By Jami Jones, managing editor
The Federal Motor Carrier Safety Administration mega database filled with driver information lacks assurance of data accuracy and a functioning process for dispute resolution, a lawsuit filed in mid-July by OOIDA alleges.
The Owner-Operator Independent Drivers Association along with four members – Brian E. Kelley, Robert Lohmeier, Klint Mowrer and J. Mark Moody – filed suit against FMCSA in the U.S. District Court for the DC Circuit. The suit was filed by The Cullen Law Firm, litigation counsel of OOIDA.
The suit alleges the agency fails to comply with the Fair Credit Reporting Act, with the Privacy Act, and with mandates governing agency action contained in the previous bill, SAFETEA-LU.
At the center of the lawsuit is the agency’s database of driver information and the agency’s handling of inaccurate data and a dispute resolution process.
“This case deals with the FMCSA’s failure to follow standards of accuracy imposed upon it by Congress when making driver safety records available to potential employers,” said Paul Cullen Sr. of The Cullen Law Firm.
Currently, the agency collects data from roadside inspections as well as from crash reports and stores that information in the Motor Carrier Management Information System, dubbed MCMIS. The information in that database is used to populate reports such as those obtained through the Pre-Employment Screening Program.
“Inspection reports submitted by state law enforcement officers to the MCMIS system contain data labeled and reported by MCMIS as ‘violations’ of safety statutes and/or regulations even when:
(a) the driver has not been given a citation alleging violation of state law; (b) there has been no judicial determination of guilt or non-guilt where a citation has been issued; or (c) there has been a judicial determination in favor of the driver resulting in the dismissal of charges or a verdict or determination of not guilty,” the lawsuit states.
The inaccurate picture these types of violations paint harms drivers and hurts their livelihood, the lawsuit asserts.
Three of the four driver plaintiffs were cited for violations during the course of routine inspections. All three drivers challenged the citations in court and either were found not guilty or had their cases dismissed.
“These drivers had their day in court and were absolved of guilt,” said Cullen. “Reporting on such failed charges should never take place once the drivers were exonerated.”
Yet when all three challenged the alleged violations through FMCSA’s DataQ process – and provided the courts’ rulings – their challenges were denied. The violations are still reported on their driver profiles through the Pre-Employment Screening Program.
“FMCSA’s policy of refusing to delete inspection reports from a driver’s record after he is found not guilty of any violation by a court of law is profoundly disturbing,” Cullen said.
When a DataQ challenge is submitted to FMCSA, it is routed back to the state where the inspection report originated with the alleged violations, which according to the lawsuit is the agency’s way of delegating the responsibility of accurate and complete data to the states.
Brian Kelley was stopped in Texas on Dec. 7, 2010. The Texas officer issued Kelley a citation alleging that Kelley was “driving a commercial motor vehicle with a detectable amount of alcohol.”
On Feb. 3, 2011, in response to the motion of the district attorney, the court dismissed all charges against Kelley. On March 8, 2011, Kelley appealed the violation in the MCMIS database via a DataQ challenge. The challenge was based primarily on the fact that the violation identified in the inspection report was dismissed by the Texas Court, according to the lawsuit.
His challenge was denied.
Robert Lohmeier is a professional commercial truck driver. On May 19, 2010, at an inspection conducted by an Arizona law enforcement officer, Lohmeier was issued a citation for allegedly failing to wear a seat belt and for violations of the hours-of-service regulations.
The alleged violations were transmitted to the MCMIS database.
On Oct. 14, 2010, Lohmeier appeared before the Winslow Justice City Court in Navajo County, AZ, to contest the citations. The court dismissed all charges against Lohmeier.
He also filed a DataQ challenge following the court’s ruling. His challenge was denied.
On May 25, 2011, the Arizona Department of Public Safety, per Ursula Miller, denied Lohmeier’s challenge. The denial stated “We are not changing this. The court system is independent of the inspection process and this [inspection] was done properly.”
Miller continued, “One more thing – court adjudication does not necessarily mean that we will remove the violation from the inspection report.”
Klint Mowrer’s experience echoes that of Kelley and Lohmeier.
On March 22, 2010, Mowrer was issued a citation for the violation of the Maryland Criminal Code for “fail[ing] to comply with local law; rear drag link has more than 1/8-inch play by hand pressure,” according to the lawsuit.
The alleged violation was reported to MCMIS and Mowrer waited for his court date. He was found not guilty on July 22, 2010, and the charges were dismissed.
Attempting to remove the violation from the MCMIS database, Mowrer also filed a DataQ challenge with FMCSA.
In reply to Mowrer’s DataQ challenge, Roni Moyer, on behalf of the state of Maryland, stated: “Mr. Mowrer: At the time of the inspection the Officer still found the violation(s) to be present. The violation(s) will not be removed,” the lawsuit states.
The situation of the fourth OOIDA member plaintiff, J. Mark Moody, is still being contested.
On June 6, 2012, Moody went through a Level II inspection near Mitchellville, IA. During the inspection, which lasted 45-60 minutes, the officer asked if Moody was feeling well.
Moody replied that his stomach was feeling “a little queasy.” Actually, at the time of the inspection, Moody was experiencing excess gas but was embarrassed to disclose this personal discomfort to the officer, according to the lawsuit.
Moody was issued two citations, one for his record of duty status not being current and a second for driving while ill or fatigued. He was given citations.
Federal procedures require that Iowa report the alleged violations to MCMIS, despite the fact that Moody is contesting the citations and his case has yet to be heard by the Newton, IA, court.
“Defendants’ conduct in making available under their pre-employment screening program a record that Mr. Moody committed these two ‘violations’ of law on June 6, 2012, threatens to cause Moody to lose business opportunities and also threatens to cause him loss of income,” the lawsuit states.
“Plaintiffs insist that legitimate safety goals are completely compatible with truthful and accurate reporting. The goal of this case is to restore truth and accuracy to FMCSA’s safety data,” Cullen said.
The lawsuit asks the court to order FMCSA to purge all data for which there has not been a judicial determination of guilt; purge all reports where a court has dismissed or ruled the driver not guilty; purge all reports that are not “serious driver-related violation(s)”; enjoin the agency from distributing information without any reference to a dispute and a summary of the dispute; and enjoin the agency from distributing false, inaccurate, incomplete or misleading inspection reports. LL