Monday, August 22, 2011
DUE PROCESS AND SAFETY FITNESS DETERMINATIONS
While a license to operate a commercial motor vehicle may be a qualified privilege, an adverse safety fitness determination, be it an “unsatisfactory,” “conditional” or under SMS methodology a “marginal” rating, has a direct effect on a motor carrier’s livelihood, jobs, and property.
The concept of due process is a constitutional notion that before one is deprived of property, an appropriate appeals process by a disinterested stakeholder is necessary to protect against bias prosecutorial abuse.
Embedded in the argument over SMS methodology is the issue of whether carriers will be afforded due process under the new methodology. In fact, since SMS methodology was made public, it is apparent that the Agency is utilizing its “discretion” to use the methodology in acting upon requests to upgrade carriers from conditional to satisfactory. Under the “DataQ” system, one can contest a citation or warning but there is no objective appeals process and no determination is made with judicial due process.
Any implementation of SMS methodology or, for that matter, a continuation of the current system, should require an administrative procedure which affords due process. If the Agency feels compelled to place a carrier out of service immediately, in ordinary civil court there is the concept of “TROs” or Temporary Restraining Orders, and other extrajudicial process which assures that a defendant is not irrevocably harmed by a hastily made decision.
Six months in to SMS methodology, there is clearly a fear that administrative zealousness to “stop bad actors” may result in placing carriers out of service, the loss of jobs, and carrier bankruptcies, without a simple appellate procedure which allows a disinterested stakeholder, be it a judge or an ALJ, to review the situation and make a reasoned decision.
Bloggers comments about this issue would be appreciated.
Posted by ASECTT ASECTT at 12:58 PM