DND International, Inc. v. Federal Motor Carrier Safety Administration

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3755
DND INTERNATIONAL, INC.,
Petitioner,
v.
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION,
Respondent.
____________________
Petition for review from the
Federal Motor Carrier Safety Administration.
No. FMCSA-2014-0159 — John Van Steenburg,
Assistant Administrator.
____________________
ARGUED SEPTEMBER 24, 2015 — DECIDED DECEMBER 15, 2016
____________________
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
MANION, Circuit Judge. DND International is a trucking
company whose operations were frozen in April 2014 when
the Federal Motor Carrier Safety Administration (FMCSA)
declared DND an imminent hazard and gave it only a few
hours to pull its trucks off the road. This case started with a
tragic accident on an unlit road on the night of January 27,
2014, when driver Renato Velasquez of DND International
2 No. 14-3755
crashed his semi-truck into two emergency vehicles and an-
other semi which were stopped on an Illinois highway. An
Illinois Toll Authority employee was killed and a police of-
ficer was seriously injured. As a result of this tragedy, the
FMCSA immediately revoked Velasquez’s commercial-driv-
ing privileges.
The FMCSA then opened a company-wide investigation
into whether DND’s drivers were following federal regula-
tions designed to keep exhausted drivers off the roads. This
investigation went on for approximately two months, and it
appears to have been quite thorough. It entailed many inter-
views, examination of records, verification of statistics, and a
number of interactions among FMCSA personnel. In fact, at
the conclusion of the investigation, the Field Administrator of
the Midwestern Service Center, Darin Jones, in consultation
with the FMCSA Director of Enforcement, legal counsel, and
FMCSA headquarters, spent one full week reviewing all rele-
vant information to ensure all the results were accurate before
he made his decision to issue an imminent-hazard out-of-ser-
vice order, also known as an IHOOSO.
Significantly, all during the two-month investigation
DND was permitted to continue normal operations. It was
later determined that during the two-month period there
were two or three minor problems, but otherwise the com-
pany operated fully and efficiently without incident. Never-
theless, on April 1, 2014, the FMCSA issued an IHOOSO with-
out warning, directing DND to immediately halt its trucking
operations nationwide. This was not an order telling the com-
pany it must conclude all deliveries and not dispatch new de-
liveries or pickups. Rather, trucks were ordered to immedi-
ately stop within eight hours, no matter where the trucks
No. 14-3755 3
were, and no matter what loads were in the process of being
delivered.
DND petitioned for administrative review of the
IHOOSO. In response, an administrative law judge (ALJ)
opened a hearing nine days after the freeze order issued and
rendered his decision after another six days. The ALJ ulti-
mately found that the IHOOSO should not have been issued,
and he revoked it, noting that the IHOOSO was an effective
“death penalty” to this small company. As best we can tell
from the record and from the oral argument, the company has
ceased doing business during the pendency of this action. The
sudden halt to the company’s operations put the company out
of business. As shown below, this petition for review does not
focus on the irretrievable damage suffered by DND, but ra-
ther seeks to correct a decision of an assistant administrator
that upheld the ALJ grant of relief to DND. As a result, the
case is moot and this court lacks the jurisdiction to provide
DND any relief. Thus, we dismiss the petition for review for
want of Article III standing.
I. Background
On January 27, 2014, DND driver Renato Velasquez was
passing through DuPage County, Illinois on Interstate 88
when he crashed into a semi-truck and two emergency vehi-
cles with their lights flashing. In the resulting compliance re-
view, the FMCSA found that Velasquez was driving more
hours than federal regulations allow. The review also dis-
closed that during the week before the accident, Velasquez
falsified his duty-status log four times. He was declared an
imminent hazard to the public on February 10, 2014, and or-
dered to immediately stop commercial driving.
4 No. 14-3755
Although DND’s other drivers were allowed to continue
operating, the FMCSA’s compliance review was not limited to
Velasquez. The agency found that some other DND drivers
had similar violations from driving more hours than allowed
or falsifying duty-status logs. Duty-status logs should reflect
where drivers are located at a given time. These are strict-lia-
bility regulatory violations. False records can thus reflect in-
tentional wrongdoing; they can also result inadvertently
when a driver is relying on his imperfect memory to report
when and where he drove. The FMCSA examines these rec-
ords because, by tracking driving hours and locations, the
government intends to keep exhausted truckers off the road.
The FMCSA’s company-wide compliance review showed
several regulatory violations among DND drivers as a group.
Three times, DND drivers drove more hours than allowed.
And three times, duty-status logs were inaccurate. The
FMCSA did not find these violations merited the “critical”
safety rating, which would have required DND to halt opera-
tions.
Instead, as a result of its compliance review, the FMCSA
issued the “conditional” safety rating to DND on March 21.
This particular type of safety rating allowed DND to continue
its trucking operations. This rating also issued 54 days after
the Interstate 88 accident that triggered the FMCSA’s compli-
ance investigation. On March 21, the agency met with DND,
which initiated changes. On March 28, DND sent the agency
an email stating that it was installing electronic on-board re-
corders (EOBRs) in every single one of its commercial vehi-
cles. EOBRs are integrated into truck engines and automati-
cally generate duty-status records, which means that DND
drivers have no way to falsify reports on how many hours
No. 14-3755 5
they are driving, when, and where. EOBRs are also a technol-
ogy that the FMCSA recommends to reduce fatigued driving.
Thus, by all accounts, the safety risk that DND posed was,
by the end of March, substantially resolved by cooperation
between DND and the FMCSA. The offending driver had
been removed. DND was under investigation, and it was ini-
tiating additional safety protocols. Further, the company had
operated for three months without incident.
Yet on April 1, the FMCSA suddenly issued an imminent-
hazard order against DND. DND had, in the view of the
FMCSA, been operating for three months since the incident as
an imminent hazard. The FMCSA had expressly determined
that DND did not have “adequate” safety management con-
trols in place, and allowed the company to operate. Then, on
April 1, it reiterated this same conclusion, and issued the or-
der.
This order was served at 2:38 PM on April 1. DND was
allowed exactly eight hours to halt operations and report the
location of every DND truck to an FMCSA administrator.
DND had 30 to 35 trucks on the road that day. In the words of
the ALJ, this order amounted to a “death penalty” for DND,
a small operation that still has not recovered. In addition to
citing the log-falsification violations, this IHOOSO stated that
DND had a record of unsafe driving in the six months preced-
ing the order. While DND drivers had some problems, this
was their record: one seatbelt violation, one lane-change
ticket, and two speeding tickets over 2.7 million miles driven
by many drivers. To say the least, these violations were rare.
Further, the FMCSA field administrator claims that he had
already decided to issue the imminent-hazard order over a
6 No. 14-3755
week before April 1st, and he used this week to confer with
his enforcement director, legal counsel, and headquarters. Af-
ter parking its trucks as ordered, DND contacted legal counsel
and on April 4 petitioned for review of the imminent-hazard
order. The ALJ determined that agency review was statutorily
required within 10 days. She ruled that the triggering date
was April 4, when DND served its petition, so she ordered
that a hearing and decision both happen by April 14. On April
8, DND told the ALJ that it would not waive the “ten-day stat-
utory requirement that [it receive] a decision within the ten
days.” The ALJ set a hearing to begin on April 10 and end on
April 14, with an ALJ ruling on the IHOOSO scheduled to is-
sue on April 14.
DND’s case was then reassigned to a separate ALJ, who
opened an administrative hearing on April 10. It continued on
April 11, 14, and 15, with a weekend break. Due to adminis-
trative facility-use limits, the hearing ended at 5 PM each day,
and there was no option to continue over the weekend. On
April 14, the ALJ asked DND to grant a one-day waiver of the
April 14 deadline, and the company agreed. On April 15,
DND asked the ALJ for a decision that day, but the judge was
not ready to rule.
The next day, April 16, the ALJ issued a 66-page decision,
which found in DND’s favor on both the procedural and sub-
stantive issues. First, regarding procedural rights, the FMCSA
argued that review of the imminent-hazard order must only
start within 10 days. On this issue, the ALJ wrote that the law
requiring an ALJ decision on an FMCSA freeze order “has
been settled since … 1997. We are bound by the case law of
the Department.” According to his decision, long-standing
DOT precedent required a decision on the freeze order within
No. 14-3755 7
10 days. Second, the ALJ also ruled for DND on its substantive
rights, by rescinding the imminent-hazard order as improp-
erly issued. Among his other findings, the ALJ concluded that
the FMCSA field administrator’s “testimony contradicted
most of the allegations” in the IHOOSO he issued.
As it had won all the relief it requested, DND had neither
method nor motive to appeal this ALJ order. The FMCSA did
appeal, however, to its Assistant Administrator. As he wrote
in his final decision, the FMCSA appealed these distinct is-
sues: (1) the ALJ’s finding “that the imminent hazard statute,
due process, and the Administrative Procedure Act (APA) re-
quired the Agency to complete a formal administrative re-
view no longer than 10 days after issuance of an imminent
hazard order,” and (2) the ALJ’s decision to rescind the freeze
order. The FMCSA sought different relief on each issue: it
wanted a removal of the 10-day deadline requirement for
IHOOSO review and requested reinstatement of the IHOOSO
issued against DND.
Six months after the ALJ’s order, the Assistant Administra-
tor overturned the ALJ ruling on the 10-day deadline, while
upholding the decision to rescind the IHOOSO. Based on the
Assistant Administrator’s readings of Section 521 and the
Fifth Amendment, he concluded that DND was only entitled
to a post-deprivation hearing which began within 10 days of
its request for review. Yet, he concluded, the IHOOSO was im-
proper on the merits, because the Field Administrator failed
to prove that DND’s operation constituted an imminent haz-
ard.
In practice, none of this affected the substantive rights of
DND, which had already received all the relief to which it was
entitled on April 16. At this point, the dispute and ruling of
8 No. 14-3755
the Assistant Administrator might be best characterized as in-
tra-agency decision-making. Yet, it is this decision which is
before the court, on a petition for review pursuant to 49 U.S.C.
§ 521(b)(9), which authorizes this court to review final orders
on a substantial evidence standard. Today we dismiss this
case for lack of standing.
II. Discussion
The parties extensively disputed whether or not the
FMCSA had a statutory obligation to start or also to decide
whether an IHOOSO was properly issued within ten days.
This is a serious issue which certainly affects the ability of
companies to freely operate. And, in this case, there is no
doubt that delay on the part of the agency appears unjustified
and particularly damaging. Nevertheless, we must always en-
sure that we have jurisdiction over any case.
Article III of the Constitution limits the jurisdiction of the
federal courts to deciding “cases” and “controversies,” and
the requirement of an actual controversy must exist not
merely at the initiation of the action, but throughout all stages
of the litigation. Kingdomware Techs., Inc. v. United States, ___
U.S. ___, 136 S. Ct. 1969, 1975 (2016); Chafin v. Chafin, ___ U.S.
___, 133 S. Ct. 1017,1023 (2013); Milwaukee Police Assʹn v. Bd. of
Fire & Police Commʹrs of City of Milwaukee, 708 F.3d 921, 929
(7th Cir. 2013). In order to meet that requirement, “a litigant
must show (1) that she has ‘suffered a concrete and particu-
larized injury that is either actual or imminent’; (2) ‘that the
injury is fairly traceable to the defendant’; and (3) ‘that it is
likely that a favorable decision will redress that injury.’” Mil-
waukee Police Ass’n, 708 F.3d at 926 (quoting Massachusetts v.
EPA, 549 U.S. 497, 517 (2007)). “Plaintiffs must demonstrate a
No. 14-3755 9
‘personal stake in the outcome’ in order to ‘assure that con-
crete adverseness which sharpens the presentation of issues’
necessary for the proper resolution of constitutional ques-
tions.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983),
quoting Baker v. Carr, 369 U.S. 186, 204 (1962).
Because DND already received all of the relief it sought—
the rescission of the imminent hazard order and the notice of
revocation—DND is not subject to any ongoing injury that
this court is equipped to remedy. In fact, in its request for re-
lief in this petition for review, DND does not even seek any
relief related to itself. First, DND “asks that this Court hold
that 49 U.S.C. § 521(b)(5)(A) requires that, within 10 days of
the issuance of an IHOOSO, an ALJ issue an Initial Decision,
after a review conducted pursuant to § 554 of the Administra-
tive Procedures Act.”
That request is merely for an advisory opinion that would
only affect future regulated entities. Perhaps because it is no
longer operating, DND has never sought declaratory relief in
this matter; its argument for what must occur within 10 days
was one of the two grounds on which it sought to have the
imminent hazard order rescinded, not the basis for any addi-
tional form of relief. Milwaukee Police Assʹn, 708 F.3d at 926
(”federal courts are prohibited from rendering advisory opin-
ions; they cannot divine on ‘abstract dispute[s] about the
law.’”) (quoting Alvarez v. Smith, 558 U.S. 87, 93 (2009)).
And, to the extent the Assistant Administrator erred in his
analysis, that hypothetical error did not affect the substantive
rights of DND on appeal from the decision of the ALJ. The
appeal from the ALJ to the Assistant Administrator is best
characterized as internal agency process, a system by which
the agency itself works out its own, internal view about the
10 No. 14-3755
contours of the law. Indeed, there seems no real reason that
DND needed to have been privy to the decision of the Assis-
tant Administrator at all.
Once the IHOOSO was lifted, there was no longer any on-
going injury redressable by this court. Certainly, in “excep-
tional,” limited circumstances we recognize an exception to
mootness doctrine where injuries are “capable of repetition,
yet evading review.” Spencer v. Kemna, 523 U.S. 1, 17 (1998). In
this case, however, the limited exception is inapplicable. If
DND’s complaint is that at the time of the action, an IHOOSO
is in effect and the agency is dragging its heels in violation of
the statutory deadline, DND can sue to compel a decision by
the agency. If the complaint is that DND reasonably antici-
pates the agency to do something it contends violates the stat-
utes, DND can sue for declaratory relief to clarify agency du-
ties. 1 In other words, there is nothing here that evades review.
Another way of approaching the defect in this case is by
asking what it is DND alleges that the agency did wrong.
Since this is a petition for review of an agency decision. DND
does not, and need not, allege that the missed deadline mate-
rially harmed it. Rather, in the action before us what DND in
effect alleges is that the legal reasoning of the Assistant Ad-
ministrator itself harms DND; that the FMCSA exceeded its
1 If DND’s complaint (something which appears quite plausible on
the facts of this case) is that the agency was acting arbitrarily in its issuance
of an IHOOSO, and that DND was damaged by this, DND has an available
cause of action in the form of a Bivens claim. Bivens v. Six Unknown Names
Agents of Federal Bureau of Narotics, 403 U.S. 388 (1971). This is certainly a
high bar; if DND alleged financial damage in addition to the bare statutory
violation, it might have had its day in court.
No. 14-3755 11
statutory deadline to issue a decision, and then issued a cor-
rect decision, but based upon faulty reasoning.
It is certainly true that in completing its IHOOSO review
on April 16, the agency exceeded its ten-day statutory dead-
line by five days. 2 Pursuant to 49 U.S.C. § 521(b)(5)(A), DND
was entitled to “opportunity for review … not later than 10
days after issuance of [an imminent-hazard] order.” The cor-
responding regulation uses essentially identical language to
require 10-day review. See 49 C.F.R. § 386.72(b)(4). Although
the agency observed at oral argument that meeting a 10-day
deadline can be difficult, the challenge of honoring deadlines
that protect enjoined parties’ rights is hardly unique to this
situation. The agency could opt to continue hearings beyond
its 5 PM closing time in urgent cases like this or otherwise ad-
just its practices to satisfy the statutory deadline. With this ex-
traordinary power, even if complying with the statute is chal-
lenging for the agency, it is absolutely vital to ensure that the
procedural mandates for IHOOSO review are honored. Re-
viewing a shut-down of an overland shipping company is not
something an agency should slow-walk.
2 The FMCSA urges that DND waived its 10-day deadline at least un-
til April 15. The party affected by an imminent-hazard order can consent
to extending the statutory timeline, as DND did here. DND agreed on
April 14 to extend the deadline by one day, in response to the ALJ’s
prompting. But even that new deadline was missed. Further, DND was
operating under the review structure established by the agency, and the
agency chose to start the 10-day clock when DND petitioned, rather than
starting the clock when it issued the IHOOSO. Thus, even if we apply a
one-day extension, April 12 should have been the last date for the ALJ to
complete his review.
12 No. 14-3755
To the extent DND complains that the IHOOSO could
come at any time during an open investigation, it has a real
concern that should not be minimized. Open investigations—
placing companies or state governments into essentially
agency receivership—can impose heavy costs on business. To
the extent these open investigations are reasonable results of
scarce resources, broad agency mandates, and managerial
practices of the executive branch, they are unreviewable by
the federal courts. But sometimes agency delay is not reason-
able, and this is not to say that “arbitrary and capricious”
agency action is unreviewable. 3
It might be that the Assistant Administrator was wrong
about the statutory requirements of 49 U.S.C. § 521(b)(5)(A).
Perhaps the plaintiff’s legal theory is correct. But when the
Assistant Administrator construed that statute, DND was not
affected by his decision either way. It was a party to that
agency decision only on paper. Had the company remained
in business and recovered from the regulatory burden, it
would have been free to operate.
Accordingly, this case is dismissed for want of Article III
standing.
3
Again, to the extent DND claims that the company-wide IHOOSO
was arbitrary or capricious, or some sort of unlawful targeting by the
agency, DND might have an available Bivens cause of action.