RECOMMENDED FOR FULL-TEXT PUBLICATION 8 Parker v. United States No. 98-4331 Pursuant to Sixth Circuit Rule 206 Dep’t of Transp., et al. ELECTRONIC CITATION: 2000 FED App. 0094P (6th Cir.) File Name: 00a0094p.06

As such, we find that the FHWA’s decision denying Parker a waiver from the federal vision regulations is arbitrary and UNITED STATES COURT OF APPEALS capricious. Accordingly, the case is remanded so that the FHWA may create a functional capacity test consistent with FOR THE SIXTH CIRCUIT 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. JERRY W. PARKER,  Petitioner,   No. 98-4331 v.  > UNITED STATES DEPARTMENT    OF TRANSPORTATION,

 FEDERAL HIGHWAY

UNITED STATES OF AMERICA,  ADMINISTRATION, and THE  Respondents.  1 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.*

* The Honorable Sandra S. Beckwith, United States District Judge for the Southern District of Ohio, sitting by designation.

1 2 Parker v. United States No. 98-4331 No. 98-4331 Parker v. United States 7 Dep’t of Transp., et al. Dep’t of Transp., et al.

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

II. STANDARD OF REVIEW corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at least 20/40 (Snellen) The Administrative Procedure Act provides that an in both eyes with or without corrective lenses, field of agency’s action may not be set aside unless it is “arbitrary, vison of at least 70 degrees in the horizontal Meridian in capricious, an abuse of discretion, or otherwise not in each eye, and the ability to recognize the colors of traffic accordance with the law.” 5 U.S.C. § 706(2)(A); Rauenhorst signals and devices showing standard red, green, and v. Department of Transportation, 95 F.3d 715 , 718-19 (8th amber in both eyes. Cir. 1996). “The scope of review is ‘narrow and a court is not to substitute its judgment for that of the agency.’” 49 C.F.R. § 391.41(b)(10).1 However, under the Motor Rauenhorst., 95 F.3d at 718-19 (quoting Motor Vehicle Mfrs. Carrier Safety Act of 1984, Pub. L.No. 98-554, 98 Stat. 2832 Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (codified at 49 U.S.C. § 31136(e), formerly 49 U.S.C. § app. (1983)). However, the agency must offer a satisfactory 2505(f)), the Secretary of Transportation is authorized to explanation of its reasons based on the relevant data. Motor grant waivers from this regulation as long as the waivers “are Vehicle Mfrs. Ass’n, 63 U.S. at 43. consistent with the public interest and safe operation of motor vehicles.” 49 U.S.C. § 31136(e)(1) (1994), as amended by 49 III. DISCUSSION U.S.C. § 31136(e) (1996). In other words, an exemption for an unqualified driver will be granted if “such exemption To be eligible for a federal vision waiver, an applicant must would likely achieve a level of safety that is equivalent to, or satisfy the CMV driver qualifications under 49 C.F.R. Part 39, greater than the level that would be achieved absent such which provides that a person is physically qualified to drive exemption.” 49 U.S.C. § 31315(b)(1). 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 In 1992, the FHWA initiated a program whereby waivers Parker is missing part of his left arm, the FHWA denied his would be granted to a limited group of visually impaired request for a vision waiver. Under § 504 of the Rehabilitation drivers who failed to meet the federal vision standard, but Act, however, the FHWA must make an individual had a history of operating a commercial vehicle (“CMV”) assessment of Parker’s driving capabilities before it can deny safely. See 57 Fed. Reg. 23370 (1992). The waiver program his request for a vision waiver. See Hall v. United States served as part of a regulatory review of the medical and Postal Service, 857 F.2d 1073, 1078-79 (6th Cir. 1988)(“In physical qualifications placed on CMV drivers in light of the determining whether a handicapped individual can perform Americans With Disabilities Act of 1990, 42 U.S.C. § 12101, the essential functions of a position and, if not whether a et seq. (“ADA”), as well as the Rehabilitation Act of 1973, 29 reasonable accommodation will enable him or her to do so, a U.S.C. § 701, et seq. (“Rehabilitation Act”).2 The district court ‘will need to conduct an individualized inquiry 1 The first federal vision standard was adopted in 1932. This is the current version of the standard, which has not been modified since 1971. 6 See 57 Fed. Reg. 6793, 6793-94 (1992). A 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 2 “is otherwise qualified to drive a commercial motor vehicle....” 49 C.F.R. When the ADA was enacted, the Secretary of Transportation was § 391.49. Parker fails to qualify for such a waiver because of his given two years to review all motor vehicle safety standards “to ascertain eyesight. whether the standards conform with current knowledge about the 4 Parker v. United States No. 98-4331 No. 98-4331 Parker v. United States 5 Dep’t of Transp., et al. Dep’t of Transp., et al.

participants consisted of experienced monocular drivers who vehicles,’” and “be in the ‘public[’s] interest.’” 57 Fed. Reg. met minimal physical requirements and had clean driving 23370, 23371 (1992)(quoting former 49 U.S.C. app. records.3 The FHWA found that, despite their visual § 2505(f)).4 impairments, the participants had better driving records than all CMV drivers in general. Thus, the FHWA determined that In 1996, Parker applied for a federal vision waiver. As part granting waivers to these visually impaired drivers would be of his application, Parker provided evidence that he had “‘consistent with the safe operation of commercial motor 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 capabilities of persons with disabilities and currently available his left arm. The FHWA found that, although there was technological aids and devices and whether such regulations are valid sufficient evidence to demonstrate that someone with Parker’s under this Act. The Committee expects that the agency will make any necessary changes within the two year period to bring such regulations vision impairment could drive safely, there was insufficient into compliance with the law. (Of course, a non- discrimination evidence that someone with multiple impairments could obligation on the part of the Department of Transportation also exists operate a commercial vehicle with the same degree of safety currently under section 504 of the Rehabilitation Act of 1973.).” as an unimpaired driver. Thus, the FHWA could not find that H.R.Rep. No. 485, 101st Cong., 2nd Sess., pt. 2 at 57 1990 U.S. Code such an exemption would achieve the same, or a greater, level Cong. & Ad. News pp. 303, 339. of safety that would be achieved absent such exemption. 3 In 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....; 4 3) [H]ave had three years' recent experience driving a CMV In Advocates for Highway and Auto Safety v. Federal Highway without (1) license suspension or revocation; (2) involvement in Administration, 28 F.3d 1288 (D.C.Cir. 1994), the D.C. Circuit found the a reportable accident in which the applicant received a citation FHWA’s vision waiver program to be arbitrary and capricious because the for a moving violation; (3) conviction for driving a CMV while FHWA needed “the waiver program ‘to evaluate the relationships intoxicated, leaving the scene of an accident involving a CMV, between specific visual deficiencies and the operation of CMVs’ while commission of a felony or more than one serious traffic violation simultaneously determining that the program will not result in a involving a CMV; or (4) more than two convictions for any diminution of safety standards.” Id. at 1294. Because the record lacked other moving violation in a CMV....; and any evidence to support the FHWA’s conclusion that safety standards 4) [P]resent proof from an optometrist or ophthalmologist would not be diminished, the court found the program to be contrary to certifying that the applicant's visual deficiency has not worsened law and vacated the rule instituting it. Id. On remand the FHWA since his or her last examination, that vision in one eye is at least reviewed all the driver safety and performance data it had collected over 20/40 acuity, corrected or uncorrected, and that the applicant is the two years that the waiver program had been in place. See 59 Fed. able to perform the driving tasks required to operate a CMV. Reg. 50887-02, 50890 (1994). Along with new evidence that was not available to the court in Advocates, the FHWA confirmed its original 61 Fed. Reg. 606, 606-07(1996). The applicant must also: “(1) report all determination that granting waivers to monocular drivers who had three citations for moving violations involving a CMV; (2) report the years of safe driving experience would not diminish safety standards. Id. disposition of the charge; (3) report any accident involvement whatsoever at 50890-91. while operating a CMV; (4) submit documentation of an annual 5 examination by an ophthalmologist or optometrist; and (5) submit reports Parker was licensed to drive a CMV interstate from 1985 to of vehicle miles traveled monthly in a CMV.” Id. at 607. December 1993, and thereafter drove his CMV intrastate in Ohio.