The Petition for Review (15-70754) filed by the International Brotherhood of Teamsters with the Owner-Operators Independent Drivers Association (OOIDA) jumping in as intervenors, is a study in ridiculous distortions of previous Court rulings which have all ruled in favor of FMCSA, and baseless rhetoric.
The latest filing by both parties before the Ninth Circuit Court of Appeals in nothing more than rehashing issues that have already been resolved in other federal courts, including the conservative D.C. Court of Appeals.
THE ISSUES – TEAMSTERS
The Teamsters are attacking the issues once again using points that have been ruled upon many times in the past, with the Teamsters losing each challenge. What they’re doing is essentially “court shopping”.
They are challenging the Inspector General’s (OIG) final report that found favorably towards Mexican carriers and the FMCSA by requesting the Ninth Circuit to redress their baseless “injuries” by finding the final report of the OIG “unlawful”.
They also challenge the number of participants in the program as being insufficient to produce “statistically valid results” as required under the rules of the Pilot Program. This is another baseless argument since the D.C. Circuit ruled in favor of FMCSA on this issue.
They also claim that participants were not representative of the population expected to seek permanent operating authority. So in their minds, trucks from Mexico were not representative of who would seek permanent operating authority in the United States?
Hoffa and company also allege that FMCSA improperly relied on safety data from “certificate” and “enterprise carriers in their final assessment. “Certificate” carriers are Mexican domiciled carriers who were grandfathered in 1982 when President Reagan signed an executive order banning all foreign carriers from operating in the United States. This wasn’t an issue of safety, but one of reciprocity. An “Enterprise” carrier is headquartered in the United States, but is owned or controlled (greater than 55%) by a Mexican citizen or resident alien. Many of the Mexican carriers you see on the roads today operate under this authority and designation and would not be affected by the outcome of this lawsuit.
And finally, they allege that the Pilot Program Data does not support the OIG final reports conclusion. What the Pilot Programs data does not support is the Teamsters and OOIDA assertion that Mexican trucks are unsafe, and the drivers are lawless and incompetent.
THE ISSUES – OOIDA
OOIDA, as expected, rehashes past issues that have been ruled on in previous cases and adds a couple of new wrinkles to the miss, looking for the elusive “Hail Mary” they’re never going to find.
OOIDA, in it’s filing claims the OIG’s Final Report significantly alters the legal landscape for the motor carrier industry? In what way? Even after the end of the Pilot Program, Mexican carriers who received permanent authority are held to a much higher standard of operating safety than U.S. or Canadian carriers. No special favors are granted nor are violations overlooked. Most blatant of these is the discriminatory enforcement of 392.11(b)(2) which is routinely used as a tool to harass and put out of service Mexican drivers who don’t speak sufficiently good English to satisfy a CMV inspector. This is overlooked largely for drivers from French speaking Quebec and the flood of drivers being brought in from Eastern Bloc countries who speak very little to no English.
OOIDA goes on to claim that the administrative record is miserably inadequate and fails to support FMCSA’s decision to grant permanent operating authority to the participants who successfully completed the Pilot Program.
And last, but not least, Jimmy Johnson, grasping for straws to keep the hated Mexicans out of his country falls back on the lame argument that Mexican Federal CDL’s, permitted and recognized in the United States as the equivalent to a state issued U.S. CDL, have not been shown to be equivalent. Total horseshit, but considering the source, expected.
In their respondents brief, FMCSA appears to knock back all of the idiotic and baseless arguments put forth by the Plaintiffs.
FMCSA points out that the debate over Mexican trucks has a long and sordid history in large part due to the efforts of the plaintiffs and their cronies in Congress. They point out that the Pilot Program was thoroughly tested in the D.C. Circuit Court of Appeals, a very conservative body, with the plaintiffs losing on all issues, as has been the case for the past 24 years.
FMCSA also explains that the pilot program was fully consistent with the statutory requirements, that it was designed to include a reasonable number of participants and to yield statistically valid findings, which it did, and that the agency performed ample inspections to support its conclusions. All of this is backed up by the data.
In responding to plaintiffs claims that their requests were ignored, FMCSA pointed out that they had adequately responded to all concerns raised. By law, FMCSA or any government agency must respond to comments left on rulemaking issues. That is why we saw more than 2,000 negatives comments put on the regulation.gov website by Teamster member using a “canned, point and click” form letter.
I’ve made the filings available by clicking on the links below
I find it disgusting this issue or non-issue is still being addressed more than 20 years after the fact, when numerous courts have addressed the issues and ruled against the plaintiffs consistently. Obviously, Jim Johnston, President of OOIDA, continues to throw crap against the wall of his executive suite, hoping something will stick, which it never does. Only the egg on his face after another humiliating loss in the courts and the waste of millions of dollars of his members dues.
What say you? Comment below.