FMCSA responds to OOIDA’s petition for rehearing in sleep apnea case

March 19, 2018

Mark Schremmer


In response to OOIDA’s petition for a rehearing en banc for its lawsuit that claimed the Federal Motor Carrier Safety Administration bypassed the rulemaking process in order to regulate obstructive sleep apnea, the agency said “further review would not affect the ultimate outcome of this case.”

The FMCSA filed its response on March 15 in the U.S. Court of Appeals for the Eighth Circuit. OOIDA petitioned for the rehearing on Feb. 20 after the Eighth Circuit panel ruled against the Association in January, saying the case “lacked standing.”

The lawsuit, filed last April, alleged that the FMCSA slipped regulations regarding sleep apnea into a 2015 final rule that required the agency’s certified medical examiners to use a new medical form. OOIDA argued that the FMCSA incorporated into the Code of Federal Regulations an Appendix A that the agency didn’t include in its notice of proposed rulemaking.

Appendix A was a detailed list of medical criteria that included obstructive sleep apnea as one of the areas for medical examiners to review when deciding whether to medically certify a driver.

OOIDA argued the action wasn’t subject to public comment or a cost-benefit analysis.

In the petition for a rehearing, OOIDA said the panel ignored the violation of petitioners’ procedural rights as a basis for standing and that the panel overlooked OOIDA’s associational standing.

“FMCSA’s guidance documents created a nonuniform, unpredictable and sometimes costly medical certification process,” OOIDA said. “OOIDA members received or were denied medical certification depending on which medical examiner they went to and that examiner’s interpretation of the guidance. Now that FMCSA has elevated those same advisory criteria to a legally enforceable rule, the harm they impose on truck drivers is not speculative, it is certain.”

The FMCSA agreed with the Eighth Circuit’s decision that OOIDA’s case lacked standing.

“The panel examined petitioners’ two affidavits in light of controlling Supreme Court and Eighth Circuit precedent and concluded that the affidavits were insufficient to establish causation, a required element of Article III standing,” FMCSA said in its response. “The panel opinion is correct, does not conflict with any decision of this Court or the Supreme Court, and does not present any questions of exceptional importance. Further review is unwarranted.”

If the court accepts OOIDA’s petition for a rehearing en banc, the case will be heard by the whole panel of Eighth Circuit judges.