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FMCSA appeals judge’s reversal on DND shutdown

The Field Administrator for the Federal Motor Carrier Safety Administration Midwestern Service Center has petitioned FMCSA Assistant Administrator John Van Steenburg to overturn a Dept. of Transportation administrative law judge’s initial decision that the agency improperly shut down Naperville, IL-based trucking firm DND International with an imminent out-of-service order (IHOOSO) last month.

The petition for review disagreed with Judge Richard Goodwin’s findings on both procedural and factual issues, but more fundamentally the agency argued that Goodwin’s entire decision went beyond the appropriate standard of review.

“The Field Administrator used his considered judgment as a senior safety official to find that DND International's actions deviated from the safety fitness standard by a significant margin,” the agency’s petition stated. “The Field Administrator's decision to issue the IHOOSO should have been upheld unless it was unreasonable.”

Instead, the judge found that DND International's violations did not rise to the level of an imminent hazard to safety, the agency said. “By doing so, the Administrative Law Judge substituted his judgment for that of the Field Administrator,” said FMCSA. “The Administrative Law Judge should have applied an abuse of discretion standard and affirmed the IHOOSO.”

The agency’s petition also argued, however, that the Assistant Administrator is free to substitute his judgment for that of the judge on both findings of fact and conclusions of law. 

In addition to arguing that the judge should have deferred to the Field Administrator, the petition disagreed with the judge in a number of areas, stating that the decision erred by:

  • Holding that a review of the IHOOS should have been completed no later than 10 days after its issuance
  • Holding that FMCSA denied DND International due process and violated the Administrative Procedure Act
  • Failing to find that a preponderance of the evidence supports a finding that the violations alleged in the IHOOSO posed an imminent hazard to safety
  • Ignoring evidence of 32 false logs, two of which concealed maximum hours violations
  • Giving limited weight to the Illinois Toll Authority IPASS Records
  • Giving limited weight to the state inspection records
  • Failing to consider the field administrator's testimony regarding similar imminent hazard out-of-service orders
  • Improperly considering DND International’s past corrective action and promises to take future corrective action as evidence that the IHOOS was not narrowly tailored

One of the problems with the judge’s decision is that it was rushed, the agency’s petition stated.

The judge began an immediate hearing as directed, the agency said, “yet he rushed the proceedings and rendered a rushed, 67-page decision rife with incorrect fact and law determinations, improperly usurping the considered judgment of a senior safety official.”

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