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12/5/2006
SPECIAL REPORT: Appeals court hears OOIDA’s hours-of-service arguments

Dec. 5, 2006 - A three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit heard OOIDA's oral arguments challenging the current HOS regs.

The attorney arguing the case for OOIDA, Paul Cullen Jr. of The Cullen Law Firm, said he is encouraged following the 10-minute oral arguments presented to the court Monday, Dec. 4.

"It went pretty well," he said.

The Owner-Operator Independent Drivers Association had approximately 10 minutes to present its arguments. At any time judges can interrupt the presentation and ask questions.

Chief Judge Douglas H. Ginsburg, Judge Karen Lecraft Henderson and Judge Merrick B. Garland heard the appeal.

"They let me go about five minutes before they asked any questions. I was able to discuss our arguments and put them together in a thematic way," Cullen said.

Although OOIDA initially requested the Federal Motor Carrier Safety Administration make individual changes to the current regulations, that's not how the appeal is argued before the court. The regulation as a whole must be contested.

The OOIDA legal team put together a three-pronged attack on the current regulations. The Association contends:

  • The regulations do not fulfill a congressional mandate to address loading and unloading;
  • The regs do not comply with the court's previous direction to consider the impact of the regs on drivers' health; and
  • FMCSA did not follow the Administrative Procedures Act - APA for short - in arriving at the regulation.

Cullen said out of the three arguments, the three-judge panel seemed most interested in the contention FMCSA did an end-around of the Administrative Procedures Act.

According to Cullen, the APA dictates that a proposed regulation must be "reasonably specific" so the public has at least a general idea of what the final regulation will be.

OOIDA argues that the way the agency proposed so many possible variations to the split-sleeper berth provision - essentially proposing every possible variation of the rule - that the agency proposed nothing.

The Association wasn't the only group arguing against the current regs.

After the Association's 2005 petition for reconsideration was denied by FMCSA, OOIDA followed up the petition with the current court challenge of the regulation in January of this year.

Several groups joined the lawsuit on OOIDA's behalf - including the California Trucking Association and the International Brotherhood of Teamsters.

A second lawsuit challenging the current regulations was filed by Public Citizen. That case was eventually combined with OOIDA's suit by the court.

So, in the oral argument phase of the court challenge of the HOS regs, attorneys for Public Citizen were also given 10 minutes for that group's oral arguments.

Cullen said Public Citizen's attorneys argued that the 11th hour of driving is too much and discussed a variety of data collected on the impact of that additional hour of driving had on sleep.

The judges asked several questions of Public Citizen's attorneys on the complex data presented by the group.

Finally, FMCSA's attorneys were given 20 minutes to counter the arguments presented by both OOIDA and Public Citizen.

Cullen said quite a bit of FMCSA's time was spent on rebutting Public Citizen's arguments - and that's what the judges wanted to hear.

The case now is in the hands of the three judges. When an opinion is issued, it will not decide what the rule should be. If the court overturns the rule - as it did with the 2003 version of the hours-of-service regulations - it will simply send the Agency back to the drawing board.

Cullen said there are no guidelines or rules dictating how long the judges have to issue a decision. In the court challenge of the 2003 rule, the judge's issued a decision after about 90 days. Cullen said that is typically a little quick for these types of cases, but in the end, it's really anybody's guess when an opinion could be issued.

- By Jami Jones, senior editor
jami_jones@landlinemag.com

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