The DC Court of Appeals on Friday dealt OOIDA yet another crushing blow in their attempt to put an end to the Cross Border Pilot program using absurd arguments not anchored in facts that the court found “not to be persuasive”.
In a terse 19 word statement, the Court denied the requested rehearing before the full court on the 7 frivolous issues OOIDA had raised in their initial petition, and the 6 put forward by the Teamsters.
In response to the denial, OOIDA Chief Operating Officer Rod Nofziger issued this retort.
“U.S. motor carriers and drivers face significant regulatory hoops and hurdles on a daily basis. Compliance is the name of the game. Giving motor carriers and drivers from Mexico a free pass from these stifling regulations poses not only a significant threat to highway safety, but creates an unfair competitive advantage over their U.S. counterparts.”
Of course, this is just the type of response expected from OOIDA. Nothing in the statement reflects anything close to the truth. As FMCSA pointed out in a recent response to a comment by Advocates for Highways Safety, “This proves Mexican carriers are held to a much higher standard”. As OOIDA is well aware, Mexican carriers are required to jump through the same hoops and hurdles as US and Canadian drivers and then some. No one is giving these carriers a “free pass” of any kind.
But what we find interesting is the statement did not come from Executive Vice President Todd Spencer as is usually the case, but from Rod Nofziger, whom it appears is being groomed by OOIDA President Jim Johnston to take over the top spot in the organization, bypassing Spencer who was thought to be next in line to lead the association.
CLEARING THE DOCKET OF FRIVOLOUS AND MEANINGLESS ACTIONS IN ONE FELL SWOOP
The DC Court of Appeals also issued a ruling in another action filed by OOIDA in a thinly disguised attempt to shut down the Cross Border Pilot Program.
In that action, OOIDA targeted FMCSA’s exemption of the medical certification requirements on Canada- and Mexico-domiciled drivers with bogus logic and a clear disregard for established law, a point the Court was quick to point out in it’s response.
OOIDA cares naught for these agreements, instead relying on generally applicable statutory text. The question we must answer is whether a facially unambiguous statute of general application is enough to abrogate an existing international agreement without some further indication Congress intended such a repudiation. We
conclude it is not
And while this case mentioned Canadian drivers in a couple of instances, it was directed solely towards the Mexican drivers. Indeed, when this suit was filed, there was no response from Canada or OOIDA’s affiliate in Canada, OBACC. Nor was there outrage from the more than 29,000 Canadian drivers who cross the border regularly with NAFTA freight.
OOIDA claimed that Mexican and Canadian drivers were illegally exempted from having to carry a medical certificate issued by an examiner listed on the registry of US Certified Medical examiners. OOIDA ignored the Memorandum of Understanding (MOU)which enshrined some basic principles from which to structure regulation, including joint recognition of U.S. commercial driver’s licenses and Mexico’s “Licencia Federal de Conductor,” acknowledgment by the United States of its need to imitate Mexico’s system “for including driver medical qualification determinations” within the licensing process, and an understanding that drivers “shall be subject to the applicable laws and regulations of the country in which they operate such motor vehicles.”
The United States entered into a similar MOU with Canada in 1998 with the Federal Highway Administration (FHWA) affirming that “the medical provisions of the Canadian National Safety Code for Motor Carriers are equivalent to the medical fitness regulations in the Federal Motor Carrier Safety Regulations.”
Unlike the American system, which separates medical certification from the commercial vehicle licensing process, Mexico and Canada incorporate physical fitness criteria as part of their licensing regimes. For this reason, the FHWA treats commercial licenses from these countries as themselvesproof of medical fitness.
This mattered not to OOIDA when they filed this frivolous action. They didn’t have a problem with Canadian rules. They’re perfectly acceptable. Only with Mexico which the court acknowledged that the US was adapting Mexican medical rules in its establishment of the National Registry of Medical Examiners.
You can download and read the Courts decision by clicking the button below.
This was not unanimous however. Senior Judge David B. Sentelle dissented saying that it’s not the court’s place to determine the intent of Congress when passing a law.
While OOIDA got their kibbles all excited at Judge Sentelle’s words, they don’t have the force of law or precedent to overturn the majority opinion.
WILL THEY OR WON’T THEY APPEAL
The 13 issues brought up by Teamsters and OOIDA that were denied, and denied again are at a probably dead end. The only avenue that OOIDA has before it now is to file a writ of certiorari to the US Supreme Court. The Court receives approximately 10,000 petitions for a writ of certiorari each year. The Court grants and hears oral argument in about 75-80 cases. It would be an exercise in supreme stupidity to waste members money taking it to that level. Did I say stupid? Sure did and for that reason, OOIDA will probably attempt a hearing before SCOTUS, a request that will be denied.
Not so on case number 12-1264. It’s almost certain they’ll waste the members money asking the DC Circuit for an “en banc” hearing which is a hearing before the entire court. It’s almost certain they’ll use the dissenting Judges opinion as a basis for the rehearing. We predict it will be summarily denied the same as before. OOIDA has been on a long losing streak with the courts as it applies to the Cross Border programs with Mexico. We don’t see that changing.
“While this is clearly a disappointing ruling, the Association’s legal counsel is analyzing the court’s ruling and we are in the process of evaluating options going forward.”
In regards to the ruling on the medical exemption he said;
“Again, while we must look closely at this decision and evaluate our options, Judge Sentelle spoke some very harsh truth. No court opinion should ever side with bureaucratic bargains struck behind closed doors, when Congress has passed laws that clearly dictate the will of the people.”
Again, based on the last statement, the truth continues to elude OOIDA as they continue to think the law should be interpreted as they see fit, not by binding precedent as the court has ruled.
This post is part of the thread: Mexico Cross Border Pilot Program – an ongoing story on this site. View the thread timeline for more context on this post.