8 Parker v. United States

Dep’t of Transp., et al.

No. 98-4331

As such, we find that the FHWA’s decision denying Parker

a waiver from the federal vision regulations is arbitrary andcapricious. Accordingly, the case is remanded so that theFHWA may create a functional capacity test consistent withits findings that an individual’s driving record is indicative offuture performance which will evaluate Parker’s driving skillsbased upon his individual capabilities.

REVERSED and REMANDED.

*

The Honorable Sandra S. Beckwith, 

the Southern District of Ohio, sitting by 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

JERRY W. PARKER,

Petitioner,

v.

UNITED STATES DEPARTMENT

OF TRANSPORTATION,

FEDERAL HIGHWAYADMINISTRATION, and THEUNITED STATES OF AMERICA,

Respondents.

On Petition for Review o

Federal Highway Ad

United States Department 

Argued: Decembe

Decided and Filed: M

Before: MERRITT and SIL

BECKWITH, Distr
2 Parker v. United States

Dep’t of Transp., et al.

No. 98-4331

_________________

COUNSEL

ARGUED: Gerald W. Von Korff, RINKE & NOONAN, St.Cloud, Minnesota, for Petitioner. Matthew M. Collette, U.S.DEPARTMENT OF JUSTICE CIVIL DIVISION,APPELLATE STAFF, Washington, D.C., for Respondents.ON BRIEF: Gerald W. Von Korff, RINKE & NOONAN, St.Cloud, Minnesota, for Petitioner. Matthew M. Collette,Michael Jay Singer, U.S. DEPARTMENT OF JUSTICECIVIL DIVISION, APPELLATE STAFF, Washington, D.C.,for Respondents. 

_________________

OPINION

_________________

SILER, Circuit Judge. Petitioner, Jerry W. Parker, appeals

the Federal Highway Administration’s (“FHWA”) decision todeny him a license to drive commercial trucks in interstatecommerce because he suffers from monocular vision and ismissing part of his left arm. Because the FHWA’s decisionwas arbitrary and capricious, we REVERSE and REMAND.

I. BACKGROUND

Parker is a commercial truck driver who suffers from a

congenital eye condition known as Coates disease. As aresult, he has corrected vision of 20/20 in his left eye andcorrected vision of 20/300 in his right eye. He also had partof his left arm amputated after a grain elevator accidenttwenty years ago. Although he is licensed to drivecommercial trucks intrastate in Ohio, Parker fails to meet theminimum federal safety standard for interstate commercialtruckers which requires a:

[D]istant visual acuity of at least 20/40 (Snellen) in eacheye without corrective lenses or visual acuity separately

No. 98-4331 Pa

De

and make appropriate findings of fof Nassau County v. Arline, 480 U

The Department of Transportati

it must make an individual inquiry application, but asserts that it laperformance of drivers with mconsequence, there is no standard rely on to ensure that granting a multiple disabilities would achievof safety than if the waiver was not 

95 F.3d at 723 (“[S]pecific waivspecific test or standards.”). Althoprobably grant Parker a waiver if hhis disabilities, the DOT contenwaiver to a driver with multipevidence that such waiver is cinterest and the safe operation o

Skinner, 943 F.2d 157 (1st Cir. 19

We find the DOT’s argument u

FHWA initiated the waiver progstudies which indicated that “the performance by a driver is his patraffic violations.” 63 Fed. Reg. 1has clearly demonstrated thaimpairments, he is able to sFurthermore, the DOT has not evedriving test with a review of Pafailing to assess Parker’s actual caessence created a per se rule againto individuals with multiple disabilindividuals’ employment opportuncontradiction to the goals and purAct which is to provide equal oindividuals, including assisting sucsubstantial employment. 29 U.S.C
6 Parker v. United States

Dep’t of Transp., et al.

No. 98-4331

6A limb disability waiver may be granted to an individual who is not

physically qualified to drive under § 391(b)(1) as long as that individual“is otherwise qualified to drive a commercial motor vehicle....” 49 C.F.R.§ 391.49. Parker fails to qualify for such a waiver because of hiseyesight.

 II. STANDARD OF REVIEW

The Administrative Procedure Act provides that an

agency’s action may not be set aside unless it is “arbitrary,capricious, an abuse of discretion, or otherwise not inaccordance with the law.” 5 U.S.C. § 706(2)(A); Rauenhorstv. Department of Transportation, 95 F.3d 715 , 718-19 (8thCir. 1996). “The scope of review is ‘narrow and a court isnot to substitute its judgment for that of the agency.’”Rauenhorst., 95 F.3d at 718-19 (quoting Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43(1983)). However, the agency must offer a satisfactoryexplanation of its reasons based on the relevant data. MotorVehicle Mfrs. Ass’n, 63 U.S. at 43. 

III. DISCUSSION

To be eligible for a federal vision waiver, an applicant must

satisfy the CMV driver qualifications under 49 C.F.R. Part 39,which provides that a person is physically qualified to drivea CMV as long as he or she “has no loss of a foot, a leg, ahand, or an arm....” 49 C.F.R. § 391.41(b)(1).6 Because

Parker is missing part of his left arm, the FHWA denied hisrequest for a vision waiver. Under § 504 of the RehabilitationAct, however, the FHWA must make an individualassessment of Parker’s driving capabilities before it can denyhis request for a vision waiver. See Hall v. United StatesPostal Service, 857 F.2d 1073, 1078-79 (6th Cir. 1988)(“Indetermining whether a handicapped individual can performthe essential functions of a position and, if not whether areasonable accommodation will enable him or her to do so, adistrict court ‘will need to conduct an individualized inquiry

No. 98-4331 Pa

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1The first federal vision standard wa

current version of the standard, which haSee 57 Fed. Reg. 6793, 6793-94 (1992).

2When the ADA was enacted, the S

given two years to review all motor vehicwhether the standards conform with 

corrected to 20/40 (Snellen) olenses, distant binocular acuity oin both eyes with or without covison of at least 70 degrees in theach eye, and the ability to recogsignals and devices showing stamber in both eyes. 

49 C.F.R. § 391.41(b)(10).1 HoCarrier Safety Act of 1984, Pub. L(codified at 49 U.S.C. § 31136(e), 2505(f)), the Secretary of Transpgrant waivers from this regulation consistent with the public interest avehicles.” 49 U.S.C. § 31136(e)(1) U.S.C. § 31136(e) (1996). In othean unqualified driver will be grawould likely achieve a level of safgreater than the level that would exemption.” 49 U.S.C. § 31315(b)

In 1992, the FHWA initiated a 

would be granted to a limited grdrivers who failed to meet the fedhad a history of operating a comsafely. See 57 Fed. Reg. 23370 (19served as part of a regulatory rephysical qualifications placed on CAmericans With Disabilities Act oet seq. (“ADA”), as well as the RehU.S.C. § 701, et seq. (“Reha
4 Parker v. United States

Dep’t of Transp., et al.

No. 98-4331

capabilities of persons with disabilities and currently availabletechnological aids and devices and whether such regulations are validunder this Act. The Committee expects that the agency will make anynecessary changes within the two year period to bring such regulationsinto compliance with the law. (Of course, a non- discriminationobligation on the part of the Department of Transportation also existscurrently under section 504 of the Rehabilitation Act of 1973.).”H.R.Rep. No. 485, 101st Cong., 2nd Sess., pt. 2 at 57 1990 U.S. CodeCong. & Ad. News pp. 303, 339.

3In order to qualify for a waiver application, an applicant must:

1) [B]e otherwise qualified under 49 CFR Part 391....;2) [H]old a valid commercial driver's license to operate a CMVissued after April 1, 1990....;3) [H]ave had three years' recent experience driving a CMVwithout (1) license suspension or revocation; (2) involvement ina reportable accident in which the applicant received a citationfor a moving violation; (3) conviction for driving a CMV whileintoxicated, leaving the scene of an accident involving a CMV,commission of a felony or more than one serious traffic violationinvolving a CMV; or (4) more than two convictions for anyother moving violation in a CMV....; and4) [P]resent proof from an optometrist or ophthalmologistcertifying that the applicant's visual deficiency has not worsenedsince his or her last examination, that vision in one eye is at least20/40 acuity, corrected or uncorrected, and that the applicant isable to perform the driving tasks required to operate a CMV.

61 Fed. Reg. 606, 606-07(1996). The applicant must also: “(1) report allcitations for moving violations involving a CMV; (2) report thedisposition of the charge; (3) report any accident involvement whatsoeverwhile operating a CMV; (4) submit documentation of an annualexamination by an ophthalmologist or optometrist; and (5) submit reportsof vehicle miles traveled monthly in a CMV.” Id. at 607.participants consisted of experienced monocular drivers whomet minimal physical requirements and had clean drivingrecords.3 The FHWA found that, despite their visual

impairments, the participants had better driving records thanall CMV drivers in general. Thus, the FHWA determined thatgranting waivers to these visually impaired drivers would be“‘consistent with the safe operation of commercial motor

No. 98-4331 Pa

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4In Advocates for Highway and Au

Administration, 28 F.3d 1288 (D.C.Cir. 1FHWA’s vision waiver program to be arbiFHWA needed “the waiver program between specific visual deficiencies and simultaneously determining that the pdiminution of safety standards.” Id. at 1

any evidence to support the FHWA’s cowould not be diminished, the court founlaw and vacated the rule instituting it. reviewed all the driver safety and performthe two years that the waiver program h

Reg. 50887-02, 50890 (1994). Along wavailable to the court in Advocates, the determination that granting waivers to myears of safe driving experience would noat 50890-91. 

5Parker was licensed to drive a C

December 1993, and thereafter drove his vehicles,’” and “be in the ‘public[’23370, 23371 (1992)(quoting § 2505(f)).4

In 1996, Parker applied for a fed

of his application, Parker providdriven over 1.2 million miles in a incident.5 Despite his impeccable 

denied Parker’s request after it Parker have monocular vision, buhis left arm. The FHWA found sufficient evidence to demonstrate tvision impairment could drive safevidence that someone with muoperate a commercial vehicle with as an unimpaired driver. Thus, the such an exemption would achieve tof safety that would be achieved a