Amicus Curiae Brief — C.H. Robinson Worldwide, Inc., Petitioner v. Allen Miller

No. 20-1425

IN THE

Supreme Court of the United States

-----------------------------------------------------------C.H. ROBINSON WORLDWIDE, INC.,

Petitioner,

v.

ALLEN MILLER,

Respondent.

-----------------------------------------------------------On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth

Circuit

-----------------------------------------------------------BRIEF OF THE NATIONAL ASSOCIATION OF

MANUFACTURERS, THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA, AND THE

NATIONAL RETAIL FEDERATION AS AMICI CURIAE

IN SUPPORT OF PETITIONER

-----------------------------------------------------------JAMES H. BURNLEY, IV

RONALD M. JACOBS

Counsel of Record

CHRISTOPHER J. CLIMO

VENABLE LLP

600 Massachusetts Avenue, N.W.

Washington, D.C. 20001

(202) 344-8215

RMJacobs@venable.com

Counsel for Amici Curiae

Additional Counsel on Inside Cover

Additional Counsel:

PATRICK HEDREN

ERICA KLENICKI

NATIONAL ASSOCIATION OF

MANUFACTURERS

733 Tenth Street, N.W.,

Suite 700

Washington, D.C. 20001

Counsel for National

Association of

Manufacturers

STEPHANIE A. MARTZ

NATIONAL RETAIL

FEDERATION

1101 New York Avenue,

Suite 1200

Washington, D.C. 20005

Counsel for National

Retail Federation

TARA S. MORRISSEY

STEPHANIE A. MALONEY

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, N.W.

Washington, DC 2006

Counsel for the Chamber of

Commerce of the United

States of America

i

TABLE OF C ONTENTS

Table of Contents ......................................................... i

Table of Authorities ................................................... iii

Interest of the Amici Curiae ....................................... 1

Introduction and Summary of Argument .................. 2

Argument .................................................................... 5

I. Freight brokers are critical to trucking

operations and to the economy. ....................... 6

II. Extensive federal and state regulation of

carriers, not tort liability of brokers, is the

appropriate and only feasible way to

protect the nation’s roadways. ......................... 9

A. Federal and state law work together to

protect the nation’s roadways. ................. 10

B. Even if brokers were held to a

negligence standard, there are no tools

available to them to screen carriers. ........ 14

1. The CSA system is designed for

law enforcement, not brokers and

shippers. ............................................... 15

2. There are flaws with the data

making the system unsuitable for

comparison purposes. .......................... 17

ii

III.Allowing the Ninth Circuit’s decision to

stand would slow the transport of goods,

drive up prices, and harm manufacturers,

retailers, and consumers................................ 21

Conclusion ................................................................. 23

iii

TABLE OF AUTHORITIES

Page(s)

Statutes

49 U.S.C. § 14501(c)(2)(A) .................................... 3, 14

49 U.S.C. § 31102 ...................................................... 11

Fixing America’s Surface Transportation (FAST) Act,

Pub. L. 114-94, 129 Stat. 1312 (2015)........... 19, 20

Indiana Code § 8-2.1-24-18(a) .................................. 13

Regulations & Administrative Materials

49 C.F.R. part 40....................................................... 12

49 C.F.R. parts 300-399 ............................................ 11

49 C.F.R. part 382 ..................................................... 12

49 C.F.R. part 383 ..................................................... 12

49 C.F.R. part 385 ............................................... 12, 19

49 C.F.R. part 387 ..................................................... 12

49 C.F.R. part 392 ..................................................... 12

49 C.F.R. part 393 ..................................................... 12

49 C.F.R. part 395 ............................................... 11, 13

49 C.F.R. part 396 ..................................................... 13

49 C.F.R. part 397 ..................................................... 13

iv

49 C.F.R. § 1.87 ......................................................... 11

49 C.F.R. § 350.201 ................................................... 11

49 C.F.R. § 385, Appendix B............................... 15, 16

49 C.F.R. § 385.11 ..................................................... 16

49 C.F.R. § 385.13 ..................................................... 16

49 C.F.R. § 392.82 ..................................................... 14

Nevada Admin. Code § 706.2472 ............................. 13

Nevada Highway Patrol, Commercial Vehicle Safety

Plan for the Federal Motor Carrier Safety

Administration’s Motor Carrier Safety Assistance

Program Fiscal Year 2018 4 (2018) .............. 13, 14

Withdrawal of Notice of Proposed Rulemaking

Regarding Carrier Safety Fitness Determination,

82 Fed. Reg. 14,848 (Mar. 23, 2017). .................. 20

Other Authorities

About the Alliance, Com. Vehicle Safety All.,

https://www.cvsa.org/about-cvsa/about-thealliance/ .......................................................... 11, 12

About the Industry, Transp. Intermediaries Ass’n,

https:// www.tianet.org/about-the-industry/ .... 3, 8

Am. Transp. Rsch. Inst., E-Commerce Impacts on the

Trucking Industry 19–20 (Feb. 2019) ................... 8

Am. Trucking Ass’n, When Trucks Stop, America

Stops (2015) ........................................................... 7

v

CVSA’s 2021 Out-of-Service Criteria Now in Effect,

Com. Vehicle Safety All.,

https://www.cvsa.org/news/2021-oosc/ ................ 12

David Randall Peterman, Commercial Truck Safety:

Overview, U.S. Congressional Research Service

(2017) ................................................................... 13

Economics & Industry Data, Am. Trucking Ass’n,

https://www.trucking.org/economics-and-industrydata .............................................................. 6, 7, 21

Freight Shipments by Mode, Bureau of Transp.

Stats., https://www.bts.gov/topics/freighttransportation/ ....................................................... 7

John D. Schulz, Transportation Trends and Best

Practices: The Battle for the Last Mile, Logistics

Mgmt. (May 2, 2017),

https://www.logisticsmgmt.com/article/

transportation_trends_and_best_practices_the_ba

ttle_for_the_last_mile............................................ 8

Karl Plume, Truckers Hit by Coronavirus Pandemic

Face Rocky Road to Recovery, Reuters (May 14,

2020)............................................................... 21, 22

Nat’l Acad. of Scis., Improving Motor Carrier Safety

Measurement (2017) ............................................ 19

Office of Inspector Gen., U.S. Dep’t of

Transportation, Report No. ST2019084, FMCSA’s

Plan Addresses Recommendations on Prioritizing

Safety Interventions But Lacks Implementation

Details (2019) ................................................. 18, 19

vi

Short Haul vs. Long Haul Trucking, Chron,

https://work.chron.com/short-haul-vs-long-haultrucking-22928.html .............................................. 7

Stan Mack, The Importance of the Trucking Industry,

Chron, https://smallbusiness.chron.com/

importance-trucking-industry-71922.html........... 7

U.S. Gov’t Accountability Office, GAO-11-858, Motor

Carrier Safety: More Assessment and

Transparency Could Enhance Benefits of New

Oversight Program (2011) ................................... 16

U.S. Gov’t Accountability Office, GAO-14-114,

Federal Motor Carrier Safety: Modifying the

Compliance, Safety, Accountability Program

Would Improve the Ability to Identify High Risk

Carriers (2014) ............................................... 17, 18

U.S. Gov’t Accountability Office, GAO-17-132, Motor

Carriers: Establishing System for Self-Reporting

Equipment Problems Appears Feasible, But Safety

Benefits Questionable and Costs Unknown (2016).

.............................................................................. 18

1

INTEREST OF THE AMICI CURIAE 1

The National Association of Manufactures

(“NAM”), the Chamber of Commerce of the United

States of America (“Chamber”) and the National

Retail Federation (“NRF”) represent a range of

companies that rely on commercial trucks to transport

goods across the country. This includes raw products

to be manufactured into final products that are then

shipped on to retailers and ultimately consumers. The

members of these associations often rely on freight

brokers to arrange for that transportation. The amici

are concerned that the Ninth Circuit’s decision

imposing tort liability on those brokers would increase

prices for business and consumers but have little to no

benefit to the safety of America’s roads. The Ninth

Circuit’s decision makes the brokerage of inherently

interstate shipments subject to a patchwork of state

law.

NAM is the largest manufacturing association in

the United States, representing small and large

manufacturers in every industrial sector and in all 50

states. Manufacturing employs more than 12 million

men and women, contributes $23 trillion to the U.S.

economy annually, has the largest economic impact of

any major sector, and accounts for nearly two-thirds

of all private-sector research and development in the

nation. NAM is the voice of the manufacturing

community and the leading advocate for a policy

1 No party’s counsel authored any part of this brief. No one apart

from amici, their members, and their counsel contributed money

intended to fund the brief’s preparation or submission. All

parties were notified of amici’s intent to submit this brief at least

10 days before it was due. Petitioner filed a notice of blanket

consent with the Clerk. Respondent has consented in writing to

the filing of this brief.

2

agenda that helps manufacturers compete in the

global economy and create jobs across the United

States.

NRF is the world’s largest retail trade association,

representing discount and department stores, home

goods and specialty stores, Main Street merchants,

grocers, wholesalers, chain restaurants, and internet

retailers from the United States and more than 45

countries. Retail is the largest private-sector employer

in the United States, supporting one in four U.S.

jobs—approximately 52 million American workers—

and contributing $3.9 trillion to the annual GDP.

The Chamber is the world’s largest business

federation. It represents approximately 300,000 direct

members and indirectly represents the interests of

more than 3 million companies and professional

organizations of every size, in every industry sector,

and from every region of the country. An important

function of the Chamber is to represent the interests

of its members before Congress, the Executive

Branch, and the courts.

All three amici frequently submit amicus briefs in

courts across the country to help courts understand

issues of importance to their members.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Although not clear from its name, the Federal

Aviation

Administration

Authorization

Act

(“FAAAA”) has important provisions that regulate

shipping by commercial trucks as well as the

brokerage services necessary to facilitate that

shipping. To that end, the FAAAA preempts certain

3

state laws, as they apply to brokers, but preserves “the

safety regulatory authority of the State with respect

to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A). While

this Court has affirmed that the FAAAA does not

preempt a negligence suit brought against a trucking

company, the Ninth Circuit’s holding below would

dramatically expand the FAAAA’s so-called “safety

exemption” to allow negligence suits to continue

against a broker.

Petitioner has explained why the Ninth Circuit

reached the wrong decision and that negligence

actions against brokers plainly do not fit within the

safety exemption. Petitioner also explains the harm to

brokers that will come from this decision and the lack

of countervailing benefit to public policy in exchange.

But the harms go beyond just brokers. By

increasing liability risk in the form of inconsistent

state common law tort claims against brokers, which

brokers have almost no ability to manage or guard

against, the Ninth Circuit’s decision threatens a huge

swath of the nation’s economy and offers little or no

prospect of improved public safety.

Shipping goods by truck is essential to

manufacturers, retailers, and consumers. The vast

majority of freight in the U.S. is carried by truck on

some or all of its journey. Brokers play a key role in

that process, by connecting a shipper (the entity that

has goods to transport) with a motor carrier that

wants to transport those goods. About the Industry,

Transp.

Intermediaries

Ass’n,

https://

www.tianet.org/about-the-industry/ (last visited May

18, 2021). Thus, brokers play a critical role in the

economy by finding the most efficient way to transport

goods across the country. The Ninth Circuit’s decision

4

affects a very large portion of the economy because so

many goods are transported by truck.

Brokers develop and contract with networks of

motor carriers ready to transport the goods that the

shippers need to move. Id. Those motor carriers—the

entities that are directly responsible for safety on the

roads—are extensively regulated through a matrix of

federal and state laws, which ensures the safety of the

nation’s roadways. Adding in tort liability, in

contravention to principles of preemption and

regulatory structure, will upset the balance that

Congress created to ensure safety and efficiency,

while providing no additional benefit to society.

Implicit in the Ninth Circuit’s decision finding that

brokers are subject to tort liability for negligently

selecting a carrier is the idea that the broker must

have a way to evaluate the relative safety of carriers.

But this is not possible under the current system.

Even if Congress had intended for brokers to assess

the safety of motor carriers and their drivers—which

it did not, opting instead to leave that task to the

Department of Transportation (“DOT”) and the

Federal Motor Carrier Safety Administration

(“FMCSA”)—there is no simple, reliable way for

brokers to determine whether a particular motor

carrier presents safety concerns. Asking a broker to

determine whether Carrier A or Carrier B is the

“safer” carrier is almost impossible. Although FMCSA

has tried to create such a database, it is an imperfect

law-enforcement tool, and certainly not appropriate

for brokers to assess carriers definitively. Thus,

imposing negligence liability on brokers would not

make the roads safer, particularly because DOT and

FMCSA have already provided for direct and specific

mechanisms to ensure carriers and drivers operate

5

safely on the roads (e.g., safety regulations and

insurance requirements to protect against injuries

caused by motor carriers and drivers).

Saddled with the risk of tort liability for the actions

of selected carriers and drivers, brokers are likely to

stop using smaller carriers or new entrants that may

lack a long history of safety. This will cut back on an

already constrained source of trucks, drive up prices,

and slow delivery. Those downstream effects are

particularly troublesome given modern supply chains’

reliance on just-in-time delivery with low inventories.

Consumers expect rapid shipping, and many retailers

rely on “drop-shipping” to provide goods without

inventories.

The Ninth Circuit’s decision conflicts with a plain

reading of the FAAAA’s preemption and state safety

provisions, as interpreted by this Court in a

significant number of prior decisions. If allowed to

stand, it will have serious negative repercussions on

the economy and on consumers who rely on goods to

be shipped not just to stores, but more and more

directly to their homes. As such, the Court should

grant the Petition and return the ability of brokers to

connect shippers and carriers without facing the

threat of tort liability.

ARGUMENT

The Ninth Circuit’s decision below impermissibly

expands the plain text of the FAAAA by holding that

a “deep pocket” tort theory is in fact a safety

regulation. Petitioner has explained how this

interpretation of the safety exemption to the FAAAA’s

preemption provision fails as a matter of law. This

error will have far-reaching effects on the

6

transportation of goods across the country and

therefore on the economy as a whole. The decision will

harm manufacturers who rely on that transportation

for raw materials; retailers who rely on it to fill their

warehouses, distribution centers, and stores with

goods or to drop-ship directly to their customers; and

ultimately, consumers who will pay more for

transportation or for the goods themselves.

For all of these costs, there is very little benefit,

because safety is best ensured through the extensive

federal-state partnership that already exists to

regulate directly carriers in transit. Moreover, there

is no system in place that would allow brokers to make

adequate safety determinations, as evidenced by

findings by regulators, legislators, and even the

National Academy of Sciences. Without a way to make

safety determinations, and a standard against which

to make them, the Ninth Circuit has created a system

of liability in which trucking companies may

understand and manage their risk, but brokers may

not.

This case presents a recurring question of great

legal, practical, and economic importance that has not

been, but should be, resolved by the Court.

I.

Freight brokers are critical to trucking

operations and to the economy.

Brokers like C.H. Robinson facilitate transporting

goods for both short and long-range transit by truck.

Trucks are the dominant mode of freight

transportation in the U.S. Trucks transport 72.5

percent of the country’s freight when measured by

weight. Economics & Industry Data, Am. Trucking

Ass’n,

https://www.trucking.org/economics-and-

7

industry-data (last visited May 17, 2021). In 2019,

that meant that 80.4 percent of the freight costs in the

country were spent on truck shipping in some fashion.

Id. In 2017, trucks transported 11.5 billion tons of

cargo worth $12 trillion. Freight Shipments by Mode,

Bureau of Transp. Stats., https://www.bts.gov/topics/

freight-transportation/freight-shipments-mode (last

visited May 15, 2021). Truck shipping includes both

short-haul deliveries (within a 150-mile radius) and

long-haul or over-the-road trucking (usually more

than 250 miles). Short Haul vs. Long Haul Trucking,

Chron,

https://work.chron.com/short-haul-vs-longhaul-trucking-22928.html (last updated Jan. 11,

2021).

There are nearly one million carriers in operation

in the U.S. See Economics & Industry Data, Am.

Trucking Ass’n, https://www.trucking.org/economicsand-industry-data (last visited May 17, 2021). Those

million carriers range from large fleets, to small

businesses, to single-truck owner-operators, and they

are involved in all segments of the supply chain. Id.

They bring raw materials to manufacturers. They

move finished goods to warehouses and retailers.

They deliver goods to consumers. Even if other modes

of transportation are used to move an item—on a

train, plane, or ship—a truck will likely be involved on

one end or the other. See Stan Mack, The Importance

of

the

Trucking

Industry,

Chron,

https://smallbusiness.chron.com/importancetrucking-industry-71922.html; Am. Trucking Ass’n,

When Trucks Stop, America Stops 3–4 (2015),

https://www.trucking.org/sites/

default/files/201912/When%20Trucks%20Stop%20America%20Stops.p

df.

8

While many smaller goods are delivered to

consumers by dedicated delivery services like FedEx,

UPS, DHL, or the Postal Service, larger items are

frequently delivered by other trucking companies. See

John D. Schulz, Transportation Trends and Best

Practices: The Battle for the Last Mile, Logistics

Mgmt.

(May

2,

2017),

https://www.logisticsmgmt.com/article/

transportation_trends_and_best_practices_the_battle

_for_the_last_mile. Retailers often use a dropshipping model, which is dependent on an efficient

freight network. In this model, retailers—either

online or in person—do not stock inventory. Rather,

customers view the product online or as a display

model in a store. When they make a purchase, the

retailer transmits the order to a third party—usually

a wholesaler or manufacturer. The product is then

shipped directly to the customer (sometimes

immediately after it is manufactured, other times

from inventory). See Am. Transp. Rsch. Inst., ECommerce Impacts on the Trucking Industry 19–20

(Feb.

2019),

https://truckingresearch.org/wpcontent/uploads/2019/02/ATRI-Impacts-of-ECommerce-on-Trucking-02-2019.pdf.

Given the large number of trucking carriers, many

shippers choose to engage freight brokers to help them

identify carriers that will be able to transport their

goods efficiently and at a reasonable price. Freight

brokers essentially function as “matchmakers,”

connecting shippers with willing and able carriers in

their networks based upon the carriers’ schedules,

routes, qualifications, and prices. About the Industry,

Transp. Intermediaries Ass’n, https://www.tianet.org/

about-the-industry/ (last visited May 18, 2021).

9

Once the freight broker identifies an appropriate

carrier willing to carry the load for an agreed rate, the

broker typically stays in communication with the

carrier regarding shipment logistics from pick-up to

delivery. However, brokers are not privy to specific

details of the motor carriers’ operations (e.g., specific

drivers assigned or other related employment

information). By leveraging freight brokers’ expertise

and experience with trucking carriers, manufacturers

can reduce their overhead costs associated with

identifying and contracting with carriers to transport

their products. Those reduced overhead expenses, of

course, are passed onto the American consumer in the

form of lower prices.

Given the extraordinary role that shipping by

truck plays in the U.S. economy, and the essential role

that brokers perform in making the system work, any

question about their potential tort liability will have

an oversized effect on manufacturers, retailers, and

consumers.

II.

Extensive federal and state regulation of

carriers, not tort liability of brokers, is the

appropriate and only feasible way to

protect the nation’s roadways.

While brokers are an essential part of the truck

shipping industry, they do not themselves physically

transport goods. They do not employ the drivers, own

the trucks, or pay for the fuel. That is done by the

carriers and the operators. Fortunately, there are

extensive federal and state safety laws, regulations,

and inspection and enforcement regimes that protect

the safety of the roads. And, crucially, the

administrative entities that oversee those regimes are

far better equipped—both in terms of available

10

information and institutional expertise—to regulate

the safety of motor carrier operations than are private

plaintiffs and juries of lay persons that would try to

evaluate how the broker made its decisions to select a

particular carrier for a load.

Although brokers have extensive information

about prices, routes, and locations of truck resources

and loads, their relations with an operator are at an

arm’s-length. They do not have access to specific

information about the comparative safety of the

carriers and drivers with which they work. Absent

unusual circumstances, brokers have little or no

ability to meaningfully improve the overall safety of

the roads by selecting one trucking company over

another. Imposing tort liability on brokers for their

selection of a carrier is therefore unnecessary,

unproductive, and ultimately unfair.

A. Federal and state law work together to

protect the nation’s roadways.

The FAAAA is often referred to as “deregulating”

the trucking industry. While this is true in the sense

of economic rate setting by the government, the

FAAAA did nothing to diminish the extensive federal

safety laws that govern trucks. See Pet. at 7. As

evidenced by the safety exemption at issue in this

case, the FAAAA also preserved state safety

regulations. Given the robust safety system in place,

there would be little gained by imposing tort liability

on brokers when something does go wrong on the

roads.

Recognizing both the crucial role of the trucking

and freight system in the country’s commercial

ecosystem and the need to ensure that trucking

11

carriers operate safely, Congress crafted a system in

which the federal government and state governments

work in partnership to ensure that unsafe drivers and

carriers are identified and removed from the road.

At the federal level, the Federal Motor Carrier

Safety Administration (“FMCSA”), a component of the

U.S. Department of Transportation, has primary

authority to enact regulations governing the operation

of motor carriers. See 49 C.F.R. § 1.87. The Federal

Motor Carrier Safety Regulations (“FMCSR”) span

over 700 pages in the Code of Federal Regulations. 49

C.F.R. parts 300-399. These rules govern everything

from hours of service for drivers, 49 C.F.R. § 395, to

requirements for headlights, id. § 393.24, to brake

performance, id. § 393.52, to window construction, id.

§ 393.60.

Because these rules apply to interstate operations,

each state adopts the FMCSRs into their state laws

for intrastate operations, making a violation of the

federal standard also a violation of a state standard,

which makes enforcement straightforward. Id. §§

350.105, 350.303; see also 49 U.S.C. § 31102; 49 C.F.R.

§ 350.201. For example, a truck and its driver going

from California into Nevada will have a uniform set of

standards that apply. Either a federal FMCSA

inspector or a state law-enforcement official (or

regulatory official, depending on the state) can enforce

these rules and ensure the safe operation of trucks.

There is an additional system created by the

Commercial Vehicle Safety Alliance—a nonprofit

association made up of local, state, territorial and

federal commercial motor vehicle safety officials and

industry representatives—that ensures uniform

enforcement. About the Alliance, Com. Vehicle Safety

12

All.,

https://www.cvsa.org/about-cvsa/about-thealliance/ (last visited May 16, 2021). The “Out of

Service Criteria” that it promulgates create specific

criteria for when a vehicle or driver must be placed out

of service because they present an “imminent hazard”

to safety. CVSA’s 2021 Out-of-Service Criteria Now in

Effect,

Com.

Vehicle

Safety

All.,

https://www.cvsa.org/news/2021-oosc/ (last visited

May 16, 2021). Through the Out of Service Criteria,

inspectors in different states will know exactly when

a vehicle or driver presents an imminent hazard and

make the same determination.

Taking Nevada as the relevant example, the

Nevada Highway Patrol—the state agency with

regulatory authority over commercial trucking—has

incorporated by reference specific safety provisions set

out in the FMCSRs, including rules governing:



Drug and alcohol testing programs (49 C.F.R. parts

40 and 382);



Commercial drivers’ license standards (49 C.F.R.

part 383);



Safety and fitness determinations and procedures

(49 C.F.R. part 385);



Minimum insurance coverage (49 C.F.R. part 387);



Equipment safety (including standards related to

brakes, lights, windows, fuel systems, and tires)

(49 C.F.R. part 393);



Driving safety (including standards related to

speed, use of alcohol, railroad crossings, and use of

handheld devices and texting) (49 C.F.R. part 392);

13



Hours-of-service limitations (49 C.F.R. part 395);



Vehicle inspections (49 C.F.R. part 396); and



Transportation of hazardous materials (49 C.F.R.

part 397).

Nevada Admin. Code § 706.2472. While Nevada

incorporates the FMCSRs into state regulations, other

states accomplish the same thing by using state law.

See, e.g., Indiana Code § 8-2.1-24-18(a).

By incorporating these federal standards into state

regulations, Nevada law enforcement and regulators

can enforce the federal law, conduct inspections for

compliance with federal law, and ensure that trucks

meet a uniform national standard for safe operation.

David Randall Peterman, Commercial Truck Safety:

Overview, U.S. Congressional Research Service 1

(2017).

In Nevada, the Department of Public Safety works

with the Nevada Highway Patrol to enforce state and

federal laws to ensure safety. Nevada Highway Patrol,

Commercial Vehicle Safety Plan for the Federal Motor

Carrier Safety Administration’s Motor Carrier Safety

Assistance Program Fiscal Year 2018 4 (2018),

https://nhp.nv.gov/uploadedFiles/nhp2nvgov/Content/

Commercial/CVSP2018%20ADA.pdf. As part of the

state’s commercial vehicle safety plan, the Nevada

Highway Patrol conducts roadside inspections to

make certain that the drivers and the vehicles comply

with state and federal law. Id. at 13-17. When

conducting those inspections, the inspectors check for

compliance with the FMCSRs that have been

incorporated into the Nevada regulations.

14

The Nevada Highway Patrol also enforces safety

standards. Id. at 20-22. Troopers can pull trucks over

for driving violations such as speeding or using a

handheld phone, which is illegal under both state law,

Nevada Revised Statute § 484B.165, and under the

FMCSRs incorporated into Nevada law. 49 C.F.R. §

392.82; see Pet. at 7.

These types of state-enforced statutes and

regulations are exactly the “safety regulatory

authority of a State with respect to motor vehicles”

contemplated by the savings clause of the FAAAA. 49

U.S.C. § 14501(c)(2)(A). And they create a framework

for safety on the nation’s roads, directed primarily at

the operation of the vehicles, which makes tort-law

claims against brokers unnecessary.

B. Even if brokers were held to a

negligence standard, there are no tools

available to them to screen carriers.

While the extensive federal and state regulatory

and enforcement system protects the roadways,

governmental attempts at creating a database of

trucker safety has not been nearly as successful. Thus,

there is no way for brokers to evaluate effectively the

comparative safety of different carriers or truckers,

meaning it would be virtually impossible to impose a

standard of care on brokers.

FMCSA utilizes a safety compliance and

enforcement program called “Compliance, Safety,

Accountability” (CSA). But, it is a law-enforcement

tool that helps to determine when a carrier should be

placed out of service or subjected to increased

scrutiny, not a tool for comparing the safety of

different operators. Moreover, there are serious

15

questions about the accuracy of the data in that

system. The Government Accountability Office, third

parties, and Congress have all voiced concern. As

such, it cannot be used to establish the duty of care in

negligence actions against brokers.

1.

The CSA system is designed for law

enforcement, not brokers and

shippers.

FMCSA has worked to develop a system to aid law

enforcement to identify problematic carriers. That

system includes the CSA program, which has three

core components:

1. The Safety Measurement System;

2. Interventions; and

3. The Safety Fitness Determination rating

system to determine the safety fitness of motor

carriers.

The Safety Measurement System (SMS) uses data

from roadside inspections, crash reports, and other

investigative data to identify high-risk motor carriers

for intervention by FMCSA and State partners. The

SMS data is organized into seven Behavior Analysis

and Safety Improvement Categories (BASICs). An

important drawback to this system is that not every

carrier will have a rating; ratings are created after an

inspection or an investigation. While inspections are

common, not every carrier will experience one,

especially newly formed carriers.

SMS uses the performance data associated with

each of the seven BASICs and assigns carriers a score

between zero and 100, where a higher percentile

16

indicates a higher risk of safety issues. 49 C.F.R. §

385, Appendix B. Based on that score, FMCSA then

prioritizes carriers for intervention.

FMCSA has a variety of intervention tools at its

disposal, ranging from warning letters, to roadside

inspections, to more off-site and on-site investigations,

to notifications of fines and penalties, and ultimately,

placing an operator out of service.

Following an on-site examination, FMCSA may

issue a carrier one of three ratings—“satisfactory,”

“conditional” or “unsatisfactory.” A carrier is

identified as “unsatisfactory” when a determination

has been made that the carrier is unfit to continue

operating. 49 C.F.R. § 385.11. Without improvements,

it can be placed out of service, and the operating

authority of the owner or operator revoked. 49 C.F.R.

§ 385.13. A carrier may also be “unrated,” meaning

that FMCSA does not have enough data on the carrier

to assign a safety rating.

Safety ratings may only be assigned following an

onsite comprehensive investigation. Typically, such

an investigation is done only in response to a BASIC

SMS score that suggests there is a safety concern or

following a significant safety event like a fatal truck

crash. Many carriers operate without a rating

assigned to them, and a satisfactory rating does not

mean that the carrier is safer than a carrier without a

rating. Indeed, FMCSA and its State partners

typically conduct reviews on about 3 percent of

registered carriers. U.S. Gov’t Accountability Off.,

GAO-11-858, Motor Carrier Safety: More Assessment

and Transparency Could Enhance Benefits of New

Oversight Program (2011). For some carriers,

FMCSA’s assigned safety rating may reflect an on-site

17

inspection from many years prior and may not align

with the carrier’s current safety record.

Thus, the suggestion that only a carrier with a

satisfactory safety rating is an acceptable carrier is

simply wrong. Even if a shipper or broker were to try

to use the Safety Measurement System data and

BASIC percentiles, to determine whether a potential

carrier presented a low risk, it still could not reliably

base a decision on the information in the federal

system.

2.

There are flaws with the data making

the system unsuitable for comparison

purposes.

In addition to design issues explained above, there

is an additional problem with the Safety

Measurement System: there are concerns about the

nature, scope, and accuracy of the data in the system.

Specifically, the Government Accountability Office

(GAO), Department of Transportation Inspector

General, the National Academy of Sciences, and

Congress have all recognized that FMCSA’s data tools

have limitations that reduce their use in making

predictive comparisons. To be clear, an operator with

an “unsatisfactory” rating would not be booked to

carry a load; but a shipper or broker could not use

other ratings to make relative comparisons between

carriers without “unsatisfactory” ratings because the

information available to the shipper and broker would

not be an accurate or a fair basis for excluding drivers

and carriers.

The GAO has explained that “for [the Safety

Measurement System] to be effective in identifying

carriers more likely to crash, the violations that

18

FMCSA uses to calculate SMS scores should have a

strong predictive relationship with crashes.” U.S.

Gov’t Accountability Off., GAO-14-114, Federal Motor

Carrier Safety: Modifying the Compliance, Safety,

Accountability Program Would Improve the Ability to

Identify High Risk Carriers (2014). Unfortunately,

GAO has found that “most regulations used to

calculate SMS scores are not violated often enough to

strongly associate them with crash risk for individual

carriers.” Id. Moreover, GAO has observed that “[t]he

relationship between violation of most regulations

FMCSA included in the SMS methodology and crash

risk is unclear, potentially limiting the effectiveness

of SMS in identifying carriers that are likely to crash.”

Id. at 15.

Two years after making those observations, the

GAO found: “We recommended that FMCSA revise

the SMS methodology to better account for limitations

in drawing comparisons of safety performance

information across carriers…FMCSA has not

implemented our recommendation.” U.S. Gov’t

Accountability Off., GAO-17-132, Motor Carriers:

Establishing System for Self-Reporting Equipment

Problems Appears Feasible, But Safety Benefits

Questionable and Costs Unknown 9 (2016).

In 2019, the Department of Transportation

Inspector

General

repeatedly

criticized

the

Compliance, Safety, Accountability program. In one

report, the Inspector General said that “FMCSA’s

Corrective Action Plan Addresses Carrier Safety

Interventions, but Lacks Implementation Details for

Improving SMS Transparency and Its Assessment of

Carrier Safety Rankings.” Office of Inspector Gen.,

U.S. Dep’t of Transp., Report No. ST2019084,

FMCSA’s Plan Addresses Recommendations on

19

Prioritizing

Safety

Interventions

Implementation Details (2019).

But

Lacks

The National Academy of Sciences has found that

although the Safety Measurement System “is

structured in a reasonable way, and its method of

identifying motor carriers for alert status is

defensible[,]…much of what is now done is ad hoc and

based on subject-matter expertise that has not been

sufficiently empirically validated.” Nat’l Acad. of Scis.,

Improving Motor Carrier Safety Measurement 3

(2017). The Academy found that these flaws suggest

that FMCSA should adopt “a more statistically

principled approach that can include the expert

opinion that is implicit in SMS in a natural way.” Id.

In 2015, Congress made changes to the

Compliance, Safety, Accountability requirements as

part of the Fixing America’s Surface Transportation

(FAST) Act. Notably, in addition to mandating that

FMCSA make substantive changes to the system,

Congress required the FMCSA website to provide

users with the following warning:

Readers should not draw conclusions

about a carrier’s overall safety condition

simply based on the data displayed in this

system. Unless a motor carrier has

received an UNSATISFACTORY safety

rating under part 385 of title 49, Code of

Federal Regulations, or has otherwise

been ordered to discontinue operations by

the Federal Motor Carrier Safety

Administration, it is authorized to

operate on the Nation’s roadways.

The FAST Act, Pub. L. 114-94, 129 Stat. 1312 (2015).

20

This language recognizes the enormity of FMCSA’s

task in rating all carriers on the roads. FMCSA

focuses on identifying when a carrier is unfit to be on

the roads, and therefore, instead of looking to those

carriers with a satisfactory label, the FAST Act makes

clear that the public should only draw a conclusion

when they see that FMCSA has found a carrier unsafe

to be on the road.

Indeed, FMCSA withdrew its January 21, 2016

notice of proposed rulemaking which proposed a

revised methodology for issuance of a safety fitness

determination (SFD) for motor carriers due in large

part to significant concerns raised by stakeholders.

Withdrawal of Notice of Proposed Rulemaking

Regarding Carrier Safety Fitness Determination, 82

Fed. Reg. 14,848 (Mar. 23, 2017). The SFD

rulemaking—a core component of FMCSA’s CSA

program—would have integrated a carrier’s SMS data

into making a safety rating determination. Therefore,

even the agency determined its SMS data is not

sufficient to determine the safety performance of a

carrier.

In sum, using the Safety Measurement System is

not a practical way for brokers to evaluate the safety

performance of carriers. Instead, the most effective

way to ensure safe roadways is to hold the drivers and

carriers responsible for safety, which is what federal

and state law are designed to do. Those laws allow

truly unsafe carriers to be placed out of service, and

thus not available to brokers at all.

21

III.

Allowing the Ninth Circuit’s decision to

stand would slow the transport of goods,

drive up prices, and harm manufacturers,

retailers, and consumers.

This case is important for the Court to consider

given the oversized role that trucking plays in the U.S.

economy. The Ninth Circuit’s decision would impose

tort liability on a segment of the freight system that

does not have the ability to affect the safety of the

nation’s roads. Because the Ninth Circuit includes so

much territory and all of the west-coast ports, there is

a large amount of freight subject to its decision. While

the rule in the Ninth Circuit would be tort liability in

those states, a patchwork of different standards of

care would develop state-by-state, and court-by-court,

through judicial decisions. If left to stand, the Ninth

Circuit’s decision would have spillover effects on the

movement of freight throughout the country. The

decision will thus cause significant harm to the entire

freight transportation system and the economy. Not

only brokers, but also manufacturers, carriers,

retailers, and consumers, would all suffer under the

Ninth Circuit’s decision.

Carriers: The trucking industry is diverse and

comprised of nearly one million carriers, including

Fortune 100 companies, privately held businesses,

small businesses and owner-operators that are oneperson, one-truck operations. Economics & Industry

Data, Am. Trucking Ass’n, https://www.trucking.org/

economics-and-industry-data (last visited May 17,

2021). In fact, small carriers operating six trucks or

fewer account for more than 90 percent of for-hire

carriers. Id. Many smaller carriers already succumbed

to the economic pressures of the early days of the

pandemic when much manufacturing shut down. See

22

Karl Plume, Truckers Hit by Coronavirus Pandemic

Face Rocky Road to Recovery, Reuters (May 14, 2020),

https://www.reuters.com/article/us-healthcoronavirus-trucking/truckers-hit-by-coronaviruspandemic-face-rocky-road-to-recoveryidUSKBN22Q1J5. Logically, if brokers must start

ranking carriers to determine if one is safer than

another, it is likely that they will favor larger

companies over small, which will lead to more small

business failures, less competition, and higher prices.

Moreover, larger carriers with many trucks and

drivers will be able to average out their safety

rankings (meaning there will still be safety risks in

those fleets, but they will be averaged out), while

smaller operations will not.

Manufacturers & Retailers: Manufacturers rely

on brokers to facilitate truck transportation of raw

materials and component parts. Retailers rely on

brokers to deliver goods to warehouses, move those

goods into stores, and ship goods to consumers.

Moreover, with the expansion of drop shipping,

retailers sell goods before they are manufactured and

have them delivered directly to the consumer as soon

as they are made. If brokers have fewer trucking

companies to choose from, and if they take the logical

step of building in a price premium for potential tort

liability, then the price of shipping will be higher. This

means manufacturers and retailers will make less

money, unless they pass those costs on to consumers.

Consumers: As the costs of brokerage and

shipping both go up, prices for raw materials, finished

goods, and delivery will all increase. At the end of the

day, consumers will likely bear the brunt of these

increases in the form of higher costs and longer

delivery times.

23

The Ninth Circuit’s decision will unleash these

harms on any goods that travel through that circuit.

With every West Coast port in the Circuit, that will

affect significant amount of the nation’s goods. If other

circuits follow suit, the effects will spread. Even if

other circuits do not immediately follow, it will be

hard for brokers to have one set of operating

guidelines in one circuit and others around the

country. In practice, this will mean that brokers will

operate as though there is potential liability

nationwide. Thus, this Court should take this case so

that it can consider the broad implications the Ninth

Circuit’s decision will have on the entire country.

*

*

*

*

*

Truck freight plays an extraordinarily important

role in the U.S. economy. While freight brokers are

relatively unknown to the general public, their role in

matching cargo with carriers is essential. If the Ninth

Circuit’s decision stands, it will fundamentally alter

how brokers do their jobs. This will affect

manufacturers, motor carriers, retailers, and

consumers. These effects will be felt even though there

already are strong federal-state safety systems in

place to protect the public on the roads—systems that

will not be strengthened or enhanced by broker

liability. The costs of the Ninth Circuit’s erroneous

ruling will unfairly fall upon manufacturers, retailers,

and consumers across the economy because brokers do

not have reliable mechanisms to determine the

relative safety of different carriers.

CONCLUSION

The Court should grant the Petition and reverse.

24

Respectfully submitted,

PATRICK HEDREN

ERICA KLENICKI

NATIONAL ASSOCIATION

OF MANUFACTURERS

733 Tenth Street, N.W.,

Suite 700

Washington, D.C. 20001

Counsel for National

Association of

Manufacturers

STEPHANIE A. MARTZ

NATIONAL RETAIL

FEDERATION

1101 New York Avenue,

Suite 1200

Washington, D.C. 20005

Counsel for National

Retail Federation

May 2021

JAMES H. BURNLEY, IV

RONALD M. JACOBS

Counsel of Record

CHRISTOPHER J. CLIMO

VENABLE LLP

600 Massachusetts

Avenue, N.W.

Washington, D.C. 20001

(202) 344-8215

RMJacobs@venable.com

Counsel for Amici Curiae

TARA S. MORRISSEY

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, DC 2006

Counsel for the Chamber

of Commerce of the

United States of

America