Flat Creek Transp., LLC v. Fed. Motor Carrier Safety Admin.

Decision Date20 September 2017
Docket NumberCASE NO. 1:16-CV-876 (WO)
PartiesFLAT CREEK TRANSPORTATION, LLC, an Alabama limited liability company, Plaintiff, v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, ELAINE L. CHAO, in her capacity as Secretary of the United States Department of Transportation, and KENNY PRICE, in his capacity as Alabama Division Administrator (Federal Motor Carrier Safety Administration), Defendants.
CourtU.S. District Court — Middle District of Alabama

Before the court is the motion to dismiss (Doc. # 19) filed by Defendants Federal Motor Safety Administration ("FMCSA"), Elaine L. Chao, and Kenny Price. Also before the court is Defendants' motion (Doc. # 42) to substitute their reply brief and Plaintiff's motion (Doc. # 44) for leave to file a rebuttal to Defendants' proposed reply brief. Upon consideration of the motions, the court concludes that the motion to dismiss is due to be granted, and the remaining motions are due to be denied asmoot.


Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). This court is "'empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution,' and which have been entrusted to them by a jurisdictional grant authorized by Congress." Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Therefore, a federal court is obligated to inquire into subject matter jurisdiction sua sponte "at the earliest possible stage in the proceedings." Id. at 410. "It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen, 511 U.S. at 377.

Plaintiff's Rule 12(b)(1) motion to dismiss for lack of jurisdiction presents a "facial attack" on the existence of subject matter jurisdiction. A "facial attack" on the complaint "require[s] the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). In contrast, "factual attacks" challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, andmatters outside the pleadings, such as testimony and affidavits, are considered." Id.

28 U.S.C. § 1331 provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Generally, in accordance with § 1331, "[w]hen a plaintiff makes a plausible argument that a federal statute creates his right to relief, the district court has subject-matter jurisdiction over that complaint." Lanfear v. Home Depot, Inc., 536 F.3d 1217, 1221 (11th Cir. 2008). However, when a more specific statute vests original jurisdiction in a different court, the more specific statute will control. See Ligon v. LaHood, 614 F.3d 150, 154 (5th Cir. 2010) ("Specific grants of jurisdiction to the courts of appeals override general grants of jurisdiction to the district courts.").

A. Regulatory Context

By law, the Secretary of Transportation must "prescribe minimum safety standards for commercial motor vehicles" and determine whether individual owners and operators are "fit to operate safely commercial motor vehicles." 49 U.S.C. §§ 31136(a), 31144(a)(1). The Secretary's assessment of owner-operator safety is to take into consideration an owner or operator's accident record and the accident andsafety inspection records of the owner or operator. Id. § 31144(a)(1). The Secretary is required to periodically update the safety fitness determinations. Id.

The Secretary's authority to implement these safety standards is delegated to FMCSA, an agency within the Department of Transportation. 49 C.F.R. §§ 1.86(a), 1.87(f). FMCSA, in turn, has promulgated regulations governing its procedures for "determin[ing] the safety fitness of motor carriers [and] assign[ing] safety ratings." 49 C.F.R. § 385.1 (a). Pursuant to those regulations, FMCSA conducts on-site compliance reviews of motor carrier's operations and rates each carrier as "satisfactory," "conditional," or "unsatisfactory." Id. §§ 385.3, 385.9. Carriers with "unsatisfactory" ratings receive an order from FMCSA prohibiting them from operating. Id. § 385.13. That order is commonly called an operation out-of-service ("OOS") order. (Doc. # 1 at ¶26.)

In 2010, FMCSA adopted the Carrier Safety Measurement System ("CSMS") by which FMCSA uses carrier performance data to score carriers' safety performance risk. See Withdrawal of Proposed Improvements to the Motor Carrier Safety Status Measurement System (SafeStat) and Implementation of a New Carrier Safety Measurement System (CSMS), 75 Fed. Reg. 18,256-02 (Apr. 9, 2010). The data used in the CSMS system comes from "a variety of sources," including the Motor Carrier Management Information System ("MCMIS"). Silverado Stages, Inc., v. FMCSA, 809 F.3d 1268, 1271 (D.C. Cir. 2016). "To maintain the accuracy of the information displayed within the SMS, FMCSA has created DataQs, 'a web-based dispute resolution [system] that allows an individual to challenge data maintained by FMCSA.'" Id. (quoting Weaver v. FMCSA, 744 F.3d 142, 143 (D.C. Cir. 2014)).

For each carrier, FMCSA uses CSMS to calculate a safety risk score derived in part from a percentile ranking (as measured against a safety-event group of comparable carriers3) in seven categories4 called Behavior Analysis Safety Improvement Categories ("BASICs"). (Doc. # 1 at ¶ 38.) FMCSA "uses [the safety risk] scores generated by the [CSMS] to identify [and prioritize] high-risk carriers for on-site compliance reviews and other enforcement interventions, but these scores do not affect a carrier's safety-fitness ratings." Owner-Operator Indep. Drivers Ass'n, Inc. v. U.S. DOT, 831 F.3d 961, 964 (8th Cir. 2016).

B. Plaintiff's Claims

Plaintiff is a commercial motor carrier that primarily transports refrigerated foods and does not transport hazardous materials. (Doc. # 1 at ¶ 16.) Plaintiff operates in interstate commerce and is subject to FMCSA's regulations andprocedures for assigning safety ratings to motor carriers and, potentially, for prohibiting carriers that are deemed unsafe from operating on the nation's highways. Plaintiff seeks declaratory and injunctive relief from Defendants' alleged pattern of unlawfully targeting it for an unusually high number of compliance reviews with the intent of issuing an unwarranted OOS order that will place Plaintiff out of business. Specifically, Plaintiff alleges that Defendants inappropriately select it for compliance reviews based on (1) personal bias of certain FMCSA personnel against Plaintiff's owner and/or (2) flaws in the CSMS methodology that result in classifying Plaintiff as a "high-risk" carrier. (Doc. # 1 at ¶ 47.) According to Plaintiff, on-site compliance reviews and other investigations are burdensome and interfere with business operations.

A. Motions for Leave to File Additional Briefs

At the time Plaintiff filed its complaint, it anticipated that it would soon be unfairly targeted for an on-site compliance review and that FMCSA intended to use the compliance review to unfairly rate Plaintiff as "conditional" or "unsatisfactory." Plaintiff sought injunctive and declaratory relief from the anticipated compliance review, potential unfair safety rating, and possible OOS order.

After Plaintiff filed the complaint, FCMSA notified Plaintiff that it had been selected for a compliance review. Plaintiff moved for emergency and preliminary injunctive relief, including a request to stay the on-site compliance review pendingthe outcome of this litigation. (Doc. # 25.) The court denied Plaintiff's requests for emergency injunctive relief on grounds that Plaintiff had not adequately demonstrated the existence of subject matter jurisdiction. (Doc. # 29.) After a hearing on the motion for preliminary injunction, the court denied the motion on grounds that the Hobbs Act,5 28 U.S.C. §§ 2341-2351, vests original jurisdiction in the courts of appeals to "enjoin, set aside, suspend . . . , or to determine the validity of" certain rules, regulations, and final orders of FMCSA. 28 U.S.C. § 2342. The requested relief required review "of validity of Defendant FMCA's internal rules for identifying 'high risk' motor carriers which led to the selection of Plaintiff for a compliance review, or enjoining Defendant FMCA from issuing final enforcement orders against Plaintiff," which constituted rules or final orders subject to the Hobbs Act. (Doc. # 30 at 1-2.)

As the parties were engaged in briefing on the motion to dismiss, the compliance review proceeded. On April 21, 2017, Defendants submitted a reply brief in support of their motion to dismiss. (Doc. # 41.) On May 8, 2017, Defendants moved to substitute a different brief as their reply brief on grounds that, unbeknownst to Defense counsel, during the briefing period, the on-site compliance review had concluded with a "satisfactory" safety rating for Plaintiff. (Doc. # 42.)Defendants attached their proposed substitute reply brief to their motion to dismiss, which contained a new argument that the "satisfactory" rating rendered Plaintiff's complaint moot.

Plaintiff does not dispute that the on-site compliance review resulted in a "satisfactory" rating, but filed a motion seeking leave to file a surreply to address the new mootness argument. (Doc. # 44.) Plaintiff also submitted a brief that addressed the merits of Defendants' proposed substitute reply brief. (Doc. # 43.) Plaintiff contended that the "satisfactory" rating in the recent...

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