OOIDA requests rehearing in sleep apnea case

By Mark Schremmer, Land Line associate editor | Wednesday, February 28, 2018

The Owner-Operator Independent Drivers Association filed a petition in the U.S. Court of Appeals for the Eighth Circuit for a rehearing in its lawsuit that claimed the Federal Motor Carrier Safety Administration bypassed the rulemaking process in order to regulate obstructive sleep apnea.

OOIDA’s petition for either a panel rehearing or a rehearing en banc (before the whole panel of Eighth Circuit judges) was submitted to on Feb. 20. The FMCSA has until March 15 to respond to the petition.

The lawsuit, filed this past April, alleged that the FMCSA slipped regulations regarding sleep apnea into a 2015 final rule that required the agency’s certified medical examiners to use a new medical form. OOIDA argued that the FMCSA incorporated into the Code of Federal Regulations an Appendix A that the agency didn’t include in its notice of proposed rulemaking.

Appendix A was a detailed list of medical criteria that included obstructive sleep apnea as one of the areas for medical examiners to review when deciding whether to medically certify a driver.

OOIDA argued the action wasn’t subjected to public comment or a cost-benefit analysis.

The Eighth Circuit panel ruled in January that OOIDA’s case “lacked standing.”

OOIDA’s petition for rehearing made several arguments for why the case has legal standing.

Among the arguments was that the panel ignored the violation of petitioners’ procedural rights as a basis for standing, and that the panel overlooked OOIDA’s associational standing.

The Association also said the panel brushed aside its affidavits without analysis.

“The panel’s focus on petitioners’ affidavits as speculation as to the future effects of the final rule and, therefore as insufficient to establish standing, contradict the well-established rule of Abbott Laboratories permitting pre-enforcement challenges of final agency rules,” OOIDA wrote in its petition for rehearing.

“FMCSA’s guidance documents created a nonuniform, unpredictable and sometimes costly medical certification process. OOIDA members received or were denied medical certification depending on which medical examiner they went to and that examiner’s interpretation of the guidance. Now that FMCSA has elevated those same advisory criteria to legally enforceable, the harm they impose on truck drivers is not speculative, it is certain.”

OOIDA said the panel’s decision goes against several previous rulings.

“This holding conflicts with decisions of the United States Supreme Court and with decisions of several circuit courts, including the Eighth Circuit, holding that subjects of the challenged rule have sufficient injury to support standing to bring a pre-enforcement challenge to that rule.”

 

 

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