Opinion
CIVIL ACTION NO. 03-3630, SECTION "R" (5)
March 19, 2004
ORDER AND REASONS
Defendant Federal Motor Carrier Safety Administration moves the Court to dismiss pro se plaintiff Robert Fezekas's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Fezekas opposes the motion. For the following reasons, the Court grants defendant's motion.
I. Background
In 1995, Congress directed the Federal Highway Administration to issue an Advance Notice of Proposed Rulemaking to address "a variety of fatigue — related issues pertaining to commercial motor vehicle safety." 49 U.S.C. § 31136 note (citing Pub.L. No. 104-88, 109 Stat. 958). Congress directed the FHWA to propose a rule on, inter alia, the rest and recovery cycles of commercial motor vehicle drivers. See id.
In 1999, while the FHWA worked on the proposed hours — of — service ("HOS") rule, Congress created the Federal Motor Carrier Safety Administration. See 49 U.S.C. § 113 (a); Motor Carrier Safety Improvement Act of 1999, Pub.L. No. 106-159, 113 Stat. 1748 (1999). Congress created the FMCSA as an "administration of the Department of Transportation" and directed it to "consider the assignment and maintenance of safety as the highest priority" in motor vehicle carrier transportation. See id. §§ 113(a) (b). To accomplish this goal, Congress granted the FMCSA the authority to carry out the "duties and powers related to motor carriers or motor carrier safety vested in the Secretary" of Transportation, including those duties and powers related to the regulation of driver hours — of — service. See id. § 113(f)(1); see also 49 C.F.R. § 1.73(g) (authorizing FMCSA to "carry out the function vested in the Secretary . . . relating to commercial motor vehicle programs and safety regulation. . . ."); 49 C.F.R. § 1.73(1) (authorizing FMCSA to "carry out 49 U.S.C. § 31502 relating generally to qualifications and maximum hours of service of employees and safety of operation and equipment of motor carriers, motor private carriers. . . ."). The FMCSA continued the FHWA's work on the formulation of the proposed HOS rule.
The FMCSA published a notice of proposed rulemaking in May 2000 that suggested numerous changes to the HOS rule. See 65 Fed. Reg. 25,2540. The agency received more than 53,750 written and oral comments in response to the proposed rule, including over 700 comments at eight public hearings. See 68 Fed. Reg. 22,456, at 22,458. In addition, the FMCSA conducted two round — table discussions on the proposed rule. See id.
In April 2003, the FMCSA issued its final rule, with a compliance date of January 4, 2004. See 68 Fed. Reg. 22,456. The HOS rule limits the number of hours that commercial motor vehicle drivers may be on duty and prescribes the number of hours that they must remain off duty. See 49 C.F.R. § 395.0, et seq. The FMCSA concluded that the new rule "represents the best combination of safety improvements and cost containment that can realistically be achieved." 68 Fed. Reg. at 22,457.
On December 30, 2003, pro se plaintiff Robert Fezekas asked this Court to enjoin the implementation of the FMCSA's new HOS rule. Fezekas also filed a complaint against the FMCSA, alleging that the agency's new HOS rule violates, inter alia, the Tenth Amendment to the United States Constitution and the Regulatory Flexibility Act, 5 U.S.C. § 601, et seq.
The Court construed plaintiff's motion for an injunction as a request for a temporary restraining order. The Court refused to issue a TRO because it determined that plaintiff had not made a substantial showing of success on the merits or that he would suffer irreparable injury if the rule took effect. In addition, the Court found that plaintiff had not served defendant FMCSA; nor had he certified to the Court any attempts at service. The Court ordered plaintiff to serve a copy of the complaint and the Court's order on defendant, and it set a status conference for March 9, 2004.
Defendant now moves the Court to dismiss plaintiff's complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). For the following reasons, the Court grants defendant's motion.
II. Standard
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a district court's subject matter jurisdiction. The Court properly grants a motion to dismiss for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. See Home Builders Ass'n of Miss., Inc., v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) ( quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). A district court may dismiss an action for lack of subject matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981); see also Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir. 1997) (citations omitted). Defendant raises a "facial attack" on the complaint. Accordingly, the Court must examine whether plaintiff has sufficiently alleged a basis for subject matter jurisdiction, taking all of his allegations in the complaint as true. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 510 (5th Cir. 1980) ( citing Mortensen v. First Fed. Savings Loan, 549 F.2d 884, 891 (3rd Cir. 1977)).
III. Discussion
1. Jurisdiction
The Administrative Orders Review Act, commonly referred to as the Hobbs Act, 28 U.S.C. § 2341, et seq., governs the jurisdiction of federal courts to review federal motor carrier safety regulations. Section 2342 of the Hobbs Act provides that "[t]he court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all rules, regulations, or final orders of the Surface Transportation Board made reviewable by section 2321 of this title." 28 U.S.C. § 2342 (5). Section 2321 renders reviewable any "proceeding to enjoin or suspend, in whole or in part, a rule, regulation, or order of the Surface Transportation Board" under section 2342(5), except as otherwise provided by an Act of Congress. 28 U.S.C. § 2321(a).
The parties do not dispute the fact that the new HOS rule, codified at 49 C.F.R. § 395.0, et seq., constitutes a rule under the Administrative Procedure Act, 5 U.S.C. § 500, et seq.
Because the statute on its face mentions only the STB, the Court must determine whether the FMCSA's rules, regulations, and final orders fall within its ambit. When Congress created the Department of Transportation in 1966, it transferred some of the authority of the Interstate Commerce Commission to the new department. See Department of Transportation Act, Pub.L. No. 89-670, § 6, 80 Stat. 937 (1966). Specifically, Congress transferred the ICC's duty "[t]o regulate . . . qualifications and maximum hours of service of employees, and safety and operation of equipment" with respect to commercial motor vehicle carriers. 49 U.S.C. § 304(a)(1) (1976) (current version at 49 U.S.C. § 31502(b)(1)); Aulenback, Inc. v. Federal Highway Admin., 103 F.3d 156, 164 (D.C. Cir. 1997). When it transferred authority to the DOT, Congress provided "that actions taken pursuant to th[e] transferred authority would be subject to judicial review as though the transfer had never occurred." Aulenback, 103 F.3d at 164. The current review provision provides, in pertinent part, that,
[a]n action of the Secretary of Transportation in carrying out a duty or power transferred under the Department of Transportation Act . . . or an action of the . . . Federal Highway Administration . . . in carrying out a duty or power specifically assigned to the Administrator by that Act, may be reviewed judicially to the same extent and in the same way as if the action had been an action by the department, agency, or instrumentality of the United States Government carrying out the duty or power immediately before the transfer or assignment.49 U.S.C. § 351 (a).
Therefore, when the DOT carries out a duty transferred from the ICC, its action is reviewable in the same manner that it would have been if the ICC had taken the action itself.
From 1975 until 1995, the Hobbs Act provided exclusive jurisdiction in the court of appeals to review the ICC's rules, regulations, and final orders. See 28 U.S.C. § 2321 2342(5); Aulenback, 103 F.3d at 165. In 1995, Congress abolished the ICC and transferred the agency's remaining functions either to the Secretary of Transportation or to a new agency, the Surface Transportation Board. See H.R. Conf. Rep. No. 104-422, at 165(1995), reprinted in 1995 U.S.C.C.A.N. 850, 850. At the same time, Congress eliminated the references to the ICC in the Hobbs Act and substituted the STB in its place. See Pub.L. No. 104-88, § 305(d), 109 Stat. 945. This action did not change the jurisdiction of the courts of appeals to review actions of the DOT in carrying out powers transferred from the ICC in 1966. See Aulenback, 103 F.3d at 165 (substitution of STB for ICC "did not alter the manner of judicial review for actions of the Secretary of Transportation in carrying out the powers or duties transferred from the ICC in 1966, and . . . therefore, . . . such actions are reviewable under § 2342(5) to the same extent and in the same manner as actions of the STB."). Following this line of reasoning, appellate courts have consistently held that they have exclusive jurisdiction to review the actions of DOT agencies. See, e.g., Aulenback, 103 F.3d at 164-65; Florilli Corp. v. Pena, 118 F.3d 1212, 1213 (8th Cir. 1997) (upholding finding by district court that exclusive jurisdiction over review of FHWA's rules lies in courts of appeal); Am. Trucking Ass'ns, Inc. v. FHWA, 51 F.3d 405, 408-09 (4th Cir. 1995) (acknowledging that exclusive jurisdiction lies in the courts of appeals to review DOT regulations); Carpenter v. Dep't of Transp., 13 F.3d 313, 315 (9th Cir. 1994) (same); Cousins v. Sec'y of the U.S. Dep't of Transp., 880 F.2d 603, 611 (1st Cir. 1989) (en bane) (same); Oil Chem. Atomic Workers v. Skinner, 724 F. Supp. 1264, 1268 (N.D. Cal. 1989) (same).
Congress's transfer of motor carrier safety authority within the DOT to the newly — created FMCSA in 1999 does not alter the framework for judicial review. First, the FMCSA is "an administration" of the DOT to which the Secretary has delegated the duty to establish hours — of — service rules for commercial motor vehicle carriers. See 49 U.S.C. § 113(a); 49 C.F.R. § 1.73(g) (1). The FMCSA thus exercises powers transferred to the DOT from the ICC. Accordingly, section 2342(5) governs judicial review of the FMCSA's orders, and review jurisdiction lies exclusively in the courts of appeals. Second, judicial review of the rules and regulations of the FHWA, the agency responsible for safety administration before the creation of the FMCSA, rested exclusively in the courts of appeals. See Am. Trucking Ass'ns, 51 F.3d at 408-09; Carpenter, 13 F.3d at 315. Finally, the courts of appeals have treated the FMCSA's final orders as within their exclusive jurisdiction, see Darrell Andrews Trucking, Inc. v. FMCSA, 296 F.3d 1120, 1122-23 (D.C. Cir. 2002); A.D. Transport Express, Inc. v. U.S., 290 F.3d 761, 762 (6th Cir. 2002); El Conejo Americano of Texas, Inc. v. Dep't of Transportation, 278 F.3d 17, 18 (D.C. Cir. 2002), and two suits that challenge the validity of the FMCSA's new HOS rules are currently pending in the District of Columbia Court of Appeals. See Pub. Citizens v. FMCSA, No. 03-1165 (D.C. Cir. filed June 12, 2003); Edison Elec. Inst. v. FMCSA, No. 03-1353 (D.C. Cir. filed Oct. 20, 2003).
For the foregoing reasons, the Court finds that jurisdiction to review the FMCSA's final HOS rules lies in the Fifth Circuit Court of Appeals. The Court therefore lacks subject matter jurisdiction to entertain plaintiff's suit.
2. Transfer
If a district court lacks jurisdiction over a matter because another court maintains exclusive jurisdiction, the district court may transfer the action to the appropriate court. Title 28, United State Code, section 1631 provides that
[w]henever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.28 U.S.C. § 1631 (emphasis added).
A transfer from one court to another under section 1631 is appropriate when "(1) the transferor court lacks jurisdiction; (2) on the date the [suit] was filed, the transferee court could have heard the appeal; and (3) the interests of justice would be served by the transfer." In re Exclusive Ind. Corp., 751 F.2d 806, 808-09 (5th Cir. 1985); see also Gioda v. Saipan Stevedoring Co., Inc., 855 F.2d 625, 629 (9th Cir. 1988) (same).
Here, plaintiff's claim fails the second requirement. Section 2344 provides that "[o]n the entry of a final order reviewable under this chapter, . . . [a]ny party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies." 28 U.S.C. § 2344. This sixty — day period "is jurisdictional and cannot be judicially altered or expanded." Texas v. United States, 749 F.2d 1144, 1146 (5th Cir. 1985); see also Amberg v. FDIC, 934 F.2d 681, 683 (5th Cir. 1991) (citing Texas Mun. Power Agency v. Adm'r of U.S. Env'l Prot. Agency, 799 F.2d 173, 174 (5th Cir. 1986) ("Statutory time limits on petitions for review of agency actions are jurisdictional in nature such that if the challenge is brought after the statutory time limit, we are powerless to review agency's actions."). Therefore, under the clear language of the statute and applicable case law, the Court may not transfer this matter if the sixty — day period would have barred plaintiff from filing suit in the Fifth Circuit Court of Appeals on the date that he filed suit here. See Phillips v. Illinois Cent. Gulf R.R., 874 F.2d 984, 988 (5th Cir. 1989); Phinizy v. State of Ala., 847 F.2d 282, 283 (5th Cir. 1988).
As noted above, sections 2321 and 2342(5) render the HOS rule reviewable under this chapter. See 28 U.S.C. § 2321, 2342(5).
Here, the FMCSA promulgated the final HOS rule on April 28, 2003 and published it in the Federal Register. See 68 Fed. Reg. 22,456 (2003). Fezekas filed his complaint and his request for injunctive relief on December 30, 2003, well after the expiration of the sixty — day period. The Court finds that plaintiff's suit would not have been timely had it been filed in the Fifth Circuit Court of Appeals on December 30, 2003, and therefore the Court may not transfer this matter under section 1631.
The Court notes that dismissal here does not necessarily mean that plaintiff has no avenue to challenge the HOS regulations. If the agency later attempts to apply the rule in an enforcement action against plaintiff, the court of appeals that reviews the enforcement order also has the power to determine the party's substantive challenge to the rule. See GTE South, Inc. v. Morrison, 199 F.3d 733, 743 n. 3 (4th Cir. 1999); State of Texas, 749 F.2d at 1146-47.
IV. Conclusion
For the foregoing reasons, the Court dismisses plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).