Transportation Law Update: Court of Appeals Upholds FMCSA's Rule Requiring CMV Driver Sleep Apnea Testing
EIGHTH CIRCUIT UPHOLDS FMCSA ACTION
Recently, the United States Court of Appeals for the Eighth Circuit upheld a rule promulgated by the Federal Motor Carrier Safety Administration (“FMCSA”) entitled Medical Examiner’s Certification Integration (“Rule”) which mandated that drivers of commercial motor vehicles (“CMVs”) be subjected to sleep apnea testing. Owner-Operated Indep. Drivers Ass’n, Inc. v. FMCSA, No. 16-4159, 2018 WL 298808, at *3 (8th Cir. Jan. 5, 2018). The time to file a petition for writ of certiorari to the United States Supreme Court has yet to expire, but no parties appear to be seeking such relief as of the date of this publication. See U.S. Sup. Ct. R. 13(1).
The United States Department of Transportation (“DOT”), by the authority delegated to it by Congress, has the power “to establish, review, and revise . . . medical standards for operators of [CMVs] . . . and requirements for periodic physical examinations of such operators.” 49 U.S.C. § 31149(c)(1)(A) (2018). The FMCSA, a division of the DOT, accordingly promulgated a Rule in 2015 which revised and made mandatory the Medical Examination Report Form used to evaluate CMV drivers. Additional requirements added to the form included questions concerning sleep apnea and compulsory sleep apnea testing which can be “expensive, time-consuming, and unpleasant.” The Owner-Operator Independent Drivers Association, Inc. (“OOIDA”), an international trade organization for truck drivers, and its member Scott Mitchell petitioned the FMCSA to reconsider the Rule and were denied. Subsequently, the parties filed in the United States Court of Appeals for the Eighth Circuit for further review, alleging that the Rule violated the Administrative Procedure Act and other relevant statutes. OOIDA and Mitchell contended that OOIDA members had suffered individual, tangible harm as a result of the Rule which needlessly subjects drivers to expensive sleep disorder testing, delays shipments, and can ultimately jeopardize a driver’s medical certification to drive CMVs.
In response to Petitioners OOIDA and Mitchell’s complaint, the DOT submitted that both parties lacked standing to bring a cause of action. This is the sole argument considered by the court in this matter.
The United States Court of Appeals for the Eighth Circuit began by reviewing the foundational requirements of standing in federal court. Article III of the United States Constitution limits federal courts to hearing only issues arising out of a case or controversy. U.S. Const. art. III, § 2. The doctrine of standing is used to identify such cases or controversies, requiring the petitioning party to 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.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). These elements must be satisfied even on direct appellate review of an administrative action.
The Petitioner bears the burden of persuasion to submit specific facts which satisfy the elements of standing by a preponderance of the evidence. Where a Petitioner is an entity, the Petitioner must satisfy associational standing. This particular status requires that individual members of the entity “would otherwise have standing to sue in their own right.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342 (1977).
The primary concern of the Eight Circuit in this matter was the lack of fairly traceable causation between the FMCSA’s Rule and the Petitioner’s alleged injury. OOIDA and Mitchell submitted only two affidavits in support of their claim. The first came from OOIDA’s Chief Executive Officer and contained generalized, theoretical harm that could potentially result from the Rule. The Eighth Circuit was quick to dismiss this evidence, as specific facts are required beyond mere pleading and speculation. The second affidavit, given by another OOIDA employee, did in fact list specific instances of harm to drivers in relation to the Rule. However, this second affidavit was dated one month before the effective date of the Rule and seven months before implementation of the policy. While the allegations in the second affidavit are specific, they pre-date any actual injury and are therefore not fairly traceable causes to the implementation of the Rule. The Eighth Circuit therefore determined that OOIDA and Mitchell had failed to submit sufficient evidence to support standing and dismissed the petition.
Despite the dismissal, the Eighth Circuit suggests other methods by which the Petitioners could have supported their argument for standing. The court’s suggestions include alleging future injury caused by the Rule with evidence to support that finding or providing specific examples of harm after the Rule’s effective date. At the time of this action, however, the parties failed to make these arguments and it is unclear whether this type of evidence ever existed.
Presently, it appears that the FMCSA’s Rule will remain in effect, requiring sleep apnea testing of all drivers of CMVs. However, OOIDA and Mitchell are still within the 90 day time period to file an appeal with the Supreme Court of the United States.
For further information about this case and other transportation issues, contact John F. Fatino, email@example.com, Chair, Transportation Practice Group. The firm acknowledges the writing assistance of Jackson G. OBrien, J.D. Candidate.