Owner-Operator Independent Drivers Ass'n v. United States Department of Transportation, 2017 U.S. App. LEXIS 10063

Background

In 2011 FMCSA ran a Congress-mandated Pilot Program to test safety of Mexico-domiciled motor carriers operating long-haul in the U.S.; in January 2015 FMCSA reported the Pilot Program met safety objectives.
After the report, FMCSA began granting permanent operating authority to Mexico-domiciled carriers and accepted Mexican CDLs as equivalent to U.S. state CDLs.
In November 2015 the Owner-Operator Independent Drivers Association and several independent truckers (the Association) filed protests against FMCSA’s grants to two Mexican carriers, challenging (1) FMCSA’s authority to grant operating authority (alleging Pilot Program deficiencies) and (2) FMCSA’s acceptance of Mexican CDLs.
On December 23, 2015 FMCSA rejected and dismissed both protests as untimely and not alleging that the applicants were unfit, calling those decisions final agency actions.
The Association moved for reconsideration on January 8, 2016; FMCSA on March 23, 2016 refused to consider the motion and reiterated that the December 23 decisions were final.
The Association filed a petition for review in this court on May 20, 2016 (148 days after the December 23 decisions). The court raised jurisdictional review sua sponte.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review FMCSA’s decisions	The Association argued the appeal was timely because its January motion for reconsideration tolled the 60-day review period	FMCSA argued the December 23 orders were final and the agency has no discretionary reconsideration procedure to toll the 60-day period	Court held it lacks jurisdiction because the December 23 orders were final and the 60-day statute was not tolled by the motion for reconsideration
Whether the December 23 orders or the March 23 letters constituted the ‘final order’ for filing the petition	Association contended March 23 letters (refusing reconsideration) were the operative final action	FMCSA maintained December 23 orders were final agency actions and March 23 letters merely refused to consider the motion	Court held the December 23 decisions were the final orders for timing purposes
Whether a motion for reconsideration that is not provided for by agency regulation can toll the statutory review period	Association argued the motion should toll the deadline	FMCSA argued it has no established reconsideration/rehearing procedure so no tolling applies	Court held tolling inapplicable absent an agency-established discretionary review period
Whether the petition filed May 20, 2016 was timely	Association treated filing as timely under tolling theory	FMCSA argued filing was untimely under 28 U.S.C. § 2344	Court dismissed the petition as untimely and thus found no appellate jurisdiction

Key Cases Cited

Ezike v. Holder, [citation="383 F. App'x 470"] (5th Cir.) (jurisdictional questions reviewed de novo)
Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278 (5th Cir.) (courts may consider jurisdiction sua sponte)
Council Tree Investors, Inc. v. F.C.C., 739 F.3d 544 (D.C. Cir.) (60-day review period is jurisdictional)
Nat. Res. Def. Council v. Nuclear Regulatory Comm’n, 666 F.2d 595 (D.C. Cir.) (statutory review periods are jurisdictional)
Stone v. INS, 514 U.S. 386 (timely motion for reconsideration renders order nonfinal)
I.C.C. v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (motion for reconsideration must be filed within agency-provided discretionary review period to toll finality)
City of Colo. Springs v. Solis, 589 F.3d 1121 (10th Cir.) (no tolling where agency has no reconsideration procedure)
Gorman v. NTSB, 558 F.3d 580 (D.C. Cir.) (petition filed during pendency of agency reconsideration can be incurably premature)
Craker v. Drug Enforcement Admin., 714 F.3d 17 (1st Cir.) (discussing discretionary approach to petitions filed during ad hoc reconsideration)