Owner-Operator Independent Drivers Ass'n, Inc. v. Pena

• Decision Date: 18 June 1993
• Docket Number: J-T,OWNER-OPERATOR,No. 92-1662,92-1662
• Parties: Fed. Carr. Cas. P 83,840, 302 U.S.App.D.C. 72 INDEPENDENT DRIVERS ASSOCIATION, INC.; Ruth F. Jones; John S. Tuttle, doing business asTrucking; Gordon Betts, Petitioners, v. Federico F. PENA, Secretary, U.S. Department of Transportation; E. Dean Carlson, Acting Administrator, Federal Highway Administration; United States of America, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 338

996 F.2d 338

Fed. Carr. Cas. P 83,840, 302 U.S.App.D.C. 72

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC.; Ruth

F. Jones; John S. Tuttle, doing business as J-T

Trucking; Gordon Betts, Petitioners, v. Federico F. PENA, Secretary, U.S. Department of

Transportation; E. Dean Carlson, Acting

Administrator, Federal Highway

Administration; United States

of America, Respondents.

No. 92-1662.

United States Court of Appeals, District of Columbia Circuit.

Argued April 26, 1993.

Decided June 18, 1993.

Petition for Review of Orders of the Secretary of Transportation and the Administrator, Federal Highway Administration.

Paul D. Cullen, Washington, DC, argued the cause for the petitioners. With him on the briefs were K. Michael O'Connell and Daniel J. Harrold, Washington, DC.

Robert V. Zener, Appellate Litigation Counsel, U.S. Dept. of Justice, Washington, DC, argued the cause for the respondents. With him on the brief was Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, DC.

Erika Z. Jones, John J. Sullivan, Washington, DC, and Daniel R. Barney, Alexandria, VA were on the brief for amicus curiae, The American Trucking Associations, Inc.

Before: WALD, HENDERSON, and RANDOLPH, Circuit Judges.

RANDOLPH, Circuit Judge:

The first--and, as it turns out, the last--question we must decide in this case is whether we have jurisdiction to hear it. Invoking the Hobbs Act, 28 U.S.C. § 2342, three commercial truck drivers and an organization representing truck owner-operators filed a petition for review challenging, under the Fourth Amendment to the Constitution, the Department of Transportation's funding of a pilot program in four states to conduct random drug and alcohol tests of truckers. We hold that the case cannot be brought in the court of appeals and therefore dismiss the petition.

Section 5 of the Omnibus Transportation Employee Testing Act of 1991, Pub.L. No. 102-143, tit. V, § 5(b)(1), (2), (3) & (4), 105 Stat. 961, directed the Secretary of Transportation to select four states "of varying geographical and population characteristics" to participate for one year in "a pilot test program for the purpose of testing the operators of commercial motor vehicles on a random basis to determine whether an operator has" illegally used "alcohol or a controlled substance." After the pilot program expires, the Secretary must report to Congress on the results. Id. § 5(b)(5). Congress made available $5 million in grant money for the four participating states. Id. § 5(b)(6). The Secretary administers the pilot program under the Motor Carrier Safety Assistance Program, id. § 5(b)(1), which provides grants to states to develop and implement programs for the enforcement of "Federal rules, regulations, standards, and orders applicable to commercial motor vehicle safety and compatible State rules, regulations, standards, and orders." 49 U.S.C.App. § 2302(a). To qualify for a grant, a state must submit a plan to the Secretary. See 49 U.S.C.App. § 2302(b); 49 C.F.R. §§ 350.11, 350.13; 49 C.F.R. pt. 350, app. A at 472-73. When approved, the state plan "serve[s] as the basis for monitoring and evaluating performance of the State under the grant." 49 C.F.R. § 350.11(b).

In May 1992, the Department of Transportation issued a press release announcing that Nebraska, Utah, Minnesota, and New Jersey had been selected as the four pilot program states. In early July 1992, the Secretary entered into grant agreements giving each state approximately $1.25 million to run its program. The four states had submitted plans to the Secretary outlining how they intended to conduct random alcohol and drug testing of truck drivers. The plans, which are included in the joint appendix to the briefs, contain some similarities and many differences. According to petitioners, "[i]t appears that the states proceed on two different tracks in implementing the testing, i.e., a probable cause track and a so-called 'voluntary' track." Petitioners' Brief at 6 n. 3. ¹ Focusing on the "voluntary" track, petitioners say the random testing is not really voluntary because uniformed state law enforcement officers may be involved (as the programs for Nebraska, Minnesota and New Jersey, but not Utah, apparently allow) and because a driver may face consequences--such as the state's notifying his employer--if he refuses to consent to testing. ²

In their reply brief, petitioners describe their petition for review, filed on December 22, 1992, as a facial challenge to "the Pilot Program" raising "purely legal" issues that may be resolved without reference to facts. It could hardly be otherwise. The case comes before us without any factual findings, without any rulemaking proceedings and, indeed, without anything resembling an administrative record. We have the statute, the four state plans, the grant agreement each state entered into with the Federal Highway Administration, and an appendix in which petitioners have assembled affidavits, memoranda and letters of no particular moment, some apparently collected through a Freedom of Information Act request. Since petitioners now say theirs is a facial constitutional challenge, if we had jurisdiction we would have to decide whether "the Pilot Program"--whatever that might comprehend--was incapable of being administered in a constitutional fashion. See Reno v. Flores, --- U.S. ----, ----, 113 S.Ct. 1439, 1446, 123 L.Ed.2d 1 (1993); Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 632-33 n. 10, 109 S.Ct. 1402, 1421, n. 10, 103 L.Ed.2d 639 (1989).

Petitioners, joined by the Secretary, tell us that our jurisdiction to render a judgment on the merits rests on "28 U.S.C. § 2342(3)(B)(5)." Petitioners' Brief at 1; Brief for Respondents at 1. This is an obvious error. There is no " § 2342(3)(B)(5)." Section 2342 does contain a subsection (3)(B)(v), but it deals with rules and orders of the Federal Maritime Commission. We suppose the parties had in mind 28 U.S.C. § 2342(5). In part, this grants jurisdiction to the courts of appeals to review "all rules, regulations, or final orders of the Interstate Commerce Commission made reviewable by section 2321 of this title...." The link between this provision and actions of the Secretary of Transportation dates to 1966, when Congress created the Department of Transportation and transferred to the Department powers then held by other agencies. 49 U.S.C.A. § 1655 (1976 ed.). In that year the newly formed Department of Transportation took over some authority then held by the Department of Commerce, § 1655(a); the Coast Guard, § 1655(b); the Department of the Treasury, § 1655(b); the Federal Aviation Administration, § 1655(c); the Civil Aeronautics Board, § 1655(d); the ICC, § 1655(e); the Army, § 1655(g); and the Department of the Interior, § 1655(i).

As to judicial review of orders and other action by the Secretary of Transportation, Congress provided thus:

Orders and actions of the Secretary 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. § 1653(c). After 1966, whenever the Secretary exercises functions pursuant to authority transferred to his Department from the ICC, § 1653(c) therefore dictates that judicial review occur "in the same manner as if" the functions had been retained by the ICC--that is, in the court of appeals on a petition for review pursuant to 28 U.S.C. § 2342(5).

In Center for Auto Safety v. Skinner, 936 F.2d 1315 (D.C.Cir.1991), we held that courts of appeals, rather than district courts, had jurisdiction over challenges to regulations "issued by the Federal Highway Administration, a part of the Department of Transportation ("DOT"), pursuant to authority transferred from the Interstate Commerce Commission ("ICC") to DOT under the Department of Transportation Act." Id. The First Circuit reached the same result in Cousins v. Secretary of U.S. Department of Transportation, 880 F.2d 603 (1st Cir.1989) (en banc), a challenge to a Transportation Department regulation prohibiting deaf individuals from working as truck drivers, a regulation " 'relating generally to qualifications ... of employees and safety of operation and equipment.' " Id. at 611 (quoting 49 U.S.C.A. § 1655(e)(6)(C) (1976 ed.)) (ellipsis in original). "Thus, the ICC was the 'agency exercising' driver safety regulations 'functions ... immediately preceding their transfer' to DOT, and judicial review of DOT's exercise of these functions must take place 'in the same manner as' it would if the ICC exercised them." Id. (quoting 49 U.S.C. § 1653(c)) (ellipsis in original). In Owner-Operators Independent Drivers Ass'n v. Skinner, 931 F.2d 582 (9th Cir.1991), the Ninth Circuit concluded that it, and not the district court, had jurisdiction to consider a challenge to the Transportation Secretary's regulations requiring motor carriers to test truck drivers for drugs since the regulations were issued pursuant to the Secretary's authority under 49 U.S.C. § 3102 to regulate safety, which originally had been a function of the ICC.

The case before us is quite different from those just discussed. The function exercised by the Secretary is the function to make grants to the states. The direct source of the Secretary's authority, of course, cannot be traced to powers exercised by the ICC in 1966. It stems from the Omnibus Transportation Employee Testing Act of 1991. The only "order" issued by the Secretary was his decision approving the grant agreements. While the Secretary is to exercise his grant-making authority pursuant to the Motor Carrier Safety Assistance Program, this statute was enacted in 198...