Ninth Circuit hears challenge to DOT’s cross-border trucking program

By Sandi Soendker, EDITOR-IN-CHIEF

Cases that go through the federal appeals court in San Francisco frequently make big news. One case that may not have made major headlines, but was significant nonetheless, involves Mexican cross-border trucking. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit recently heard oral arguments in a challenge that seeks to shut down the government’s cross-border trucking program with Mexico.

Despite meager participation in its cross-border pilot program, the Federal Motor Carrier Safety Administration opened up long-haul trucking in the states to motor carriers from Mexico starting in January 2015. Two separate lawsuits were filed seeking to shut down the program.

The Owner-Operator Independent Drivers Association filed one challenge. The second was filed by the International Brotherhood of Teamsters and the Advocates for Highway Safety, as well as several other organizations. The two cases were later rolled into one lawsuit.

In mid-March, Teamsters attorney Eric Brown and OOIDA litigation counsel Paul D. Cullen Jr. of The Cullen Law Firm both argued before the appellate court in San Francisco to ask the court to toss out FMCSA’s program to open the U.S.-Mexico border to Mexico-based truckers.

Teamsters attorney Brown argued that there was not sufficient data gleaned from the DOT’s pilot program to conclude it was safe. Brown stressed that the agency ignored the conclusions of “its own experts.”

“DOT’s Office of Inspector General and the Motor Carrier Safety Advisory Committee both concluded that the sample size was inadequate,” the Teamsters argued.

Representing OOIDA, Cullen addressed the issue of compliance. He asked the court to vacate the agency’s decision to grant permanent authority to the pilot program participants. He also asked the court to enjoin the agency from granting authority to Mexico-domiciled carriers without requiring them to comply with the CDL law.

Cullen told the panel that a statute passed by Congress forbids operation of commercial motor vehicles by anyone not holding a valid CDL issued under federal standards. At the argument, Cullen said the FMCSA “did not cite to any authority that would exempt motor carriers from the U.S. CDL statute.”

If FMCSA is going to do that, Cullen said, then the agency needs to go to Congress with the results of the pilot program and ask them to change the CDL requirements.

DOT’s attorney argued that the sample size of the pilot program participation by Mexico-based trucking companies did not affect the agency’s capability of evaluating their safe operations.

Presiding in the Ninth Circuit Court for the oral argument were Judges Kim McLane Wardlaw, Consuelo M. Callahan and Ronald Gould.

One of the questions the panel asked the agency’s attorney Dana Kaersvang: If the only data being used by the DOT came from 13 carriers, “would it be enough to determine that Mexican-domiciled carriers were safe?”

Kaersvang said yes. In further questioning by the panel, she also seemed to argue that even if it were not sufficient, they would continue to grant authority to Mexico-domiciled motor carriers. Safety compliance would be “taken care of” in an extensive post-authority acceptance monitoring system.

Attorneys for both Teamsters and OOIDA called the FMCSA’s final report to Congress arbitrary and irresponsible. In the final argument by Brown, the Teamsters asked the court to set aside any operating authority granted by the agency to Mexico-based companies since the pilot program. He also asked the court to set aside the final report, which he explained is the final agency action and the legal prerequisite to the agency’s current granting of authority. LL