Employment Law Daily Drivers’ association lacked standing to challenge FMCSA ‘sleep apnea testing’ rule
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Tuesday, January 9, 2018

Drivers’ association lacked standing to challenge FMCSA ‘sleep apnea testing’ rule

By Kathleen Kapusta, J.D.

Dismissing a petition by Owner-Operator Independent Drivers Association (OOIDA) and one of its members seeking to vacate an administrative rule, which they alleged subjected OOIDA members to more sleep apnea testing leading to delays or denials of medical certification to drive commercial motor vehicles, the Eighth Circuit found they did not have standing to invoke its jurisdiction (Owner-Operator Independent Drivers Association v. U.S. Department of Transportation, January 5, 2018, Shepherd, B.).

Congress delegated authority to the Department of Transportation to “establish, review, and revise… medical standards for operators of [CMVs]… and requirements for periodic physical examinations of such operators,” the appeals court observed, noting that the Federal Motor Carrier Safety Agency has long been in charge of exercising that delegated authority. Pursuant to that authority, FMCSA promulgated a final rule entitled “Medical Examiner’s Certification Integration,” 80 Fed. Reg. 22,790. FMCSA, explained the court, wanted medical examiners to deliver the results of their examination quicker and electronically in order to ensure better coordination between the state and federal agencies that regulate CMV drivers. As part of that effort, the rule revised and made mandatory the Medical Examination Report Form used to evaluate CMV drivers.

Additional questions. The revised form contained additional questions, including one asking a driver whether he or she has ever been tested for sleep apnea. It no longer contained, however, detailed guidance for medical examiners. Instead, the court noted, the advisory guidance was moved to an appendix in the Code of Federal Regulations.

Alleged harm. The OOIDA and its member petitioned the FMCA for reconsideration of the rule. After the petition was denied, they petitioned the Eighth Circuit for review of the rule, arguing that its promulgation violated the Administrative Procedure Act and other statutory requirements. According to the petitioners, “OOIDA members have suffered real, personalized harm” because they “have been subjected to unnecessary and expensive testing… particularly in connection with sleep disorders” and such testing has led to denials of medical certification to drive CMVs in some cases.”

No causation. Noting that the party seeking to litigate in federal courts must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision,” the court found that the petitioners failed to provide any evidence to support the second element of standing: causation. They relied on two affidavits but the first, from OOIDA’s CEO, contained general allegations of the types of harm that could stem from a rule, which said the court, was “a far cry from the ‘specific facts we look for to support standing.”

As to the second affidavit, from an OOIDA employee, the court noted that it was dated exactly one month before the rule’s effective date (June 22, 2015) and approximately seven months before the implementation of the revised form. Thus, explained the court, even assuming the allegations in that affidavit were sufficient to prove an injury-in-fact, they pre-dated their supposed cause and were not “fairly traceable” to the rule. Finding that the petitioners did not meet their burden to prove they had standing, the court dismissed their petition.

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