Flat Creek Transportation, LLC v. Federal Motor Carrier Safety Administration et al

Filing 47

MEMORANDUM OPINION AND ORDER: Elaine L. Chao succeeded Anthony R. Foxx as Secretary of the United States Department of Transportation. Therefore, Elaine L. Chao is automatically substituted for Anthony R. Foxx by operation of FRCP 25(d). It is ORD ERED as follows: 1. Defendants motion to substitute their reply brief (Doc. 42 ) is DENIED as moot. 2. Plaintiffs motion for leave to file a rebuttal to Defendants proposed reply brief (Doc. 44 ) is DENIED as moot. 3. Defendants motion to dismiss (Doc. 19 ) is GRANTED, and this case is DISMISSED without prejudice for lack of subject matter jurisdiction. Final judgment will be issued separately. Signed by Chief Judge William Keith Watkins on 9/20/2017. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
FLAT CREEK TRANSPORTATION, )
LLC, an Alabama limited liability
)
company,
)
)
Plaintiff,
)
)
v.
) CASE NO. 1:16-CV-876
) (WO)
FEDERAL MOTOR CARRIER
)
SAFETY ADMINISTRATION,
)
1
ELAINE L. CHAO, in her capacity as )
)
Secretary of the United States
)
Department of Transportation, and
)
KENNY PRICE, in his capacity as
)
Alabama Division Administrator
)
(Federal Motor Carrier Safety
)
Administration),
)
Defendants.
)
MEMORANDUM OPINION AND ORDER
Before the court is the motion to dismiss (Doc. # 19) filed by Defendants
Federal Motor Safety Administration (“FMCSA”), Elaine L. Chao, and Kenny Price.
Also before the court is Defendants’ motion (Doc. # 42) to substitute their reply brief
and Plaintiff’s motion (Doc. # 44) for leave to file a rebuttal to Defendants’ proposed
reply brief. Upon consideration of the motions, the court concludes that the motion
to dismiss is due to be granted, and the remaining motions are due to be denied as
1

Elaine L. Chao succeeded Anthony R. Foxx as Secretary of the United States Department
of Transportation. Therefore, Elaine L. Chao is automatically substituted for Anthony R. Foxx by
operation of Rule 25(d) of the Federal Rules of Civil Procedure.

moot.
I.

STANDARD OF REVIEW

Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Burns v. Windsor Ins. Co., 31
F.3d 1092, 1095 (11th Cir. 1994). This court is “‘empowered to hear only those
cases within the judicial power of the United States as defined by Article III of the
Constitution,’ and which have been entrusted to them by a jurisdictional grant
authorized by Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409
(11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)).
Therefore, a federal court is obligated to inquire into subject matter jurisdiction sua
sponte “at the earliest possible stage in the proceedings.” Id. at 410. “It is to be
presumed that a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511
U.S. at 377.
Plaintiff’s Rule 12(b)(1) motion to dismiss for lack of jurisdiction presents a
“facial attack” on the existence of subject matter jurisdiction. A “facial attack” on
the complaint “require[s] the court merely to look and see if the plaintiff has
sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar,
919 F.2d 1525, 1529 (11th Cir. 1990). In contrast, “factual attacks” challenge “the
existence of subject matter jurisdiction in fact, irrespective of the pleadings, and
2

matters outside the pleadings, such as testimony and affidavits, are considered.” Id.
28 U.S.C. § 1331 provides that “[t]he district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.” Generally, in accordance with § 1331, “[w]hen a plaintiff makes a
plausible argument that a federal statute creates his right to relief, the district court
has subject-matter jurisdiction over that complaint.” Lanfear v. Home Depot, Inc.,
536 F.3d 1217, 1221 (11th Cir. 2008). However, when a more specific statute vests
original jurisdiction in a different court, the more specific statute will control. See
Ligon v. LaHood, 614 F.3d 150, 154 (5th Cir. 2010) (“Specific grants of jurisdiction
to the courts of appeals override general grants of jurisdiction to the district courts.”).
II.
A.

FACTS2

Regulatory Context
By law, the Secretary of Transportation must “prescribe minimum safety

standards for commercial motor vehicles” and determine whether individual owners
and operators are “fit to operate safely commercial motor vehicles.” 49 U.S.C. §§
31136(a), 31144(a)(1). The Secretary’s assessment of owner-operator safety is to
take into consideration an owner or operator’s accident record and the accident and

2

For purposes of the motion to dismiss for lack of jurisdiction, the court assumes that the
factual allegations of the complaint are true. Lawrence, 919 F.2d at 1529. Outside the allegations
of the complaint, the only potentially determinative jurisdictional fact is that, as a result of the
compliance review at issue in this case, Plaintiff ultimately received a “satisfactory” safety rating
after the conclusion of the on-site review. That fact is undisputed, although the parties dispute the
legal ramifications that favorable conclusion of the on-site compliance review may have on the
existence of jurisdiction.
3

safety inspection records of the owner or operator. Id. § 31144(a)(1). The Secretary
is required to periodically update the safety fitness determinations. Id.
The Secretary’s authority to implement these safety standards is delegated to
FMCSA, an agency within the Department of Transportation. 49 C.F.R. §§ 1.86(a),
1.87(f). FMCSA, in turn, has promulgated regulations governing its procedures for
“determin[ing] the safety fitness of motor carriers [and] assign[ing] safety ratings.”
49 C.F.R. § 385.1 (a). Pursuant to those regulations, FMCSA conducts on-site
compliance reviews of motor carrier’s operations and rates each carrier as
“satisfactory,” “conditional,” or “unsatisfactory.” Id. §§ 385.3, 385.9. Carriers with
“unsatisfactory” ratings receive an order from FMCSA prohibiting them from
operating. Id. § 385.13. That order is commonly called an operation out-of-service
(“OOS”) order. (Doc. # 1 at ¶26.)
In 2010, FMCSA adopted the Carrier Safety Measurement System (“CSMS”)
by which FMCSA uses carrier performance data to score carriers’ safety
performance risk. See Withdrawal of Proposed Improvements to the Motor Carrier
Safety Status Measurement System (SafeStat) and Implementation of a New Carrier
Safety Measurement System (CSMS), 75 Fed. Reg. 18,256-02 (Apr. 9, 2010). The
data used in the CSMS system comes from “a variety of sources,” including the
Motor Carrier Management Information System (“MCMIS”). Silverado Stages,
Inc., v. FMCSA, 809 F.3d 1268, 1271 (D.C. Cir. 2016). “To maintain the accuracy
of the information displayed within the SMS, FMCSA has created DataQs, ‘a web4

based dispute resolution [system] that allows an individual to challenge data
maintained by FMCSA.’” Id. (quoting Weaver v. FMCSA, 744 F.3d 142, 143 (D.C.
Cir. 2014)).
For each carrier, FMCSA uses CSMS to calculate a safety risk score derived
in part from a percentile ranking (as measured against a safety-event group of
comparable carriers3) in seven categories4 called Behavior Analysis Safety
Improvement Categories (“BASICs”). (Doc. # 1 at ¶ 38.) FMCSA “uses [the safety
risk] scores generated by the [CSMS] to identify [and prioritize] high-risk carriers
for on-site compliance reviews and other enforcement interventions, but these scores
do not affect a carrier’s safety-fitness ratings.” Owner-Operator Indep. Drivers
Ass’n, Inc. v. U.S. DOT, 831 F.3d 961, 964 (8th Cir. 2016).
B.

Plaintiff’s Claims
Plaintiff is a commercial motor carrier that primarily transports refrigerated

foods and does not transport hazardous materials. (Doc. # 1 at ¶ 16.) Plaintiff
operates in interstate commerce and is subject to FMCSA’s regulations and

3

Carriers are placed into safety-event groups based on two factors: (1) “whether the carrier
is in the straight-truck or combination-truck segment” and (2) “how many accidents the carrier has
sustained over the previous twenty-four months.” Owner-Operator Indep. Drivers Ass’n, Inc. v.
United States Dep’t of Transportation, 831 F.3d 961, 964 (8th Cir. 2016). “A straight truck has
all of its axles attached to a single frame, while a combination . . . truck consists of two or more
frames joined by couplings. A carrier is placed in the combination-truck segment if combination
trucks constitute at least 70% of its fleet and in the straight-truck segment if more than 30% of its
trucks are straight trucks.” Id. at 964–65.
4

The seven categories are unsafe driving, hours of service compliance, driver fitness, drug
or alcohol violations, vehicle maintenance, hazardous-materials handling (if applicable), and crash
history. (Doc. # 1 at ¶ 38.)
5

procedures for assigning safety ratings to motor carriers and, potentially, for
prohibiting carriers that are deemed unsafe from operating on the nation’s highways.
Plaintiff seeks declaratory and injunctive relief from Defendants’ alleged pattern of
unlawfully targeting it for an unusually high number of compliance reviews with the
intent of issuing an unwarranted OOS order that will place Plaintiff out of business.
Specifically, Plaintiff alleges that Defendants inappropriately select it for
compliance reviews based on (1) personal bias of certain FMCSA personnel against
Plaintiff’s owner and/or (2) flaws in the CSMS methodology that result in classifying
Plaintiff as a “high-risk” carrier. (Doc. # 1 at ¶ 47.) According to Plaintiff, on-site
compliance reviews and other investigations are burdensome and interfere with
business operations.
III.
A.

DISCUSSION

Motions for Leave to File Additional Briefs
At the time Plaintiff filed its complaint, it anticipated that it would soon be

unfairly targeted for an on-site compliance review and that FMCSA intended to use
the compliance review to unfairly rate Plaintiff as “conditional” or “unsatisfactory.”
Plaintiff sought injunctive and declaratory relief from the anticipated compliance
review, potential unfair safety rating, and possible OOS order.
After Plaintiff filed the complaint, FCMSA notified Plaintiff that it had been
selected for a compliance review. Plaintiff moved for emergency and preliminary
injunctive relief, including a request to stay the on-site compliance review pending
6

the outcome of this litigation. (Doc. # 25.) The court denied Plaintiff’s requests for
emergency injunctive relief on grounds that Plaintiff had not adequately
demonstrated the existence of subject matter jurisdiction. (Doc. # 29.) After a
hearing on the motion for preliminary injunction, the court denied the motion on
grounds that the Hobbs Act,5 28 U.S.C. §§ 2341–2351, vests original jurisdiction in
the courts of appeals to “enjoin, set aside, suspend . . . , or to determine the validity
of” certain rules, regulations, and final orders of FMCSA. 28 U.S.C. § 2342. The
requested relief required review “of validity of Defendant FMCA’s internal rules for
identifying ‘high risk’ motor carriers which led to the selection of Plaintiff for a
compliance review, or enjoining Defendant FMCA from issuing final enforcement
orders against Plaintiff,” which constituted rules or final orders subject to the Hobbs
Act. (Doc. # 30 at 1-2.)
As the parties were engaged in briefing on the motion to dismiss, the
compliance review proceeded. On April 21, 2017, Defendants submitted a reply
brief in support of their motion to dismiss. (Doc. # 41.) On May 8, 2017, Defendants
moved to substitute a different brief as their reply brief on grounds that,
unbeknownst to Defense counsel, during the briefing period, the on-site compliance
review had concluded with a “satisfactory” safety rating for Plaintiff. (Doc. # 42.)

5

The Hobbs Act, 28 U.S.C. §§ 2341–2351, also known as the Administrative Orders
Review Act or the Judicial Review Act, “governs the review of various administrative rules,
regulations, and orders, and should not be confused with the [Hobbs] Act of the same name that
criminalizes interstate robbery and extortion, 18 U.S.C. § 1951.” Chhetri v. United States, 823
F.3d 577, 582 n.3 (11th Cir. 2016).
7

Defendants attached their proposed substitute reply brief to their motion to dismiss,
which contained a new argument that the “satisfactory” rating rendered Plaintiff’s
complaint moot.
Plaintiff does not dispute that the on-site compliance review resulted in a
“satisfactory” rating, but filed a motion seeking leave to file a surreply to address
the new mootness argument. (Doc. # 44.) Plaintiff also submitted a brief that
addressed the merits of Defendants’ proposed substitute reply brief. (Doc. # 43.)
Plaintiff contended that the “satisfactory” rating in the recent compliance review did
not ameliorate the basis of Plaintiff’s complaint to the extent that Plaintiff allegedly
remains “improperly and arbitrarily classified as ‘high risk’” and thus subject to an
increased likelihood of compliance reviews.6
The court has considered Defendant’s proposed substitute reply brief and
Plaintiff’s brief in response. Accordingly, Defendants’ motion (Doc. # 42) to
substitute their reply brief and Plaintiff’s motion (Doc. # 44) for leave to file a
rebuttal are due to be denied as moot.
B.

Mootness
“A case becomes moot ‘when the issues presented are no longer ‘live’ or the

parties lack a legally cognizable interest in the outcome.’” Reich v. Occupational

6

Plaintiff also took issue with the manner in which FMCSA carried out the investigation,
despite the ultimate assignment of a “satisfactory” safety rating, but did not identify a concrete,
particularized injury caused by the manner in which FMCSA carried out the investigation for
which this court would have jurisdiction to grant relief.
8

Safety & Health Review Comm., 102 F.3d 1200, 1201 (11th Cir. 1997) (quoting
Powell v. McCormack, 395 U.S. 486, 496 (1969)). In considering whether a case is
moot, the court must “look at the events at the present time, not at the time the
complaint was filed.” Dow Jones & Co. v. Kaye, 256 F.3d 1251, 1254 (11th Cir.
2001).
For the reasons stated in the March 13, 2017 Order denying the motion for
preliminary injunction (Doc. # 30), under the Hobbs Act, 28 U.S.C. § 2342, the court
lacked jurisdiction to grant relief from the on-site compliance review or the resultant
safety rating. The conclusion of the on-site compliance review with a “satisfactory”
rating does not negate the applicability of the Hobbs Act. Therefore, as to any
requested relief from that particular on-site compliance review or resultant safety
rating, it is unnecessary to address Defendants’ mootness argument.
In its complaint, Plaintiff seeks relief from alleged continuous imminent
danger of unfair targeting for on-site compliance reviews and other enforcement
action based on an unwarranted “high risk” safety rating and the subjective desire of
FMCSA personnel to place Plaintiff out of business.7 The satisfactory conclusion
of the on-site compliance review did not eliminate Plaintiff’s “high risk” safety
rating or the alleged nefarious intentions of FMCSA personnel. Accordingly, if,

7

Defendants did not direct their mootness arguments at Plaintiff’s allegation that it remains
in continuous danger of targeting for on-site compliance reviews due to a high-risk safety rating
and FMCSA personnel bias.
9

outside the context of an imminent threat of a specific on-site compliance review,
the court has jurisdiction to grant Plaintiff prospective relief from continuous danger
of unfair investigatory targeting by FMCSA, the favorable conclusion of the on-site
compliance review does not necessarily moot the availability of that relief.8 Cf.
Reich, 102 F.3d at 1201 (“A claim for injunctive relief may become moot if: ‘(1) it
can be said with assurance that there is no reasonable expectation that the alleged
violation will recur and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.’” (quoting Los Angeles Cty. v. Davis,
440 U.S. 625, 631 (1979))); cf. also Aulenback, Inc. v. Fed. Highway Admin., 103
F.3d 156, 164-65 (D.C. Cir. 1997) (holding that, although carriers’ challenges to
particular OOS orders was mooted by the withdrawal of those orders, the
controversy was not moot as to the carriers’ challenge to the agency policy
underlying the issuance of the OOS orders).
C.

Claims Arising Solely Out of FMCSA Officer Bias
Plaintiff does not allege that, in the absence of a “high risk” CSMS safety

score, FMCSA personnel bias against Plaintiff, standing alone, would lead to unfair
targeting for investigations and safety reviews. Plaintiff has not identified any
particular imminent threat of FMCSA action based solely on FMCSA personnel bias

8

However, for the reasons stated in Part III.C. and D. of this Memorandum Opinion, this
court lacks jurisdiction to grant Plaintiff prospective relief from the danger of future unwarranted
targeting for on-site compliance reviews.
10

in the absence of Plaintiff’s “high risk” safety score. 9 Accordingly, any request for
prospective relief arising from unidentified potential FMCSA action solely
motivated by bias is not ripe for consideration. Texas v. United States, 523 U.S. 296,
300 (1998) (“A claim is not ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur at all.” (citations
and internal quotation marks omitted)).
Further, in the absence of any identifiable imminent action on the part of
FMSCA resulting solely from personnel bias, it is impossible to say whether this
court would have jurisdiction to review or enjoin the action under the Hobbs Act, 28
U.S.C. § 2342, or the Administrative Procedures Act (“APA”), 5 U.S.C. 500, et seq.
See 28 U.S.C. § 2342 (providing that the courts of appeals have original jurisdiction
to “enjoin, set aside, suspend . . . , or to determine the validity of” certain rules,
regulations, and final orders issued by the Secretary of Transportation); Atlanta Gas
Light Co. v. F.E.R.C., 140 F.3d 1392, 1404 (11th Cir. 1998) (holding that, to
determine whether an APA claim is ripe for review, a court must “evaluate the fitness
of the issues for judicial decision and the hardship to the parties of withholding court
consideration” by considering “four factors: (1) whether the issues presented are
‘purely legal’; (2) whether the challenged agency action constitutes ‘final agency

9

Although not a basis for this Memorandum Opinion, the court notes that, at the
preliminary injunction hearing, Plaintiff’s expert testified that FMCSA personnel were biased
against Plaintiff because, despite Plaintiff’s high-risk CSMS safety score, Plaintiff continuously
earned “satisfactory” safety ratings. (Doc. # 34 at 59-60.)
11

action’; (3) whether the administrative action has a ‘direct and immediate’ impact
on the petitioner; and (4) whether judicial resolution of the claim will aid, rather than
impede, effective administration by the agency” (citation and internal quotation
marks omitted)).
Finally, even if the court could attempt to consider a request for relief from
FMCSA bias in the absence of any identifiable imminent FMCSA action, the court
could not fashion any meaningful relief apart from an impermissible “obey the law”
injunction. See Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1531 (11th Cir. 1996)
(holding that an injunction to “obey the law,” without specifically identifying the
specific conduct that is prohibited, is not enforceable because it does not give fair
notice to the restrained party of what conduct will risk contempt).
Accordingly, alleged FMCSA personnel desire to harass Plaintiff and put
Plaintiff out of business, without more, does not create a justiciable issue.
D.

Claims Arising out of Plaintiff’s “High-Risk” CSMS Safety Score
Plaintiff contends that its “high risk” CSMS safety score (alone or used as an

excuse for heightened scrutiny by biased FMCSA personnel) subjects it to an
increased risk of targeting for enforcement and on-site compliance reviews.
According to Plaintiff, being targeted for heightened regulatory inspections and onsite compliance reviews can, at best, unduly burden day-to-day business operations,
and, at worst, end in an OOS order that, even if unjustified, will effectively put
Plaintiff out of business before Plaintiff can obtain administrative and judicial
12

review of the OOS order.
Plaintiff contends that the “high risk” CSMS safety score is unjustified
because the CSMS methodology used to arrive at the safety score is flawed.
Specifically, Plaintiff argues that the CSMS methodology is erroneously overbroad
in the types of accidents taken into account in calculating safety scores and that the
safety score is inherently unfair because it rates carriers against their peer groups.10
The Hobbs Act, 28 U.S.C. § 2342, vests original jurisdiction in the court of
appeals
to enjoin, set aside, suspend (in whole or in part), or to determine the
validity of . . . all rules, regulations, or final orders of the Secretary of
Transportation issued … pursuant to part B or C of subtitle IV,
subchapter III of chapter 311, chapter 313, or chapter 315 of title 49.
28 U.S.C. § 2342(3)(A). Therefore, to determine whether the Hobbs Act vests
original jurisdiction over Plaintiff’s remaining claims in the Court of Appeals, thus
depriving this court of subject matter jurisdiction, the court will consider two issues:
(1) whether the adoption of the CSMS system is a “rule[], regulation[], or final
order[] of the Secretary of Transportation . . . pursuant to part B or C of subtitle IV,
subchapter III of chapter 311, chapter 313, or chapter 315 of title 49;” and (2)
whether Plaintiff’s challenge to its “high risk” score necessarily implicates the

10

Plaintiff contends that rating carriers against their peer groups is unfair because a carrier
with a history of relatively few accidents and other violations in comparison with the industry as
a whole may nevertheless be rated “high risk” because the carrier’s CSMS percentile ranking is
calculated in comparison against a peer group of carriers that have similarly low histories of
accidents and other violations.
13

Hobbs Act by requiring review of the validity of the CSMS system.
1.

FMCSA’s adoption of the CSMS system, and/or the CSMS system
itself, is a “rule” within the scope of the Hobbs Act.

The Hobbs Act does not define what constitutes a “rule.” However, in
construing the Hobbs Act, courts11 have relied on the APA’s definition of the term:
“rule” means the whole or a part of an agency statement of general or
particular applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency.
5 U.S.C. § 551(4).
In adopting the CSMS system, FMCSA stated that CSMS would be “a more
comprehensive safety measurement system” used “to identify high-risk motor
carriers for on-site investigations consistent with 4138 of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU),
[Sec. 4138, Pub. L. 109-59, 119 Stat. 1745 (49 U.S.C. 31144 note), August 10,
2005].” 75 Fed. Reg. 18256-02, 18257. FMCSA’s adoption of the CSMS system
and/or the CSMS system itself is a rule because it is an “agency statement of general
or particular applicability and future effect designed to implement . . . law or policy”
or to “describ[e] the organization, procedure, or practice requirements of” FMCSA.
5 U.S.C. § 551(4).

11

See, e.g., Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142, 147-48 (D.C. Cir.
2014) (holding, in concluding that “FMCSA’s action falls short of being a rule, regulation or final
order within the meaning of 28 U.S.C. § 2342(3),” that the “alleged action was plainly not a rule—
i.e., a statement of ‘general or particular applicability and future effect,’ 5 U.S.C. § 551(4)”).
14

Section 4138 of the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU) states: “From the funds authorized
by section 31104(i) of [T]itle 49, United States Code, the Secretary shall ensure that
compliance reviews are completed on motor carriers that have demonstrated through
performance data that they pose the highest safety risk. At a minimum, a compliance
review shall be conducted whenever a motor carrier is rated as category A or B for
2 consecutive months.” Sec. 4138, Pub. L. 109-59, 119 Stat. 1745 (49 U.S.C. §
31144 note). Thus, FMCSA’s implementation of the CSMS system and/or the
CSMS system itself was a rule issued pursuant to FMCSA’s obligation, under 49
U.S.C. § 31144, to “determine whether an owner or operator is fit to operate safely
commercial motor vehicles” and “periodically update such safety fitness
determinations.” 49 U.S.C. § 31144(a). Section 31144 falls under “subchapter III
of chapter 311 . . . of [T]itle 49” of the United States Code. 28 U.S.C. § 2342(3)(A).
Therefore, the CSMS system, and/or the CSMS system itself, is a rule that falls
within the scope of the Hobbs Act.12
2.

Plaintiff’s challenge to the CSMS system brings its claim for relief
from its “high risk” rating within the scope of the Hobbs Act.

A plaintiff cannot evade the Hobbs Act by draping its claims in artful pleading
designed to “disguise the donkey.” Self v. Bellsouth Mobility, Inc., 700 F.3d 453,

12

The court notes that Pub. L. 109-59, pursuant to which FMCSA adopted the CSMS
system, also added subchapter III of chapter 311, chapter 313, and chapter 315 of Title 49 to the
scope of the Hobbs Act. Sec. 4125, Pub. L. 109-59, 119 Stat. 1745.
15

462 (11th Cir. 2012). The “‘Hobbs Act jurisdictional analysis looks to the ‘practical
effect’ of a proceeding, not the plaintiff’s central purpose for bringing suit.’” Chhetri
v. United States, 823 F.3d 577, 586 (11th Cir. 2016), cert. denied, 137 S. Ct. 305
(2016) (quoting Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1120
(11th Cir. 2014)). A challenge to agency action that “touches on, but does not seek
to invalidate, a [rule or] regulation” may not be subject to the Hobbs Act, depending
on “whether the resolution of the claim can be considered ‘wholly collateral’ to the
[rule or] regulation’s validity or whether the two are ‘inescapably intertwined.’” Id.
However, the courts of appeals have exclusive jurisdiction over claims that “‘depend
on establishing that all or part’ of an administrative [rule,] regulation or order
‘subject to the Hobbs Act is “wrong as a matter of law” or is “otherwise invalid.”‘”
Id. (quoting Mais, 768 F.3d 1120 (quoting in turn Self, 700 F.3d at 462)).
To evaluate Plaintiff’s challenge to its “high risk” score or to the resultant risk
of unfair prioritization for unnecessary and burdensome investigations, the court
must consider Plaintiff’s allegations that the CSMS system is inherently flawed,
and/or that FMCSA violated its statutory duties in adopting the CSMS system. In
other words, to prevail on Plaintiff’s remaining claims, Plaintiff must establish that
FMCSA rules subject to the Hobbs Act are “wrong as a matter of law” or “otherwise
invalid.” Id. (See also Doc. # 43 at 12 (arguing that the conclusion of the on-site
compliance review and “satisfactory” safety rating did not moot Plaintiff’s allegation
that it remains subject to future unwarranted investigations on grounds that FMCSA
16

is “violating its statutory duty to ensure the accuracy of” CSMS data and
“implementing its flawed regulatory scheme to improperly classify [Plaintiff] as
high risk”).)13
Accordingly, Plaintiff’s remaining claims are encompassed by the Hobbs Act.
Nevertheless, Plaintiff argues that original jurisdiction is appropriate in the district
court because (1) the remaining claims are subject to the APA, and (2) the remaining
claims do not concern an FMCSA “final order.” The court will address these
arguments in turn.
The APA provides that “[a] person suffering a legal wrong because of agency
action . . . is entitled to judicial review.” 5 U.S.C. § 703. As Plaintiff points out, in
cases brought pursuant to the APA, subject matter jurisdiction is predicated on
federal question jurisdiction under 28 U.S.C. § 1331.14 Although Section 1331

13

(See also, e.g., Doc. # 1 at ¶ 30 (alleging that FMCSA’s use of CSMS scores to prioritize
carriers for compliance reviews violates 49 U.S.C. § 31144(b)(3) and regulations promulgated
pursuant to § 31144); Doc. # 1 at ¶ 33 (arguing that FMCSA’s use of CSMS violates a statutory
duty under 49 U.S.C. § 31106(e)(1) to ensure that data is complete, timely, and accurate); Doc. #
1 at ¶ 34 (alleging that the accident database used for calculating CSMS scores is defective and
that FMCSA’s DataQs system for challenging FMCSA data errors is futile); Doc. # 1 at ¶ 37
(alleging that the CSMS system is flawed because it takes preventable and non-preventable
accidents into consideration); Doc. # 1 at ¶ 40 (alleging that the CSMS system’s algorithm for
calculating percentile rankings is flawed because it ranks carriers relative to their peers); Doc. # 1
at ¶¶ 64, 66 (requesting declaratory and injunctive relief requiring FMCSA to ensure the accuracy
of the CSMS system and the databases used in the CSMS system).)
14

Plaintiff correctly points out that the APA acts as a waiver of sovereign immunity, but
does not provide an independent basis for subject matter jurisdiction in the federal courts. Rather,
subject matter jurisdiction is proper under the APA only in combination with federal question
jurisdiction granted pursuant to 28 U.S.C. § 1331. Choctaw Mfg. Co. v. United States, 761 F.2d
609, 615 (11th Cir. 1985) (noting that the APA does not serve as an independent grant of subject
matter jurisdiction); Alonso-Escobar v. USCIS Field Office Dir. Miami, Fla., 462 F. App’x 933,
935 (11th Cir. 2012) (citing cases for the holding that “neither the APA nor the [Declaratory
17

provides that “[t]he district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §
1331, it is well settled that “a special review statute vesting jurisdiction in a particular
court cuts off other courts’ original jurisdiction in all cases covered by the special
statute.” Inv. Co. Inst. v. Bd. of Governors of Fed. Reserve Sys., 551 F.2d 1270,
1279 (D.C. Cir. 1977). Further, the APA itself does not necessarily require actions
to be originally brought in district court. 5 U.S.C. § 703 (“The form of proceeding
for judicial review [under the APA] is the special statutory review proceeding
relevant to the subject matter in a court specified by statute or, in the absence or
inadequacy thereof, any applicable form of legal action . . . in a court of competent
jurisdiction.” (emphasis added)).
Thus, in light of the Hobbs Act’s specific grant of jurisdiction to the courts of
appeals, the existence of federal question jurisdiction over Plaintiff’s APA claims
does not control which court has original jurisdiction to hear the APA claims. When
an APA claim falls within the scope of the Hobbs Act, the Court of Appeals has
original jurisdiction to hear the claim. I.C.C. v. Bhd. of Locomotive Eng’rs, 482 U.S.
270, 282 (1987) (“While the Hobbs Act specifies the form of proceeding for judicial

Judgment Act] serves as an independent source of district court jurisdiction.”). Plaintiff is
incorrect in arguing that, because the APA does not grant subject matter jurisdiction, jurisdiction
cannot be restricted by the APA’s requirement that challenges to administrative action must be
brought against “final” agency action. “[F]ederal jurisdiction is . . . lacking when the
administrative action in question is not ‘final’ within the meaning of 5 U.S.C. § 704.” Nat’l Parks
Conservation Ass’n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003).
18

review of [Agency] orders, see 5 U.S.C. § 703, [the APA] codifies the nature and
attributes of judicial review.”); Chetri, 823 F.3d at 585 (holding that, “rather than
bring an original action in the district court[,] . . . challenges to administrative
regulations” that were “issued pursuant to . . . subchapter III of chapter 311” must,
in accordance pursuant to the Hobbs Act, “generally . . . be brought before the courts
of appeals pursuant to the [APA], 5 U.S.C. § 500 et seq.”).
Plaintiff argues that, under Weaver v. FMCSA, 744 F.3d 142, 143 (D.C. Cir.
2014) and Silverado Stages v. FMCSA, 809 F.3d 1268, 1274 (D.C. Cir. 2016), its
claims do not require review of a “final order” of FMCSA within the meaning of the
Hobbs Act. (Doc. # 38 at 9-12.) In Weaver and Silverado Stages, the plaintiffs
challenged FMCSA’s refusal to correct specific inaccurate information in the
MCMIS database FMCSA uses in the CSMS system to calculate safety risk.15 In
both cases, the Court of Appeals for the District of Columbia concluded that the
challenges to FMCSA’s refusal to correct particular safety violations were not
challenges to final orders subject to the Hobbs Act.
Weaver and Silverado Stages are distinguishable because the final agency
actions challenged in those cases were not “rules” or “regulations,” and resolution

15

Weaver, 744 F.3d at 146-47 (characterizing the challenged agency action); Silverado
Stages, 823 F.3d at 1272-73 (noting that the plaintiff challenged FMCSA’s failure to correct
information in the MCMIS database used to calculate CSMS scores for inspection prioritization,
but not the “validity or effectiveness” of the DataQs system available for challenging the inclusion
of inaccurate data in the MCMIS database).
19

of the plaintiff’s claims did not necessarily require the court to consider the validity
of FMCSA’s use of the CSMS system or other rules or regulations subject to the
Hobbs Act.16 In this case, Plaintiff has not identified or sought review of specific
safety violations that it believes should be removed from its record, but instead
premises its challenge to the “high risk” safety rating on the validity of FMCSA’s
use of the CSMS system. Accordingly, Weaver and Silverado Stages do not afford
Plaintiff an escape from the application of the Hobbs Act. See Chhetri, 823 F.3d at
586 (holding that the courts of appeals have exclusive jurisdiction over claims that
“depend on establishing that all or part’ of an administrative [rule,] regulation or
order subject to the Hobbs Act is wrong as a matter of law or is otherwise invalid.”
(citations and internal quotation marks omitted)).
Accordingly, Plaintiff’s challenge to its “high risk” safety rating and to the
resultant risk of prioritization for investigation is due to be dismissed for lack of
jurisdiction.17

16

See Weaver, 744 F.3d at 147 (holding that the challenged action was not a rule or
regulation); Silverado Stages, 823 F.3d at 1274 (holding that the plaintiff’s “challenge to its safety
violations” must . . . be brought initially” in the district court).
17

The court has considered whether to transfer this case to the Court of Appeals pursuant
to 28 U.S.C. § 1631, which allows for transfer “in the interest of justice” when a case is filed in
the wrong court. The “interest of justice” does not require transfer of Plaintiff’s claims to the Court
of Appeals for review under the Hobbs Act because Plaintiff did not file this action within 60 days
of FMCSA’s adoption of CSMS or within 60 days of assignment of the “high risk” safety rating.
28 U.S.C. § 2344 (“Any party aggrieved by [a final agency order subject to the Hobbs Act] may,
within 60 days after its entry, file a petition to review the order in the court of appeals wherein
venue lies.”). Cf. Alliance for Safe, Efficient, and Competitive Truck Transp. v. FMCSA, 755 F.3d
946, 953-54 (D.C. Cir. 2014) (holding that a challenge to “the underlying methodology of” the
CSMS system was time-barred by the Hobbs Act because it was not filed within 60 days of the
20

IV.

CONCLUSION

Accordingly, it is ORDERED as follows:
1.

Defendants’ motion to substitute their reply brief (Doc. # 42) is DENIED as

moot.
2.

Plaintiff’s motion for leave to file a rebuttal to Defendants’ proposed reply

brief (Doc. # 44) is DENIED as moot.
3.

Defendants’ motion to dismiss (Doc. # 19) is GRANTED, and this case is

DISMISSED without prejudice for lack of subject matter jurisdiction.
Final judgment will be issued separately.
DONE this 20th day of September, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

2010 adoption of the CSMS system).
21