International Brotherhood of Teamsters v. U.S. Department of Transportation

          Argued and Submitted March 15, 2017 San Francisco, California

         On Petition for Review of an Order of the Department of Transportation, National Transportation Safety Board TRAN No. FMCSA-2011-0097

          Eric Brown (argued), Barbara J. Chisholm, and Jonathan Weissglass, Altshuler Berzon LLP San Francisco, California; Henry Jasny, Advocates for Highway and Auto Safety, Washington, D.C.; for Petitioners.

          Paul Cullen, Jr. (argued), Joyce E. Mayers, and Paul D. Cullen, Sr., The Cullen Law Firm PLLC, Washington, D.C., for Intervenor.

          Dana Kaersvang (argued) and Michael S. Raab, Attorneys, Appellate Staff; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; Peter J. Plocki, Deputy Assistant General Counsel; Paul M. Geier, Assistant General Counsel; Molly J. Moran, Acting General Counsel; Office of the General Counsel, Office of Litigation and Enforcement, United States Department of Transportation, Washington, D.C.; Charles J. Fromm, Acting Chief Counsel, and Debra S. Straus, Office of Chief Counsel, Federal Motor Carrier Safety Administration, Washington, D.C.; for Respondents.

          Before: Kim McLane Wardlaw, Ronald M. Gould, and Consuelo M. Callahan, Circuit Judges.

         SUMMARY^[*]

         Agency

         The panel denied petitions for review challenging the Federal Motor Carrier Safety Administration's ("FMCSA") statutory authority to issue permits for U.S. long-haul operations to Mexico-domiciled trucking companies.

         The panel held that the International Brotherhood of Teamsters and Intervenor Owner-Operator Independent Drivers Association, Inc. had Article III constitutional standing to challenge the FMSCA's approval of Mexico-domiciled carriers. The panel further held that the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007 encompassed the Teamsters' and the Drivers Association's claims. Finally, the panel held that the Teamsters and the Drivers Association also had third-party organization standing.

         The panel held that it could not review the petition for review of the issuance of a Pilot Program Report because it was not a final agency action under the Administrative Procedure Act, and dismissed the petition challenging it.

         The panel held that the FMSCA's grant of a long-haul operating permit to Mexico-domiciled carrier Trajosa SA de CV, and the denial of the Teamster's challenge to the permit granting Trajosa operating authority, were reviewable final agency actions.

         The panel held that it had Hobbs Act jurisdiction for direct appellate review over the petitions for review of the decision to grant Trajosa a permit. The panel held, however, that it could not review the FMSCA's decision to grant Trajosa an operating permit because the decision whether to grant long-haul authority based on the results of a pilot program is committed to agency discretion by law.

         The panel held that it could not consider the Drivers Association's argument - that the FMSCA exceeded its statutory authority in granting a permit to a Mexico-domiciled carrier without requiring the carrier's drivers to first obtain a U.S. driver's license - because it was precluded by Int'l Bhd. Of Teamsters v. U.S. Dep't of Transp., 724 F.3d 206, 210-11 (D.C. Cir. 2013).

          OPINION

          WARDLAW, CIRCUIT JUDGE

         In the latest chapter of a long-running dispute between Mexico and the United States over Mexico-domiciled trucking companies' U.S. operations, the Federal Motor Carrier Safety Administration ("FMCSA") recently began granting permits for U.S. long-haul operations to those companies, concluding that they operate at a level of safety at least equivalent to those of U.S. and Canada-domiciled truckers. Petitioners International Brotherhood of Teamsters, et al. ("Teamsters") and Intervenor Owner-Operator Independent Drivers Association, Inc. ("Drivers Association") challenge the FMCSA's statutory authority to issue those permits. Because none of the parties' claims is properly before this Court, we deny the petitions for review.

         I.

         The present challenge arises from a thirty-five-year-long dispute between Mexico and the United States over cross-border trucking operations. U.S.-domiciled truckers have long opposed the entry of Mexico-domiciled truckers through both the political process and in the courts under the banner of highway safety, though their real concern appears to be preventing the increased competition threatened by the entrance of Mexico-domiciled carriers. Most recently, U.S.-domiciled truckers represented by the Teamsters and the Drivers Association challenged the adequacy of a pilot program which Congress required the FMCSA^[1] to conduct before granting long-haul operating authority to Mexico-domiciled carriers. See U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007, Pub. L. No. 110-28, § 6901, 121 Stat. 112, 183 (2007) ("2007 Act"). This is the Teamsters' and Drivers Association's second legal challenge to that program. The first, a challenge to the adequacy of the FMCSA's plan for conducting the program, was heard in the U.S. Court of Appeals for the D.C. Circuit. Writing for the court, Judge Kavanaugh recounted the relevant history leading up to the pilot program:

Before 1982, trucking companies from Canada and Mexico could apply for a permit to operate in the United States. In 1982, concerned that Canada and Mexico were not granting reciprocal access to American trucking companies, Congress passed and President Reagan signed a law that prohibited the U.S. Government from processing permits for companies domiciled in those two countries. The trucking dispute between the United States and Mexico has lingered since then.

The United States and Mexico attempted to resolve the impasse when negotiating the North American Free Trade Agreement. After NAFTA took effect in 1994, the U.S. Government announced a program that would gradually allow Mexico-domiciled trucking companies to operate throughout the United States. Soon thereafter, however, the U.S. Government announced that Mexico-domiciled trucking companies would be limited to specified commercial zones in southern border states.

Mexico then complained to a NAFTA arbitration panel about that limited access. The panel ruled that the United States had to allow Mexico-domiciled trucking companies to operate throughout the United States. But the panel also explained that the United States could require those companies to comply with the same regulations that apply to American trucking companies. The panel also ruled that if the United States failed to allow Mexico-domiciled trucks to operate throughout the United States, Mexico would be permitted to impose retaliatory tariffs.

In response, Congress passed and President George W. Bush signed a law that authorized the Federal Motor Carrier Safety Administration, part of the Department of Transportation, to grant permits to Mexico-domiciled trucking companies so long as the trucking companies complied with U.S. safety requirements. See Pub. L. No. 107-87, § 350, 115 Stat. 833, 864 (2001). As the U.S. Government worked to establish a permitting regime, Congress passed and President Bush signed another law requiring the Department of Transportation to implement a pilot program to ensure that Mexico-domiciled trucks would not make the roads more dangerous.

In 2007, the FMCSA instituted a pilot program, but Congress passed and President Obama signed a law that expressly defunded the program before it was completed. After Mexico imposed $2.4 billion in retaliatory tariffs in response, Congress passed and President Obama signed a law reinstating funds for the program. In 2011, the agency again instituted a pilot program, . . . .

Int'l Bhd. of Teamsters v. U.S. Dep't of Transp., 724 F.3d 206, 210-11 (D.C. Cir. 2013) (Teamsters I) (citations omitted).

         The Teamsters and the Drivers Association petitioned the D.C. Circuit to enjoin the pilot program before it began. The Teamsters argued, among other things, that the FMCSA had not planned for the "number of participants necessary to yield statistically valid findings, " as required by statute, 49 U.S.C. § 31315(c)(2)(C), because it had not established a threshold for the number of trucking companies that would need to participate in the pilot program before the agency would deem the program's results statistically valid, see Pilot Program on the North American Free Trade Agreement (NAFTA) Long-Haul Trucking Provisions, 76 Fed. Reg. 40, 420 (July 8, 2011) ("Pilot Program Plan"). Teamsters I, 724 F.3d at 216. The D.C. Circuit rejected this argument, holding that the FMCSA had planned for an adequate sample size by allowing "an unlimited number of trucking companies" to participate in the program. Id.

         The Drivers Association, meanwhile, argued that the FMCSA's decision to allow Mexico-domiciled motor carriers to use Mexican driver's licenses violated other statutory requirements. Id. at 212-13. The D.C. Circuit rejected this contention as well, concluding that "U.S. law permits Mexican truckers to use their Mexican commercial ...