Alliance for Safe, Efficient a, et al v. FMCSA, et al

Filing

OPINION filed [1497942] (Pages: 14) for the Court by Judge Garland [12-1305]

USCA Case #12-1305

Document #1497942

Filed: 06/17/2014

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2013

Decided June 17, 2014

No. 12-1305
ALLIANCE FOR SAFE, EFFICIENT AND COMPETITIVE TRUCK
TRANSPORTATION, ET AL.,
PETITIONERS
v.
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION AND
ANTHONY FOXX, IN HIS OFFICIAL CAPACITY AS SECRETARY OF
TRANSPORTATION,
RESPONDENTS

On Petition for Review of an Action of the
Federal Motor Carrier Safety Administration

David E. Frulla argued the cause for petitioners. With him
on the briefs were Shaun M. Gehan, Henry E. Seaton, and Mark
J. Andrews.
Gerald K. Gimmel was on the brief for amicus curiae
National Confectioners’ Logistics Council, Inc. in support of
petitioners.
Edward J. Kiley was on the brief for amicus curiae
Airforwarders Association in support of petitioners.
Jeffrey A. Clair, Attorney, U.S. Department of Justice,

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argued the cause for respondents. With him on the brief were
Stuart F. Delery, Principal Deputy Assistant Attorney General,
and Matthew M. Collette, Attorney. Paul M. Geier, Assistant
General Counsel, U.S. Department of Transportation, Peter J.
Plocki, Deputy Assistant General Counsel, and Joy Park, Trial
Attorney, entered appearances.
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: The petitioners in this case are
trucking companies, transportation intermediaries, and trade
associations composed of such firms. They seek review of
PowerPoint presentations that the Federal Motor Carrier Safety
Administration posted on its website on May 16, 2012. The
petitioners maintain that the PowerPoint presentations represent
an “astonishing” change in agency policy, which the agency
failed to subject to notice-and-comment rulemaking as required
by the Administrative Procedure Act.
We are not astonished. In our view -- and the agency’s -the PowerPoint presentations do nothing more than explain the
agency’s Safety Measurement System. Because that System
was announced and implemented in 2010, the petitioners’
present effort to challenge it comes too late. Under the Hobbs
Act, upon which this court’s jurisdiction depends, challenges to
agency rules, regulations, or final orders must be brought within
60 days of their issuance. See 28 U.S.C. § 2344. Because that
deadline had passed long before the petitioners filed their
petition for review, we dismiss the petition as untimely.

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I
Federal law instructs the Secretary of Transportation to
make “safety fitness determinations” for commercial motor
carriers and to make those determinations “readily available to
the public.” 49 U.S.C. § 31144(a). In response, the Secretary
has promulgated regulations establishing procedures and
standards for evaluating the “safety fitness” of commercial
motor vehicle operators and owners. See 49 C.F.R. Part 385.
After an on-site inspection, a motor carrier receives a safety
fitness rating based on such factors as the adequacy of safety
management controls, the frequency and severity of regulatory
violations, and other considerations. See 49 C.F.R. §§ 385.7,
385.9.
In 2000, the Secretary delegated responsibility for
administering the safety fitness rating system to the Federal
Motor Carrier Safety Administration (FMCSA), an agency
within the Department of Transportation. See 49 U.S.C. § 322;
49 C.F.R. § 1.86. FMCSA also became responsible for
administering a database that contains in-depth information
about driver conduct and qualifications, vehicle maintenance
and inspection, crashes, and safety management systems and
procedures. That database, which the agency developed in the
mid-1990s to help it select motor carriers for on-site inspections,
became available to the public on the agency’s website in 1999,
under the name SafeStat. See Withdrawal of Proposed
Improvements to SafeStat and Implementation of CSMS, 75
Fed. Reg. 18,256, 18,257-58 (Apr. 9, 2010). It is one of three
relevant databases operated by FMCSA. The other two are the
Safety and Fitness Electronic Records database (SAFER), which
contains carriers’ safety fitness ratings, and the Licensing and
Insurance database (L&I), which provides information about the
insurance and operating-authority status of carriers.

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On April 9, 2010, FMCSA announced that it would replace
SafeStat with a more comprehensive Safety Measurement
System (SMS) and solicited comments. The announcement of
the change was made in a Federal Register notice, which stated:
FMCSA announces that it will replace its Motor
Carrier Safety Status Measurement System (SafeStat)
with an improved Carrier Safety Measurement System
([]SMS) on November 30, 2010. . . . SafeStat is an
automated algorithm currently used by FMCSA to
identify high-risk and other motor carriers for on-site
compliance reviews. By implementing the new []SMS
algorithm, FMCSA will be able to better identify
high-risk motor carriers, make more efficient and
effective the Agency’s and its State partners’ allocation
of compliance and enforcement resources[,] and
provide the motor carrier industry and other safety
stakeholders with more comprehensive, informative,
and regularly updated safety performance data.
Id. at 18,256. Compared to its predecessor SafeStat, the Safety
Measurement System draws on a wider range of safety data,
including expanded law-enforcement data regarding citations,
warnings, and roadside inspections. Id. at 18,258. The data is
used to assign safety scores to individual carriers. See id. at
18,256-58. Safety Measurement System data does not, however,
affect carriers’ safety fitness ratings under 49 U.S.C. § 31144.
See 75 Fed. Reg. at 18,257 (noting that FMCSA would
“continue to issue safety ratings in accordance with 49 CFR part
385-Safety Fitness Procedures”).
In December 2010, FMCSA proceeded with
implementation of the system. Shortly before that, three of the
petitioners in this case -- the National Association of Small
Trucking Companies, the Expedite Association of North

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America, and the Air & Expedited Motor Carriers Association -filed a petition in this court, seeking review of the Safety
Measurement System and an emergency stay of its
implementation. The petitioners alleged that the system should
be set aside because it amounted to “a new model for
compelling compliance and determining the safety fitness of
motor carriers,” and because “FMCSA ha[d] not provided
adequate notice and opportunity for comment,” as required by
the Administrative Procedure Act, 5 U.S.C. § 553. Motion for
Emergency Stay at 11, 13, Nat’l Ass’n of Small Trucking Cos. v.
FMCSA, No. 10-1402 (D.C. Cir. Nov. 29, 2010). After the court
denied the petitioners’ motion for a stay, the parties reached a
settlement, and the court granted the petitioners’ motion to
dismiss the petition. See Order, Nat’l Ass’n of Small Trucking
Cos. v. FMCSA, No. 10-1402 (D.C. Cir. Mar. 10, 2011).
Under the settlement agreement, FMCSA agreed to add the
following disclaimer to its website:
USE OF SMS DATA/INFORMATION
The data in the Safety Measurement System (SMS) is
performance data used by the Agency and Enforcement
Community. A Î symbol, based on that data, indicates that
FMCSA may prioritize a motor carrier for further monitoring.
The Î symbol is not intended to imply any federal safety rating of
the carrier pursuant to 49 USC 31144. Readers should not draw
conclusions about a carrier’s overall safety condition simply
based on the data displayed in this system. Unless a motor
carrier in the SMS has received an UNSATISFACTORY safety
rating pursuant to 49 CFR Part 385, or has otherwise been
ordered to discontinue operations by the FMCSA, it is authorized
to operate on the nation’s roadways.
Motor carrier safety ratings are available at
http://safer.fmcsa.dot.gov and motor carrier licensing and
insurance status are available at http://li-public.fmscsa.dot.gov/

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Pet’rs’ Addendum 3, at 6.
On May 16, 2012, FMCSA posted to its website PDFs of
the PowerPoint presentations and related documents (hereinafter
PowerPoint presentations) that petitioners seek to challenge in
this case. See J.A. 70-155. The presentations describe the types
of information the agency makes available to the public and
explain how to use the agency’s three online databases. Id.
They also include the disclaimer that we have set out above. See
J.A. 150.
On July 16, 2012, the petitioners filed this action,
contending that the PowerPoint presentations constitute a new
legislative rule that the agency failed to subject to notice and
comment as required by the Administrative Procedure Act, 5
U.S.C. § 553, and to a regulatory flexibility analysis as required
by the Regulatory Flexibility Act, id. § 604. They also contend
that the presentations are arbitrary and capricious, inconsistent
with the Secretary of Transportation’s statutory obligations, and
unconstitutional. The petitioners maintain that this court has
jurisdiction over their challenges pursuant to the Hobbs Act, 28
U.S.C. § 2342(3)(A).
II
The Hobbs Act grants the courts of appeals exclusive
jurisdiction to set aside or determine the validity of certain
“rules, regulations, or final orders” of the Secretary of
Transportation. 28 U.S.C. § 2342(3).1 The petitioners maintain
that the PowerPoint presentations are reviewable under the
1

See also 49 U.S.C. § 351(a) (providing that an action taken
by FMCSA pursuant to delegated authority “may be reviewed
judicially to the same extent and in the same way as if the action
had been an action by the department”).

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Hobbs Act as a “final order” of the Secretary. See Reply Br. 22.
Even if that were so, however, the petitioners would still face
another hurdle. The Hobbs Act states that “jurisdiction is
invoked by filing a petition as provided by section 2344 of this
title,” 28 U.S.C. § 2342, and the cited section provides that an
aggrieved party may file a petition for judicial review of a final
order “within 60 days after its entry,” id. § 2344. We have held
that “[t]he 60-day period of the Hobbs Act is jurisdictional in
nature, and may not be enlarged or altered by the courts.”
United Transp. Union-Ill. Legislative Bd. v. Surface Transp. Bd.,
132 F.3d 71, 75 (D.C. Cir. 1998) (internal quotation marks
omitted).2
The petitioners filed their petition for review on July 16,
2012. That date was within 60 days of the posting of the
PowerPoint presentations, but it was more than two years after
the April 2010 Federal Register notice and more than one year
after the Safety Measurement System was implemented in
December 2010. Although the petitioners’ opening brief did not
seriously address the 60-day clock, it was plainly on their mind.
The brief characterizes the PowerPoint presentations as “new
and far-reaching,” Pet’rs’ Br. 1; “novel,” id. at 8; “astonishing,”
id., and a “sharp reversal of Agency policy,” id. at 48. But a
comparison of the 2010 Federal Register notice and the 2012
2

See Council Tree Commc’ns, Inc. v. FCC, 324 F. App’x 3,
4 (D.C. Cir. 2009) (“Under 28 U.S.C. § 2344, ‘[a]ny party
aggrieved by [a] final order’ . . . has only ‘60 days after its
entry’ to seek judicial review of the order.”); Vernal Enters., Inc.
v. FCC, 355 F.3d 650, 655 (D.C. Cir. 2004) (noting that a
petition not filed within 60 days “must be dismissed”); see also
Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1204
(2011) (noting that “lower court decisions have uniformly held
that the Hobbs Act’s 60-day time limit for filing a petition for
review of certain final agency decisions . . . is jurisdictional”).

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PowerPoint presentations makes clear that the latter do not
materially alter the former. Rather, as the agency maintains,
they “merely describe[] and explain[] the data compiled in the
agency’s existing Safety Measurement System,” which was
implemented in December 2010. Resp’ts’ Br. 29; see id. at 1-2.
The PowerPoint presentations run some 80 pages. The
petitioners advised the court at oral argument, however, that one
particular page best demonstrates how different the
presentations are from the Safety Measurement System as
portrayed in the 2010 Federal Register notice. See Oral Arg.
Recording at 31:30. That page, reproduced at Joint Appendix
153, looks like this:
i Summary
Three public sources of FMCSA data to provide an informed,
current, and comprehensive safety picture
1. Safety and Fitness Electronic Records (SAFER)
http://safer.fmcsa.dot.gov
2. Licensing & Insurance (L&I)
http://li-public.fmcsa.dot.gov
3. CSA’s Safety Measurement System (SMS)
http://ai.fmcsa.dot.gov/SMS
FMCSA believes that an examination of a motor carrier’s official
safety rating in SAFER and their authority and insurance status on
L&I, combined with their intervention prioritization status in CSA’s
SMS, provide users with an informed, current, and comprehensive
picture of a motor carrier’s safety and compliance standing with
FMCSA. FMCSA encourages the public to use the FMCSA
information available to help make sound business judgments.

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The petitioners contend that this page differs from the 2010
notice in four ways.
First, the petitioners allege that the PowerPoint page
“encourage[s] trucking customers to utilize ‘public data’ filtered
through the same . . . SMS methodology that the Agency
previously had characterized as an internal ‘prioritization’ tool.”
Pet’rs’ Br. 15. But the Federal Register notice did not say that
the Safety Measurement System would function solely as an
internal prioritization tool. Rather, it indicated that the system
would provide information to the public as well. See 75 Fed.
Reg. at 18,257-58 (“The new measurement system would be
used to identify high-risk motor carriers for on-site
investigations . . . . Furthermore, the new []SMS also would
provide motor carriers and other safety stakeholders such as
shippers with regularly updated safety performance assessments
through a public Web site . . . .” (emphasis added)).
Although the Federal Register notice did state that the
database had originally been used to prioritize agency
enforcement, the notice made clear that the new Safety
Measurement System was intended to do more. As the agency
explained: SMS’s predecessor, Safestat was
an automated algorithm currently used by FMCSA to
identify high-risk and other motor carriers for on-site
compliance reviews. By implementing the new []SMS
algorithm, FMCSA will be able to better identify
high-risk motor carriers . . . and provide the motor
carrier industry and other safety stakeholders with
more comprehensive, informative, and regularly
updated safety performance data.
Id. at 18,256 (emphasis added). Indeed, as the notice pointed
out, SafeStat itself “became available to the public” on

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FMCSA’s website in 1999. Id. at 18,257. Thereafter “[m]otor
carriers, the insurance industry, shippers, safety advocates, and
other interested parties began routinely accessing SafeStat data
online for use in their own safety analysis and business
decisions.” Id. at 18,257-58.
Second, the petitioners contend that the PowerPoint page is
new because it advises transportation users to make their “own
‘business judgments’ about which carriers to utilize,” “instead
of” relying on FMCSA’s safety fitness determinations and
licensing. Pet’rs’ Br. 7, 16. In so doing, the petitioners assert
that the agency forfeited its statutory obligation “to credential a
carrier as safe,” instead requiring “the transportation user” to be
“[t]he new arbiter for fitness.” Id. at 7.
This assertion does not accurately describe page 153 of the
Joint Appendix. That page does not encourage users to make
their own business judgments instead of relying on safety fitness
determinations; rather, it assumes that businesses make business
judgments, and it encourages them to use all of the available
information to do so. See J.A. 153 (stating that FMCSA
“believes that an examination of a motor carrier’s official safety
rating in SAFER and their authority and insurance status on
L&I, combined with their intervention prioritization status
in . . . SMS, provide users with an informed, current, and
comprehensive picture of a motor carrier’s safety and
compliance standing” (emphasis added)). This is nothing new.
The 2010 notice said that the new SMS “would
provide . . . other safety stakeholders such as shippers with
regularly updated safety performance assessments through a
public Web site.” 75 Fed. Reg. at 18,257. It requires no leap of
logic to expect that such stakeholders would use that
information to make their own business judgments. Indeed, as
we have noted above, shippers and other safety stakeholders had

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been using this data for “their own safety analysis and business
decisions” since 1999. Id. at 18,257-58 (emphasis added).
Third, the petitioners insist that this particular PowerPoint
page represents a new rule because, “[i]nstead of being able to
rely” on the motor carrier safety ratings (found in SAFER) and
the licenses granted to motor carriers (found in L&I), “the user
is now advised . . . to consider SMS scores at least co-equally
with safety ratings.” Pet’rs’ Br. 7.
Nothing on the PowerPoint page precludes users from
relying on the motor carrier safety ratings or license
determinations. To the contrary, they are the first two sources
of FMCSA data listed on the page. The page does not purport
to rank the three sources of information, although if it were read
as a ranking, it would appear to rank the SMS database last. See
J.A. 153. Nor does it advise the user to consider SMS scores
“co-equally.” It does encourage users to examine all three
sources of information, and it is a fair inference that the agency
believes that such an examination is needed to obtain “an
informed, current, and comprehensive picture of a motor
carrier’s safety and compliance standing.” Id. But there is
nothing new in that either. See 75 Fed. Reg. at 18,256 (stating
that SMS would “provide the motor carrier industry and other
safety stakeholders with more comprehensive, informative, and
regularly updated safety performance data”).
Finally, the petitioners’ underlying complaint is that the
agency used the PowerPoint presentations to promulgate the
Safety Measurement System as a de facto “new safety fitness
determination standard[],” in derogation of the existing
standards promulgated by the agency pursuant to 49 U.S.C.
§ 31144(a). Pet’rs’ Br. 29; see id. at 36-38. But this complaint
is directly contradicted by the settlement disclaimer, which
states that the SMS “Î symbol is not intended to imply any

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federal safety rating of the carrier pursuant to 49 USC 31144.”
J.A. 150. As the petitioners acknowledge, the disclaimer is part
and parcel of the challenged PDFs. See Oral Arg. Recording at
29:50-30:20. Indeed, it comes just three pages before the page
that most offends the petitioners, under a banner headline
asking: “What are the limitations of SMS?” See J.A. 150, 153.
Although they have no problem with the language of the
disclaimer, the petitioners maintain that the PowerPoint
presentations effectively overwhelm the disclaimer’s message.
Oral Arg. Recording at 30:00. In support, they point to
Appalachian Power v. EPA, in which we held (in a different
context) that, if a disclaimer’s language is mere “boilerplate,” it
cannot deprive an agency’s actions of binding effect and thereby
insulate those actions from judicial review. 208 F.3d 1015,
1023 (D.C. Cir. 2000). But unlike the agency disclaimer at issue
in Appalachian Power, the disclaimer at issue here is one upon
which the petitioners themselves insisted and that they
acknowledge is accurate.
Nor is there anything on page 153 of the Joint Appendix
that negates the disclaimer’s message. To the contrary, that
page identifies “[t]hree public sources of FMCSA data,”
expressly differentiating between the SMS website, which
contains the Safety Measurement System scores, and the
SAFER website, which contains the safety fitness
determinations (SFDs). J.A. 153. Moreover, on the same page
as the disclaimer is further language -- not required by the
settlement and in larger font than the disclaimer -- that makes
precisely the point upon which the petitioners insist: “The SMS
data are not a SFD, do not alter a carrier’s safety rating, and do
not impact a carrier’s operating authority.” J.A. 150. We
therefore see no basis for the petitioners’ claim that FMCSA
used the PowerPoint presentations to effectively promulgate
SMS as a new safety fitness determination standard.

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***
The petitioners acknowledge, as they must, that their
challenge to the 2012 PowerPoint presentations is time-barred
if those presentations are fully consistent with FMCSA’s 2010
Federal Register notice. Oral Arg. Recording at 33:20; see 28
U.S.C. § 2344. Because the PowerPoint presentations do no
more than describe a Safety Measurement System that was
announced in that notice and put in place in December 2010, the
petition to review those presentations is untimely under the
Hobbs Act.
III
The petitioners argue that we have authority not only to
review the PowerPoint presentations, but also to review the
underlying methodology employed by the Safety Measurement
System -- which they regard as arbitrary and capricious. We
have such authority, they maintain, because the PowerPoint
presentations are inextricably linked to that methodology. That
argument also fails.
The petitioners cite Public Citizen v. Nuclear Regulatory
Commission for the proposition that, to “the extent that an
agency’s action necessarily raises the question of whether an
earlier action was lawful, review of the earlier action for
lawfulness is not time-barred.” Reply Br. 27 (quoting Public
Citizen, 901 F.2d 147, 151-52 (D.C. Cir. 1990) (internal
quotation marks omitted)). Although the petitioners do not
mention it, Public Citizen relies on the reopening doctrine. See
901 F.2d at 150. That doctrine “allows an otherwise stale
challenge to proceed because ‘the agency opened the issue up
anew,’ and then ‘reexamined . . . and reaffirmed its [prior]
decision.’” P & V Enters. v. U.S. Army Corps of Eng’rs, 516
F.3d 1021, 1023 (D.C. Cir. 2008) (quoting Public Citizen, 901

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F.2d at 150-51). “The doctrine only applies, however, where the
entire context demonstrates that the agency has undertaken a
serious, substantive reconsideration of the existing rule.” Id. at
1024 (internal quotation marks omitted); see Am. Road &
Transp. Builders Ass’n v. EPA, 588 F.3d 1109, 1114-16 (D.C.
Cir. 2009); Nat’l Mining Ass’n v. U.S. Dep’t of Interior, 70 F.3d
1345, 1352 (D.C. Cir. 1995).
FMCSA did not undertake a substantive reconsideration of
the Safety Measurement System methodology when it published
the challenged PowerPoint presentations, nor do those
presentations alter that methodology. Rather, as we have
concluded above, the PowerPoint presentations merely
summarize and explain information concerning the Safety
Measurement System, which the agency implemented in 2010.
Accordingly, the reopening doctrine is of no assistance to the
petitioners.
The petitioners’ challenge to the Safety
Measurement System, like their challenge to the 2012
PowerPoint presentations, is effectively a challenge to the policy
FMCSA announced and implemented in 2010. That challenge
is time-barred by the Hobbs Act.
IV
For the foregoing reasons, the petition for review is
Dismissed.

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