Owner-Operator Indep. Drivers Ass'n, Inc. v. U.S. Dep't of Transp.

• Decision Date: 17 December 2013
• Docket Number: No. 12–1264.,12–1264.
• Citation: 724 F.3d 230
• Parties: OWNER–OPERATOR INDEPENDENT DRIVERS ASS'N, INC., Petitioner v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

724 F.3d 230

OWNER–OPERATOR INDEPENDENT DRIVERS ASS'N, INC., Petitioner

v.UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Respondents.

No. 12–1264.

United States Court of Appeals, District of Columbia Circuit.

Argued May 6, 2013.

Decided July 26, 2013.

Rehearing En Banc Denied Dec. 17, 2013.

On Petition for Review of an Order of the Federal Motor Carrier Safety Administration.

Paul D. Cullen, Sr. argued the cause for petitioner. With him on the briefs were Joyce E. Mayers and Paul D. Cullen, Jr.

Dana Kaersvang, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Stuart F. Delery, Principal Deputy Attorney General, Ronald C. Machen, Jr., U.S. Attorney, Michael S. Raab and Michael P. Abate, Attorneys, Paul M. Geier, Assistant General Counsel for Litigation, Federal Motor Carrier Safety Administration, and Peter J. Plocki, Deputy Assistant General Counsel for Litigation.

Stephan E. Becker and Daron T. Carreiro were on the brief for amicus curiae The United Mexican States in support of respondents.

Before: GARLAND, Chief Judge, BROWN, Circuit Judge, and SENTELLE, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge BROWN.

Dissenting opinion filed by Senior Circuit Judge SENTELLE.

BROWN, Circuit Judge:

The Owner–Operator Independent Drivers Association (OOIDA), a trade association, challenges the decision of the Federal Motor Carrier Safety Administration (FMCSA) to exempt commercial vehicle operators licensed in Canada or Mexico from certain statutory medical certification requirements applicable to drivers licensed in the United States. The FMCSA claims that applying these requirements to these foreign drivers would violate existing executive agreements between those two countries and the United States. OOIDA cares naught for these agreements, instead relying on generally applicable statutory text. The question we must answer is whether a facially unambiguous statute of general application is enough to abrogate an existing international agreement without some further indication Congress intended such a repudiation. We conclude it is not.

I

Under federal law, “[n]o individual shall operate a commercial motor vehicle without a valid commercial driver's license.” 49 U.S.C. § 31302. Individual states issue these licenses, but the federal government specifies “minimum uniform standards” via regulations contained in 49 C.F.R. Part 383. Id. § 31308; see Int'l Bhd. of Teamsters v. Peña, 17 F.3d 1478, 1481 (D.C.Cir.1994). In addition to obtaining commercial driver's licenses, U.S. commercial vehicle operators must receive medical certification verifying that their “physical condition ... is adequate to enable them to operate the vehicles safely.” 49 U.S.C. § 31136(a)(3). For American drivers, this prerequisite to operating a commercial vehicle is separate from the process for obtaining a commercial driver's license. See49 C.F.R. § 391.41.

To facilitate trade, the United States has entered into “executive agreements” with Mexico and Canada for reciprocal licensing of commercial drivers operating across national borders. Executive agreements are not quite treaties; while the latter require Senate ratification, the former carry the force of law as an exercise of the President's foreign policy powers. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414–15, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003). In the case of Mexico, a memorandum of understanding (“MOU”) enshrined some basic principles from which to structure regulation, including joint recognition of U.S. commercial driver's licenses and Mexico's “Licencia Federal de Conductor,” acknowledgment by the United States of its need to imitate Mexico's system “for including driver medical qualification determinations” within the licensing process, and an understanding that drivers “shall be subject to the applicable laws and regulations of the country in which they operate such motor vehicles.” The United States concluded a similar agreement with Canada in 1998, with the Federal Highway Administration (FHWA) affirming that “the medical provisions of the Canadian National Safety Code for Motor Carriers ... are equivalent to the medical fitness regulations in the [Federal Motor Carrier Safety Regulations].”

Unlike the American system, which separates medical certification from the commercial vehicle licensing process, Mexico and Canada incorporate physical fitness criteria as part of their licensing regimes. For this reason, the FHWA treats commercial licenses from these countries as themselves proof of medical fitness. See Motor Carrier Safety Regulations: Technical Amendments, 67 Fed.Reg. 61,818, 61,819 (Oct. 2, 2002); Commercial Driver's License Reciprocity with Mexico, 57 Fed.Reg. 31,454, 31,455 (July 16, 1992).

For some time, medical certificates could be issued by anyone “licensed, certified, and/or registered, in accordance with applicable State laws and regulations, to perform physical examinations,” 49 C.F.R. § 390.5 (2011), so long as the examiner was familiar with the physical demands placed on commercial motor vehicle operators and was “proficient in the use of” the federal protocols necessary to conduct the examination. Id. § 391.43(c) (2011). That changed in 2005 with enactment of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (the “Act”), Pub.L. No. 109–59, 119 Stat. 1144. Specifically, § 4116 of the Act, which governs the “Medical program,” requires the Secretary of Transportation to “establish and maintain a current national registry of medical examiners who are qualified to perform examinations and issue medical certificates” necessary for drivers of commercial motor vehicles. 49 U.S.C. § 31149(d)(1). The Act further directs the Secretary to require all commercial vehicle operators “to have a current valid medical certificate,” id. § 31149(c)(1)(B), and “accept as valid only medical certificates issued by persons on the national registry,” id. § 31149(d)(3). Section 4116 makes no mention of the reciprocal agreements with Canada and Mexico. See 119 Stat. 1726–28, 49 U.S.C. § 31149.

Several years later, the FMCSA proposed a new rule to effectuate the Act's call for a national registry of medical examiners and to implement more stringent training and testing requirements. See National Registry of Certified Medical Examiners, 73 Fed.Reg. 73,129 (Dec. 1, 2008). Under the proposed rule, only those medical certificates issued by examiners listed on the registry would be accepted as valid with one key exception: Mexican and Canadian drivers operating in the United States would “continue to be governed by the provisions of existing reciprocity agreements with Canada and Mexico, because they are not in conflict with 49 U.S.C. 31136(a)(3) and 31149.” Id. at 73,131 n. 3. Meaning, only drivers domiciled in the United States would need to obtain medical certificates from examiners on the national registry. OOIDA objected during the comment period, arguing the Act permitted of no such “exemption.” The FMCSA rejected OOIDA's complaint in its final rule. See National Registry of Certified Medical Examiners, 77 Fed.Reg. 24,104, 24,110–11 (Apr. 20, 2012) (“Final Rule”).

Having filed a petition for review, OOIDA now asks this Court to set aside that portion of the Final Rule specifying that the national registry requirements do not apply to the medical certification of properly licensed Canadian and Mexican drivers.

II

The Constitution places treaties and federal statutes on equal legal footing—both are “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. Courts therefore approach conflicts between treaties and statutes the way they would a conflict between two treaties or two statutes: the more recent legal pronouncement controls. Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 31 L.Ed. 386 (1888). This is known as the last-in-time rule. Kappus v. Comm'r of Internal Revenue, 337 F.3d 1053, 1057 (D.C.Cir.2003). But though the last-in-time rule tells courts how to resolve clashes between statutes and treaties, courts prefer to avoid such conflicts altogether. Thus, we presume that newly enacted statutes do not automatically abrogate existing treaties. See South Dakota v. Bourland, 508 U.S. 679, 687, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993). The same principles govern the Executive Branch agreements with Mexico and Canada, even though they were not formal treaties ratified by the Senate. See, e.g., Weinberger v. Rossi, 456 U.S. 25, 31, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982).

In this case, the Act speaks in general yet textually unambiguous terms. Operators of commercial motor vehicles must have “a current valid medical certificate,” 49 U.S.C. § 31149(c)(1)(B), and only a medical examiner listed on the “national registry” may issue one, id. § 31149(d). No exception is made for those drivers living in Canada or Mexico who operate their vehicles within the United States. But does such language sufficiently express Congress's intent to abrogate the executive agreements with Canada and Mexico? On this question, the case law is murky. There have been cases in which ambiguous statutes were interpreted to preserve preexisting treaties or executive agreements, see, e.g., Weinberger, 456 U.S. at 28–32, 102 S.Ct. 1510, and there have been cases in which unambiguous statutes expressly overrode international agreements, see, e.g., Kappus, 337 F.3d at 1057–58. But the parties cite no case of quite this kind: a textually clear statute with no express reference—or any other indication of its intended application—to conflicting international agreements.

OOIDA and the government conceptualize the presumption against implicit abrogation of international agreements in different ways. OOIDA views it as no more than an interpretive aid akin to the rule of lenity: applicable only to choose among multiple possible readings of a textually ambiguous statute. Cf. Skilling v. United...