Lawsuit Update
OOIDA files second DataQ legal challenge

By Jami Jones, managing editor

Fred Weaver was just tooling along Interstate 15 in Montana back in June 2011. Before he knew it he was passing the Shelby scale, having missed the sign that would have alerted him a scale was ahead.

Needing fuel, he went ahead and stopped to fill up. While at the fuel island, a sheriff’s deputy approached Weaver and asked him if he knew he had missed the scale. Weaver said he was aware and was going to return after fueling his truck.

Apparently content with Weaver’s response, the sheriff’s deputy went on down the road.

Upon Weaver’s return to the scale, he was presented with a citation for not stopping at the scale and the violation was noted on his inspection report.

Weaver hired an attorney and battled the ticket through the Montana courts. In January 2012, the ticket was dismissed without prejudice – allowing the state 60 days to appeal the decision and refile charges. That never happened.

The citation was wiped from Weaver’s motor vehicle record.

But the violation remained on Weaver’s records maintained by the Federal Motor Carrier Safety Administration, used in both the Pre-Employment Screening Program and Compliance, Safety, Accountability enforcement program.

With the help of OOIDA, Weaver requested the violation be removed from his record through the DataQ process.

Requests through the DataQ system are routed back to the agency in which the inspection reports are generated for a decision.

Weaver’s request to remove the violation was denied by FMCSA, which under the DataQ system simply defers the decision to the state agency – in this case the Montana Department of Transportation’s Motor Carrier Services Division.

The denial, in part, states that Weaver was in violation by failing to report to the Shelby scale and that the citation was filed as “deferred prosecution.”

OOIDA filed a dispute on that decision detailing the facts in the case and that Weaver’s ticket was, in fact, dismissed.

A final response from the state of Montana states the citation and the violation are different. “The two actions are treated and handled totally separate from each other.” The response called the violation a valid “safety” violation and it “can be listed whether a citation is issued or not.”

In response to the court’s dismissal of the citation, the state responded that by keeping the violation on Weaver’s record, the state was “not in violation of the court order as it only addresses the citation.”

In that final response, the state warned that further DataQ challenges to this violation would be “turned over to the FMCSA as a violation of the DQ processes.” The response does not outline what penalties or punishments that would entail.

That response was issued on March 19.

OOIDA filed a petition for review on Weaver’s behalf on May 10 in the U.S. Court of Appeals for the District of Columbia District.

The Association asserts that FMCSA is continuing to report that Weaver violated the law, when the citation was actually dismissed. The Association is seeking to prevent FMCSA from reporting that Weaver violated the law to the public and is seeking to remove that information from his records.

“The tactic that FMCSA is employing is a familiar one of ‘don’t confuse us with the facts. We don’t even want to talk about the facts,’” OOIDA Executive Vice President Todd Spencer said. “They are going to talk about this – and if we wind up having to take it to the pope to get them to pay attention, then we’ll take it to the pope.”

This is the second legal challenge filed by OOIDA contesting FMCSA’s refusal to discontinue reporting violations that have been overturned or dismissed in court.

The previous lawsuit was filed in July 2012 on behalf of four members who encountered similar situations. That case is still pending.

“In our country we’re presumed innocent until proven guilty. These guys went to court and had the allegations dismissed. How can FMCSA continue to report that they violated the law?” Spencer questioned. “We live in a system of law, justice and courts. The agency obviously is under the delusion that they are above that system.

“Fred Weaver deserves better – and so does every other hard working trucker out there.” LL