1. | Who is prosecuting my case? Who is deciding my case? |
| | The FMCSA Field Administrator or the appropriate FMCSA Division Administrator in one of FMCSA’s Division Offices in each State, Washington, DC, and Puerto Rico, is the Claimant, and you are the Respondent. Claimant’s counsel, if counsel is involved at this time, is an attorney at one of the four FMCSA service centers (Eastern Service Center: Glen Burnie, MD; Midwestern Service Center: Olympia Fields, IL; Southern Service Center: Atlanta, GA; Western Service Center: Lakewood, CO). The decisionmaker will be either an Administrative Law Judge (ALJ) or the FMCSA Assistant Administrator. The system is designed so that the decision maker is not the same person, or works in the same department, as Claimant’s counsel or Claimant. 
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2. | Are there rules governing FMCSA civil penalty proceedings? |
| | Yes. FMCSA civil penalty proceedings are governed by Rules of Practice, available at title 49 of the Code of Federal Regulations, part 386 (49 C.F.R. Part 386). Among other things, these rules explain your appeal options, set forth critical deadlines for filing your documents, and tell you how to file those documents. You should familiarize yourself with these rules and refer to them frequently throughout the adjudication process.
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3. | How do I get a copy of the Rules of Practice? |
| | The Rules of Practice are available, free of charge, on the FMCSA Website. You can also obtain copies of decisions issued by the Assistant Administrator here on the Chief Counsel Website. The Rules of Practice and other FMCSA regulations applicable to your proceeding can be found at the Government Printing Office: www.gpoaccess.gov/nara (click on the Electronic Code of Federal Regulations ( eCFR ) hyperlink for the most up to date version).
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4. | I just received a Notice of Claim (NOC). What do I do now? |
| | A Notice of Claim (NOC) is the initial document issued by the Field Administrator to assert a civil penalty for a violation of FMCSA regulations. If you have received a NOC, you have several options. Under the FMCSA Rules of Practice governing the adjudication of safety or commercial violations, you may opt to: - Admit the violations, and pay the full amount of the civil penalty proposed in the NOC.
Full payment of the civil penalty means that you have admitted all of the violations in the NOC, and that the violations will constitute prior offenses in future enforcement actions against you. This may lead to higher civil penalties in future FMCSA enforcement actions. If you elect to admit the violations in the NOC, you must submit payment to the address indicated on the NOC within 30 days of the date printed on the NOC.
- Deny the violations, and contest the NOC.
You may deny any (or all) of the violations. If you elect to contest any or all of the claims described in the NOC, the contested violations will be adjudicated by the Agency. You may request to have the contested violations heard by an ALJ in a formal hearing, or you may request to have the contested violations decided based on written evidence and arguments submitted to FMCSA’s Assistant Administrator. It is important that you specify in your reply which form of adjudication you are requesting. You must submit your reply to the address indicated in the NOC within 30 days of the date printed in the NOC though you may seek an extension of time to do so by following the instructions in the NOC.
- Admit the violations in the NOC, but contest the civil penalty proposed.
You can admit the violations in the NOC, but dispute the amount of the civil penalty proposed and/or seek an installment payment plan. In this case, you may request that the amount and terms of payment of the claim be decided under binding arbitration. Binding arbitration is a process by which a neutral party, the arbitrator, will hear evidence from you and Claimant and decide on an appropriate civil penalty.
- You may settle your case with the Field Administrator.
See FAQ number 16 for details on settlement procedures.
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5. | What happens if I do not reply to the NOC? |
| | If you fail to respond to the NOC in writing, in accordance with the Rules of Practice and within the time allotted, the Field Administrator will issue a Notice of Default and Final Agency Order. This means that by failing to respond to the NOC, you will have admitted all the claims of violation and forfeited your right to oppose those claims. After review by the Assistant Administrator, the NOC will become the Final Agency Order. Unless you successfully have the default set aside, you will be required to pay the full civil penalty. You may seek to have the default set aside if you can demonstrate excusable neglect in responding to the NOC, a meritorious defense, or due diligence in seeking relief. Failure to pay the civil penalty constitutes a violation of the Final Agency Order, and more penalties will be assessed against you. Additionally, if you fail to pay the civil penalty within 90 days of the due date, you may be prohibited from operating in interstate commerce and any operating authority you have may be suspended until you pay the civil penalty in full.
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6. | How do I file documents (for example: motion and briefs and petitions for reconsiderations) in DOT Docket Operations? |
| | Generally, you must file a signed original and a copy of all documents for consideration by the Assistant Administrator or the ALJ. You may do this in person or by mail.
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7. | What is the DOT Docket Operations address? |
| | Department of Transportation
Docket Operations
W12-140
1200 New Jersey Ave., SE.
Washington, DC 20590-0001
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8. | If a document is due on a certain date, must DOT Docket Operations receive it by that date? |
| | Documents must be served by the date indicated within the Rules of Practice. Traditionally, this meant that you or a representative were required to hand deliver the document. Now, you may serve a document by ensuring that it is mailed by the date indicated in the Rules of Practice. The rules of practice allow you to add five calendar days to the date indicated by the rule for mailing. You have effectively served a document once it is received by the U.S. Postal Service.
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9. | How do I get a copy of a document that has been filed with the DOT Docket Operations? |
| | All documents filed with DOT Docket Operations are publically available. The documents filed in your case are available at http://www.regulations.gov, and may be searched by entering the docket number or the respondent’s name. The FMCSA Chief Counsel site also has searchable decisions under the Adjudications category.
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10. | How should my documents be formatted? |
| | Each document you submit should be prepared by word processor, typewritten or legibly handwritten, and should contain a short, plain statement of the facts and a brief statement of what action you would like to request from the Assistant Administrator or the ALJ (e.g., requesting that a default be set aside or a final order entered in your favor). The NOC and the reply are not subject to page limitations. But all other documents are limited to 20 pages unless the Assistant Administrator or ALJ approves a request to exceed that limit. Each page must be 8 ½ by 11 inches and have a one inch margin on all pages. All documents prepared by word processor or typewritten must be in 12 point font. The main text should be double spaced and headings and footnotes (if any) should be single spaced.
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11. | What if I cannot finish a document on time? |
| | You may request an extension of time for good cause. You may also make an agreement (called a stipulation) for an extension of time with Claimant’s counsel. A request for an extension of time and stipulations must be filed and served in accordance with the Rules of Practice if the case is before the Assistant Administrator or an ALJ. If the case is not before the Assistant Administrator stipulated extensions of time need not be filed.
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12. | Do I need to send copies of documents to anyone else? |
| | You must serve all documents on all parties, or their designated agent. See FAQ number 13 for more information about serving documents.
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13. | What is a certificate of service, and am I required to attach a certificate of service to documents that I file? |
| | A certificate of service is a document showing the date and manner of service, signed by the person serving the document (e.g., a document certifying the date that a request/motion was put in the mail, signed by the person who deposited the document at the post office). You must attach a certificate of service to documents you serve or file in order to show that you served the document on all parties.
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14. | What happens if I choose to have the Assistant Administrator of FMCSA decide my case on written evidence? |
| | If you chose to have the Assistant Administrator decide your case on written evidence, you must deny the claims in the NOC that you wish to contest in your reply. You must state your reasons for the denial. You must also assert any affirmative defenses (legal defenses to your claim) in your initial reply to the NOC, and request to submit written evidence. Claimant’s counsel will then serve and file its written evidence and argument in support of the NOC within 60 days of the date you served your reply to the NOC. In turn, you must then serve and file your written evidence and argument within 45 days of the agency’s written submission in support of the NOC. Claimant’s counsel may then file a written response to your submission within 20 days of the date of your submission. The Assistant Administrator will either render a decision on the evidence submitted or request further evidence or argument.
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15. | What happens after a formal hearing is requested? |
| | The Assistant Administrator will determine whether there is a factual issue appropriate for a hearing, otherwise known as an issue of material fact. Claimant’s counsel will have the opportunity to object to a hearing within 60 days of the date you serve your reply. If Claimant‘s counsel objects to your request for hearing, it must submit a Motion for Final Agency Order along with supporting evidence. Claimant must explain why there are no issues of material fact in dispute and why a hearing is unnecessary to render a decision on whether the respondent committed the violations alleged in the NOC. You may file a response to the Field Administrator’s Motion for Final Agency Order within 45 days of the Field Administrator’s motion. Your response should state why Claimant’s motion should be denied. If the Assistant Administrator decides that a hearing is appropriate in your case, the matter will be referred to an ALJ within the Department of Transportation for a formal hearing. Hearings before an ALJ are described in detail in Part 386, and largely mirror proceedings in civil court.
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16. | What if the parties reach a settlement? |
| | Parties are encouraged to negotiate towards a settlement. If you and the Field Administrator’s office are able to reach a settlement regarding the amount of the civil penalty to be paid, the time to pay the settlement, and any other terms, a written agreement should be signed by both you and the Field Administrator. The agreement must contain the statutory basis for the claim, a brief statement of the violation, the date, time and place of payment, and a statement that the agreement is not binding until it is signed by the Field Administrator. Settlement agreements may contain agreed conditions and actions to redress the violations cited in the NOC. If you agree to a settlement before the NOC is being considered by the Assistant Administrator or the ALJ, no additional approval of the agreement is required. The agreement becomes the Final Agency Order in the case when it is signed by the Field Administrator. If you reach settlement after the claim is before the Assistant Administrator or an ALJ, the settlement will be filed with the decisionmaker. It must be approved by the decisionmaker in order for the agreement to become the Final Agency Order in the proceeding.
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17. | How do I get information relevant to the NOC to submit as evidence? |
| | To receive copies of the evidence collected during the investigation, you may submit a request to the Service Center at the address in the NOC. Additionally, the Rules of Practice provide for discovery much like the process in civil court cases. That process can be found in section 386.37 of FMCSA’s Rules of Practice. You may not seek discovery until the claim is before the Assistant Administrator or the ALJ. Until the case is before the decision maker, however, you may request information informally from Claimant’s counsel.
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18. | What happens at a formal hearing? |
| | After an ALJ is appointed, he or she will set a time and place for a formal hearing. Evidence presented at the hearing is admitted or excluded under the Federal Rules of Evidence. The burden of proof is on Claimant in the hearing. The hearing will be recorded by a stenographer.
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19. | Will the Administrative Law Judge decide my case at the end of the hearing? |
| | The ALJ will request that each party submit proposed findings of fact, conclusions of law and support therefor within a set period of time after the hearing. The ALJ will issue an initial decision, which will become final after 45 days unless one of the parties makes a motion or petitions for review.
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20. | May I appeal from an initial decision of the Administrative Law Judge? |
| | Yes. You and Claimant may file petitions for review with the Assistant Administrator within 45 days of an initial decision by an ALJ. Any petition must provide detailed reasons for your objection or Claimant’s objection to the decision. Failure to object to any error in the petition waives either party’s right to object to that error later. Your reply brief to the petition and Claimant’s reply brief will be due 30 days after the petition for review is filed. The Assistant Administrator may set aside, adopt or modify the original findings. The Assistant Administrator will then enter a Final Agency Order and serve the order on the parties. You can file a petition for rehearing if the Final Agency Order is adverse. If you lose your case, you can also appeal the order to the United States Court of Appeals.
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21. | May I appeal a Final Agency Order from the Assistant Administrator? |
| | Yes. You and Claimant may file petitions for reconsideration within 20 days of the Final Agency Order. The Assistant Administrator will render a decision on a petition for reconsideration and you may appeal an adverse decision to the United States Court of Appeals.
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22. | What will happen if I do not comply with a Final Agency Order? |
| | If you fail to comply with the Final Agency Order, you may be prohibited from operating until the Agency receives full payment of the penalty, in accordance with section 386.83 of the Rules of Practice. The Agency may also refer the claim for collection. Additionally, FMCSA may prohibit you from operating in interstate commerce and suspend your operating authority until you pay the civil penalty in full. Also, your case may be referred to the Department of Justice, who may bring an action in civil court to enforce the terms of the final order or collect the civil penalty.
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23. | Should I hire an attorney? |
| | You may represent yourself or be represented by counsel or someone who is not an attorney. This person must file a notice of appearance with DOT Docket Operations. A copy of the notice of appearance should also be served on the other parties. You should give serious consideration to hiring an attorney because civil penalty matters can be complex.
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24. | Do I have the right to a court-appointed attorney? |
| | No.
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25. | Are FMCSA’s adjudications decisions available on-line? |
| | Yes. FMCSA adjudications by the Assistant Administrator are available on the Chief Counsel’s website. Orders and decisions of the Assistant Administrator and ALJs, as well as all other filing made in a case, are also available at http://www.regulations.gov.
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26. | What information should I delete or conceal from documents I submit to FMCSA that relate to my NOC? |
| | You should make sure to delete or conceal any Personally Identifiable Information (PII) from documents you submit related to your case. PII is defined as, “Information which can be used to distinguish or trace an individual's identity, such as his or her name, social security number, biometric records, etc., alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.” This will ensure that PII is not entered into the docket, where it is publically available.
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