Sorreda Transport, LLC v. Federal Motor Carriers Safety Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sorreda Transport, LLC
v. 	Case No. 19-cv-1226-PB
Federal Motor Carrier Safety Administration
REPORT AND RECOMMENDATION
Plaintiff Sorreda Transport, LLC, (“Sorreda Transport” or
“Plaintiff”) seeks review of a final order of the United States
Department of Transportation’s Federal Motor Carrier Safety
Administration (“FMCSA” or “Defendant”) in which the FMCSA
affirmed its “unsatisfactory” safety rating of Sorreda
Transport. On December 12, 2019, Sorreda Transport filed a
complaint (Doc. No. 1) and an ex parte motion for a temporary
restraining order (“TRO”) (Doc. No. 2), seeking to stay the
application of the safety rating pending judicial review of the
final order. The district judge referred the motion to the
Magistrate Judge for a Report and Recommendation on its
disposition under 28 U.S.C. § 636(b)(1)(B).
On December 13, 2019, the court issued an order to show
cause (Doc. No. 4), requiring Sorreda Transport, inter alia, (1)
to demonstrate its efforts to notify the FMCSA of their motion
as required by Rule 65(b) of the Federal Rules of Civil
Procedure and (2) to explain how the claimed injury in the TRO
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is “immediate and irreparable.” Sorreda Transport filed a
memorandum of law (Doc. No. 5) in response to the show cause
order that same day. The court held a telephone conference with
the parties on December 16, 2019 to discuss further the TRO and
whether this court has jurisdiction. For the reasons that
follow, the court recommends that the district judge deny the ex
parte motion for a TRO and dismiss the complaint, because this
court lacks subject matter jurisdiction over Sorreda Transport’s
claims.
I. 	BACKGROUND
Sorreda Transport’s complaint stems from the results of a
compliance review conducted by the FMCSA in May 2019, which
resulted in “an ‘unsatisfactory’ safety rating.” Compl., Doc.
No. 1 at 2 ¶ 6. Sorreda Transport petitioned for administrative
review and final adjudication of the safety rating, challenging
certain violations identified by the FMCSA investigators. Doc.
No. 1 at 2 ¶ 7, 3 ¶¶ 10–12, 4 at ¶ 13. The FMCSA affirmed its
rating and issued a final order on November 26, 2019. Final
Order on Pet. for Admin. Review of Proposed Unsatisfactory
Safety Rating, Doc. No. 1-1 at 15. Sorreda Transport has
maintained that, without the TRO to stay the “unsatisfactory”
rating during the pendency of this case, it “will be forced to
lay off [its] drivers and shut down.” Ex Parte Mot. for TRO,
Doc. No. 2 at 1 ¶ 2.
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II. 	DISCUSSION
Before addressing the substantive sufficiency of Sorreda
Transport’s allegations, the court must assess whether it has
subject matter jurisdiction over plaintiff’s suit. See Acosta
Ramirez v. Banco Popular de P.R., 712 F.3d 14, 18 (1st Cir.
2013) (“Federal courts are obliged to resolve questions
pertaining to subject-matter jurisdiction before addressing the
merits of a case.”). “‘Federal courts are courts of limited
jurisdiction,’ possessing ‘only that power authorized by
Constitution and statute.’” Gun v. Minton, 568 U.S. 251, 256
(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994)). The plaintiff has the burden to establish
the court's jurisdiction. Calderón–Serra v. Wilmington Trust
Co., 715 F.3d 14, 17 (1st Cir. 2013).
Congress has provided broadly for the circuit court of
appeals to have “exclusive jurisdiction” over several agency
actions, including final orders of the Secretary of
Transportation, through the Hobbs Act.1 28 U.S.C. § 2342; accord
1 “The Hobbs Act referenced . . . [at] 28 U.S.C. §§ 2341–2351,
which governs the review of various administrative rules,
regulations, and orders, should not be confused with the Act of
the same name that criminalizes interstate robbery and
extortion, 18 U.S.C. § 1951.” Chhetri v. United States, 823 F.3d
577, 581 n.3 (11th Cir. 2016). The former was also formerly
known as the Administrative Orders Review Act. Port of Boston
Marine Terminal Ass’n v. Rederiaktiebolaget Transatl., 400 U.S.
62, 70 (1970).
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Pornomo v. United States, 814 F.3d 681, 690 (4th Cir. 2016)
(“More specifically, Congress has granted the courts of appeals
exclusive jurisdiction to determine the validity of “all rules,
regulations, or final orders of the Secretary of Transportation
issued pursuant to ... subchapter III of chapter 311 ... of
title 49,” which includes 49 U.S.C. § 31144.” (citing 28 U.S.C.
§ 2342(3)(A))). Congress also has specifically provided for
judicial review of the FMCSA’s final orders “in the United
States Court of Appeals in the circuit wherein the violation is
alleged to have occurred or where the violator has his principal
place of business or residence, or in the United States Court of
Appeals for the District of Columbia Circuit.” 49 U.S.C. §
521(b)(9); accord 49 C.F.R. § 386.67(a).
“Generally, when jurisdiction to review administrative
determinations is vested in the courts of appeals these
specific, exclusive jurisdiction provisions preempt district
court jurisdiction over related issues under other statutes.”
Connors v. Amax Coal Co., Inc., 858 F.2d 1226, 1231 (7th Cir.
1988). Such a provision “‘disfavors bifurcating jurisdiction
over various substantive grounds between district court and the
courts of appeals.’” Id. (quoting City of Rochester v. Bond, 603
F.2d 927, 936 (D.C. Cir. 1979)) (citing United Transp. Union v.
Norfolk & W. Ry. Co., 822 F.2d 1114, 1120–21 (D.C. Cir. 1987),
cert. denied, 484 U.S. 1006, 108 S. Ct. 700, 98 L.Ed.2d 651
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(1988); General Fin. Corp. v. FTC, 700 F.2d 366, 368 (7th Cir.
1983); Assure Competitive Transp., Inc. v. United States, 629
F.2d 467, 471 (7th Cir.1980); Envtl. Def. Fund, Inc. v. EPA, 485
F.2d 780, 783 (D.C. Cir. 1973)).
Recently, the District of Massachusetts addressed whether a
district court may hear an appeal of a final order issued by the
FMCSA. See generally, Bryson v. United States, 381 F. Supp. 3d
124 (D. Mass. 2019) (Gorton, J.). The facts of that case mirror
the facts presented by Sorreda Transport. In Bryson, the
plaintiff challenged the FMCSA’s final order imposing civil
penalties against him. Id. at 126. After receiving the final
order in October 2018, the plaintiff filed his complaint in the
District of Massachusetts, which he followed with a motion for
preliminary injunction in January 2019 to stay enforcement of
the penalties. Id. The court held that the only courts available
for judicial review of final agency action were the circuit
courts listed in 49 U.S.C. § 521(b)(9) and the FMCSA’s
regulation at 49 C.F.R. § 386.67(a). Id. at 127–28. Accordingly,
the court dismissed the complaint for lack of subject matter
jurisdiction in the district court and denied the plaintiff’s
motion for a preliminary injunction as moot. Id. at 128.
This case falls squarely within the parameters set forth in
Connors by the Seventh Circuit and in Bryson in the District of
Massachusetts. The FMCSA has issued a final order assessing
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civil penalties against Sorreda Transport, and so Sorreda
Transport may seek judicial review only in the appropriate
circuit court of appeals and not in this court under the express
provisions of 49 U.S.C. § 521(b)(9) and 49 C.F.R. § 386.67(a).
During the December 16, 2019 telephone conference with the
court, Sorreda Transport argued, however, that the TRO seeks
relief that a circuit court of appeals cannot grant, namely
staying the application of the safety rating during judicial
review and examining the legitimacy of the evidence presented
against Sorreda Transport during the administrative proceeding.
To that end, Sorreda Transport asserts that the case must remain
in the district court.
This argument is not persuasive based on the weight of
statutory authority to the contrary, namely the Hobbs Act and
the statute and regulation that govern specifically judicial
review of the FMCSA’s final orders. Furthermore, Rule 18 of the
Federal Rules of Appellate Procedure provides a clear process
for moving “for a stay pending review of [the agency’s] decision
or order” that contemplates the jurisdiction of a circuit court
of appeals. Fed. R. App. P. 18. This rule is contained within an
entire section of the Federal Rules of Appellate Procedure that
deals with appeals and enforcement of administrative orders. See
Fed. R. App. P. 15–20. Therefore, I recommend that the district
court deny the ex parte motion for a TRO and dismiss the
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complaint for lack of subject matter jurisdiction but do so
without prejudice to refiling in a court of competent
jurisdiction.
III. CONCLUSION
For the foregoing reasons, the court recommends dismissing
the complaint (Doc. No. 1) and denying the ex parte motion for a
TRO (Doc. No. 2) without prejudice. Any objections to this
Report and Recommendation must be filed within fourteen (14)
days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2);
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016). The fourteen-day period may be extended upon motion.
Failure to file specific written objections to the Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. See Fed. R. Civ. P. 72(b)(2);
Santos-Santos, 842 F.3d at 168.
________________________
Andrea K. Johnstone
United States Magistrate Judge
December 23, 2019
cc: 	Keith Mathews, Esq.
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