Metro Tristate, Inc. v. Pub. Serv. Comm'n of W. Va., No. 20-0766

• Court: Supreme Court of West Virginia
• Writing for the Court: HUTCHISON, Justice
• Citation: 859 S.E.2d 438
• Parties: METRO TRISTATE, INC., Petitioner v. The PUBLIC SERVICE COMMISSION OF WEST VIRGINIA and Community Pastor Care, LLC, Respondents
• Docket Number: No. 20-0766
• Decision Date: 14 June 2021

859 S.E.2d 438

METRO TRISTATE, INC., Petitioner
v.
The PUBLIC SERVICE COMMISSION OF WEST VIRGINIA and Community Pastor Care, LLC, Respondents

No. 20-0766

Supreme Court of Appeals of West Virginia.

Submitted: February 9, 2021
Filed: June 14, 2021

David B. Hanna, Esq., Thomas N. Hanna, Esq., Charleston, West Virginia, Counsel for the Petitioner.

Robert S. Pruett, Esq., R. Booth Goodwin II, Esq., Stephanie H. Daly, Esq., Goodwin & Goodwin, LLP, Charleston, West Virginia, Counsel for Respondent Community Pastor Care, LLC.

Robert M. Adkins, Esq., Jessica M. Lane, Esq., Charleston, West Virginia, Counsel for Respondent Public Service Commission of W. Va.

HUTCHISON, Justice:

In this appeal of an order from the West Virginia Public Service Commission ("the Commission"), the Commission ruled that its jurisdiction under state law to regulate a company was preempted by federal law. The company was operating in West Virginia solely as a contractor for a federal agency. More importantly, the federal agency was impelled to give the company the contract to meet a goal expressed by Congress in a federal law. The Commission determined that exercising jurisdiction over the company would create a conflict between state law and the federal law because it would impose an obstacle to the accomplishment of that congressional objective. As we discuss below, we find no error in the Commission's determination and conclude that its authority was preempted by federal law. Accordingly, we affirm its order.

I. Factual and Procedural Background

The Public Service Commission has the authority to regulate the transportation of people by motor vehicles for hire on West Virginia's roads. See W. Va. Code § 24A-1-1 (1987). West Virginia law defines a company that transports passengers in a motor vehicle for hire over the highways of this State as a "common carrier by motor vehicle" or "contract carrier by motor vehicle."

859 S.E.2d 442

W. Va. Code § 24A-1-2 (2020).¹ Furthermore, West Virginia law prohibits common carriers and contract carriers from operating on West Virginia's roads without meeting various requirements and receiving approval from the Commission. See W. Va. Code § 24A-2-2 (1939) ("No common carrier by motor vehicle shall operate any motor facility for transportation of either persons or property for hire on any public highway" without holding "a certificate as a common carrier"); W. Va. Code § 24A-3-3(a) (2020) ("It shall be unlawful for any contract carrier by motor vehicle to operate within this state without first having obtained from the commission a permit[.]").

This case concerns a contract for "non-emergency medical transportation" of passengers over the highways of this State on behalf of a federal agency, the United States Department of Veterans Affairs ("the VA"). The contract was to provide services for, and in the area covered by, the Huntington VA Medical Center.² Generally speaking, the VA provides veterans with non-emergency transportation to and from VA-supported clinics and medical facilities. The VA coordinates and provides the non-emergency transportation in a host of ways, including entering into contracts and paying private contractors (like the parties in this case) to provide transportation, using volunteer drivers, and sometimes providing drivers with vehicles donated or bought with VA grants. Any VA transportation contract is governed by federal law and regulations and is fully funded by the VA.

Petitioner Metro Tristate, Inc. ("Metro"), is an Ohio corporation authorized to do business in West Virginia. Metro has a permit from the Commission authorizing it to act as a "common carrier by motor vehicle" in West Virginia, and it transports passengers by taxi and limousine service throughout Cabell County and Wayne County, West Virginia. Additionally, for about fifteen years prior to September 2018, Metro had a contract with the Huntington VA Medical Center to provide non-emergency medical transportation of veterans to and from medical appointments.

Respondent Community Pastor Care, LLC ("CPC"), is a South Carolina company. CPC does not have a permit from the Commission, and it has never been authorized by the Commission to operate as a common carrier or a contract carrier by motor vehicle in West Virginia. CPC has, however, been qualified by the VA as a "small business concern[ ] owned and controlled by [a] veteran[ ] with service-connected disabilities." 38 U.S.C. § 8127(a).³ The VA calls a company like CPC a "Service Disabled Veteran Owned Small Business," a phrase it abbreviates to "SDVOSB."

859 S.E.2d 443

On September 28, 2018, a contract specialist from the VA informed Metro that its non-emergency medical transportation contract was expiring on September 30th and would not be renewed. The contract specialist told Metro that CPC had been awarded the contract. The contract specialist later noted that the VA is required by federal law to give preference to an "SDVOSB," and said that CPC had received the contract because it was both an "SDVOSB" and was the lowest bidder for the contract.⁴ The parties agree that Metro is not an "SDVOSB" as defined by the VA.

On October 1, 2018, Metro filed this case with the Commission.⁵ Metro asked that the Commission bar CPC from transporting VA passengers until it receives a permit from the Commission.

CPC answered Metro's complaint and admitted it has no Commission-provided authority to transport passengers.⁶ However, CPC asserted that its operations in West Virginia consist exclusively of non-emergency medical transportation pursuant to a contract with the VA. CPC argued that the Commission lacked authority to regulate the non-emergency medical transportation of veterans exclusively on behalf of the VA under the Supremacy Clause of the United States Constitution.⁷ CPC asserted that the Commission's state-law jurisdiction was preempted by federal law and moved to dismiss Metro's complaint.

An ALJ conducted a hearing and issued a recommended decision to the Commission on September 4, 2019. The ALJ recommended that the Commission had no jurisdiction to regulate intrastate transportation services procured by the VA under the Supremacy Clause, because the Commission's state-based regulatory mechanism conflicted with the federal government's contracting goals. Metro objected to the recommended decision.

On September 4, 2020, the Commission entered an order that rejected Metro's objections and concluded that the Commission's jurisdiction to regulate CPC was preempted by federal law. The Commission perceived that federal law requires the VA to contract with small businesses owned by veterans with service-connected disabilities, and it found that the Commission's exercise of jurisdiction over CPC would impair that VA goal. The Commission concluded it had no "jurisdiction to regulate market entry of non-emergency medical transportation services for veterans provided exclusively for the VA by a ... SDVOSB [service-disabled, veteran-owned small business] under contract with

859 S.E.2d 444

the VA because implied conflict preemption applies."⁸ Accordingly, the Commission dismissed the case.

Metro then appealed the Commission's order to this Court.

II. Standard of Review

This Court usually affords great deference to orders of the Commission, given that most cases involve "complex issues and arcane concepts that fall within the special competence of the Commission and are governed by Commission precedent." W. Va. Action Grp. v. Pub. Serv. Comm'n of W. Va. , 233 W. Va. 327, 331-32, 758 S.E.2d 254, 258-59 (2014) (per curiam). However, in this appeal we are asked to consider whether the Commission's jurisdiction to enforce certain state laws is impliedly preempted by a conflict with federal law. Our standard of review is simple: "Preemption is a question of law reviewed de novo. " Syl. pt. 1, Morgan v. Ford Motor Co. , 224 W. Va. 62, 680 S.E.2d 77 (2009).

III. Discussion

Before turning to the issue(s) raised in Metro's briefs to this Court, we first note that Metro's opening brief failed to comply with Rule 10(c) of the West Virginia Rules of Appellate Procedure. Rule 10(c) provides that "to the fullest extent possible, the petitioner's brief shall contain the following sections in the order indicated." (Emphasis added.) The rule goes on to specify, in order, nine different sections that must follow the cover page starting with a table of contents and ending with a certificate of service. Rule 10(c)(3) requires that a petitioner's brief "open[ ] with a list of the assignments of error that are presented for review, expressed in terms and circumstances of the case but without unnecessary detail." "The practice of opening a brief with a series of assignments of error serves to alert the Court to the singular issue or issues that may have adversely affected the outcome before the trial court." Wilson v. Kerr , No. 19-0933, 2020 WL 7391150, at *3 (W. Va. Dec. 16, 2020) (memorandum decision). By clearly articulating the errors alleged to have occurred in the lower tribunal, the petitioner "allows a respondent to address the focused issue, confident that he did not fail to discern a determinative argument...