OOIDA Files Suit Challenging FMCSA Policy to Keep Overturned Violations on Records

This story appears in the May 27 print edition of Transport Topics.

The Owner-Operator Independent Drivers Association filed a lawsuit challenging the federal government’s policy that overturned violations may remain on truck drivers’ and carriers’ records, the second federal lawsuit the group has filed on that subject.

In the May 10 lawsuit filed in the U.S. Court of Appeals for the District of Columbia Circuit, OOIDA said that Fred Weaver, a Florida-based owner-operator and OOIDA member, got a ticket in Montana for skipping a weigh station. The ticket was dismissed in court.

But when Weaver and OOIDA filed a request to get the ticket removed from his federal record through FMCSA’s DataQs system, the agency delegated the decision to Montana’s Department of Transportation, which rejected the request earlier this year.

OOIDA took up Weaver’s case in order to have the federal court rule that FMCSA must remove from its records any violations that are dismissed in court, said Todd Spencer, OOIDA’s executive vice president.

“We don’t think it’s a close call that when violations or citations are dismissed by a competent court of jurisdiction that it’s asking too much to expect FMCSA to correct the record and not hold those allegations that were dismissed against drivers,” Spencer told Transport Topics.

He said similar DataQs requests are rejected on a daily basis.

FMCSA spokesman Duane DeBruyne said the agency does not comment on pending litigation. Montana’s DOT, which was not named as a party to the lawsuit, did not return requests for comment.

FMCSA’s database of regulatory violations for drivers and carriers is used for a variety of purposes, including carriers’ scores under the Compliance, Safety, Accountability program and the information carriers can gather on potential driver employees through the Pre-Employment Screening Program.

Carriers and drivers, however, can submit DataQs requests if they believe some violation information is incorrect. FMCSA delegates the decisions on those requests to the states that issued the violations.

American Trucking Associations spokesman Sean McNally said the federation agrees that dismissed violations should not go on FMCSA records for the purposes of CSA or other agency action.

“If a court says consequences should not apply to a violation, then FMCSA should not use those violations in calculating a CSA score,” he said. “Moreover, if the point of the system is to identify crash risk, those actually convicted of violations are probably a greater risk.”

In FMCSA’s guidance for states, it said states do not necessarily need to remove violations if they are dismissed in court. “It is recommended that the DataQs analyst practice good judgment by reviewing the specifics of the judge’s dismissal,” FMCSA said in its guide. “If the citation was dismissed because the violation cited was cited erroneously, then the record should be removed from the motor carrier’s inspection file.”

Spencer disagreed with FMCSA giving so much discretion to state officials. “We think for our legal system to have any integrity at all, that issue has to be corrected,” he said. “For drivers to have any rights at all, that system has to be corrected.”

Furthermore, Spencer argued that even though Montana made the decision in the case, FMCSA is ultimately responsible.

“Regardless of what the state may ultimately opt to do, FMCSA has a role and a responsibility that’s pretty well laid out in law that they are to maintain that this system has integrity and that it complies with U.S. federal law. It isn’t optional that this stuff be taken off,” he said.

Dismissed violations were central to a similar lawsuit OOIDA filed in July 2012 in the U.S. District Court for the District of Columbia, a civil and criminal court; appeals go to the circuit court. In that case, OOIDA argued that a variety of data kept by FMCSA on four of its members was incorrect, including three members’ violations that had been dismissed in court.

FMCSA has asked the federal district court to dismiss the July 2012 case, arguing that all challenges to FMCSA actions must go directly to the circuit court under federal law. The court has not ruled on the dismissal motion.

That is one of the reasons OOIDA filed the more recent lawsuit, Spencer said.

This month, ATA released a paper recommending some improvements to DataQs, including allowing carriers and drivers to appeal to FMCSA, encouraging states to follow FMCSA’s recommendations for handling requests and that carriers and drivers not file frivolous requests that challenge violations for no reason.