PETER PAN BUS LINES, INC. and BONANZA ACQUISITION, LLC, Petitioners v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, Respondent.
No. 05-1436.
United States Court of Appeals, District of Columbia Circuit.
Decided Dec. 19, 2006.
Argued Nov. 9, 2006.
We have made the writ available only when “(1) the plaintiff has a clear right to relief, (2) the defendant has a clear duty to act, and (3) there is no other adequate remedy available to plaintiff.” Power v. Barnhart, 292 F.3d 781, 784 (D.C.Cir.2002) (quotation marks and citations omitted). We have already concluded, first, that the SAA can seek review of the interim award of attorney‘s fees following entry of a final judgment in this case and, second, that it will not suffer irreparable injury in the meantime. The SAA has not claimed an entitlement to avoid the district court‘s jurisdiction altogether. It concedes that it is subject to suit and answerable to the final judgment of the court. Because appeal following final decision affords the SAA adequate remedy with respect to its challenges to the sanctions imposed upon it, we refuse to issue a writ of mandamus.
III.
For the reasons stated above, the appeal is dismissed for lack of jurisdiction and the petition for mandamus is denied.
So ordered.
Kathy L. Krieger, Craig M. Cibak and Richard P. Schweitzer were on the joint brief for amici curiae American Bus Association, Inc. and Amalgamated Transit Union in support of petitioners.
Robert D. Kamenshine, Attorney, United States Department of Justice, argued the cause for the respondеnt. Peter D. Keisler, Assistant Attorney General, Robert S. Greenspan, Attorney, United States Department of Justice, Paul M. Geier, Assistant General Counsel, and Mary F. Withum, Senior Trial Attorney, United States Department of Transportation, were on brief.
Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge TATEL.
KAREN LECRAFT HENDERSON, Circuit Judge.
Peter Pan Bus Lines, Inc. and its subsidiary Bonanzа Acquisition, LLC (collectively, Peter Pan) seek review of a decision of the Federal Motor Carrier Safety Administration (FMCSA), an entity within the Department of Transportation (DOT). The challenged decision rejected Peter Pan‘s protest of an FMCSA decision authorizing Fung Wаh Transportation, Inc. (Fung Wah) to operate regular-route passenger transportation between Boston and New York City. Peter Pan protested Fung Wah‘s certification application on the
I.
On April 4, 2005 Fung Wah filed an application for motor passenger carrier authority to operate a passenger bus line between Boston and New York City. On May 4, 2005 Peter Pan submitted a protest under
On May 16, 2005 Peter Pan filed a motion for rehearing, asking that the FMCSA “immediately vacate the award of its certificate to applicant and then render a decision on the merits only after first taking into account protestants’ serious allegations regarding fitness” and, “in particular, applicant‘s demonstrated failure to meet its obligations under the Americans With Disabilities Act to assure the availability of transportation for all members of our society.” JA 49, 48. On October 26, 2005 the FMCSA issued a decision denying rehearing on the ground that section 13902(a)(1) “does not permit FMCSA to withhold registration for failure to cоmply with ADA requirements.” Fung Wah Bus Transp., Inc., No. MC-405969 (Oct. 26, 2005) (FMCSA Dec.), reprinted in JA at 58, at 3. Section 13902(a)(1), enacted as part of the Interstate Commerce Commission Termination Act of 1995, Pub.L. No. 104-88, 109 Stat. 803 (1995), (ICCTA) provides:
(a) Motor carrier generally.—
(1) In general.—Except as provided in this section, the Secretary shall register a person tо provide transportation subject to jurisdiction under subchapter I of chapter 135 of this title as a motor carrier if the Secretary finds that the person is willing and able to comply with—
(A) this part and the applicable regulations of the Secretary [of Transportation] and the [Surface Transportation] Board;
(B)(i) any safety regulations imposed by the Secretary;
(ii) the duties of employers and employees established by the Secretary under section 31135; and
(iii) the safety fitness requirements established by the Secretary under section 31144; and
(C) the minimum financial responsibility requirements established by the Secretary pursuant to sections 13906 and 31138.
On November 21, 2005 Peter Pan filed a petition for review challenging the FMCSA‘s construction of section 13902(a)(1).
II.
Because this appeal involves the FMCSA‘s “interpretation of a statute the аgency is charged with implementing, we apply the two-part test of Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).” Pub. Citizen, Inc. v. Nat‘l Highway Traffic Safety Admin., 374 F.3d 1251, 1257 (D.C.Cir.2004) (parallel citation omitted). “[U]nder the Chevron two-step, we stop the music at step one if the Congress ‘has directly spoken to the precise question at issue’ because we—and the agency—‘must give effect to [its] unambiguously expressеd intent.‘” Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 151 (D.C.Cir.2005) (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). “But if the statute is silent or ambiguous, we dance on and, at step two, defer to the Commission‘s interpretation if it is ‘based on a permissible construction of the statute.‘” Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). The text of the FMCSA‘s decision certifying Fung Wah makes clear that the Agency construed section 13902(a)(1) as an unambiguous expression of the Congress‘s intent, thereby triggering review under Chevron step 1.
In rejecting Peter Pan‘s argument that the phrase “applicable regulations of the Secretary” refers to all of DOT‘s regulations that are applicable to motor carriers, including its ADA rеgulations, the FMCSA unequivocally declared: “This interpretation is not consistent with the plain language of the statute and the legislative history of the [ICCTA], which enacted section 13902 into law. The term ‘applicable regulations of the Secretary’ is clearly meant tо modify the term ‘this part.‘” FMCSA Dec. at 2 (emphasis added). Thus, the FMCSA concluded, section 13902(a)(1) “does not permit FMCSA to withhold registration for failure to comply with ADA requirements.” Id. at 3 (emphasis added). To the contrary, we find the text of the statute to be ambiguous.
The FMCSA rejected Petеr Pan‘s interpretation in part because “if ‘applicable regulations of the Secretary’ included all DOT regulations applicable to motor carriers, sections 13902(a)(1)(B) and (C) would be superfluous, since FMCSA regulations governing safety and financial respоnsibility would fall within section 13902(a)(1)(A).” FMCSA Dec. at 2. The FMCSA‘s reading of “applicable regulations of the Secretary,” however—to include only regulations applicable to Part B of Subtitle IV—itself renders superfluous the reference in section 13902(a)(1)(C) to “minimum financial responsibility require-
In PDK Laboratories, Inc. v. DEA, 362 F.3d 786 (D.C.Cir.2004), we recently affirmed a line of circuit decisions which hold that “deference to an agency‘s interpretation of a statute is not appropriate when the agency wrongly ‘believes that interpretation is compelled by Congress.‘” PDK, 362 F.3d at 798 (quoting Arizona v. Thompson, 281 F.3d 248, 254 (D.C.Cir.2002)); (citing ITT Indus., Inc. v. NLRB, 251 F.3d 995, 1004 (D.C.Cir.2001); Transitional Hosps. Corp. v. Shalala, 222 F.3d 1019, 1028-29 (D.C.Cir.2000); Alarm Indus. Commc‘ns Comm. v. FCC, 131 F.3d 1066, 1072 (D.C.Cir.1997)); see also Teva Pharms. USA, Inc. v. FDA, 441 F.3d 1, 4-5 (D.C.Cir.2006); Prill v. NLRB, 755 F.2d 941, 956-57 (D.C.Cir.1985). As we explained in PDK, Chevron step 2 deference is reserved for those instances when an agency recognizes that the Congress‘s intent is not plain from the statute‘s face. “In precisely those kinds оf cases, it is incumbent upon the agency not to rest simply on its parsing of the statutory language“—“[i]t must bring its experience and expertise to bear in light of competing interests at stake.” PDK, 362 F.3d at 797-98 (citing Chevron, 467 U.S. at 865-66, 104 S.Ct. 2778) (footnote omitted). “When it does so it is entitled to deference, so long as its reading of the statute is reasonable.” Id. at 798. But here, as in PDK Labs, the Agency has not done so and “at this stage it is not for the court ‘to choose between competing meanings.‘” Id. (quoting Alarm Indus. Commc‘ns Comm., 131 F.3d at 1072) (citing Prill, 755 F.2d at 956-57; Transitional Hosps. Corp., 222 F.3d at 1028-29; ITT Indus., Inc., 251 F.3d at 1004; Arizona, 281 F.3d at 254). We must therefore remand for the FMCSA to interpret the statutory language anew. See id. (“The law of this circuit requirеs in those circumstances that we withhold Chevron deference and remand to the agency so that it can fill in the gap.“).3
For the foregoing reasons, the decision of the FMCSA is vacated and the case is
So ordered.
TATEL, Circuit Judge, concurring.
I agree with my colleagues that section 13902 is not so clear as to allow us to rule for the FMCSA under Chevron step one. I also agree that because FMCSA acted under a mistaken belief that the statute compelled the result it reached we must rеmand before moving on to Chevron step two. I write separately to set forth my serious doubts regarding the reasonableness of FMCSA‘s principal justification for declining to review bus company ADA compliance during the registration process.
In its brief, FMCSA explains that denying Fung Wah thе registration it seeks “hardly is in the public interest even if Fung Wah has serious ADA-problems that must be rectified.” Resp‘t‘s Br. 32. Amplifying this point at oral argument, FMCSA counsel told us that even if an applicant carrier declared its intention to provide low-cost service by operаting buses without wheel-chair lifts, the agency would register that company, leaving it to the Department of Justice to investigate. Oral Arg. at 30:49. FMCSA‘s position is puzzling given that Congress, having enacted the statute to keep motor carriers off the road until they demonstrate they аre willing and able to follow the law, must have understood that this requirement would lead to temporary sacrifices of competition. FMCSA‘s argument, therefore, must rest on the proposition that, unlike the interests protected by “the applicable regulations оf the Secretary,” the interests of the disabled are so unimportant that they must yield to the interest in competition. If the “applicable regulations of the Secretary” consisted only of safety regulations, then perhaps FMCSA‘s interpretation would represеnt a plausible understanding of congressional intent. But the regulations promulgated under Part B—which FMCSA concedes it must consider—go beyond safety to address, among other things, financial responsibility,