Friday, November 19, 2010

ATA Asks Ninth Circuit to Reconsider Fast-Tracking Port Trucking Appeal

Just over two weeks after the United States Ninth Circuit Court of Appeals denied a request to expedite an appeal regarding litigation over the Port of Los Angeles clean truck program, the trucking industry defendant in the case is asking the appellate court to reconsider the request.

The American Trucking Associations, which sued the port over key components of the truck program in 2008, is asking the Ninth Circuit to speed up the appeals process by two months.

In a one-page denial issued on Nov. 2, the Ninth Circuit pointed to the ATA's lack of presenting evidence of "irreparable harm or possibility of mootness" to the trucking industry.

In the second request for expedited status, filed Nov. 17, the ATA reminds the Ninth Circuit that in an earlier review of the case during the injunction phase the appellate court clearly stated that there was a likelihood of irreparable harm being caused by the Los Angeles truck program.

"With due respect, ATA believes that on consideration of the original motion the Deputy Clerk may not have fully considered the prior history of this case or fully understood the facts that show irreparable harm will be suffered by ATA’s members and other impacted motor carriers if the appeal is not expedited," said the ATA filing for a reconsideration. "The harms that will befall the motor carriers are no different now than they were when this Court issued its first opinion in the case."

If the appellate court grants the ATA request to expedite the appeal, written arguments would be concluded in mid-February 2011 with oral arguments taking place in May 2011.

If the appellate court denies the ATA request, the oral arguments may not begin until July 2011.

In the meantime, at least one portion of the port's truck program, a mandate requiring port-serving trucking firms to hire only per-hour employees instead of per-load independent owner-operators, remains enjoined by the lower court.

District Court Judge Christina Snyder, who ruled against the ATA in the suit in September, reinstated an injunction against the most contentious portion of the truck program until the appeals court can hear the case.

The injunction, originally issued by Judge Snyder in 2009, blocked certain portions of the truck plan, including a mandate that all port-servicing truck drivers be per-hour employees instead of independent owner-operators. After her ruling against the ATA, Judge Snyder dissolved the original injunction.

However, she subsequently agreed with an ATA motion to reinstate the injunction while the ruling is under appeal. In her reinstatement ruling she said that while confident of her earlier ruling in favor of the truck program, she recognized that "the interpretation and the application of the market participant doctrine in this case presents substantial and novel legal questions."

She also determined that the trucking industry was likely to suffer "irreparable harm" if the employee-only mandate was allowed to be implemented by the port and was later overturned.

The original ATA suit centers around a Los Angeles port truck program that took effect in October 2008 requiring port-servicing drayage firms to sign so-called concession agreements to gain access to port terminals. Firms without such an access license are barred from entering port facilities. The truck plan was originally conceived by the port (at the time including the Port of Long Beach) as a means to bar older polluting trucks and force port-servicing trucking firms to use newer and cleaner burning vehicles, thereby cutting port-generated diesel emissions.

However, Los Angeles port officials included non-environmental criteria in the concession agreements, such as financial, maintenance, insurance, safety, parking and labor criteria. The ATA, which has never opposed the environmental portions of the truck program, contends these local port rules are preempted by federal interstate commerce law.

The Port of Long Beach, which was also a defendant in the original lawsuit, reached a court-approved settlement with the ATA in 2009 that allowed the Long Beach port to implement all of the environmental aspects of the truck plan, as well as most of the non-environmental aspects. The Long Beach version of the truck plan never called for an employee-only mandate.