL issuance requirements.
During the Lujan arguments, Jerome outlined the two main components of the new rule, which took effect in the spring.
The first, he explained, changes the substantive eligibility requirements for applying for and obtaining a non-domiciled CDL. That change significantly narrows the immigration statuses that can qualify.
The second changes the documents that immigrants may use to demonstrate that eligibility.
Jerome said the FMCSA introduced both measures to address what the agency viewed as a “safety gap” caused by the lack of access to foreign driving records. Federal CDL rules require a 10-year driving history, and the government has argued in its court filings that states face substantial difficulties obtaining that information when issuing non-domiciled CDLs.
Under the new rule, acceptable documentation has also been reduced. A non-domiciled applicant must provide an unexpired passport and a Form I-94. Employment Authorization Documents, or EADs, are no longer accepted as evidence of eligibility.
Judges question whether the previous system really needed to change
The skepticism from the bench emerged almost immediately after Jerome began his opening argument.
One of the judges asked why the previous requirements for non-domiciled applicants were inadequate and why they had to be substantially overhauled.
An I-94 is the federal record showing that a person entered the United States legally, identifying the visa status under which they entered and the period they are authorized to remain in the country. Most travelers receive an electronic I-94 that can be accessed online using their passport information.
The passport-and-I-94 requirement became a central point of questioning.
One judge asked why there would be a problem if a non-domiciled CDL applicant could already provide a complete 10-year driving history.
Jerome responded that the difficulty was that it would be unreasonable to expect state agencies to interpret such records.
The judges then questioned whether the federal government was effectively assuming that states could not be trusted to protect the safety of their own citizens and residents.
Jerome replied that the federal government had never disputed the states’ incentive to do so.
Court questions whether driving records should be such a barrier
The panel also appeared unconvinced by the federal government’s argument that obtaining a 10-year driving history for a non-domiciled driver should represent such a substantial obstacle that it justifies limiting the ability of many applicants to obtain a CDL.
The judges’ questions suggested that states and employers already have mechanisms to evaluate safety records. From that perspective, one judge indicated that the DOT’s explanation “just doesn’t make any sense to me as a rationale.”
The discussion then expanded into other federal rules concerning the screening and vetting of immigrant workers, at times moving beyond the specific FMCSA regulation at issue.
Still, the central issue repeatedly returned to the limited number of routes available under the new rule for a non-domiciled applicant seeking a CDL.
That produced an extended exchange between Jerome and the judges, who presented a series of hypothetical situations and repeatedly asked whether applicants in different circumstances would still be able to obtain a license.
At one point, a judge told Jerome that the federal government appeared to be “between a rock and a hard place.”
The panel also questioned why the regulation contains no grandfather provision for non-domiciled drivers who have already been operating in the United States for 10 years or more.
Jerome said the agency believed such an exemption would undermine the rule’s objectives.
He acknowledged that historical driving records are valuable but said the agency was also concerned about a driver’s more immediate or contemporaneous driving history. In particular, he pointed to situations in which an individual could travel to a foreign country and hold a license there, while the existence and details of that license could remain effectively inaccessible to U.S. authorities.
Plaintiffs challenge the safety rationale
Liu argued that the 10-year record requirement should not be mistaken for a minimum amount of driving experience.
“There’s no minimum years of driving needed before you get a CDL,” she said, meaning that an applicant could have no driving history in the United States at all.
That prompted another hypothetical from the bench.
A judge asked whether a U.S. citizen who had lived abroad for 10 years, even with what was described as a “terrible driving record,” could return to the United States and obtain a CDL without any review of that foreign driving history or any equivalent substitute for it.
Liu confirmed that such a situation was possible under the rules.
She described the discrepancy as a “uniformity problem,” noting that foreign driving records are not checked for U.S. nationals or citizens even though significant numbers of Americans drive abroad before returning to the United States.
Liu also argued that the distinction undermines the agency’s stated safety rationale. She said the agency had pointed to no evidence in the administrative record demonstrating that people who have driven in other countries are responsible for more crashes than other drivers.
New York challenge will be heard on September 28
The legal disputes surrounding the FMCSA’s non-domiciled CDL changes will continue through the end of the month.
Oral arguments are scheduled for September 28 in New York’s challenge to the rule. Like California, New York is contesting the withholding of federal funds tied to its dispute with the FMCSA over state procedures governing non-domiciled CDLs.
