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

• Decision Date: 02 August 2016
• Docket Number: No. 15-2090,15-2090
• Citation: 831 F.3d 961
• Parties: Owner–Operator Independent Drivers Association, Inc., also known as OOIDA ; Kuehl Trucking, LLC, Petitioners, v. United States Department of Transportation; Federal Motor Carrier Safety Administration; Anthony Foxx, Secretary of the U.S. Department of Transportation; T.F. Scott Darling, III, Chief Counsel of the Federal Motor Carrier Safety Administration; United States of America, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

831 F.3d 961

Owner–Operator Independent Drivers Association, Inc., also known as OOIDA ; Kuehl Trucking, LLC, Petitioners,

v.United States Department of Transportation; Federal Motor Carrier Safety Administration; Anthony Foxx, Secretary of the U.S. Department of Transportation; T.F. Scott Darling, III, Chief Counsel of the Federal Motor Carrier Safety Administration; United States of America, Respondents.

No. 15-2090

United States Court of Appeals, Eighth Circuit.

Submitted: November 19, 2015

Filed: August 2, 2016

Counsel who presented argument on behalf of the petitioner was Paul D. Cullen, Jr., of Washington, DC. The following attorneys also appeared on the petitioner brief; Paul Damien Cullen, Sr, of Washington, DC., Joyce E. Mayers, of Washington, DC.

Counsel who presented argument on behalf of the respondent was Molly R. Silfen, USDOJ, of Washington, DC. The following attorneys appeared on the respondent brief; Kathryn B. Thomson of Washington, DC., Paul M. Geier, of Washington DC., Peter J. Plocki, of Washington, DC., Joy K. Park, of Washington, DC., Charles J. Fromm, of Washington, DC., Fred K. Ford, of Washington, DC., Valerie S. Beck, of Washington, DC., Benjamin C. Mizer, of Washington, DC., Matthew M. Collette, of Washington, DC., Jeffrica Jenkins Lee, of Washington DC.

Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

The Owner-Operator Independent Drivers Association and one of its members, Kuehl Trucking, LLC, petition for review of regulatory guidance issued by the Federal Motor Carrier Safety Administration. The guidance exempts from federal accident-reporting regulations certain accidents involving commercial motor vehicles known as attenuator trucks. Because petitioners have failed to identify a concrete and particularized injury that would give them standing to proceed, we dismiss the petition for lack of an Article III case or controversy.

I.

Congress has directed the Secretary of Transportation to “prescribe minimum safety standards for commercial motor vehicles” and to determine whether individual owners and operators are “fit to operate safely commercial motor vehicles.” 49 U.S.C. §§ 31136(a), 31144(a)(1). In assessing owner-operator safety, the Secretary is instructed to consider, inter alia , an owner or operator's accident record. Id. § 31144(a)(1). The Secretary has delegated his authority to implement these safety standards to the Federal Motor Carrier Safety Administration, an agency within the Department of Transportation. 49 C.F.R. §§ 1.86(a), 1.87(f). Regulations issued by the Administration must be promulgated under the informal rulemaking procedures of the Administrative Procedure Act. 49 U.S.C. § 31136(c) (incorporating 5 U.S.C. § 553 ).

Exercising this delegated authority, the Administration has developed a comprehensive system for evaluating the safety fitness of commercial motor carriers. 49 C.F.R. § 385.1 et seq. Following an on-site examination of the carrier's operations, the Administration rates each carrier as “satisfactory,” “conditional,” or “unsatisfactory.” Id. §§ 385.3, 385.9. Carriers that receive an unsatisfactory safety-fitness rating are prohibited from operating commercial motor vehicles. Id. § 385.13(a).

In addition to assigning safety-fitness ratings, the Administration maintains the Carrier Safety Measurement System, a database of carrier safety-performance data. 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 System scores carriers' performance in seven safety categories: unsafe driving, hours of service, driver fitness, drug or alcohol violations, vehicle maintenance, hazardous-materials handling, and crash history. The Administration uses scores generated by the System to identify high-risk carriers for on-site compliance reviews and other enforcement interventions, but these scores do not affect a carrier's safety-fitness ratings. Id. at 18,257.

The System defines a carrier's “Crash Indicator” measure to quantify “[h]istories or patterns of high crash involvement.” A carrier's Crash Indicator has two components: a raw measure of the carrier's crash history and a ranking against comparable commercial carriers. A carrier's Crash Indicator measure is the number of accidents per vehicle, with adjustments made based on the severity and recency of accidents and the miles driven per vehicle.

Each carrier is then placed into a safety-event group of comparable carriers. Safety-event groups are based on two factors. The first is whether the carrier is in the straight-truck or combination-truck segment. A straight truck has all of its axles attached to a single frame, while a combination or “combo” truck consists of two or more frames joined by couplings. A carrier is placed in the combination-truck segment if combination trucks constitute at least 70% of its fleet and in the straight-truck segment if more than 30% of its trucks are straight trucks. The second factor is how many accidents the carrier has sustained over the previous twenty-four months.

Safety-event groups are defined as follows:

Safety-Event Group

Crashes

Combo 1

2-3

Combo 2

4-6

Combo 3

7-16

Combo 4

17-45

Combo 5

= 46

Safety-Event Group

Crashes

Straight 1

Straight 2

3-4

Straight 3

5-8

Straight 4

9-26

Straight 5

= 27

Source: Pet'rs' App. 34

The Administration ranks the carriers within each safety-event group by their Crash Indicator measure. Carriers are ranked on a percentile basis in ascending order. This means that a carrier with a Crash Indicator ranking of 40 has a higher Crash Indicator measure than 40% of the carriers in its safety-event group. Carriers with fewer than two accidents within the last twenty-four months are not placed within any safety-event group. Any carrier that has been accident-free for the previous twelve months is removed from the rankings. Pet'rs' App. 31-34.

Carriers with a Crash Indicator ranking greater than or equal to 65 are identified by the Administration for potential interventions, including warning letters, roadside inspections, investigations, and removal from service. Id . at 14; Frequently Asked Questions , Fed. Motor Carrier Safety Admin., https://csa.fmcsa.dot.gov/faqs.aspx?faqid=1561 (as visited July 28, 2016, and on file with clerk of court). A subset of a carrier's System data, including its number of accidents, is available on the agency's public website. See Safety Measurement System , Fed. Motor Carrier Safety Admin., https://ai.fmcsa.dot.gov/sms/ (as visited July 28, 2016, and on file with clerk of court).

To calculate carriers' Crash Indicator measures, the Administration uses accident reports from state law-enforcement agencies. See 49 U.S.C. § 31133(c). For purposes of federal reporting, an “accident” is defined as

an occurrence involving a commercial motor vehicle operating on a highway in interstate or intrastate commerce which results in: (i) A fatality; (ii) Bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or (iii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle(s) to be transported away from the scene by a tow truck or other motor vehicle.

49 C.F.R. § 390.5 ; see also id. (defining “crash” as “accident”). An occurrence is considered an “accident” for a carrier regardless of whether the carrier was at fault. Id.

On March 18, 2015, the Administration issued “regulatory guidance” concerning accidents involving attenuator trucks.

Regulatory Guidance Concerning Crashes Involving Vehicles Striking Attenuator Trucks Deployed at Construction Sites, 80 Fed. Reg. 15,913 -01 (Mar. 26, 2015). Attenuator trucks are highway-safety vehicles equipped with an impact-absorbing crash cushion designed to protect workers in construction zones. Id. The Administration advised that crashes involving attenuator trucks deployed in work zones “are not considered accidents” and will not “count against the safety performance record of the motor carrier responsible for the operation of the attenuator truck.” Id. at 15,914. The reason for this exclusion, the Administration explained, is that crashes involving attenuator trucks are expected to occur, and they prevent more serious accidents. Id. Effective May 26, 2015, carriers could request to have attenuator-truck accidents removed from their crash record. Id.

Petitioners, invoking the exclusive jurisdiction of the courts of appeals to review certain rules promulgated by the Secretary of Transportation, 28 U.S.C. § 2342(3)(A), seek an order vacating the guidance. The Association is a trade association representing approximately 150,000 independent owner-operators, small motor carriers, and professional drivers. Kuehl Trucking, a member of the Association, is a regulated interstate motor carrier headquartered in Chippewa Falls, Wisconsin. Kuehl's safety director, Benn Kingsbury, declared that Kuehl's System report reflects six accidents since December 2013; this record places Kuehl in the safety-event group Combo 2.

The petitioners argue that the Administration violated the Administrative Procedure Act by promulgating a legislative rule without first giving public notice and soliciting comment. See Perez v. Mortg. Bankers Ass'n , –––U.S. ––––, 135 S.Ct. 1199, 1206, 191 L.Ed.2d 186 (2015). The Administration responds that the guidance is an interpretive rule exempt from notice and comment requirements under 5 U.S.C. § 553(b)(A). Alternatively, petitioners argue that the guidance is arbitrary and capricious.

II.

The Administration contends at the threshold that petitioners lack standing to challenge the guidance. Article III limits federal jurisdiction to “Cases” and “Controversies,” and there is no case or controversy unless the party initiating the action has standing to sue. Allen v. Wright , 468 U.S. 737, 750...