FMCSA's PSP program upheld by appeals court

A federal appeals court has rejected a challenge to the Federal Motor Carrier Safety Administration's Pre-Employment Screening Program (PSP) by a group of drivers who claimed that the agency did not have the legal authority to disseminate driver-related safety violations unless they are deemed serious by the Secretary of Transportation. Although driver consent is required, the drivers argued that as a practical matter they had have no choice but to provide consent if they want a job.

A three-judge panel of the U.S. Court of Appeals for the First Circuit on October 21 agreed with a lower court that the law in question -- 49 USC §31150 -- is ambiguous and, for that reason, that FMCSA is entitled to deference in interpreting the law. "We conclude that §31150 does not unambiguously restrict the agency's discretion to make records including non-serious driver-related safety violations available to potential employers with driver consent," the appeals court said. "The statute is silent as to non-serious violations."

The drivers argued that by including three specific categories of reports that FMCSA must make available Congress imposed a ceiling on the agency's disclosure authority. "However, §31150's command that the agency "shall provide" certain reports can just as easily be read as a floor, an articulation of the agency's minimum disclosure obligations, rather than a ceiling," the court said.

For a copy of the First Circuit's decision, click here.