     Case: 16-60324   Document: 00514022559     Page: 1   Date Filed: 06/06/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                     Fifth Circuit

                                                                           FILED
                                                                         June 6, 2017
                                 No. 16-60324
                                                                        Lyle W. Cayce
                                                                             Clerk
OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION,
INCORPORATED; STEVE DAVENPORT; TILDEN CURL, JR.; COLIN
GENGE,

       Petitioners

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION; FEDERAL
MOTOR CARRIER SAFETY ADMINISTRATION; UNITED STATES OF
AMERICA,

       Respondents




     Petition for Review of an Order of the Department of Transportation,
                  Federal Motor Carrier Safety Administration


Before JONES, CLEMENT, and ELROD, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      This is an appeal of the Federal Motor Carrier Safety Administration’s
(“FMCSA”) grant of permanent operating authority to two Mexico-domiciled
motor carriers. The Owner-Operator Independent Drivers Association and
several independent truckers (collectively “the Association”) argue that the
FMCSA lacked authority to grant permanent operating authority to these
carriers. Because we conclude that the Association failed to file a timely appeal
as required by statute, we DISMISS for lack of jurisdiction.
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                                 No. 16-60324


                                       I.
      In 2011, the United States initiated a Pilot Program to test the safety of
Mexican motor carriers conducting “cross-border, long-haul” operations
throughout the United States. Designed and administered by the FMCSA, the
Pilot Program was intended to “test the effectiveness of its regulations
governing the registration and monitoring of Mexico-domiciled motor carriers.”
The Pilot Program involved extensive vetting and monitoring processes, with
additional oversight by the Department of Transportation Inspector General
and a subcommittee, the Motor Carrier Safety Advisory Committee (MCSAC).
In ordering the Pilot Program, Congress “directed that DOT not open the
borders to long-haul trucking until the granting of authority was first tested
as part of a pilot program[.]”
      In January 2015, FMCSA issued its final report to Congress,
“conclud[ing] that the Pilot Program successfully demonstrated that Mexican
motor carriers can and do operate throughout the United States at a safety
level equivalent to U.S. and Canada-domiciled motor carriers and consistent
with the high safety standards that FMCSA imposed on all motor carriers
authorized to operate in the United States.” As a result, FMCSA began
granting permanent operating authority to Mexico-domiciled motor carriers
engaged in long-haul trucking. In addition, FMCSA has accepted Mexican
commercial driving licenses (“CDLs”) as equivalent to American state-issued
CDLs.
      In November 2015, the Association protested FMCSA’s grant of
permanent operating authority to two Mexico-domiciled motor carriers. The
Association broadly contended that FMCSA lacked authority to (1) grant
operating authority to Mexico-domiciled motor carriers, and (2) accept Mexican


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                                  No. 16-60324
CDLs as equivalent to state-issued CDLs. On the first claim, the Association
alleged that FMCSA lacked such authority because it did not adequately
conduct the Pilot Program. Alleged deficiencies included an insufficient
number of participants, an insufficient number of inspections, and unreliable
comparative data, among others. On the second claim, the Association alleged
that 49 U.S.C. §§ 31302 and 31308 require Mexican drivers to obtain state-
issued CDLs.
      On December 23, 2015, FMCSA “rejected and dismissed” both protests
in two separate orders. FMCSA explained that, under its implementing
regulations, an application for operating authority “can be opposed only on the
grounds that the applicant is not fit [e.g., is not in compliance with applicable
financial responsibility and safety fitness requirements].” Here, FMCSA wrote,
the Association “does not allege, and provides no evidence to show, that
Applicant is not fit to provide the relevant transportation or that Applicant is
not able to comply with applicable requirements.”
      On January 8, 2016, the Association filed a “Motion for Reconsideration.”
On March 23, 2016, FMCSA sent the Association a series of letters, stating
that it “will not consider the motion for reconsideration” because its regulations
“do not provide for motions for reconsideration of an agency decision denying a
protest” and the December 23 decisions “[were] final agency action[s].” The
Association filed its petition for review with this court on May 20, 2016.
                                       II.
      Prior to oral argument, we requested supplemental briefing to clarify
whether we have appellate jurisdiction. “We review questions of subject matter
jurisdiction de novo, and may consider such questions sua sponte because
‘subject matter delineations must be policed by the courts on their own




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                                   No. 16-60324
initiative.’” Ezike v. Holder, 383 F. App’x 470, 472 (5th Cir. 2010) (quoting
Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007)).
                                       III.
      We have jurisdiction to hear appeals from “final orders” of the “Secretary
of Transportation.” 28 U.S.C. § 2342(3). “Any party aggrieved by the final order
may, within 60 days after its entry, file a petition to review the order in the
court of appeals.” Id. § 2344 (emphasis added). “Th[is] 60 day period for seeking
judicial review . . . is jurisdictional in nature, and may not be enlarged or
altered by the courts.” Council Tree Investors, Inc. v. F.C.C., 739 F.3d 544, 551
(D.C. Cir. 2014) (quoting Nat. Res. Def. Council v. Nuclear Regulatory Comm’n,
666 F.2d 595, 602 (D.C. Cir. 1981)). As such, the jurisdictional question boils
down to which agency action—the December 23, 2015 orders rejecting and
dismissing the Association’s protest or the March 23, 2016 letters refusing to
“consider the motion for reconsideration submitted on” the Association’s
behalf—constituted the final order. We conclude that the December 23
decisions were the final orders.
      As a threshold matter, the March 23 letters did not actually “order”
anything, but rather refused to even “consider the motion for reconsideration
submitted on [the Association’s] behalf.” It specifically stated that “[t]he
Federal Regulations in 49 C.F.R. Part 365 that govern the filing of protests to
oppose motor carrier requests for operating authority registration, including
requests from Mexico-domiciled motor carriers, do not provide for motions for
reconsideration of an agency decision denying a protest,” and designated the
December 23 decisions as “final.” Even if these letters could be construed as a
“final agency action,” the statute requires the petition be filed within sixty days
of the “final order.” Compare 28 U.S.C. § 2344 with 42 U.S.C. § 7607(b)(1)




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                                       No. 16-60324
(providing for judicial review of any “final action” taken by the Administrator
of the EPA).
       Furthermore, the FMCSA’s regulations “do not expressly provide for
motions for reconsideration of denials of protest, neither do they expressly
foreclose such motions.” As such, absent some type of tolling, the Association
did not file its petition for review within 60 days of the decision—and thus, we
lack jurisdiction to consider the petition.
       Both parties, however, argue that the Association’s “motion for
reconsideration should be treated as tolling the time for seeking judicial
review.” We disagree. While it is true that the “timely filing of a motion to
reconsider renders the underlying order nonfinal,” Stone v. INS, 514 U.S. 386,
392 (1995), a motion for reconsideration can only be “timely” when it “has been
filed within a discretionary review period specifically provided by the agency.”
I.C.C. v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 279 (1987) (emphasis added).
Here, the “tolling rule is not applicable . . . because the [FMCSA] has not
established a rehearing or reconsideration procedure[.] Thus, there is no
‘discretionary review period specifically provided by the agency’ of which the
[entity] could avail itself.” City of Colo. Springs v. Solis, 589 F.3d 1121, 1131
(10th Cir. 2009). 1 Otherwise, parties could evade the time limit for judicial
review by requesting reconsideration of long-resolved matters.




       1 We note that some of our sister courts have held that they lack jurisdiction to review
a petition for review filed during the pendency of a motion for agency reconsideration because
such petitions are “incurably premature and in effect a nullity.” See, e.g., Gorman v. NTSB,
558 F.3d 580, 586 (D.C. Cir. 2009). The facts here do not require that we reach that issue. Cf.
Craker v. Drug Enforcement Admin., 714 F.3d 17 (1st Cir. 2013) (“[W]e are not persuaded
that we should impose a bright line test requiring dismissal or amendment of a petition filed
during the pendency of a motion for reconsideration, at least where the reconsideration
process is ad hoc, as here.”).

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                                No. 16-60324
      Accordingly, the Association’s May 20, 2016 appeal—filed 148 days after
the FMCSA issued its final orders—was untimely and we are bereft of
jurisdiction.
                                     IV.
      In conclusion, the two December 23, 2015 decisions constituted the “final
order[s]” of the FMCSA, a fact unaffected by the Association’s motion for
reconsideration. Because the Association’s subsequent petition for appellate
review was untimely, we DISMISS for lack of jurisdiction.




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