Breaking News: The Small Business in Transportation Coalition ("SBTC") filed a lawsuit (
Case 1:19-cv-01311
)
in U.S. District Court on Monday, May 6th, 2019 against the Federal Motor Carrier Safety Administration ("FMCSA"), FMCSA's Administrator Raymond Martinez, the United States Department of Transportation ("USDOT") and the Secretary of Transportation for violation of Federal Law under the Administrative Procedure Act ("APA").
According to the complaint: the lawsuit:
"...challenges the FMCSA’s summary and unlawful delay in the decision of the SBTC’s Electronic Logging Device (“ELD”) Exemption Application, which SBTC filed on behalf of its membership; and FMCSA’s summary and unlawful delay in the publication of the Notice of SBTC’s Hours of Service (“HOS”) Exemption Application relating to the City of Midland, Texas in the Federal Register. Both delays violate the APA because Congress has enacted a statute that expressly requires the FMCSA to take specific actions by a specific date."
The suit alleges:
"The FMCSA violated 49 U.S.C. § 31315(b)(7) by failing to grant or deny the
SBTC’s ELD Exemption Application
request
within 180 days
after the filing date of such request."
It has now been over 275 days since the 180-day period expired.
And:
"The FMCSA violated 49 U.S.C. § 31315(b)(6)(A) by failing to publish in the Federal Register the
SBTC’s HOS Exemption Application
request “
upon receipt
” of said exemption request and commence a notice and comment period."
It has now been more than 80 days since the SBTC filed its HOS Exemption Application with respect to interstate transportation through Midland, Texas. FMCSA failed to publish same in the Federal Register "upon receipt".
Under the APA, a reviewing court shall
“compel agency action unlawfully withheld or unreasonably delayed.”
5 U.S.C. § 706(1).
For months, the SBTC attempted to resolve its disputes over the time FMCSA has taken to (1) issue a decision on the SBTC's 2017 ELD Exemption Application; and (2) publish its HOS Exemption Application through its legal and lobbying teams without court intervention.
SBTC also sought the assistance of the Small Business Administration (SBA) to get a decision from FMCSA on its ELD Exemption Application. SBA made three inquiries to USDOT to no avail. SBTC has asked the Office of the SBA Ombudsman to report the FMCSA's violations and the SBTC's experience with FMCSA to Congress in their next report.
"The SBTC timed the filing of the lawsuit to coincide with
National Small Business Week May 5-11, 2019
to send a clear message to the FMCSA that Small Businesses in the Transportation Industry will be heard one way or another on the ELD and HOS issues,"
SBTC President James Lamb said.
Accordingly, SBTC has now asked a Federal District Judge to:
"a. Declare the Defendants’ failure to render a decision on the ELD Exemption Application unlawful in violation of the APA;
b. Declare the Defendants’ failure to publish the HOS Exemption Application “upon receipt” unlawful in violation of the APA;
c. Order the Defendants to render an immediate decision on the SBTC’s ELD Exemption Application and publish that decision in the Federal Register;
d. Order the Defendants to immediately publish the SBTC’s HOS Exemption Application as to interstate truck travel through the City of Midland, Texas in the Federal Register, engage in the notice and comment period, and render a decision within 180 days;
e. Enjoin the Defendants from further violating the APA by failing to publish exemption applications “upon receipt,” failing to commence the required notice and comment period, and failing to render decisions on said applications within 180 days;
f. Award all costs and expenses of bringing this action, including attorneys’ fees and costs; and
g. Grant any other relief this court deems just and proper."
