Transam Trucking, Inc. v. Fed. Motor Carrier Safety Admin., 14–9503.

Citation808 F.3d 1205
Decision Date23 October 2015
Docket NumberNo. 14–9503.,14–9503.
Parties TRANSAM TRUCKING, INC., Petitioner, v. FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION (FMCSA), Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Christopher M. McHugh, Seigfreid Bingham, Kansas City, MO; (Kendra D. Hanson, Seigfreid Bingham, Kansas City, MO, on the briefs), for Petitioner.

Robert D. Kamenshine, Attorney (Paul M. Geier, Assistant General Counsel for Litigation and Joy Park, Trial Attorney, Department of Transportation; T.F. Scott Darling, III, Chief Counsel and Valerie Beck, Attorney Advisor, FMCSA, of Counsel; Stuart F. Delery, Assistant Attorney General and Matthew Collette, Attorney, with him on the brief) U.S. Department of Justice, Washington, D.C., for Respondent.

Before HARTZ, GORSUCH, and MORITZ, Circuit Judges.

MORITZ, Circuit Judge.

The Administrative Orders Review Act, better known as the Hobbs Act, 28 U.S.C. §§ 2341 –2351, grants the courts of appeals exclusive jurisdiction to set aside or determine the validity of certain "rules, regulations, or final orders" of the Federal Motor Carrier Safety Administration. In this case, TransAm Trucking, Inc. petitions for review of an email it received from FMCSA's counsel expressing the agency's refusal to issue TransAm a third amended compliance review report pursuant to the parties' settlement agreement. We conclude that email was not a "final order" within the meaning of 28 U.S.C. § 2342(3)(A), and we dismiss TransAm's petition for lack of jurisdiction. Because we lack jurisdiction, we also dismiss TransAm's motion to transfer the petition to the district court under 28 U.S.C. § 2347(b)(3).

BACKGROUND

Although the parties and this court are quite familiar with the procedural history of this case, we summarize it here to provide necessary context for resolving the jurisdictional question before us.

I. TransAm's 2012 Compliance Review and Administrative Proceedings

FMCSA is an administrative agency within the Department of Transportation. Through powers delegated to it by the Secretary of Transportation, the agency assigns safety fitness ratings to owners and operators of commercial motor vehicles. See 49 U.S.C. §§ 113(a), (f)(1) ; 49 U.S.C. § 31144 ; see also 49 C.F.R. § 1.87 (delegating authorities vested in Secretary of Transportation to Administrator of FMCSA); Midwest Crane and Rigging, Inc. v. Fed. Motor Carrier Safety Admin., 603 F.3d 837, 838–39 (10th Cir.2010) (summarizing history of motor carrier regulation). "Towards that end, [ ] FMCSA inspectors perform periodic on-site compliance reviews, in which they assess points for regulatory violations and preventable accidents." Id. at 839.

The compliance review is defined as

an on-site examination of motor carrier operations, such as drivers' hours of service, maintenance and inspection, driver qualification, commercial drivers license requirements, financial responsibility, accidents, hazardous materials, and other safety and transportation records to determine whether a motor carrier meets the safety fitness standard. A compliance review may be conducted in response to a request to change a safety rating, to investigate potential violations of safety regulations by motor carriers, or to investigate complaints or other evidence of safety violations. The compliance review may result in the initiation of an enforcement action.

49 C.F.R. § 385.3.

Following a compliance review, the agency considers factors enumerated in 49 C.F.R. § 385.7 and utilizes a prescribed methodology to assign the motor carrier one of three possible safety fitness ratings: satisfactory, conditional, or unsatisfactory. 49 C.F.R. §§ 385.3, 385.9(a). If a motor carrier believes FMCSA erred in assigning a proposed or final safety rating, the carrier can seek administrative review of the rating by submitting a written request to the chief safety officer. 49 C.F.R. §§ 385.11(e), 385.15. A motor carrier assigned a proposed or final rating of less than satisfactory may also take corrective actions and request a rating change at any time by submitting a written request to the appropriate FMCSA service center. 49 C.F.R. §§ 385.11(f), 385.17(a), (b). If FMCSA denies a motor carrier's request for a rating change, the carrier can seek administrative review of that denial under 49 C.F.R. § 385.15. 49 C.F.R. § 385.17(j). See also 49 C.F.R. § 385.423(a) (explaining administrative review of proposed safety ratings).

In February 2012, an FMCSA inspector performed an on-site compliance review at TransAm's Kansas headquarters. In a compliance review report dated February 22, 2012, the inspector cited TransAm for several violations, including a critical violation of 49 C.F.R. § 395.8(k)(1),1 and assigned TransAm a proposed conditional rating.

TransAm challenged the proposed rating on two fronts. First, TransAm filed a request to change the proposed safety rating based on corrective actions taken by TransAm after FMCSA issued the citation. See 49 C.F.R. §§ 385.11(f), 385.17(a), (b). A few weeks later, while that request remained pending, TransAm filed a petition for administrative review of the proposed safety rating. See 49 C.F.R. §§ 385.11(e), 385.15.

FMCSA granted TransAm's request for a rating change on June 5, 2012, retroactively upgrading TransAm's rating to satisfactory effective April 4, 2012. See In the Matter of TransAm Trucking, Inc. USDOT # 315503 , FMCSA–2012–0127, 2013 WL 2146669, at *1 (May 14, 2013) (discussing TransAm's administrative challenges to proposed safety rating). Nevertheless, through its petition for administrative review, TransAm maintained its challenge to the agency's citation of TransAm for a § 395.8(k)(1) violation. TransAm argued that despite the upgraded safety rating, FMCSA continued to report on a publicly accessible website that TransAm had been cited for a serious violation within the last 12 months. Id.

FMCSA's Assistant Administrator issued a written decision on May 14, 2013, dismissing TransAm's petition for administrative review as moot. The Administrator reasoned that even if the inspector erred in finding the violation, the only relief available to TransAm was an upgraded safety rating, and TransAm's rating had already been upgraded to satisfactory through its request for a rating change. The Administrator also characterized as moot TransAm's concern regarding FMCSA's continued reporting of the violation on an agency website because the relevant 12–month reporting period had elapsed. Id. at *1–2.

II. TransAm's Petitions for Judicial Review and the Settlement Agreement

TransAm filed a petition for judicial review, the second in a series of three, challenging the Administrator's dismissal of TransAm's petition for administrative review.2 We later granted TransAm's motion to abate appellate proceedings while the parties discussed settlement. The parties eventually executed a settlement agreement on October 17, 2013, in which FMCSA agreed to remove TransAm's violation of 49 C.F.R. 395.8(k)(1) and the resulting proposed conditional safety rating from the February 22, 2012, compliance review by issuing an amended compliance review report that didn't include any reference to the violation or proposed conditional rating. In return, TransAm agreed to dismiss its second petition for judicial review.

FMCSA subsequently issued two amended compliance review reports. Neither report referred to the § 395.8(k)(1) violation, the original proposed conditional safety rating, or the upgraded satisfactory rating. Instead, both reports indicated, "Your proposed safety rating is: This Review is not Rated." Agency Record (AR), 21, 33. According to the agency, these amendments satisfied its obligations under the settlement agreement and didn't alter TransAm's satisfactory rating even though neither report reflected that rating. But TransAm balked at dismissing its petition for judicial review, contending FMCSA breached the settlement agreement by refusing to issue an amended compliance review report expressly identifying TransAm's satisfactory rating.

In November 2013, TransAm's counsel and FMCSA's counsel exchanged several emails discussing TransAm's claim that FMCSA had breached the settlement agreement. Agency counsel's final email, dated November 20, 2013, expressed the agency's position that it had complied with the settlement agreement, that it wouldn't issue any further amended compliance review reports, and that the settlement agreement required TransAm to dismiss its second petition for judicial review.

Instead, TransAm filed a status report informing this court of the parties' settlement agreement dispute and seeking additional time "to file a motion to enforce settlement and accompanying brief." Case No. 13–9572, Pet'r Status Report, dated Dec. 2, 2013. We directed TransAm to file an opening brief on or before January 2, 2014, but questioned our jurisdiction to consider a motion to enforce "a collateral settlement agreement for which no record exists." Case No. 13–9572, Order, dated Dec. 2, 2013. We further instructed TransAm that if it filed a motion to enforce the settlement agreement, the motion must include an explanation of the jurisdictional basis and "why the proper procedure wouldn't be to initiate a separate action in a trial court to determine the enforceability of the proposed settlement agreement and then, if unsatisfied with the outcome of that proceeding, to initiate an appeal." Id. But TransAm declined to file such a motion; instead, on December 30, 2013, the parties filed a joint stipulation of dismissal, and we dismissed TransAm's second petition for review. See Fed. R.App. P. 42(b).

Three weeks later, on January 17, 2014, TransAm filed the instant petition for review of "the final decision of [FMCSA] refusing to issue an amended Compliance Review pursuant to a fully-executed settlement agreement with TransAm Trucking."3Case No. 14–9503, Pet. for Rev., 1. Again, we questioned our jurisdiction, noting that it appeared from the docketing statement that TransAm...

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