                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 02-4027
                                 ___________

Charles Harris,                        *
                                       *
           Appellant,                  *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * Eastern District of Arkansas.
P.A.M. Transport, Inc.;                *
P.A.M. Transportation Services, Inc., *
                                       *
           Appellees.                  *
                                  ___________

                            Submitted: May 15, 2003

                                Filed: July 2, 2003
                                 ___________

Before WOLLMAN, MAGILL, and BEAM, Circuit Judges.
                          ___________

BEAM, Circuit Judge.

      Charles Harris appeals from the dismissal of his claims under the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), and Arkansas law. We
affirm.
I.    BACKGROUND

        P.A.M. Transport, Inc. and P.A.M. Transportation Services, Inc. (collectively,
"PAM") operate a contract and common motor carrier business and are licensed for
interstate commerce by the United States Department of Transportation (DOT). PAM
has a contract with Midwestern Transportation Center (MTC), a truck-driving school
in St. Louis, Missouri, under which MTC trains prospective drivers for PAM. Drivers
who successfully complete MTC's training program, obtain a commercial driver's
license, and satisfy DOT medical standards receive conditional offers of employment
from PAM in most instances.

       Harris reported to MTC on April 30, 2001, and signed a Student Training
Agreement.1 During the course of his training, he received a medical examination by
Dr. James Hussey, a physician retained by MTC to perform DOT physicals on
prospective drivers. Dr. Hussey issued a card indicating that, in his opinion, Harris
satisfied DOT medical regulations. Dr. Hussey's office faxed a report of Harris's
physical to PAM's medical review office on June 26, 2001. The report revealed that
Harris was taking four prescription medications and had recently undergone a
bilateral kidney transplant. PAM's medical review manager had concerns about these
conditions, so she contacted Harris and requested additional medical records.
Eventually, PAM obtained records from Harris's physicians at the University of
Tennessee Medical Group and forwarded the records for review by a physician
retained directly by PAM, Dr. Craig Cooper.


      1
        The essential terms of the agreement required Harris to report to work for
PAM upon completion of the MTC program; to pay a $2,500 penalty, in addition to
the $4,800 cost of tuition, if he failed to report to PAM and become an official
employee or if he quit before twelve months had expired; and to pay just the tuition
cost if PAM chose to terminate his employment for any reason during the first twelve
months. If he completed twelve months of employment with PAM, he would no
longer have any obligation to repay the cost of the MTC tuition.

                                         -2-
       Dr. Cooper reviewed Harris's records, including Dr. Hussey's report of the
DOT physical, and concluded that Harris did not qualify for employment as a
commercial driver under DOT regulations. PAM informed Harris that it would not
hire him as a driver. When Harris subsequently began receiving bills for repayment
of his tuition, he filed a complaint with the Equal Employment Opportunity
Commission that was then converted into this federal lawsuit.

        Harris alleges that PAM discriminated against him on the basis of a perceived
disability in violation of the ADA, 42 U.S.C. § 12112(d). Specifically, he argues that
PAM discriminated against him by requesting and reviewing his medical records after
he had already passed his initial DOT physical and when all entering employees were
not subjected to the same medical review. He also asserts a number of related state-
law claims. The district court2 found that Harris had failed to exhaust the
administrative remedies available under the DOT regulations in 49 C.F.R. § 391.47
or, in the alternative, that primary jurisdiction rested with the DOT. Accordingly, the
court dismissed all of Harris's claims without prejudice for lack of subject matter
jurisdiction.3 This appeal followed.

II.   DISCUSSION

       When a dismissal for lack of subject matter jurisdiction, pursuant to Federal
Rule of Civil Procedure 12(b)(1), is based on the complaint alone or on undisputed
facts in the record, our "review is 'limited to determining whether the district court's
application of the law is correct and, if the decision is based on undisputed facts,


      2
       The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
      3
       The district court declined to exercise supplemental jurisdiction over the state-
law claims pursuant to 28 U.S.C. § 1367(c)(3), which permits abstention where a
court "has dismissed all claims over which it has original jurisdiction."

                                          -3-
whether those facts are indeed undisputed.'" Osborn v. United States, 918 F.2d 724,
730 (8th Cir. 1990) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
1981)). But where, as here, "the court relied . . . on its own determination of disputed
factual issues, the appellate court must then review those findings under the 'clearly
erroneous' standard." Id. Because the district court in this case had to consider
affidavits and physicians' findings4 in order to determine whether or not Harris had
exhausted his administrative remedies, we review its findings for clear error.

       Congress has delegated to the Secretary of Transportation the authority to
prescribe driver qualifications. See 49 U.S.C. § 31102(b)(1). Pursuant to this
authority, the DOT promulgated the Federal Motor Carrier Safety Regulations, under
which a person "shall not drive a commercial motor vehicle" without a "medical
examiner's certificate that [the person] is physically qualified." 49 C.F.R. §
391.41(a). Specifically, "the medical examiner is required to certify that the driver
does not have any physical, mental, or organic condition that might affect the driver's
ability to operate a commercial motor vehicle safely." 49 C.F.R. § 391.43(f). And,
most importantly in this case, DOT regulations provide appeal procedures5 for
instances of "disagreement between the physician for the driver and the physician for
the motor carrier concerning the driver's qualifications." 49 C.F.R. § 391.47(b)(2).




      4
       We have established that a district court "has authority to consider matters
outside the pleadings when subject matter jurisdiction is challenged under Rule
12(b)(1)." Osborn, 918 F.2d at 728 n.4 (citing Land v. Dollar, 330 U.S. 731, 735 &
n.4 (1947)). This does not, as Harris asserts, convert the 12(b)(1) motion to one for
summary judgment.
      5
      The driver can seek a formal opinion from the Director of the Office of Bus
and Truck Standards and Operations and, within sixty days of the Director's
determination, appeal the decision to the Assistant Administrator. 49 C.F.R. §§
391.47(b)(2), 386.13(a).

                                          -4-
       At the outset, we reject Harris's argument that, because the medical
disagreement in this case is between MTC's physician and PAM's physician, the DOT
procedures do not apply. Harris adopted the MTC physician's finding that he was
physically qualified when he presented it to PAM as proof of his eligibility for
employment. He also submitted evidence of, and thereby adopted, his own
physician's opinion that he was qualified to drive a truck. We agree with the district
court that Harris "cannot now disavow [those] findings." Thus, the issue is whether
Harris's failure to seek relief under the DOT procedures requires dismissal of his
ADA claim.

       There is a "long settled rule of judicial administration that no one is entitled to
judicial relief for a supposed or threatened injury until the prescribed administrative
remedy has been exhausted." Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41,
50-51 (1938). Until a plaintiff has pursued available administrative relief, "suit is
premature and must be dismissed." Reiter v. Cooper, 507 U.S. 258, 269 (1993).
"'Exhaustion' applies where a claim is cognizable in the first instance by an
administrative agency alone." United States v. W. Pac. R.R. Co., 352 U.S. 59, 63
(1956). Federal courts addressing claims similar to Harris's have held that
"[e]xhaustion of DOT procedures should be required" in these circumstances because
driver fitness "falls squarely within the regulatory scheme (and substantive expertise)
of DOT." Campbell v. Federal Express Corp., 918 F. Supp. 912, 918 (D. Md. 1996).
See also Prado v. Continental Air Transp. Co., 982 F. Supp. 1304, 1308 (N.D. Ill.
1997) ("The court will not abrogate clear congressional intent which vests driver
fitness issues in the Secretary of Transportation."). We agree. The DOT is charged
with and is much better equipped to handle resolution of disputes over a driver's
medical qualifications and can do so far more expertly and efficiently than a
reviewing court. Thus, we hold that failure to exhaust the remedies available under
49 C.F.R. § 391.47 requires dismissal of this action, precluding Harris from obtaining
review of his ADA claim in this court.



                                           -5-
       Dismissal is particularly appropriate because Harris cannot prove an essential
element of a prima facie ADA claim: namely, that he was qualified to perform the job
function of a commercial truck driver. Aucutt v. Six Flags Over Mid-America, Inc.,
85 F.3d 1311, 1318 (8th Cir. 1996) (plaintiff must show disability within the meaning
of the ADA, qualification to perform essential job functions, and adverse employment
action). As we have already observed, Congress has given the DOT the sole
discretion to set driver qualifications, and DOT regulations clearly require a medical
examiner's certificate of physical qualification, which Harris has never obtained. 49
C.F.R. § 391.41(a). PAM was "not insisting upon a job qualification merely of its
own devising," Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 570 (1999), rather it
was applying the Federal Motor Carrier Safety Regulations to which it was bound
under 49 C.F.R. § 391.11: "a motor carrier shall not . . . permit a person to drive a
commercial motor vehicle unless that person is qualified to drive" under the physical
qualification standards. The Supreme Court has stated that

       [w]hen Congress enacted the ADA, it recognized that federal safety
       rules would limit application of the ADA as a matter of law. The Senate
       Labor and Human Resources Committee Report on the ADA stated that
       'a person with a disability applying for or currently holding a job subject
       to [DOT standards for drivers] must be able to satisfy these physical
       qualification standards in order to be considered a qualified individual
       with a disability' under [the ADA].

Albertson's, 527 U.S. at 573 (quoting S. Rep. No. 101-116, at 27-28 (1998)) (second
alteration in original). We cannot reach Harris's ADA claim until he can establish
that he was physically qualified to perform the job function of a PAM driver, and he
can only do that by obtaining a determination to that effect from the DOT.

III.   CONCLUSION

       We affirm the district court.

                                          -6-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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