International Brotherhood of Teamsters; Teamsters Joint Council No. 7; Teamsters Joint Council No. 42; Advocates For Highway and Auto Safety; Truck Safety Coalition, Petitioners,
U.S. Department of Transportation; Federal Motor Carrier Safety Administration; Elaine L. Chao, Secretary of the U.S. Department of Transportation; T.F. Scott Darling III, Administrator of the Federal Motor Carrier Safety Administration; United States of America, Respondents. Owner-Operator Independent Drivers Association, Inc., Intervenor,
and Submitted March 15, 2017 San Francisco, California
Petition for Review of an Order of the Department of
Transportation, National Transportation Safety Board TRAN No.
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
Cullen, Jr. (argued), Joyce E. Mayers, and Paul D. Cullen,
Sr., The Cullen Law Firm PLLC, Washington, D.C., for
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.
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.
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.
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.
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.
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.
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.
WARDLAW, CIRCUIT JUDGE
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.
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 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
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
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).
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.
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