Aulenback, Inc. v. Federal Highway Admin.

• Decision Date: 03 January 1997
• Docket Number: 96-1142,96-1057,Nos. 96-1045,96-1143,s. 96-1045
• Citation: 103 F.3d 156
• Parties: Fed. Carr. Cas. P 84,044, 322 U.S.App.D.C. 250 AULENBACK, INC. and Truckers United for Safety, Petitioners, v. FEDERAL HIGHWAY ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 156

103 F.3d 156

Fed. Carr. Cas. P 84,044, 322 U.S.App.D.C. 250

AULENBACK, INC. and Truckers United for Safety, Petitioners, v. FEDERAL HIGHWAY ADMINISTRATION, Respondent.

Nos. 96-1045, 96-1057, 96-1142, 96-1143.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 31, 1996.

Decided Jan. 3, 1997.

On Petitions for Review of an Order of the United States Department of Transportation.

Anthony J. McMahon, argued the cause and filed the briefs, Washington, DC, for petitioners.

John S. Koppel, Attorney, U.S. Department of Justice, argued the cause, for respondent, with whom Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., U.S. Attorney, and William Kanter, Deputy Director, U.S. Department of Justice, were on the brief.

Before: WALD, SENTELLE and ROGERS, Circuit Judges.

ROGERS, Circuit Judge:

Petitioners Aulenback, Inc. ("Aulenback"), and Justin Transportation Co., Inc. ("Justin"), commercial trucking companies, seek review of separate orders issued by the Federal Highway Administration ("FHWA") under the authority of the Secretary of Transportation, requiring them to cease all interstate motor carrier activities. Petitioner Truckers United for Safety ("TUFS"), a non-profit trade organization of which both Aulenback and Justin are members, joins in their petitions. Petitioners also ask the court to enjoin the FHWA from issuing similar orders based on procedures in an administrative training manual. Because the FHWA has conditionally rescinded the out-of-service orders pursuant to consent agreements with Aulenback and Justin, we hold that any controversy relating to these orders is moot and dismiss the petitions seeking a declaration that the orders were void ab initio. We also conclude that petitioners' substantive challenge to the contents of the manual is not ripe for review, but that the agency was not required to comply with the notice and comment provisions of the Administrative Procedure Act ("APA") before utilizing the manual. Accordingly, we deny the request for prospective injunctive relief.

I.

The FHWA ordered Aulenback and Justin to cease operations early in 1996, pursuant to its authority under 49 U.S.C. § 521(b)(5)(A), which provides, in relevant part, that:

If, upon inspection or investigation, the Secretary [of Transportation] determines that a violation of [certain statutory safety provisions and accompanying regulations] poses an imminent hazard to safety, the Secretary shall order a vehicle or employee operating such vehicle out of service, or order an employer to cease all or part of the employer's commercial motor vehicle operations. In making any such order, the Secretary shall impose no restriction on any employee or employer beyond that required to abate the hazard. Subsequent to the issuance of the order, opportunity for review shall be provided in accordance with section 554 of title 5, except that such review shall occur not later than ten days after issuance of such order.

An "imminent hazard" is defined as "any condition of vehicle, employee, or commercial motor vehicle operations which is likely to result in serious injury or death if not discontinued immediately." Id. § 521(b)(5)(B). Final orders of the Secretary issued under this section are reviewable in the courts of appeals. Id. § 521(b)(8).

Petitioners contend that the FHWA lacked the authority to order Aulenback and Justin out of service because the regulatory violations for which they were cited were not imminent hazards. We set forth the relevant facts.

A.

Aulenback. On January 26, 1996, the FHWA conducted a compliance review of Aulenback's operations, and cited the company for numerous violations of federal safety regulations. The agency had documented similar violations by Aulenback in two prior compliance reviews in 1994, and had assessed civil penalties of $13,500 and $14,540. Almost immediately after completing the third compliance review, on January 29, 1995, the FHWA served an out-of-service order on Aulenback.

The out-of-service order cited Aulenback for eleven violations of federal safety regulations. Many of the violations related to Aulenback's failure to maintain adequate records. However, the FHWA also charged Aulenback with use of a driver who was physically unqualified due to hypertension, failure to correct safety related defects listed on a vehicle inspection report, use of a vehicle that had not been inspected, accepting false duty reports, and other potentially serious safety-related problems. The order further noted Aulenback's previous history of noncompliance. According to Aulenback, the FHWA also issued a news release describing its action. Aulenback maintains that on January 30, 1996, newspapers in the State of Maine, where Aulenback is based, printed articles stating that the trucking company had been shut down. As a result of the shutdown and accompanying publicity, Aulenback claims to have lost nearly 40% of its business.

Under pressure to get its trucks back on the road, Aulenback began negotiating with the FHWA for a rescission of the out-of-service order. The FHWA conditionally rescinded the order on January 31, 1996, and entered into a consent agreement and order with Aulenback on February 6, 1996. Pursuant to that agreement and order, Aulenback agreed to comply immediately with applicable federal safety regulations, and to institute specified policies to remedy the violations for which it had been cited. Aulenback also agreed that violations of the consent order could result in the imposition of civil or criminal penalties authorized by 49 U.S.C. §§ 501-526, fines of up to $1000 per violation per day up to a maximum of $10,000, or issuance of an out-of-service order to eliminate an imminent hazard. In addition, Aulenback waived any right to seek judicial review or otherwise challenge the validity of the consent order.

Despite the waiver clause, Aulenback and TUFS filed a motion before the FHWA on February 9, 1996, seeking a stay of the out-of-service order and asking the agency to "cease the practice of issuing such orders in the absence of an imminent hazard." ¹ They argued that the FHWA had not identified a safety violation that could result in serious injury or death if not discontinued immediately, as required by 49 U.S.C. § 521(b)(5)(A), but rather had shut down Aulenback based on internal FHWA "policies and procedures" pursuant to which an "imminent hazard" could be found based on a company's history of safety violations. They further claimed that the FHWA's procedures for identification of an "imminent hazard" were not in compliance with the rulemaking provisions of the APA, which generally require notice and an opportunity for public comment before a rule is issued. See 5 U.S.C. § 553. Subsequently, on February 26, 1996, Aulenback and TUFS filed a petition for review before the FHWA reiterating the arguments raised in their earlier motion.

On April 15, 1996, the FHWA's Associate Administrator for Motor Carriers issued a final order, disposing of both applications. The administrator dismissed Aulenback's request for a stay as moot due to the rescission of the out-of-service order, and rejected Aulenback's challenge to the validity of the out-of-service order on the basis that, in entering the consent agreement, Aulenback had waived its rights to administrative or judicial review. He rejected Aulenback's contention that it was coerced into signing the consent order, ruling that the threat of economic loss resulting from a continued shutdown did not constitute impermissible coercion. Finally, he declined to address the request that the FHWA amend its rule pursuant to which out-of-service orders may be issued in the absence of an imminent hazard, holding that Aulenback and TUFS had not established that the agency had such a rule. Aulenback and TUFS thereafter filed a petition in this court for review of the Associate Administrator's final order.

B.

Justin. In 1994 and 1995, the FHWA cited Justin for violations of federal safety regulations, and imposed civil penalties of $10,500 and $10,750. Justin did not challenge the factual bases for those penalties. On February 13, 1996, a third FHWA compliance review documented additional violations. Three days later, the FHWA served an out-of-service order on Justin, citing the carrier for six violations of federal safety regulations. Five of the violations related to the company's failure to maintain adequate records, and the sixth related to accepting false duty reports from drivers. Like the Aulenback out-of-service order, the Justin out-of-service order also noted the carrier's prior history of non-compliance. In conjunction with the out-of-service order, the FHWA issued a news release, stating that it had declared Justin's operations "imminently hazardous" and "unfit" for highway transportation. Justin maintains that, as a result of the publicity accompanying the out-of-service order, its insurance company raised its premiums, forcing Justin to suspend operations.

Justin and TUFS immediately sought an emergency stay of the out-of-service order from the FHWA on February 17, 1996. ² On February 20, 1996, they filed a petition for administrative review before the FHWA, seeking rescission of the out-of-service order. On February 22, 1996, the FHWA conditionally rescinded the out-of-service order, premised on a written statement by Justin's Chief Operations Manager attesting that the company had eliminated the imminent hazards cited in the out-of-service order and based on Justin's pledge to comply with the terms of an appropriate consent order.

Justin and the FHWA executed a consent order on March 1, 1996. Like the Aulenback consent order, the Justin consent order required the company to comply with federal safety regulations, and to institute policies to remedy the violations cited in the out-of-service order. It also provided that any future violation of federal safety regulations ...