Oil Chemical and Atomic Workers v. Skinner

• Decision Date: 09 May 1989
• Docket Number: No. C-89-0172-DLJ.,C-89-0172-DLJ.
• Parties: OIL CHEMICAL AND ATOMIC WORKERS, et al., Plaintiffs, v. Samuel K. SKINNER, Secretary of Transportation, Department of Transportation, Research and Special Programs Administration and Federal Highway Administration, Defendants.
• Court: U.S. District Court — Northern District of California

724 F. Supp. 1264

OIL CHEMICAL AND ATOMIC WORKERS, et al., Plaintiffs, v. Samuel K. SKINNER, Secretary of Transportation, Department of Transportation, Research and Special Programs Administration and Federal Highway Administration, Defendants.

No. C-89-0172-DLJ.

United States District Court, N.D. California.

May 9, 1989.

Robert W. Hirsch and W. Daniel Boone, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., and Thomas Feldman and John McKendree of McKendree, Toll & Mares, Denver, Colo., for plaintiffs.

Brian Kennedy, U.S. Dept. of Justice, Washington, D.C., for defendants.

ORDER

JENSEN, District Judge.

On April 28, 1989, this Court heard defendant's motion to dismiss for lack of subject matter jurisdiction. Brian Kennedy appeared for defendants. Robert Hirsch and Thomas Feldman appeared for plaintiffs.

Plaintiffs challenge the validity of regulations issued, on November 21, 1988, by the Research and Special Programs Administration (RSPA) and the Federal Highway Administration (FHWA), imposing suspicionless, mandatory drug testing of pipeline workers and commercial motor vehicle drivers. Plaintiffs filed their complaint with this Court on January 20, 1989. Defendants move to dismiss plaintiffs' complaint for lack of subject matter jurisdiction on grounds that the only proper forum for judicial review of the RSPA and FHWA regulations is in the court of appeals. Defendants also argue that venue is not proper in this district.

For the following reasons, this Court GRANTS defendants' motion to dismiss for lack of subject matter jurisdiction and ORDERS that this case be transferred to the Ninth Circuit.

I. RSPA REGULATIONS

A. Statutory Scheme

The Research and Special Projects Administration (RSPA) of the Department of Transportation (DOT) relied upon three statutes in promulgating the regulations: the Natural Gas Pipeline Safety Act (NGPSA), 49 U.S.C.App. § 1671 et seq.; the Hazardous Materials Transportation Act (HMTA), 49 U.S.C.App. § 1801 et seq.; and the Hazardous Liquid Pipeline Safety Act (HLPSA), 49 U.S.C.App. § 2001 et seq.

Both the NGPSA and the HLPSA specify that judicial review of regulations issued under these Acts can be obtained by a petition filed in the United States Court of Appeals for the District of Columbia Circuit or in the circuit in which the petitioner is located or has its principal place of business. 49 U.S.C.App. §§ 1675(a), 2005(a). Both statutes also state that:

the remedies provided for by this subsection shall be in addition to and not in substitution for any other remedies provided by law.

49 U.S.C.App. §§ 1675(e), 2005(e). The HMTA does not specify any forum for judicial review.

B. Defendants' Motion to Dismiss

Defendants contend that judicial review of the RSPA regulations rests exclusively with the United States Court of Appeals. Defendants argue this result is required by the express terms of the judicial review provisions of the NGPSA, 49 U.S.C.App. § 1675(a), and the HLSPA, 49 U.S.C.App. § 2005(a). Defendants further argue that this result is not changed by the fact that the HMTA does not contain a specific judicial review provision. Defendants correctly point out the well established rule "that a special statute vesting jurisdiction in a particular court cuts off jurisdiction other courts might have under a more general statute." Assure Competitive Transportation, Inc. v. United States, 629 F.2d 467, 471 (7th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981). See also Suburban O'Hare Commission v. Dole, 787 F.2d 186, 192 (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 169, 93 L.Ed.2d 106 (1986); Public Utility Commissioner v. Bonneville Power Admin., 767 F.2d 622, 626-27 (9th Cir.1985).

Plaintiffs contend that this Court has concurrent jurisdiction with the court of appeals to hear their challenge to the validity of the RSPA regulations. Plaintiffs argue that this conclusion necessarily flows from the provision, contained in both of the statutes relied upon by defendants, that "the remedies provided for in this section shall be in addition to and not in substitution for any other remedies provided by law." 49 U.S.C.App. §§ 1675(e), 2005(e). Defendants contend that judicial review of the regulations by a federal district court based upon general federal question jurisdiction, under 28 U.S.C. section 1331, is one of the "other remedies" available to them.

C. Court's Ruling

This Court is not persuaded by plaintiffs' argument. Although the statutes do preserve all remedies already available to plaintiffs, these remedies do not include judicial review in forums other than the court of appeals. The statutes in no uncertain terms explicitly provide that judicial review of the regulations can only be sought in the court of appeals. Based on this specific jurisdictional grant, the provision preserving remedies must be construed as preserving remedies other than judicial review, such as, the remedies available in 49 U.S.C.App. section 1677 or the right to challenge a particular application of a regulation as a defense to an enforcement action. Such a reading is more sensible than defendants' strained argument that Congress stated that review was to be by the court of appeals, but intended that the district court and the court of appeals review the same rules simultaneously.

However, even if Congress did intend to confer concurrent jurisdiction, plaintiffs concede that the decision to hear or to transfer the case to the court of appeals lies is discretionary. This Court would exercise its discretion and decline to hear the challenge to the RSPA regulations. Whether this Court follows the clear logic of defendants' argument or carries plaintiffs' argument to its conclusion, judicial review of the RSPA regulations rests with the court of appeals.

II. FHWA REGULATIONS

A. Statutory Scheme

The Federal Highway Administration (FHWA) of the Department of Transportation (DOT) cited three statutes as authority for promulgating the regulations: 49 U.S.C. §§ 504(b)(2)(A) and 504(f), regarding the disclosure of reports or records; 49 U.S.C.App. § 2505, regarding safety standards for motor vehicles; and 49 U.S.C. § 3102, regarding the qualifications and conditions for employment. Since the parties do not dispute that this Court has subject matter jurisdiction for regulations promulgated under sections 504 or 2505, the Court will only consider the judicial review provisions relevant to section 3102.

The DOT authority set forth in section 3102 formerly resided in the Interstate Commerce Commission (ICC). When Congress created the DOT in 1966, it transferred to the DOT numerous functions previously delegated to the ICC. Department of Transportation Act, Pub.L. No. 89-670, 80 Stat. 931 (1966), currently codified at 49 U.S.C.App. § 1655(e). One of the functions transferred was ICC regulatory power relating to the "qualifications and maximum hours of service of employees of motor carriers and safety of operation and equipment." 49 U.S.C. § 1655(e)(6)(C). The 1966 Act further established that the FHWA would assume the "functions, powers, and duties" of the Transportation Secretary with respect to motor carrier safety. 49 U.S.C. § 1655(f)(3)(B). The Act additionally allowed for judicial review, under the Administrative Procedure Act, of "any proceeding by the Department of Transportation and any of the administrations or boards within the Department." 49 U.S.C. App. § 1655(h).

In 1983, Congress recodified portions of title 49, the transportation statutes, in order to "restate, without substantive change, laws enacted before November 15, 1982." Pub.L. No. 97-449, § 6(a), 96 Stat. 2443. The authority allowing the DOT to regulate motor carrier safety, a function formerly delegated to the ICC, was moved to 49 U.S.C. section 3102.

When Congress passed the 1966 Act, it mandated that regulations issued by the DOT, pursuant to the authority transferred from the ICC, shall be reviewed in the same manner as if the regulations had been issued by the ICC. The critical statute concerning judicial review, 49 U.S.C.App. section 1653(c), in relevant part, states that:

orders and actions of the Secretary of the DOT in the exercise of functions, powers, and duties transferred under this chapter, and orders and actions of the Administrators pursuant to the functions, powers, and duties specifically assigned to them by this chapter, shall be subject to judicial review to the same extent and in the same manner as if such orders and actions had been by the department or agency exercising such functions, powers, and duties, immediately preceding their transfer.

49 U.S.C.App. § 1653(c), Pub.L. No. 89-670, 80 Stat. 933 (1966) (emphasis added).

Prior to the 1966 Act, judicial review of ICC orders was lodged in three-judge district courts, with direct appeal to the United States Supreme Court. 28 U.S.C. section 2325 provided in relevant part that:

an interlocutory or permanent injunction restraining the enforcement, operation, or execution, in whole or in part, of any order of the Interstate Commerce Commission, shall not be granted unless the application is heard and determined by a district court of three judges....

28 U.S.C. § 2325, 62 Stat. 970 (1948), repealed by Pub.L. No. 93-584, 88 Stat. 1917 (1975).

In 1975, Congress amended the Hobbs Act, 28 U.S.C. §§ 2341 et seq., so that courts of appeal would have exclusive jurisdiction to review challenges to ICC regulations:

The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of ... all rules, regulations, or final orders of the Interstate Commerce Commission made reviewable by 28 U.S.C. § 2321.

28 U.S.C. § 2342(5). Section 2321 states, in relevant part, that:

except as otherwise provided by an Act of Congress, a proceeding to enjoin or suspend, in whole or in part, a rule, regulation, or order of the ICC shall be brought in the

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