Owner-Operator Independent Drivers Ass'n v. Péna

RANDOLPH, Circuit Judge:

The first — and, as it turns out, the last— question we must decide in this case is whether we have jurisdiction to hear it. Invoking the Hobbs Act, 28 U.S.C. § 2342, three commercial truck drivers and an organization representing truck owner-operators filed a petition for review challenging, under the Fourth Amendment to the Constitution, the Department of Transportation’s funding of a pilot program in four states to conduct random drug and alcohol tests of truckers. We hold that the case cannot be brought in the court of appeals and therefore dismiss the petition.

Section 5 of the Omnibus Transportation Employee Testing Act of 1991, Pub.L. No. 102-143, tit. V, § 5(b)(1), (2), (3) & (4), 105 Stat. 961, directed the Secretary of Transportation to select four states “of varying geographical and population characteristics” to participate for one year in “a pilot test program for the purpose of testing the operators of commercial motor vehicles on a random basis to determine whether an operator has” illegally used “alcohol or a controlled substance.” After the pilot program expires, the Secretary must report to Congress on the results. Id. § 5(b)(5). Congress made available $5 million in grant money for the four participating states. Id. § 5(b)(6). The Secretary administers the pilot program under the Motor Carrier Safety Assistance Program, id. § 5(b)(1), which provides grants to states to develop and implement programs for the enforcement of “Federal rules, regulations, standards, and orders applicable to *73 commercial motor vehicle safety and compatible State rules, regulations, standards, and orders.” 49 U.S.C.App. § 2302(a). To qualify for a grant, a state must submit a plan to the Secretary. See 49 U.S.C.App. § 2302(b); 49 C.F.R. §§ 350.11, 350.13; 49 C.F.R. pt. 350, app. A at 472-73. When approved, the state plan “serve[s] as the basis for monitoring and evaluating performance of the State under the grant.” 49 C.F.R. § 350.11(b).

In May 1992, the Department of Transportation issued a press release announcing that Nebraska, Utah, Minnesota, and New Jersey had been selected as the four pilot program states. In early July 1992, the Secretary entered into grant agreements giving each state approximately $1.25 million to run its program. The four states had submitted plans to the Secretary outlining how they intended to conduct random alcohol and drug testing of truck drivers. The plans, which are included in the joint appendix to the briefs, contain some similarities and many differences. According to petitioners, “[i]t appears that the states proceed on two different tracks in implementing the testing, ie., a probable cause track and a so-called ‘voluntary’ track.” Petitioners’ Brief at 6 n. 3.1 Focusing on the “voluntary” track, petitioners say the random testing is not really voluntary because uniformed state law enforcement officers may be involved (as the programs for Nebraska, Minnesota and New Jersey, but not Utah, apparently allow) and because a driver may face consequences— such as the state’s notifying his employer — if he refuses to consent to testing.2

In their reply brief, petitioners describe their petition for review, filed on December 22, 1992, as a facial challenge to “the Pilot Program” raising “purely legal” issues that may be resolved without reference to facts. It could hardly be otherwise. The case comes before us without any factual findings, without any rulemaking proceedings and, indeed, without anything resembling an administrative record. We have the statute, the four state plans, the grant agreement each state entered into with the Federal Highway Administration, and an appendix in which petitioners have assembled affidavits, memoranda and letters of no particular moment, some apparently collected through a Freedom of Information Act request. Since petitioners now say theirs is a facial constitutional challenge, if we had jurisdiction we would have to decide whether “the Pilot Program” — whatever that might comprehend— was incapable of being administered in a constitutional fashion. See Reno v. Flores, — U.S.-,-, 113 S.Ct. 1439,1446,123 L.Ed.2d 1 (1993); Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 632-33 n. 10, 109 S.Ct. 1402, 1421, n. 10, 103 L.Ed.2d 639 (1989).

Petitioners, joined by the Secretary, tell us that our jurisdiction to render a judgment on the merits rests on “28 U.S.C. § 2342(3)(B)(5).” Petitioners’ Brief at 1; Brief for Respondents at 1. This is an obvious error. There is no “§ 2342(3)(B)(5).” Section 2342 does contain a subsection (3)(B)(v), but it deals with rules and orders of the Federal Maritime Commission. We suppose the parties had in mind 28 U.S.C. § 2342(5). In part, this grants jurisdiction to the courts of appeals to review “all rules, regulations, or final orders of the Interstate *74 Commerce Commission made reviewable by section 2321 of this title____” The link between this provision and actions of the Secretary of Transportation dates to 1966, when Congress created the Department of Transportation and transferred to the Department powers then held by other agencies. 49 U.S.C.A. § 1655 (1976 ed.). In that year the newly formed Department of Transportation took over some authority then held by the Department of Commerce, § 1655(a); the Coast Guard, § 1655(b); the Department of the Treasury, § 1655(b); the Federal Aviation Administration, § 1655(c); the Civil Aeronautics Board, § 1655(d); the ICC, § 1655(e); the Army, § 1655(g); and the Department of the Interior, § 1655(i).

As to judicial review of orders and other action by the Secretary of Transportation, Congress provided thus:

Orders and actions of the Secretary in the exercise of functions, powers, and duties transferred under this chapter, and orders and actions of the Administrators pursuant to the functions, powers, and duties specifically assigned to them by this chapter, shall be subject to judicial review to the same extent and in the same manner as if such orders and actions had been by the department or agency exercising such functions, powers, and duties immediately preceding their transfer.

49 U.S.C. § 1653(e). After 1966, whenever the Secretary exercises functions pursuant to authority transferred to his Department from the ICC, § 1653(c) therefore dictates that judicial review occur “in the same manner as if’ the functions had been retained by the ICC — that is, in the court of appeals on a petition for review pursuant to 28 U.S.C. § 2342(5).

In Center for Auto Safety v. Skinner, 936 F.2d 1315 (D.C.Cir.1991), we held that courts of appeals, rather than district courts, had jurisdiction over challenges to regulations “issued by the Federal Highway Administration, a part of the Department of Transportation (“DOT”), pursuant to authority transferred from the Interstate Commerce Commission (“ICC”) to DOT under the Department of Transportation Act.” Id. The First Circuit reached the same result in Cousins v. Secretary of U.S. Department of Transportation, 880 F.2d 603 (1st Cir.1989) (en banc), a challenge to a Transportation Department regulation prohibiting deaf individuals from working as truck drivers, a regulation “ ‘relating generally to qualifications ... of employees and safety of operation and equipment.’” Id. at 611 (quoting 49 U.S.C.A. § 1655(e)(6)(C) (1976 ed.)) (ellipsis in original). “Thus, the ICC was the ‘agency exercising’ driver safety regulations ‘functions ... immediately preceding their transfer’ to DOT, and judicial review of DOT’s exercise of these functions must take place ‘in the same manner as’ it would if the ICC exercised them.” Id. (quoting 49 U.S.C. § 1653(c)) (ellipsis in original). In Owner-Operators Independent Drivers Ass’n v. Skinner, 931 F.2d 582 (9th Cir.1991), the Ninth Circuit concluded that it, and not the district court, had jurisdiction to' consider a challenge to the Transportation Secretary’s regulations requiring motor carriers to test truck drivers for drugs since the regulations were issued pursuant to the Secretary’s authority under 49 U.S.C. § 3102 to regulate safety, which originally had been a function of the ICC.

The case before us is quite different from those just discussed. The function exercised by the Secretary is the function to make grants to the states. The direct source of the Secretary’s authority, of course, cannot be traced to powers exercised by the ICC in 1966. It stems from the Omnibus Transportation Employee Testing Act of 1991. The only “order” issued by the Secretary was his decision approving the grant agreements. While the Secretary is to exercise his grant-making authority pursuant to the Motor Carrier Safety Assistance Program, this statute was enacted in 1983, seventeen years after Congress created the Department of Transportation. Pub.L. No. 97-424, tit. IV, 96 Stat. 2154 (1983), 49 U.S.C.App. §§ 2301-2304. None of the functions transferred from the ICC to the Secretary in 1966 involved the exercise of grant-making authority. See 49 U.S.C.A. § 1655(e)(6) (1976 ed.), repealed by Pub.L. No. 97-449, § 7(b), 96 *75 Stat. 2413, 2444 (1983).3 The Secretary did take over some of the Commerce Department’s authority to make grants to the states. But jurisdiction to review actions challenging the exercise of that authority is in district courts. See, e.g., Block v. United, States Dep’t of Transp., 643 F.Supp. 762 (D.D.C.1986), rev’d, 822 F.2d 156 (D.C.Cir.1987); D.C. Fed’n of Civic Ass’ns v. Volpe, 316 F.Supp. 754 (D.D.C.1970), rev’d, 459 F.2d 1231 (D.C.Cir.), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972); State of Louisiana ex rel. Guste v. Brinegar, 388 F.Supp. 1319 (D.D.C.1975).

The ultimate aim of the pilot program is doubtless the enhancement of motor carrier safety. But one must be careful not to confuse the program’s objective with the function performed by the Secretary in achieving it. The dissent’s basic point is that “the Secretary’s actions here are indisputably in the exercise of junctions authorized by then-existing statutes.” Dissent at 78. Authorized by which statutes? Suppose in 1965 the ICC Commissioners came up with the idea of funding four state pilot programs of the sort we have here and observing their operations. Where would the ICC have derived the authority and the money to do this? No statute of which we are aware — and the dissent cites none — gave the ICC any authority to offer grants to states for the purpose of promoting motor carrier safety, or otherwise; no legislation appropriated funds for the ICC to divide up among the states; and no statute empowered the ICC to function as an administrator of a grant program for the states. The result is fairly obvious: since there were no such statutes prior to 1966, the function the Secretary is now performing with respect to the pilot program could not possibly be counted among those transferred from the ICC to the Department of Transportation.

The parties tell us that the pilot program “relat[es] generally to qualifications ... of [truck drivers],” a regulatory function of the ICC transferred in 1966 to the Transportation Department. 49 U.S.C.A. § 1655(e)(6)(C) (1976 ed.) (repealed and replaced by 49 U.S.C. § 3102(b), see supra note 3). The portion of the Omnibus Transportation Employee Testing Act with which we are concerned, however, did not create a federal regulatory program relating to drivers’ qualifications. It stimulated four states to create their own programs with varying provisions and procedures, conducted by state officials acting pursuant to state law. Each state program is entirely financed by federal grants for the purpose of determining “the effectiveness of State-administered testing in detecting individuals.” Omnibus Transportation Employee Testing Act of 1991, S.Rep. No. 54,102d Cong., 1st Sess. 34 (1991) (emphasis added). The Secretary, although supporting jurisdiction in this court, agrees that “the State Enforcement Plans describe state — not federal — laws and regulations and administrative procedures.” Brief for Respondents at 32. It is the state plans that regulate safety. The fact that a state program is financed by the federal government does not convert actions taken by the state pursuant to the program into federal actions. United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); cf. Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980).

The parties also reason that jurisdiction exists because the Secretary now possesses the ICC’s authority, with “the assistance of all departments or bureaus of the Government and of any organization of motor carriers having special knowledge of such matter,” “to investigate and report on the need for Federal regulation ... of the qualifications and maximum hours of service of employees of all motor carriers.” Compare 49 U.S.C.A. § 325 (1963 ed.), repealed by Pub.L. No. 97-449, § 7(b), 96 Stat. 2444 (1983), with 49 U.S.C. § 3103. This argument fails for similar reasons. We suppose the pilot program might be characterized as an investigation. The function the Secretary is performing, however — administering federal grants — is derived from statutes passed in 1991 and 1983, not from statutes formerly administered by the ICC. Prior to 1966, the *76 ICC could investigate the need for federal regulations, but it never had the authority to give grants to the states. In addition to authorizing the grants, the Secretary has the statutory duty to issue a report to Congress. However, the report, which comes after the programs have expired, is not what petitioners challenge. Their objection is to the states’ method of gathering the data the Secretary will presumably assess.

Petitioners, although purporting to bring only a facial challenge to “the Pilot Program,” have offered detailed critiques of the four rather lengthy state plans, each of which ultimately rests on the laws of the particular state. The precise focus of their complaint is not easy to discern. Many of their concerns seem to relate to the statute itself and the absence of any restraints on state actions in conducting the random testing. Whatever their focus, petitioners’ challenge is not directed to the Secretary’s exercise of a function formerly performed by the ICC. For that reason, this court does not have jurisdiction to hear the case under 28 U.S.C. § 2342(5).

We therefore dismiss the petition for review for lack of jurisdiction.

. The only information about the actual operation of the pilot programs consists of an affidavit of the president of the owner-operators association, attached to the petition for review. The affidavit states that a Nebraska state trooper stopped petitioner Jones on October 23, 1992, and when she refused to take a test for alcohol and drugs, issued a citation to her; the State’s attorney later dismissed the charge. The affidavit also reports that when Jones was stopped in Utah on November 14, 1992, she refused to take an alcohol test. According to the same affidavit, petitioner Betts underwent alcohol and drug testing in Nebraska on December 3, 1992, and petitioner Tuttle submitted to an alcohol test in Utah on November 12, 1992.

. According to the Secretary, New Jersey informs the driver’s employer that one of its drivers refused to take the test, without giving the individual’s name; the other three states give the employer the driver's name. Minnesota and New Jersey apparently impose no other sanction. In Utah, a refusing driver can be ordered out of service for 24 hours. The situation in Nebraska is unclear; Nebraska's plan is silent about the subject of further sanctions but petitioners allege, on the basis of a letter from a state trooper, that a fíne and imprisonment might result from a driver’s refusal to be tested.

. This repeal was pursuant to a recodification of Title 49, which was intended to "restate, without substantive change, laws enacted before Nov. 15, 1982," 96 Stat. 2443 (1983). See Cousins, 880 F.2d at 611; Owner-Operators v. Skinner, 931 F.2d at 585 & n. 3.