**UNITED STATES DEPARTMENT OF TRANSPORTATION**

**OFFICE OF HEARINGS**

**WASHINGTON, D.C.**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**IN THE MATTER OF**

**MORNING FIRST DELIVERY, INC.**

**(RESPONDENT)**

**DOCKET NO. FMCSA-2008-0090**

**(Federal Motor Carrier Safety Administration)**

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**RESPONDENT'S MOTION FOR**

**STAY OF ADMINISTRATIVE HEARING**

**SET FOR FEBRUARY 19, 2009**

COMES NOW, Morning First Delivery, Inc. ("Respondent"), by and through
the undersigned, hereby moves this Court for an order staying the
administrative hearing set for February 19, 2009 until a reasonable time
after the Court has had an opportunity to render a decision on
Respondent's Motion for Partial Summary Judgment and Motion to Compel
Agency's Responses to Discovery, if such action becomes necessary.

Respondent seeks this relief in order to avoid hardship on both parties
from having to spend unnecessary time, money, and other resources
preparing for trial on the merits on [all]{.underline} issues.
Respondent further asserts that if the Court does not grant the stay and
Morning First is forced to go to the hearing, it will be highly
prejudiced without full discovery disclosure by the FMCSA. For example,
based on information contained in oversight reports, the FMCSA has
failed to disclose relevant information concerning training materials,
communications, and other documents developed to aid federal and state
inspectors to determine uniformly the level of English proficiency
required by 49 CFR §391.11(b)(2) at the roadside and during compliance
reviews.

Further, based on testimony of the Secretary of Transportation and the
DOT Inspector General (at the Senate Commerce Committee hearing), it
becomes clear that FMCSA and its federally funded border states have
enforced §391.11(b)(2) and Commercial Vehicle Safety Alliance's (CVSA)
out-of-service criteria differently for Mexican limited English
proficient (LEP) drivers participating in the Cross Border Demonstration
program for compliance with §392.11(b)(2) than for Respondent's LEP
Asian drivers residing and operating exclusively in the United States.
This type of information has yet to be turned over to Respondent. Under
the Agency's Rules of Practice (49 CFR Part 386), Respondent is entitled
to all discoverable information relevant and material to the issues in
this case.

Further, if the Court does not rule on Respondent's Motion to Compel
Respondent would be improperly disadvantaged if it had to proceed to
trial with only the information the Field Administrator chooses to turn
over and without information on the Agency's compliance with Title VI
requirements as it applies to its enforcement programs. As the Court
rightly recognized in his Order of January 5, 2009: "*The questions
whether Respondent violated the Federal Motor Carrier Safety Regulations
and, if it did, what penalty it ought to pay are serious business*.
Respondent agrees but states also of equal importance is whether the
FMCSA and its funded recipients complied with civil rights laws of the
United States in pursuit of those alleged charges and what assistance
the federal and state inspectors provided to Respondent's drivers
consistent with DOT/LEP guidance. Respondent believes that is "serious
business" as well.

Without exception, the FMCSA is charged by law and regulations to ensure
that it and its federally funded recipients fully comply with
Presidential Executive Orders (13166, 13125, and 13216), Department of
Justice Guidelines (67 FR 41455), Department of Transportation
Guidelines (70 FR 74087) and Parts 21 and 303 of 49 CFR. Each of these
orders, rules, or guidelines imposes specific duties and
responsibilities on federal and state enforcement agencies.
Consequently, Respondent is entitled to receive discoverable information
whether FMCSA and funded states are complying in their respective
pursuit of Respondent and its Asian drivers for alleged violations of 49
CFR §391.11(b)(2) and CVSA's out-of-service criteria, especially without
notice and comment rulemaking and fair notice. (*See Respondent's Motion
for Partial Summary Judgment*).

In 1997, EEOC and ACLU warned the FMCSA that its "vague and broad
language of 49 CFR. Section 391.11(b)(2) permits subjective and
discriminatory enforcement of the regulations in violation of due
process." [^1] FMCSA owes duties and obligations to Respondent as a
member of the protected group. In 2003, the Agency said it did not have
quantifiable information to change the legislative rule in
§391.11(b)(2). But, in July 2007, the Agency somehow found enough
quantifiable information to significantly reverse prior interpretive
decisions spanning 70 years with a policy memorandum. *Id. Summary
Judgment Motion*. Respondent is entitled to see documents and
information of FMCSA that provide the underlying basis for this
impermissible policy change and how this change conforms with
Departmental and Agency civil rights duties and obligations. *See* 49
CFR Parts 21 and 303. [^2]

If this Court chooses to rule that FMCSA compliance with Title VI and
that of its federally funded recipients is [not]{.underline} relevant
and material to the instant case, then respectfully Respondent concludes
that the Court has in his mind's eye foreseen the outcome of the case.
He has concluded that all of FMCSA's actions or inactions concerning
enforcement of §391.11(b)(2) against Respondent and its drivers are as
"presumptively true and correct". Now, Respondent must try to prove the
opposite using only the documents the Agency chooses to provide.

In short, in the wisdom of this Court, if he see no useful purpose for
him to address whether the FMCSA was required by law to promulgate a
notice and comment rule instead of a policy memorandum, or whether the
Agency owed Respondent and the regulated industry fair notice before
imposing a civil liability based on a new or changed standard, or
whether the Agency was required as a part of its civil rights
obligations to assist LEP persons to participate in their safety program
and activities before arbitrarily disqualifying Respondent's LEP
driver(s), Respondent would rather have that written conclusion prior to
a hearing on the merits rather than after in order to pursue other
judicial review and relief alternatives.

WHEREFORE, for the reasons stated above, Respondent hereby requests an
order staying the Administrative Hearing until after the Court's ruling
on Respondents Motion for Partial Summary Judgment and Motion to Compel,
if necessary.

Respectfully submitted January 21, 2009.

![](media/image1.png){width="2.501388888888889in"
height="0.40555555555555556in"}

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

James E. Scapellato

Attorney for Morning First Delivery, Inc

**CERTIFICATE OF SERVICE**

FMCSA-2008-0090

This is to certify that on January 21, 2009, that the undersigned mailed
a copy of Respondent's Motion for Stay of Administrative Hearing set for
February 19, 2009 to the individuals listed below:

U.S. Department of Transportation Electronic

Docket Operations, M-30

West Building Ground Floor

Room W12-140

1200 New Jersey Avenue, S.E.

Washington, D.C. 20590

The Honorable Isaac D. Benkin Facsimile

Administrative Law Judge

Office of Hearings, M-20

U.S. Department of Transportation

1200 New Jersey Avenue, S.E.

East Building Ground Floor

Room E12-358

Washington, D.C. 20590

Deborah A. Stanziano, Esq. Electronic Copy

Trial Attorney and U.S. Mail

Federal Motor Carrier Safety Administration

Southern Service Center

1800 Century Boulevard, Suite 1700

Atlanta, GA 30345

\(404\) 327-7375 (Office)

\(404\) 327- 7359

<deborah.stanziano@dot.gov>

![](media/image1.png){width="2.372916666666667in"
height="0.38680555555555557in"}

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

James E. Scapellato

[^1]: See March 14, 1997 letter to Department of Transportation Office
    of Civil Rights in the ANPRM rulemaking docket FHWA-97-2759.

[^2]: Section 21.7 of 49 CFR requires each applicant of federal funds to
    submit an assurance that its program implementation will be
    consistent with 49 CFR Part 21 and every award of federal financial
    assistance shall require the submission of such assurance. Section
    21.11 of 49 CFR states the Secretary (FMCSA) shall from time to time
    review the practices of federally funded recipients to determine
    whether they are complying with 49 CFR Part 21. FMCSA refuses to
    turn over this information on discovery, which is both relevant and
    material to this case since Respondent and its drivers are members
    of the Title VI protected group and the enforcement actions of the
    FMCSA and funded States have a discriminatory effect based on nation
    and LEP compliance.