                                                                               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.
