The U.S. Department of Transportation this week laid out its argument in federal court against states that requested a temporary restraining order blocking the Federal Motor Carrier Safety Administration from immediately obtaining some 17 million driver records.
The records are housed in the Commercial Driver’s License Information System (CDLIS) database.
The latest filings focus on the request for a restraining order, not the larger lawsuit, which argues the FMCSA's request for the full database records is unlawful.
- FMCSA effectively asked the district court to throw out the restraining order request entirely for lack of jurisdiction, after it was lodged by 21 states and D.C.
- The restraining order, if granted, would be in place while the original complaint over the legality of FMCSA's records request is argued in court.
- The agency affirmed it would abide by all privacy-related laws and regulations in handling the driver data.
- State plaintiffs in the dispute further responded, arguing that FMCSA's arguments were "flimsy," and accusing the agency of dishonesty about intentions.
- The filings set up a potential ruling on the restraining order from the Eastern Virginia federal district court, the timing of which was not disclosed in court documents.
DOT/FMCSA’s filing came Monday, Aug. 17, in response to the lawsuit filed by nearly half the states. States were attempting to stop FMCSA and the Department of Homeland Security's request for access to driver records in the CDLIS database, maintained by the American Association of Motor Vehicle Administrators (AAMVA).
States seek to block FMCSA from obtaining the data, citing privacy concerns. A federal judge last week issued a temporary injunction, halting AAMVA from turning over the records, or FMCSA from taking adverse action against AAMVA for not doing so, while the case plays out in court.
A DHS subpoena to AAMVA stated the information obtained from CLDIS would be used for investigating "illegal practices" in CDL schools and ID'ing and addressing "criminal fraud regarding the issuance of CDLs to illegal aliens, and conducting civil immigration enforcement," according to the lawsuits.
AAMVA, caught between quarreling states and federal agencies, has maintained the CDLIS database since inception in 1986. FMCSA contracts with AAMVA as essentially an intermediary between the states, which issue CDLs, and the federal government, which sets the regulations for CDLs.
In a court filing of its own, AAMVA on Monday said it “takes no view on most of those legal issues” brought by states, adding it “seeks only to comply with State and federal law while maintaining the safety-critical functionality of the CDLIS clearinghouse.”
States' request for a temporary restraining order hoped to stop action taken by FMCSA's original Aug. 17 deadline for the records. The temporary injunction put things on hold to allow all parties to file their arguments, detailed here, for or against the temporary restraining order.
[Related: States sue DOT, DHS over demands for drivers' CDLIS records]
FMCSA’s argument against a restraining order
FMCSA’s argument against the requested temporary restraining order is based on several factors.
First, FMCSA claims the U.S. District Court for the Eastern District of Virginia “lacks subject matter jurisdiction.” FMCSA said that its request was not a “final agency action” subject to review under the Administrative Procedure Act (APA) because it “does not consummate an agency decision-making process, but merely contemplates future agency action.”
However, the agency said if its request was to be deemed a final agency action, “it would be a ‘final order’” under U.S. Code, “and thus subject to the ‘exclusive’ jurisdiction of courts of appeals under the Hobbs Act. Even if Plaintiffs could escape the horns of that dilemma (they cannot), their Privacy Act and Driver’s Privacy Protection Act (DPPA) claims are not reviewable under the APA.”
Second, FMCSA claims the governing statute -- the Commercial Motor Vehicle Safety Act of 1986 -- “permits the agency to promulgate a policy governing access to information in the database.” Said policy “preserves the agency’s right to obtain information from AAMVA, as well as its ability to share that information with other federal agencies pursuing law enforcement investigations,” FMCSA said.
That right, FMCSA added, “is expressly reserved in FMCSA’s contract with AAMVA.”
FMCSA argued that states' contention that governing statute requires consultation with them before any request of CDL records was simply incorrect.
The record request and intention to share with DHS, FMCSA said, doesn't “violate the Privacy Act, DPPA, or the Spending Clause of the Constitution. And far from being arbitrary and capricious, FMCSA’s request was reasonable and reasonably explained to AAMVA,” contrary to state claims.
Finally, FMCSA argued the states “failed to satisfy their burden on irreparable harm, the balance of equities, and the public interest.” If AAMVA provides the requested information to FMCSA, the agency said it would honor applicable privacy protections, “and the States offer no reason to think otherwise.”
“The public has an interest in ensuring that CDLs and Commercial License Permits are appropriately regulated and issued,” FMCSA argued. As such, states’ “requested relief would disrupt [the federal government’s] efforts to ensure the integrity and issuance of CDLs and Commercial License Permits, thus harming that interest.”
States’ response
States argue that since the beginning of the CDLIS, “FMCSA has carried out its mission by accessing pointer records in CDLIS one-by-one, as the need arises, just like the States and the employers of commercial drivers.”
Now, however, the states said the agency “asserts that it cannot carry out that same mission without either swallowing the CDLIS database whole or shuttering it altogether: in either case, a drastic shift in an essential system the States and the public depend on to keep our roads safe.”
Further, the states said FMCSA’s argument that its policy and contract with AAMVA grant it the right to the records is “a wolf in sheep’s clothing: FMCSA pleads its right to ‘access’ the States’ records, when what it truly seeks is to possess them.”
With individual CDLIS records already available to FMCSA, the states said, “if that were all FMCSA sought, it would have no need to hold the States’ ability to issue CDLs at gunpoint" -- referencing FMCSA's threat to pull funding and end its contract with AAMVA, effectively shutting down the CDLIS, if it did not turn over the requested records.
States said doing so would "effectively shut down CDL issuance nationwide."
The states’ arguments include that the District Court does in fact have jurisdiction to issue an injunction, noting that it does not fall under the Hobbs Act and is not subject to review by an appeals court.
States also argue that Administrative Procedure Act claims are likely to succeed because FMCSA:
- Doesn’t dispute that it failed to consult the states before seeking the “wholesale change in CDLIS’s operation.”
- Doesn’t “dispute that they will not, in fact, use all of the massive trove of data they have demanded, thus failing to qualify for an exception to the Driver’s Privacy Protection Act (DPPA)”
- “Mischaracterize[d] a decades-old and unrelated internal system to claim that they have fulfilled the requirements of the Privacy Act as to the unprecedented new system they seek to create”
- Cannot present a reasonable, non-pretextual basis for upending long-held “exclusive State ownership and AAMVA custody of CDLIS pointer records”
- “Nor can [FMCSA] point to a clear statement putting Plaintiff States on notice that, by accepting federal highway funds, they were surrendering" CDL records to the federal government.
States argued their evidence of “dire and irreparable harm is unrefuted.” The states said FMCSA’s claim that the CDLIS records “are its only means to carry out its statutory mission, despite having done so for nearly four decades without (emphasis in original) obtaining them, is simply not credible.”
Finally, states concluded that the “public interest in the federal government following the law -- to say nothing of public safety and personal privacy -- far outweighs such a flimsy justification” as that proffered by FMCSA.
[Related: FMCSA issues Final Rule banning non-domiciled CDLs almost entirely]
