Jerry W. Parker v. United States Department of Transportation , Federal Highway Administration

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 and
capricious. Accordingly, the case is remanded so that the
FHWA may create a functional capacity test consistent with
its findings that an individual’s driving record is indicative of
future performance which will evaluate Parker’s driving skills
based upon his individual capabilities.
REVERSED and REMANDED.
*The Honorable Sandra S. Beckwith, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0094P (6th Cir.)
File Name: 00a0094p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J ERRY W. P ARKER,
Petitioner,
v.
UNITED S TATES DEPARTMENT
OF TRANSPORTATION ,
FEDERAL HIGHWAY
ADMINISTRATION , and THE
UNITED S TATES OF AMERICA ,
Respondents.
;>

1
No. 98-4331
On Petition for Review of an Order of the
Federal Highway Administration,
United States Department of Transportation.
Argued: December 13, 1999
Decided and Filed: March 17, 2000
Before: MERRITT and SILER, Circuit Judges;
BECKWITH, District Judge.*

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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 JUSTICE
CIVIL DIVISION, APPELLATE STAFF, Washington, D.C.,
for Respondents.
_________________
OPINION
_________________
SILER, Circuit Judge. Petitioner, Jerry W. Parker, appeals
the Federal Highway Administration’s (“FHWA”) decision to
deny him a license to drive commercial trucks in interstate
commerce because he suffers from monocular vision and is
missing part of his left arm. Because the FHWA’s decision
was 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 a
result, he has corrected vision of 20/20 in his left eye and
corrected vision of 20/300 in his right eye. He also had part
of his left arm amputated after a grain elevator accident
twenty years ago. Although he is licensed to drive
commercial trucks intrastate in Ohio, Parker fails to meet the
minimum federal safety standard for interstate commercial
truckers which requires a:
[D]istant visual acuity of at least 20/40 (Snellen) in each
eye without corrective lenses or visual acuity separately
No. 98-4331 Parker v. United States
Dep’t of Transp., et al.
7
and make appropriate findings of fact.’”)(quoting School Bd.
of Nassau County v. Arline, 480 U.S. 273, 287 (1987)).
The Department of Transportation (“DOT”) concedes that
it must make an individual inquiry into the merits of Parker’s
application, but asserts that it lacks sufficient data on the
performance of drivers with multiple disabilities. As a
consequence, there is no standard or test that the FHWA can
rely on to ensure that granting a waiver to someone with
multiple disabilities would achieve an equal or greater level
of safety than if the waiver was not granted. See Rauenhorst,
95 F.3d at 723 (“[S]pecific waivers must be grounded on
specific test or standards.”). Although it admits that it would
probably grant Parker a waiver if he only suffered from one of
his disabilities, the DOT contends that it cannot issue a
waiver to a driver with multiple impairments without
evidence that such waiver is consistent with the public
interest and the safe operation of a CMV. See Ward v.
Skinner, 943 F.2d 157 (1st Cir. 1991).
We find the DOT’s argument unpersuasive. When the
FHWA initiated the waiver program, it relied on several
studies which indicated that “the best predictor of future
performance by a driver is his past record of accidents and
traffic violations.” 63 Fed. Reg. 1524, 1525 (1998). Parker
has clearly demonstrated that despite his multiple
impairments, he is able to safely operate a CMV.
Furthermore, the DOT has not even attempted to consider a
driving test with a review of Parker’s safety record. By
failing to assess Parker’s actual capabilities, the DOT has in
essence created a per se rule against granting vision waivers
to individuals with multiple disabilities, thereby limiting such
individuals’ employment opportunities. This stands in direct
contradiction to the goals and purpose of the Rehabilitation
Act which is to provide equal opportunities for disabled
individuals, including assisting such individuals in obtaining
substantial employment. 29 U.S.C. §§ 701(a)(6)-(b)(2).

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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 his
eyesight.
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 in
accordance with the law.” 5 U.S.C. § 706(2)(A); Rauenhorst
v. Department of Transportation, 95 F.3d 715 , 718-19 (8th
Cir. 1996). “The scope of review is ‘narrow and a court is
not 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 satisfactory
explanation of its reasons based on the relevant data. Motor
Vehicle 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 drive
a CMV as long as he or she “has no loss of a foot, a leg, a
hand, or an arm....” 49 C.F.R. § 391.41(b)(1).6 Because
Parker is missing part of his left arm, the FHWA denied his
request for a vision waiver. Under § 504 of the Rehabilitation
Act, however, the FHWA must make an individual
assessment of Parker’s driving capabilities before it can deny
his request for a vision waiver. See Hall v. United States
Postal Service, 857 F.2d 1073, 1078-79 (6th Cir. 1988)(“In
determining whether a handicapped individual can perform
the essential functions of a position and, if not whether a
reasonable accommodation will enable him or her to do so, a
district court ‘will need to conduct an individualized inquiry
No. 98-4331 Parker v. United States
Dep’t of Transp., et al.
3
1The first federal vision standard was adopted in 1932. This is the
current version of the standard, which has not been modified since 1971.
See 57 Fed. Reg. 6793, 6793-94 (1992).
2When the ADA was enacted, the Secretary of Transportation was
given two years to review all motor vehicle safety standards “to ascertain
whether the standards conform with current knowledge about the
corrected to 20/40 (Snellen) or better with corrective
lenses, distant binocular acuity of at least 20/40 (Snellen)
in both eyes with or without corrective lenses, field of
vison of at least 70 degrees in the horizontal Meridian in
each eye, and the ability to recognize the colors of traffic
signals and devices showing standard red, green, and
amber in both eyes.
49 C.F.R. § 391.41(b)(10).1 However, under the Motor
Carrier Safety Act of 1984, Pub. L.No. 98-554, 98 Stat. 2832
(codified at 49 U.S.C. § 31136(e), formerly 49 U.S.C. § app.
2505(f)), the Secretary of Transportation is authorized to
grant waivers from this regulation as long as the waivers “are
consistent with the public interest and safe operation of motor
vehicles.” 49 U.S.C. § 31136(e)(1) (1994), as amended by 49
U.S.C. § 31136(e) (1996). In other words, an exemption for
an unqualified driver will be granted if “such exemption
would likely achieve a level of safety that is equivalent to, or
greater than the level that would be achieved absent such
exemption.” 49 U.S.C. § 31315(b)(1).
In 1992, the FHWA initiated a program whereby waivers
would be granted to a limited group of visually impaired
drivers who failed to meet the federal vision standard, but
had a history of operating a commercial vehicle (“CMV”)
safely. See 57 Fed. Reg. 23370 (1992). The waiver program
served as part of a regulatory review of the medical and
physical qualifications placed on CMV drivers in light of the
Americans With Disabilities Act of 1990, 42 U.S.C. § 12101,
et seq. (“ADA”), as well as the Rehabilitation Act of 1973, 29
U.S.C. § 701, et seq. (“Rehabilitation Act”).2 The

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4 Parker v. United States
Dep’t of Transp., et al.
No. 98-4331
capabilities of persons with disabilities and currently available
technological aids and devices and whether such regulations are valid
under this Act. The Committee expects that the agency will make any
necessary changes within the two year period to bring such regulations
into compliance with the law. (Of course, a non- discrimination
obligation on the part of the Department of Transportation also exists
currently 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. Code
Cong. & 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 CMV
issued after April 1, 1990....;
3) [H]ave had three years' recent experience driving a CMV
without (1) license suspension or revocation; (2) involvement in
a reportable accident in which the applicant received a citation
for a moving violation; (3) conviction for driving a CMV while
intoxicated, leaving the scene of an accident involving a CMV,
commission of a felony or more than one serious traffic violation
involving a CMV; or (4) more than two convictions for any
other moving violation in a CMV....; and
4) [P]resent proof from an optometrist or ophthalmologist
certifying that the applicant's visual deficiency has not worsened
since his or her last examination, that vision in one eye is at least
20/40 acuity, corrected or uncorrected, and that the applicant is
able to perform the driving tasks required to operate a CMV.
61 Fed. Reg. 606, 606-07(1996). The applicant must also: “(1) report all
citations for moving violations involving a CMV; (2) report the
disposition of the charge; (3) report any accident involvement whatsoever
while operating a CMV; (4) submit documentation of an annual
examination by an ophthalmologist or optometrist; and (5) submit reports
of vehicle miles traveled monthly in a CMV.” Id. at 607.
participants consisted of experienced monocular drivers who
met minimal physical requirements and had clean driving
records.3 The FHWA found that, despite their visual
impairments, the participants had better driving records than
all CMV drivers in general. Thus, the FHWA determined that
granting waivers to these visually impaired drivers would be
“‘consistent with the safe operation of commercial motor
No. 98-4331 Parker v. United States
Dep’t of Transp., et al.
5
4In Advocates for Highway and Auto Safety v. Federal Highway
Administration, 28 F.3d 1288 (D.C.Cir. 1994), the D.C. Circuit found the
FHWA’s vision waiver program to be arbitrary and capricious because the
FHWA needed “the waiver program ‘to evaluate the relationships
between specific visual deficiencies and the operation of CMVs’ while
simultaneously determining that the program will not result in a
diminution of safety standards.” Id. at 1294. Because the record lacked
any evidence to support the FHWA’s conclusion that safety standards
would not be diminished, the court found the program to be contrary to
law and vacated the rule instituting it. Id. On remand the FHWA
reviewed all the driver safety and performance data it had collected over
the two years that the waiver program had been in place. See 59 Fed.
Reg. 50887-02, 50890 (1994). Along with new evidence that was not
available to the court in Advocates, the FHWA confirmed its original
determination that granting waivers to monocular drivers who had three
years of safe driving experience would not diminish safety standards. Id.
at 50890-91.
5Parker was licensed to drive a CMV interstate from 1985 to
December 1993, and thereafter drove his CMV intrastate in Ohio.
vehicles,’” and “be in the ‘public[’s] interest.’” 57 Fed. Reg.
23370, 23371 (1992)(quoting former 49 U.S.C. app.
§ 2505(f)).4
In 1996, Parker applied for a federal vision waiver. As part
of his application, Parker provided evidence that he had
driven over 1.2 million miles in a CMV since 1985 without
incident.5 Despite his impeccable driving record, the FHWA
denied Parker’s request after it learned that not only did
Parker have monocular vision, but he is also missing part of
his left arm. The FHWA found that, although there was
sufficient evidence to demonstrate that someone with Parker’s
vision impairment could drive safely, there was insufficient
evidence that someone with multiple impairments could
operate a commercial vehicle with the same degree of safety
as an unimpaired driver. Thus, the FHWA could not find that
such an exemption would achieve the same, or a greater, level
of safety that would be achieved absent such exemption.

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