In re: Cargo Transporters ( 2021 )

Case: 21-60095 Document: 00515743108 Page: 1 Date Filed: 02/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
___________ FILED
February 12, 2021
No. 21-60095 Lyle W. Cayce
___________ Clerk
Cargo Transporters, Incorporated; Dupre Logistics,
L.L.C.; FFE Transportation Services, Incorporated; JB
Hunt Transport Services, Incorporated, Publicly
traded as Hunt Transport Services, Incorporated;
KLLM Transport Services; Knight Transportation,
Incorporated, publicly traded as Knight Swift
Transportation Holdings, Incorporated; Maverick
Transportation, L.L.C.; Schneider National Carriers,
Incorporated, publicly traded as Schneider National,
Incorporated; Swift Transportation Company,
Incorporated, publicly traded as Knight-Swift
Transportation Holdings, Incorporated; USXpress,
Incorporated, publicly traded as US Xpress
Enterprises, Incorporated; May Trucking Company,
Petitioners,
versus
Federal Motor Carrier Safety Administration,
Respondent.
______________________________
Petition for a Writ of Mandamus
to the Fed Motor Carrier Safety Admin
Agency No. 49 C.F.R.5.11
Agency No. 49 C.F.R. 389.21
______________________________
Case: 21-60095 Document: 00515743108 Page: 2 Date Filed: 02/12/2021
No. 21-60095
Before Willett, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Several trucking companies petition this court for a writ of mandamus
compelling the Administrator of the Federal Motor Carrier Safety
Administration to publish their petition for an exemption from drug testing
regulations. This exemption would permit them to use hair analysis—rather
than urine analysis—for the random drug tests they must administer to
employees.
Although section 5204(a) of the Fixing America’s Surface
Transportation Act, Pub. L. No. 114-94, 129 Stat. 1312, 1535 (2015) (codified
as a note to 49 U.S.C. § 113), provides that the Administrator shall publish a
petition “not later than 60 days after the date of receipt of a petition,” section
(b) provides that “[t]he Administrator may treat multiple similar petitions as
a single petition for the purposes of subsection (a).”
The trucking companies previously petitioned for a similar exemption
that would permit them to use hair analysis for the pre-employment drug
tests they must administer. Controlled Substances and Alcohol Use and
Testing: J.B. Hunt Transport, Inc., et al., Application for Exemption, 82 Fed.
Reg. 6688 (Jan. 19, 2017). The only difference between that petition and the
one the companies seek to compel the Administrator to publish is the point
at which the drug test is administered. Accordingly, because the
Administrator may treat these similar petitions as a single petition under
section 5204(b), she was not required to publish the companies’ second,
similar petition.
“Mandamus is an extraordinary remedy, available only where
government officials clearly have failed to perform nondiscretionary duties.”
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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Case: 21-60095 Document: 00515743108 Page: 3 Date Filed: 02/12/2021
No. 21-60095
Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 112 F.3d 1283,
1288 (5th Cir. 1997). “The legal duty must be set out in the Constitution or
by statute, and its performance must be positively commanded and so plainly
prescribed as to be free from doubt.” Id. (citation omitted). The companies
have failed to make such a showing.
The petition for a writ of mandamus is denied.
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