Amicus Curiae Brief — New Prime Inc., Petitioner v. Dominic Oliveira

No. 17-340

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------NEW PRIME, INC.,

Petitioner,

v.

DOMINIC OLIVEIRA,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

-----------------------------------------------------------------BRIEF OF THE OWNER-OPERATOR

INDEPENDENT DRIVERS ASSOCIATION, INC.

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

-----------------------------------------------------------------PAUL D. CULLEN, SR.

PAUL D. CULLEN, JR.*

THE CULLEN LAW FIRM, PLLC

1101 30th Street NW, Suite 300

Washington, DC 20007

(202) 944-8600

PDC@cullenlaw.com

PXC@cullenlaw.com

*Counsel of Record

Counsel for Amicus Curiae

Owner-Operator Independent

Drivers Association, Inc.

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................

ii

IDENTITY AND INTEREST OF AMICUS CURIAE

OOIDA ..............................................................

1

SUMMARY OF THE ARGUMENT .....................

2

ARGUMENT ........................................................

4

CONGRESS HAS REGULATED THE CONTRACTUAL RELATIONSHIPS OF MOTOR CARRIERS AND OWNER-OPERATORS SINCE THE

1950S ......................................................................

4

A.

B.

C.

Congress and The ICC First Mandated

Motor Carrier Control of and Responsibility for Owner-Operators ............................

5

The Expansion of The Leasing Rules to

Address Motor Carrier Exploitation of

Owner-Operators .......................................

7

The Provisions in Federal Law For Motor

Carrier/Owner-Operator Dispute Resolution ............................................................. 10

1. Pre-1995 Enforcement of Owner-Operator

Complaints by the ICC ........................ 10

2. The ICC Termination Act Granted a

Specific Private Right of Action in Federal Court ............................................ 12

CONCLUSION..................................................... 17

ii

TABLE OF AUTHORITIES

Page

CASES

Alford v. Major, 470 F.2d 132 (7th Cir. 1972) ...............5

Am. Trucking Ass’ns, Inc. v. United States, 344

U.S. 298 (1953) ..........................................................5

Circuit City Stores, Inc. v. Adams, 532 U.S. 105

(2001) .........................................................................4

Gagnon v. Serv. Trucking Inc., 266 F. Supp. 2d

1361 (M.D. Fla. 2003) ..............................................15

Global Van Lines v. Interstate Commerce Comm’n,

627 F.2d 546 (D.C. Cir. 1980) ................................ 7, 9

Interstate Commerce Comm’n v. All-American,

Inc., 505 F.2d 1360 (7th Cir. 1974) ........................... 11

Interstate Commerce Comm’n v. Am. Trucking

Ass’ns, Inc., 467 U.S. 354 (1984) ..............................12

Interstate Commerce Comm’n v. Transcon Lines,

513 U.S. 138 (1995) .................................................12

Morton v. Mancari, 417 U.S. 535 (1974) .....................16

Owner-Operator Indep. Drivers Ass’n, Inc. v. C.R.

England, Inc., 325 F. Supp. 2d 1252 (D. Utah

2004) ............................................................................ 14

Owner-Operator Indep. Drivers Ass’n, Inc. v. Landstar Sys., Inc., No. 3:02-CV-1005-J-25HTS, 2003

WL 23941713 (M.D. Fla. September 30, 2003) ......15

Owner-Operator Indep. Drivers Ass’n, Inc. v. New

Prime, Inc., 192 F.3d 778 (8th Cir. 1999) ............ 3, 13

Owner-Operator Indep. Drivers Ass’n, Inc. v. New

Prime, Inc., 398 F.3d 1067 (8th Cir. 2005) ........ 13, 14

iii

TABLE OF AUTHORITIES – Continued

Page

Owner-Operator Indep. Drivers Ass’n, Inc. v. United

Van Lines, LLC, 556 F.3d 690 (8th Cir. 2009) ........13

Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006

(Ind. 1986) .................................................................9

Ruckelshaus v. Monsanto Co., 467 U.S. 986

(1984) .......................................................................16

S. Pac. Transp. Co. v. Commercial Metals Co., 456

U.S. 336 (1982) ........................................................11

Shaw Warehouse Co. v. S. R. Co., 308 I.C.C. 609

(1959) .......................................................................11

Transamerican Freight Lines, Inc. v. Brada Miller Freight Sys., Inc., 423 U.S. 28 (1975) ...................5

Westfield Ins. Co. v. Hanover Ins. Co., 9 F.3d 656

(7th Cir. 1993)............................................................9

White v. Excalibur Ins. Co., 599 F.2d 50 (5th Cir.

1979) ..........................................................................5

Zola v. Interstate Commerce Comm’n, 889 F.2d

508 (3d Cir. 1989) ....................................................12

STATUTES

9 U.S.C. § 1 ....................................................................2

28 U.S.C. § 1658 ..........................................................13

49 U.S.C. §§ 16(8), 11901(a) (1976 ed., Supp. III) ....... 12

49 U.S.C. § 11701 ........................................................11

49 U.S.C. § 11701(a) (1995) ........................................11

49 U.S.C. § 11701(b) (1995) ........................................11

iv

TABLE OF AUTHORITIES – Continued

Page

49 U.S.C. § 13902 ..........................................................1

49 U.S.C. § 14102 ................................................ 1, 2, 13

49 U.S.C. § 14704 .......................................... 2, 3, 10, 13

49 U.S.C. § 14704(a) ....................................................13

49 U.S.C. § 14704(e) .............................................. 13, 14

REGULATIONS

49 C.F.R. Part 376 ..................................................... 1, 7

49 C.F.R. Part 1057 (1995)............................................7

49 C.F.R. § 1.87(a)(6), (8) ............................................13

49 C.F.R. § 376.12 .........................................................7

49 C.F.R. § 376.12(c)(1) .................................................6

49 C.F.R. § 376.12(j)(1)..................................................9

OTHER AUTHORITIES

Amendments to the Interstate Commerce Act,

Pub. L. No. 84-957 .....................................................5

H.R. Rep. No. 84-2425 (1956) .......................................5

ICC Termination Act of 1995, Pub. L. No. 104-88....... 10

Lease and Interchange of Vehicles, 43 Fed. Reg.

29812 (July 11, 1978) ................................................8

Lease and Interchange of Vehicles, 129 M.C.C.

700 (June 13, 1978) ...................................................7

Lease and Interchange of Vehicles, 131 M.C.C.

141 (January 9, 1979) ....................................... 7, 8, 9

v

TABLE OF AUTHORITIES – Continued

Page

Motor Carrier Transportation; Redesignation of

Regulations From the Surface Transportation

Board Pursuant to the ICC Termination Act of

1995, 61 Fed. Reg. 54706 (October 21, 1996)............7

Study of Interstate Commerce Commission Regulatory Responsibilities Pursuant to Section

210(a) of the Trucking Industry Regulatory

Reform Act of 1994, 1994 WL 639996 (October

25, 1994) ..................................................................11

1

IDENTITY AND INTEREST

OF AMICUS CURIAE OOIDA1

The Owner-Operator Independent Drivers Association, Inc. (“OOIDA”) is a not-for-profit corporation incorporated in 1973 under the laws of the State of

Missouri, with its principal place of business in Grain

Valley, Missouri. OOIDA is the largest international

trade association representing the interests of independent owner-operators, small-business motor carriers, and professional drivers. More than 160,000

members of OOIDA are professional drivers and small

businessmen and women located in all 50 states and

Canada.

“Owner-operator” is the term for an individual

who owns a commercial motor vehicle (“CMV”) and

leases that CMV and his or her driving services to a

motor carrier under rules authorized under 49 U.S.C.

§ 14102 and promulgated at 49 C.F.R. Part 376 (the

“Truth-in-Leasing” rules). Motor carriers, such as New

Prime, Inc., are companies who are authorized and registered by the federal government to operate commercial motor vehicles in interstate commerce. 49 U.S.C.

§ 13902.

The question of whether or not the contracts of

owner-operators are subject to the Federal Arbitration

1

No party’s counsel authored this brief in whole or in part.

No party, party’s counsel, or person – other than the amicus curiae – contributed money intended to fund the preparing or submitting of this brief. Counsel for both parties have consented to

the filing of this brief.

2

Act (“FAA”) will determine whether or not owner-operators will continue to have any meaningful opportunity to protect their small businesses from the type

of predatory behavior described in Mr. Oliveira’s brief.

Congress and federal motor carrier regulators’ concern

for these issues are the reasons the Truth-in-Leasing

rules were promulgated. Especially important is the

right to bring an action in federal court for damages

and injunctive relief specifically granted to owneroperators by Congress in 1995. 49 U.S.C. §§ 14102, 14704.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

OOIDA submits this brief as amicus curiae to inform the court how owner-operator truck drivers are a

class of workers engaged in interstate commerce, and

how their lease agreements with motor carriers, such

as New Prime, Inc., are contracts of employment, as

set out in the FAA exemption found at 9 U.S.C. § 1. Congress looked to two factors when it formed the scope

of Section 1 of the FAA: the maintenance of a smooth

operating transportation system and Congressional

concerns for enacting specific regulations governing

the contracts of transportation workers. In the 1950s

Congress authorized the Interstate Commerce Commission (“ICC”) to promulgate rules requiring motor

carriers, such as New Prime, Inc., to assume responsibility and control over the operations of their owneroperators. Motor carriers are also required to obtain

public liability insurance for their owner-operator operations, as if their owner-operators were the carriers’

3

own trucks and employee drivers. Later, the ICC promulgated additional rules under this regulatory scheme

to protect owner-operators from being exploited by motor carriers. The newer rules established standards for

the contracts presented by motor carriers to owner-operators and for the conduct of motor carriers under

those contracts. These statutes and rules support the

economic stability and safety performance of the participants in the motor carrier industry and, therefore,

promote the smooth flow of goods in interstate commerce.

Also, consistent with Congress’ intention to exclude contracts of employment of workers engaged in

interstate commerce from the FAA, Congress specifically provided for the means of resolving owner-operator/motor carrier disputes by statute. Originally, the

ICC was charged with adjudication of such disputes.

Once the ICC was terminated in 1995, Congress

granted owner-operators a private right of action in

federal courts to adjudicate those rights and seek damages and injunctive relief. See 49 U.S.C. § 14704, and

Owner-Operator Indep. Drivers Ass’n, Inc. v. New Prime,

Inc., 192 F.3d 778, 785 (8th Cir. 1999).

This legislative and regulatory history demonstrates that motor carrier/owner-operator contracts

are among the contracts Congress exempted in Section

1 of the FAA.

4

But even if the Court believes that the FAA exemption may not have originally contemplated contracts such as those between motor carriers and owneroperators, Congress’ grant of a private right of action

in federal court was a de facto expansion of the FAA

exemption, providing owner-operators the right to go

to court to resolve disputes with motor carriers.

------------------------------------------------------------------

ARGUMENT

CONGRESS HAS REGULATED THE CONTRACTUAL RELATIONSHIPS OF MOTOR CARRIERS

AND OWNER-OPERATORS SINCE THE 1950S

Congress relied upon two factors to form the scope

of Section 1 of the FAA: the maintenance of a smooth

operating transportation system and Congressional

concerns for enacting specific regulations governing

the contracts of transportation workers (as detailed in

Respondent’s brief ). In holding that the FAA exemption applies to “transportation workers,” the Court has

held that it was “rational for Congress to ensure that

workers in general would be covered by the provisions

of the FAA, while reserving for itself more specific legislation for those engaged in transportation.” Circuit

City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001).

For motor carrier transportation, Congress and

several federal regulatory agencies acted upon those

concerns by establishing requirements for leasing

agreements (the contracts) between motor carriers and

owner-operators and by providing administrative and

5

then statutory schemes for resolving disputes that

arise under those leasing agreements.

A. Congress and The ICC First Mandated Motor Carrier Control of and Responsibility

for Owner-Operators

The federal government’s oversight of owneroperator/motor carrier contracts began when Congress

required motor carriers operating with federal authority to assume responsibility for the safe operation of

owner-operators with whom they contract. Congress

responded to agency and congressional findings that

motor carriers had attempted to immunize themselves

from the negligence of the drivers who operated their

own vehicles by making them all nominally “independent contractors.” See Amendments to the Interstate

Commerce Act, Pub. L. No. 84-957; H.R. Rep. No. 842425, reprinted in 1956 U.S.C.C.A.N. 4304, 4309; see

also White v. Excalibur Ins. Co., 599 F.2d 50, 52 (5th

Cir. 1979) (citing Transamerican Freight Lines, Inc. v.

Brada Miller Freight Sys., Inc., 423 U.S. 28 (1975)); Am.

Trucking Ass’ns, Inc. v. United States, 344 U.S. 298,

(1953); Alford v. Major, 470 F.2d 132 (7th Cir. 1972).

Because the financial condition of owner-operators was

such that injured members of the public were not able

to recover in legal actions against them, Congress assigned public liability and the responsibility for insurance to motor carriers. Amendments to the Interstate

Commerce Act, Pub. L. No. 84-957; H.R. Rep. No. 842425, reprinted in 1956 U.S.C.C.A.N. 4304, 4309.

6

Congress imposed those requirements upon motor

carriers by authorizing the ICC to promulgate “regulations as may be reasonably necessary to assure that

motor carriers will have full direction and control of

vehicles while they are being used under such leases,

and will be fully responsible for the operation thereof

in accordance with applicable law and regulation, as if

they were the owners of the vehicles,” including compliance with all safety rules. Id.

The ICC thereafter promulgated rules which

stated, in part: “The lease shall provide that the authorized carrier lessee shall have exclusive possession,

control, and use of the equipment for the duration of

the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the

duration of the lease.” 49 C.F.R. § 376.12(c)(1).

Congress’ mandate over motor carrier/owneroperator leasing agreements illustrates how it considered and treated such agreements as falling within the

FAA exemption. This statute and the rules directing

motor carriers to assume responsibility and control

over owner-operators in their lease agreements were

intended to promote a safer and more stable motor carrier industry, thereby ensuring the smoother flow of

goods.

7

B. The Expansion of The Leasing Rules to Address Motor Carrier Exploitation of OwnerOperators

The leasing rules were amended significantly by

the ICC in 1979 and have existed without material

change since then. Lease and Interchange of Vehicles,

131 M.C.C. 141 (January 9, 1979); 49 C.F.R. Part 376.2

In promulgating these regulations, the ICC responded

to a well-documented and longstanding history of

abuses by motor carriers of owner-operators in their

lease/contract relationship. Global Van Lines v. Interstate Commerce Comm’n, 627 F.2d 546, 548 (D.C. Cir.

1980). These amendments, which have become known

as the “Truth-in-Leasing Rules,” were intended to

achieve “full disclosure of the benefits and obligations

of leasing arrangements between owner-operators and

regulated carriers.” Lease and Interchange of Vehicles,

129 M.C.C. 700, 702 (June 13, 1978). Specific provisions are required to be included in the written lease,

such as specifying owner-operator compensation, prohibiting motor carriers from forcing owner-operators to

purchase goods and services from the carrier as a condition for entering the lease, and disclosing the type

and amount of any charge-backs the motor carrier may

deduct from an owner-operator’s compensation during

the term of the lease. See 49 C.F.R. § 376.12. To impart

the importance of these rules to motor carriers, the

2

In 1996, the regulations were redesignated from 49 C.F.R.

Part 1057 to Part 376 without substantive change. See 61 Fed.

Reg. 54706, 54707 (October 21, 1996).

8

ICC required that those provisions “shall be adhered

to and performed by the authorized carrier.” Id.

Particularly pertinent to the FAA transportation

exemption, the ICC’s stated purposes for these regulations were:

(1) to simplify existing and new regulations

and to write them in understandable English;

(2) to promote truth-in-leasing – a full disclosure between the carrier and the owner-operator of the elements, obligations, and benefits

of leasing contracts signed by both parties;

(3) to eliminate or reduce opportunities for

skimming and other illegal or inequitable

practices; and (4) to promote the stability

and economic welfare of the independent

trucker segment of the motor carrier industry.

Lease & Interchange of Vehicles, 131 M.C.C. 141 (January 9, 1979) (emphasis added).

When commenting on the proposed rules, ICC

Chairman O’Neal observed:

My concern is that because they like to eat,

owner-operators will continue to find it necessary to enter into contracts with carriers they

would like to avoid. . . . The difficulty is that

one owner-operator by himself will have very

little chance of bargaining any changes in any

contract. His option will be take it or leave it.

Lease and Interchange of Vehicles, 43 Fed. Reg. 29812,

29813 (July 11, 1978).

9

The regulation of the contractual relationship between motor carriers and owner-operators underscores

Congress’ concern about this particular group of interstate transportation workers and their necessary role

in the free flow of goods. See Lease and Interchange of

Vehicles, 131 M.C.C. 141, 143-44 (January 9, 1979);

Global Van Lines v. Interstate Commerce Comm’n, 627

F. 2d 546, 550-51 (D.C. Cir. 1980).

These rules protect owner-operators and benefit

the public: “Since only the carrier has ICC authority, it

is not permitted to delegate it, abrogate it, or evade the

responsibilities imposed on it by means of a contractual device, for there are basic requirements that are

inherent in the relationship of the carrier for hire with

operating authority to the public. . . . [T]hus, responsibility to the public under the leasing device is fixed.”

Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006, 1011 (Ind.

1986) (citations omitted). As the Seventh Circuit noted

in a review of Section 376.12(j)(1), the point of the leasing regulations “is to remove from the domain of private choice the terms on which [those with federal

operating authority] may do business.” Westfield Ins.

Co. v. Hanover Ins. Co., 9 F.3d 656, 657 (7th Cir. 1993).

The immutability of the rights of owner-operators and

the duties of motor carriers under these rules is precisely the type of public policy choice that Congress intended to remove from private discretion and preserve

for itself under the FAA Section 1 exemption. Contracts

by regulated carriers employing owner-operators to

transport goods in interstate commerce are thus

10

squarely within the exemption of Section 1 to the FAA

applicable to “transportation workers.”

That policy is further bolstered by the history of

the government’s direction of the resolution of owneroperator and motor carrier disputes, which New Prime,

Inc. attempts to avoid by requiring its drivers to accept

an arbitration clause in its contracts.

C. The Provisions in Federal Law For Motor

Carrier/Owner-Operator Dispute Resolution

Consistent with Congress’ intent to reserve from

the FAA the resolution of owner-operator/motor carrier

disputes, federal law has long provided for the resolution of contractual disputes between owner-operators

and motor carriers. Originally, the ICC resolved disputes between owner-operators and motor carriers

through enforcement proceedings. Then, when, Congress passed the ICC Termination Act (“ICCTA”), Pub.

L. No. 104-88, 89 Stat. 26 (December 29, 1995), it granted

owner-operators a private right of action in federal court

to resolve these disputes. 49 U.S.C. § 14704.

1. Pre-1995 Resolution of Owner-Operator

Complaints by the ICC

Prior to the 1995 enactment of the ICCTA, the ICC

regulated economic and market rules for motor carriers. The ICC held plenary authority over enforcement

of the Truth-in-Leasing regulations, including the authority to seek court enforcement of a motor carrier’s

11

obligation to safeguard, account for, pay interest on,

and eventually return escrow funds. The ICC could

“begin an investigation [of a violation of the leasing

regulations] on its own authority or on a complaint.”

49 U.S.C. § 11701(a) (1995). Owner-operators could

bring such a complaint under the authority of 49 U.S.C.

§ 11701(b) (1995). As noted by the ICC:

Carrier leasing practices are investigated

based on patterns of complaints and other information received or developed by the Commission’s field staff and through compliance

surveys. The Commission takes enforcement

action to ensure compliance with the leasing

regulations. For example, the Commission

seeks injunctions against carriers that fail to

make payments to owner-operators.

Interstate Commerce Commission, Study of Interstate

Commerce Commission Regulatory Responsibilities

Pursuant to Section 210(a) of the Trucking Industry

Regulatory Reform Act of 1994, 1994 WL 639996, at

*53 (October 25, 1994).

The ICC had broad authority to enforce its regulations, including the Truth-in-Leasing regulations, under 49 U.S.C. §§ 11701, et seq. (1995). See S. Pac. Transp.

Co. v. Commercial Metals Co., 456 U.S. 336, 349-50 (1982).

This authority included the power to issue a cease-anddesist order, Shaw Warehouse Co. v. S. R. Co., 308 I.C.C.

609, 633-634, 637 (1959), to seek a federal court injunction requiring a carrier to comply with its regulations,

Interstate Commerce Comm’n v. All-American, Inc., 505

F.2d 1360 (7th Cir. 1974), and to bring suit for civil

12

forfeiture, 49 U.S.C. §§ 16(8), 11901(a) (1976 ed., Supp.

III), for each knowing violation of an order of the Commission. This Court noted that “[t]he Commission’s authority under the Interstate Commerce Act [wa]s not

bounded by the powers expressly enumerated in the

Act.” Interstate Commerce Comm’n v. Am. Trucking

Ass’ns, Inc., 467 U.S. 354, 365 (1984). Instead, the ICC

could fashion any number of remedies so long as they

were “legitimate, reasonable, and directly adjunct to

the Commission’s explicit statutory power.” Id.; Interstate Commerce Comm’n v. Transcon Lines, 513 U.S.

138, 145 (1995). These broad, undefined remedies were

authorized out of the recognition that Congress could

not be expected to anticipate “every evil sought to be

corrected” by the ICC and that “the absence of express

remedial authority should not force the Commission to

sit idly by and wink at practices that lead to violations

of ICA provisions.” Am. Trucking, 467 U.S. at 371; see

also Zola v. Interstate Commerce Comm’n, 889 F.2d

508, 516 (3d Cir. 1989) (holding that “[t]he Commission’s discretionary remedial powers are not limited to

the rate-making area”). OOIDA is unaware of any motor carrier ever invoking the FAA and an arbitration

clause in an owner-operator contract to try to deprive

the ICC of its dispute resolution jurisdiction.

2. The ICC Termination Act Granted a Specific Private Right of Action in Federal

Court

Congress terminated the ICC as a federal agency

by passing ICCTA. Congress transferred several areas

13

of the ICC’s authority and functions (including its jurisdiction over the Truth-in-Leasing regulations) to the

U.S. Department of Transportation (“DOT”). See 49

U.S.C. § 14102. Within the DOT, responsibility over the

Truth-in-Leasing regulations now resides with the

Federal Motor Carrier Safety Administration. 49

C.F.R. § 1.87(a)(6), (8). The ICCTA provision codified at

49 U.S.C. § 14704(a) expressly authorizes private actions for damages and injunctive relief to remedy violations of that section of the Motor Carrier Act and its

implementing regulations. This private right of action

was first recognized by the courts in litigation between

OOIDA and New Prime, Inc.: Owner-Operator Indep.

Drivers Ass’n, Inc. v. New Prime, Inc., 192 F.3d 778, 785

(8th Cir. 1999).

The courts have further recognized that the federal default four-year statute of limitations under 28

U.S.C. § 1658 applies to actions under 49 U.S.C.

§ 14704. Owner-Operator Indep. Drivers Ass’n, Inc. v.

United Van Lines, LLC, 556 F.3d 690, 696 (8th Cir.

2009), and under the American Rule, prevailing plaintiff owner-operators, but not prevailing motor carrier

defendants, have a right to recover reasonable attorneys fees under 49 U.S.C. § 14704(e). Owner-Operator

Indep. Drivers Ass’n, Inc. v. New Prime, Inc., 398 F.3d

1067, 1071 (8th Cir. 2005). In rejecting New Prime,

Inc.’s assertion that it was entitled to attorneys fees,

the Eighth Circuit observed:

The right to enforce privately the Truth in

Leasing regulations, a right which this court

recognized in Prime I, would be severely

14

chilled if we were to adopt Prime’s interpretation of § 14704(e). Claims of independent

owner operators may often be for a relatively

small amount of damages. The class action

complaint filed in this action, for example,

alleged that each prospective class member

had deposited approximately $1,000—$20,000

with Prime under the disputed contract terms

that established reserve funds and a security

deposit. This shows that the potential rewards

are already low, and increasing the risks by

imposing attorney fees on owner operators

who do not prevail would discourage them

from pursuing their claims in court. Absent

any evidence to the contrary, we do not conclude that Congress established a private

remedy and simultaneously created a unique

and formidable barrier to its attainment.

Id. Similarly, here, New Prime, Inc.’s effort to apply the

FAA to owner-operator contracts would create another

formidable barrier, effectively denying owner-operators the private remedy in federal court granted by

Congress.

Several federal courts have held that motor carriers lease contracts with owner-operators fall into the

FAA exemption: See Owner-Operator Indep. Drivers

Ass’n, Inc. v. C.R. England, Inc., 325 F. Supp. 2d 1252,

1257 (D. Utah 2004) (“It is clear that Plaintiffs, as persons who, pursuant to the Operating Agreements at issue, actually move items in interstate commerce, are

in a class of workers engaged in interstate commerce,

or are transportation workers, within the meaning of

15

the exemption.”); Owner-Operator Indep. Drivers Ass’n,

Inc. v. Landstar Sys., Inc., No. 3:02-CV-1005-J-25HTS,

2003 WL 23941713, at *2 (M.D. Fla. September 30,

2003) (“[B]y operation of federal law the individual

Plaintiffs and Defendants have an employee-employer

relationship.”); Gagnon v. Serv. Trucking Inc., 266

F. Supp. 2d 1361, 1364 (M.D. Fla. 2003), vacated pursuant to settlement, No. 5:02-CV-342-OC-10GRJ, 2004

WL 290743 (M.D. Fla. February 3, 2004) (“The Court

agrees that the Plaintiff – and the other putative class

members, all of whom are truck drivers – fall within

the definition of ‘workers engaged in interstate commerce.’”).

The ICC’s former expansive authority to resolve

complaints of owner-operators against motor carriers

and the current private right of action express the purpose of the FAA exemption: to ensure that conflicts related to persons engaged in interstate commerce are

resolved in ways that best fulfill public policy interests.

If the FAA applied to motor carrier/owner-operator

contracts, then motor carriers’ imposition of an arbitration requirement would defeat the consistent enforcement of rules created to protect the public’s interest in

a stable, reliable transportation system. The public

would not be protected from an owner-operator who

was forced to drive a thousand miles in one week without being paid, damaging that driver’s economic stability, health, safety, and ability to operate within federal

law and meet all of his economic obligations to his motor carrier, the maintenance of his truck and business,

and his family’s needs at home.

16

The FAA exemption applies to whole classes of

contracts of employment of persons engaged in interstate or international commerce. The exemption was

not written to expand and contract to the extent the

federal government chooses to regulate such contracts.

Common law distinctions between “employees” and “independent contractors” were not of concern to Congress

in drafting the FAA exemption. The Court need not determine whether New Prime, Inc.’s labeling of Mr.

Oliveira as an independent contractor was accurate.

Both employees and independent contractors, such as

owner-operators, fall within the FAA exemption.

Even if the court were to find that owner-operator

contracts were not the type of contract contemplated

by the FAA exemption, the subsequent Congressional

grant of a private right of action to owner-operators for

damages and injunctive relief must be harmonized

with whatever the FAA exemption may have existed

previously. “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of

enactment. The courts are not at liberty to pick and

choose among congressional enactments, and when

two statutes are capable of co-existence, it is the duty

of the courts, absent a clearly expressed congressional

intention to the contrary, to regard each as effective.”

Morton v. Mancari, 417 U.S. 535, 550-51 (1974) (citations omitted), cited with approval by Ruckelshaus v.

Monsanto Co., 467 U.S. 986, 1018 (1984). By requiring an arbitration clause in owner-operator contracts,

17

motor carriers would defeat the unmistakable public

policy choice of Congress in ICCTA to preserve the

remedy to seek damages and injunctive relief in court

available previously through the ICC. This statute continues Congress’ intent to protect drivers from coercive

contracts and behavior by motor carriers, and ensures

the public benefits from a stable and smooth transportation system.

------------------------------------------------------------------

CONCLUSION

The Congress and federal agencies’ historical oversight and regulation of motor carrier/owner-operator

contracts, and their provision of different procedures

and forums to resolve disputes under those contracts

demonstrate precisely the type of contract for employment of persons engaged in interstate commerce that

Congress intended to exempt from the FAA. These

statutes and rules ensure a stable transportation industry by requiring motor carriers to take responsibility for the safe operation of owner-operators, requiring

motor carriers to use and comply with owner-operator

contract provisions that remedy the historical ways

that motor carriers have exploited owner-operators,

and giving owner-operators the right to go to federal

court to resolve disputes under those contracts. These

requirements ensure that owner-operators are directed

by motor carriers to operate safely and that they have

the economic predictability and stability to do so. A definitive finding by this Court more than 90 years after the

passage of the FAA that motor carrier/owner-operator

18

contracts are not exempted from the FAA would erect

such a burden (similar to the Eighth Circuit’s observation quoted above) that it would effectively defeat an

owner-operator’s ability to enforce his or her rights,

and therefore frustrate the public policy choices of

Congress and the regulating agencies.

Respectfully submitted,

PAUL D. CULLEN, SR.

PAUL D. CULLEN, JR.

THE CULLEN LAW FIRM, PLLC

1101 30th Street NW, Suite 300

Washington, DC 20007

(202) 944-8600

PDC@cullenlaw.com

PXC@cullenlaw.com

Counsel for Amicus Curiae

Owner-Operator Independent

Drivers Association, Inc.