OOIDA's cross-border lawsuits: Pending here, pending there

By Sandi Soendker, Land Line editor-in-chief | Wednesday, May 10, 2017

As one cross-border trucking lawsuit simmers in the San Francisco court, another OOIDA cross-border suit is seeing some action in the Fifth Circuit appellate court in New Orleans.

This case represents another front in the Owner-Operator Independent Drivers Association’s continued attempts to stop the U.S. Department of Transportation from allowing Mexico-domiciled motor carriers to obtain authority to operate in the U.S. 

One way OOIDA has kept the fight alive has been to look carefully at every single application for Mexican authority for problems. On Nov. 20, 2015, OOIDA filed a protest to the applications of two Mexico-domiciled motor carriers for permanent operating authority. The protest challenged the authority of FMCSA to grant the access because the agency had failed to establish the Mexico-based motor carriers’ safety performance “through a successful pilot program.”  

OOIDA also argued that FMCSA had no authority to permit drivers for Mexico-domiciled motor carriers to operate throughout the U.S. without a U.S. CDL as is mandated by statute.

FMCSA denied the protest without any consideration of the pilot program argument and instead said a protest could only contest the “fitness” of an applicant. OOIDA moved for reconsideration, arguing that the pilot program did not demonstrate the likely safety-fitness of Mexico-domiciled motor carriers, and that the issue of the use of drivers without a U.S. CDL bears directly on the question of their fitness. 

DOT denied this motion in March 2016 without addressing OOIDA’s issues. OOIDA then filed a petition to review the denial of the protest in the U.S. Court of Appeals for the Fifth Circuit.

That case heard oral argument May 2 in New Orleans. Paul D. Cullen Jr. of the Cullen Law Firm represented OOIDA and a handful of OOIDA members before a three-judge panel. Dana Kaersvang argued for the DOT.

The court appeared interested in whether OOIDA had standing to appeal the agency’s denial of its protest. Cullen argued that OOIDA proceeded under the proper rules at FMCSA, and that the underlying issues “were properly before the court.” 

The government’s lawyer agreed that the court should hear the merits of OOIDA’s case. Kaersvang then defended FMCSA’s decisions by describing the oversight and procedures that FMCSA put in place to approve and supervise the safety of Mexico-domiciled motor carriers. 

Cullen responded that no matter what the safety precautions were, FMCSA could not proceed because the agency did not perform the pilot program required by Congress. Importantly, it did not have the authority to accept Mexican CDLs in place of U.S. CDLs.

The decision is now pending at the court, with a ruling expected this year.

Managing Editor Jami Jones contributed to this report.

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