TRANSAM TRUCKING, INC., Petitioner, v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION (FMCSA), Respondent.
No. 14-9503.
United States Court of Appeals, Tenth Circuit.
Oct. 23, 2015.
808 F.3d 1205
Before HARTZ, GORSUCH, and MORITZ, Circuit Judges.
Relatedly, the Fifth, Seventh, and Tenth Circuits have all held that actual loss is not an element of
Our court has not previously addressed the issue, but we have no reason to disagree with our sister circuits, because the plain language of
AFFIRMED.
Robert D. Kamenshine, Attorney (Paul M. Geier, Assistant General Counsel for Litigation and Joy Park, Trial Attorney, Department of Transportation; T.F. Scott Darling, III, Chief Counsel and Valerie Beck, Attorney Advisor, FMCSA, of Counsel; Stuart F. Delery, Assistant Attorney General and Matthew Collette, Attorney, with him on the brief) U.S. Department of Justice, Washington, D.C., for Respondent.
OPINION
MORITZ, Circuit Judge.
The Administrative Orders Review Act, better known as the Hobbs Act,
Background
Although the parties and this court are quite familiar with the procedural history of this case, we summarize it here to provide necessary context for resolving the jurisdictional question before us.
FMCSA is an administrative agency within the Department of Transportation. Through powers delegated to it by the Secretary of Transportation, the agency assigns safety fitness ratings to owners and operators of commercial motor vehicles. See
The compliance review is defined as an on-site examination of motor carrier operations, such as drivers’ hours of service, maintenance and inspection, driver qualification, commercial drivers license requirements, financial responsibility, accidents, hazardous materials, and other safety and transportation records to determine whether a motor carrier meets the safety fitness standard. A compliance review may be conducted in response to a request to change a safety rating, to investigate potential violations of safety regulations by motor carriers, or to investigate complaints or other evidence of safety violations. The compliance review may result in the initiation of an enforcement action.
Following a compliance review, the agency considers factors enumerated in
In February 2012, an FMCSA inspector performed an on-site compliance review at TransAm‘s Kansas headquarters. In a compliance review report dated February 22, 2012, the inspector cited TransAm for several violations, including a critical violation of
TransAm challenged the proposed rating on two fronts. First, TransAm filed a request to change the proposed safety rating based on corrective actions taken by TransAm after FMCSA issued the citation. See
FMCSA‘s Assistant Administrator issued a written decision on May 14, 2013, dismissing TransAm‘s petition for administrative review as moot. The Administrator reasoned that even if the inspector erred in finding the violation, the only relief available to TransAm was an upgraded safety rating, and TransAm‘s rating had already been upgraded to satisfactory through its request for a rating change. The Administrator also characterized as moot TransAm‘s concern regarding FMCSA‘s continued reporting of the violation on an agency website because the relevant 12-month reporting period had elapsed. Id. at *1-2.
II. TransAm‘s Petitions for Judicial Review and the Settlement Agreement
TransAm filed a petition for judicial review, the second in a series of three, challenging the Administrator‘s dismissal of TransAm‘s petition for administrative review.2 We later granted TransAm‘s motion to abate appellate proceedings while the parties discussed settlement. The parties eventually executed a settlement agreement on October 17, 2013, in which FMCSA agreed to remove TransAm‘s violation of
FMCSA subsequently issued two amended compliance review reports. Neither report referred to the
In November 2013, TransAm‘s counsel and FMCSA‘s counsel exchanged several emails discussing TransAm‘s claim that FMCSA had breached the settlement agreement. Agency counsel‘s final email, dated November 20, 2013, expressed the agency‘s position that it had complied with the settlement agreement, that it wouldn‘t issue any further amended compliance re-
Instead, TransAm filed a status report informing this court of the parties’ settlement agreement dispute and seeking additional time “to file a motion to enforce settlement and accompanying brief.” Case No. 13-9572, Pet‘r Status Report, dated Dec. 2, 2013. We directed TransAm to file an opening brief on or before January 2, 2014, but questioned our jurisdiction to consider a motion to enforce “a collateral settlement agreement for which no record exists.” Case No. 13-9572, Order, dated Dec. 2, 2013. We further instructed TransAm that if it filed a motion to enforce the settlement agreement, the motion must include an explanation of the jurisdictional basis and “why the proper procedure wouldn‘t be to initiate a separate action in a trial court to determine the enforceability of the proposed settlement agreement and then, if unsatisfied with the outcome of that proceeding, to initiate an appeal.” Id. But TransAm declined to file such a motion; instead, on December 30, 2013, the parties filed a joint stipulation of dismissal, and we dismissed TransAm‘s second petition for review. See Fed. R.App. P. 42(b).
Three weeks later, on January 17, 2014, TransAm filed the instant petition for review of “the final decision of [FMCSA] refusing to issue an amended Compliance Review pursuant to a fully-executed settlement agreement with TransAm Trucking.”3 Case No. 14-9503, Pet. for Rev., 1. Again, we questioned our jurisdiction, noting that it appeared from the docketing statement that TransAm sought “to enforce the terms of the settlement agreement ... rather than [seeking] review of a final agency order.” Case No. 14-9503, Order, dated Feb. 6, 2014, at 1. Based on this concern, we directed the parties to file responses addressing this potential jurisdictional defect. After receiving those responses, we continued to question jurisdiction but ordered the parties to proceed with merits briefing.
Discussion
As our recitation of the case history reveals, the parties have reached an impasse. FMCSA refuses to issue TransAm the only thing TransAm seeks—an amended compliance review report expressly confirming the agency‘s modification of TransAm‘s safety rating to satisfactory. And TransAm refuses to accept FMCSA‘s explanation for its refusal—i.e., that the agency lacks authority to issue an amended report reflecting the modified rating and that even if it could issue such a report, that report wouldn‘t alter the status quo because TransAm has had a satisfactory safety rating since April 2012.
This impasse, regardless of its seemingly minor implications, has generated three separate petitions for review to this court and now presents us with the jurisdictional issue that‘s been bubbling just below the surface of this controversy since December 2013. That‘s when the parties jointly dismissed TransAm‘s second petition for review after this court pointed out the potential jurisdictional issue raised when TransAm expressed its intent to seek ap-
We review the legal question of jurisdiction de novo. Huerta v. Gonzales, 443 F.3d 753, 755 (10th Cir.2006). TransAm, as the petitioner, bears the burden of establishing the basis of our jurisdiction. See Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir.2004).
I. The plain language of 28 U.S.C. § 2342(3)(A) limits our jurisdiction to “final orders” issued by FMCSA under specified statutes.
TransAm argues the Hobbs Act,
Because TransAm doesn‘t challenge a rule or regulation, our jurisdiction here hinges on whether FMCSA‘s email, which expressed the agency‘s refusal to issue an amended compliance review report reflecting TransAm‘s upgraded safety rating, is a “final order” within the meaning of
TransAm initially suggests that the Hobbs Act doesn‘t define the term “final order,” and urges us to derive its meaning from an Administrative Procedure Act (APA) provision,
Applying
As we will discuss, TransAm‘s latter point supports FMCSA‘s position that TransAm seeks enforcement of the settlement agreement rather than review of a “final order.” But more fundamentally, the initial premise of TransAm‘s argument—i.e., that the Hobbs Act doesn‘t define “final order”—is flawed.
In fact,
As relevant here, the Secretary of Transportation has delegated its duties under subchapter III of chapter 311, relating to the assessment of motor carrier safety and the assignment of safety ratings, to FMCSA. See
In other words, the Hobbs Act limits the universe of “final orders” directly reviewable in the courts of appeals to FMCSA orders issued pursuant to FMCSA‘s duties to assess motor carriers’ compliance with safety regulations and assign safety ratings. And, as we discuss next, we are not persuaded by TransAm‘s argument that FMCSA‘s email fits within this limited universe of reviewable FMCSA orders.
II. FMCSA‘s email is not a “final order” within the meaning of 28 U.S.C. § 2342(3)(A) .
TransAm argues agency counsel‘s November 20, 2013, email was a “final order” under the Hobbs Act because (1) the issuance of a compliance review report is central to FMCSA‘s regulatory duties; (2) any compliance review report FMCSA issues must contain a safety rating; (3) the parties’ settlement agreement obligated FMCSA to issue an amended compliance review report; and (4) the agency‘s email conveyed the agency‘s final decision refusing to issue an amended compliance review report reflecting a satisfactory rating.
The November 20, 2013, email from FMCSA‘s counsel to TransAm‘s counsel provided in full,
We believe that FMCSA has complied fully with the terms of the settlement agreement. As you are well aware, TransAm has had a Satisfactory rating since April 2012. You brought this petition to challenge the underlying
395.8(k)(l) violation, and we agreed to remove that violation by issuing a new Compliance Review. That‘s exactly what the agency has done.It now seems that, notwithstanding the removal of the violation and the longstanding Satisfactory rating, TransAm wants more than the removal of the violation (and the accompanying “Conditional” rating) from the previous Compliance Review. As I understand it, you insist that the new Compliance Review include a Satisfactory rating, based upon the theory that FMCSA is forbidden from issuing an “unrated” compliance review. I suppose we can continue this litigation, and file briefs on the meaning of “Compliance Review” as it is used in the settlement agreement. We added that language merely as a way of describing the process by which we would accomplish the primary focus of the litigation and the agreement—removal of the challenged violation. I don‘t think further litigation would be productive, given TransAm‘s current Satisfactory rating and the removal of the challenged violation, but that‘s a decision for you to make.
I should note, however, that TransAm‘s view that FMCSA is somehow prohibited from issuing a non-ratable review is incorrect. In your e-mail of November 11, 2013, you referred to the Assistant Administrator‘s interim order in In the Matter of Western Freight Carrier, Inc., FMCSA-2012-0179 (Sept. 7, 2012). Yet that order merely asked FMCSA to pro-
vide an explanation for converting a Compliance Review into a non-ratable review. The agency in fact provided such an explanation, and the final order in Western Freight recognized that FMCSA acted properly in replacing the previous Compliance Review with a non-ratable review. See In the Matter of Freight Carrier, Inc., FMCSA-2012-0179 (Sept. 28, 2012). I have attached that decision for your convenience. In sum, we believe the settlement agreement requires TransAm to dismiss the petition for review. If you decide not to do so, please let me know.
AR, 38.
The email clearly recognizes that the gist of the parties’ disagreement concerns the meaning of the term “compliance review” in the settlement agreement—i.e., FMCSA interprets it one way and TransAm interprets it another. Thus, on its face, the email appears to be nothing more than an effort to communicate to opposing counsel FMCSA‘s position regarding disputed rights and obligations under the settlement agreement.4
Apparently recognizing that the email‘s explicit language doesn‘t elevate it to “final order” status, TransAm argues the email‘s implicit meaning gets it there, albeit circuitously. TransAm points out that the issuance of a compliance review report is central to FMCSA‘s regulatory duties and that under
TransAm correctly identifies
Following a compliance review of a motor carrier operation, the FMCSA, using the factors prescribed in
§ 385.7 as computed under the Safety Fitness Rating Methodology set forth in appendix B of this part, shall determine whether the present operations of the motor carrier are consistent with the safety fitness standard set forth in§ 385.5 , and assign a safety rating accordingly.
TransAm reads too much into this regulation. TransAm‘s interpretation implicitly suggests
Moreover, both the broader regulatory framework within which FMCSA operates and the procedural facts in this case demonstrate the flaw in TransAm‘s argument. Specifically, more than three years ago, FMCSA fulfilled its obligations under
Importantly, TransAm sought judicial review of that written decision when it filed its second petition for judicial review in this court. And, but for the parties’ joint stipulation of dismissal, this court could have reviewed that final decision5 to determine whether it was arbitrary, capri-
cious, an abuse of discretion, or otherwise unlawful. See
Thus, TransAm consciously chose not to pursue judicial review of a written decision signed by FMCSA‘s Assistant Administrator memorializing the agency‘s determination that TransAm had received all the administrative relief it was entitled to receive regarding its challenges to the assigned conditional safety rating. Importantly, the path to that agency decision—from compliance review and assignment of a proposed safety rating to FMCSA‘s written decision issued at the end of the administrative review process—was entirely consistent with
Instead, through the instant petition, TransAm sought this court‘s review of an email from FMCSA‘s counsel memorializing the agency‘s position that it had complied with its obligations under the settlement agreement. Unquestionably, the path to this agency decision differs significantly from the path to the final decision discussed above. Most notably, before
The lack of any FMCSA activity pursuant to the relevant regulatory framework—a framework which defines and gives meaning to the term “final order”—weighs heavily in favor of our conclusion that agency counsel‘s email was not a final order subject to this court‘s review. Nor are we persuaded that TransAm‘s decision to forego judicial review of FMCSA‘s final decision in lieu of the settlement agreement somehow transformed FMCSA‘s subsequent email—expressing the agency‘s position that it had complied with the terms of that agreement—into a “final order.” Thus, we reject TransAm‘s reliance on
TransAm‘s briefing and statements at oral argument only fortify this conclusion. As TransAm‘s counsel candidly conceded at oral argument, TransAm‘s instant petition for review concerns a settlement agreement.6 Distilled to its essence, TransAm‘s petition seeks an order from this court directing FMCSA to issue a third amended compliance review report expressly identifying TransAm‘s satisfactory safety rating because TransAm believes that the terms of the parties’ settlement agreement require such action.
While FMCSA is legally obligated to comply with the terms of the settlement agreement, that obligation arises from its status as a party to the agreement, not from its status as an administrative agency. Thus, although FMCSA‘s alleged failure to comply with the terms of the settlement agreement may provide the impetus for a breach of contract claim,7 it does not provide TransAm with a “final order” subject to direct review in this court under
Finally, TransAm suggests it “may have no remedy other than” this petition for review to obtain relief from FMCSA‘s alleged breach of the settlement agreement. Pet‘r Br. 17. But we need not and cannot consider whether TransAm has alternative avenues through which to seek relief for
Because FMCSA‘s email expressing the agency‘s refusal to issue a third amended compliance review report pursuant to the settlement agreement was not a “final order” within the meaning of
III. Because we lack jurisdiction over TransAm‘s petition for review, we also dismiss TransAm‘s motion to transfer the petition to district court under 28 U.S.C. § 2347(b)(3) .
When it filed its petition for review, TransAm also filed a motion requesting that we transfer the petition to the district court pursuant to
Conclusion
We dismiss TransAm‘s petition for review for lack of jurisdiction and dismiss its motion to transfer on that same basis.