No. 99-1169
In the Supreme Court of the United States
NEW PRIME dba PRIME, INC. AND
SUCCESS LEASING, INC., PETITIONERS
v.
OWNER-OPERATOR INDEPENDENT DRIVERS
ASSOCIATION, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
ROBERT S. GREENSPAN
BRUCE G. FORREST
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether a person who allegedly has been injured by a federally registered
motor carrier's violation of the Federal Highway Administration's "Truth-in-Leasing"
regulations, 49 C.F.R. Pt. 376, may bring an action in the federal district
court against the carrier, without first obtaining an administrative ruling
from the agency.
In the Supreme Court of the United States
No. 99-1169
NEW PRIME dba PRIME, INC. AND
SUCCESS LEASING, INC., PETITIONERS
v.
OWNER-OPERATOR INDEPENDENT DRIVERS
ASSOCIATION, INC., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-17a) is reported at 192
F.3d 778. The opinion of the district court (Pet. App. 18a-23a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on August 10, 1999. A petition
for rehearing was denied on October 13, 1999 (Pet. App. 31a). The petition
for a writ of certiorari was filed on January 11, 2000. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Under the Motor Carrier Act, the former Interstate Commerce Commission
(ICC) was authorized to regulate the leasing arrangements between independent
owner-operators and authorized carriers. American Trucking Ass'ns, Inc.
v. United States, 344 U.S. 298 (1953). Following a national strike by independent
truck owner-operators in 1973 that seriously interfered with the Nation's
commerce, the ICC adopted regulations to establish minimum standards for
leasing of independent owner-operators' trucking equipment by authorized
interstate motor carriers. Lease and Interchange of Vehicles, 131 M.C.C.
141 (I.C.C. 1979); 49 C.F.R. Pt. 376. In general, those regulations leave
the terms and conditions of the leasing arrangements to the marketplace,
but require that those agreements be reduced to a writing that sets forth
basic terms and conditions. Hence they are commonly referred to as the trucking
"Truth-in-Leasing" regulations.
Particularly pertinent here, a common feature of those arrangements is an
escrow account, maintained by the authorized carrier, "to insure performance
and to cover repair expenses, license and permit costs, and any claims that
might arise out of carriage of the goods." Global Van Lines, Inc. v.
ICC, 627 F.2d 546, 548 (D.C. Cir. 1980) (citing H.R. Rep. No. 1812, 95th
Cong., 2d Sess. 11 (1978)), cert. denied, 449 U.S. 1079 (1981). If the parties
choose to utilize such an escrow account, the Truth-in-Leasing regulations
require the lease to specify such basic matters as the amount in the fund;
the items to which the fund may be applied; the lessor's right to an accounting;
and the lessor's right to a refund of any fund balance at the end of the
leasing arrangement within 45 days, with interest. 49 C.F.R. 376.12(k).
2. The ICC was abolished in the ICC Termination Act of 1995, Pub. L. No.
104-88, Tit. I, 109 Stat. 804. Congress did not, in the ICC Termination
Act, alter the Truth-in-Leasing regulations regime applicable to the motor
carrier industry, but Congress did significantly alter the enforcement mechanisms
with the enactment of a private cause of action in 49 U.S.C. 14704, "Rights
and remedies of persons injured by carriers or brokers," which provides:
(a) In General.-
(1) Enforcement of order.-A person injured because a carrier or broker providing
transportation or service subject to jurisdiction under chapter 135 does
not obey an order of the Secretary or the Board, as applicable, under this
part, except an order for the payment of money, may bring a civil action
to enforce that order under this subsection. A person may bring a civil
action for injunctive relief for violations of sections 14102 and 14103.
(2) Damages for violations.-A carrier or broker providing transportation
or service subject to jurisdiction under chapter 135 is liable for damages
sustained by a person as a result of an act or omission of that carrier
or broker in violation of this part.
49 U.S.C. 14704 (Supp. III 1997). Although there had been no requirement
for it to do so, the former ICC had adopted the practice of resolving various
disputes that arose under the agency's commercial rules governing the conduct
of the motor carrier industry, including owner-operator leasing disputes.
When Congress transferred the underlying statutory authority underpinning
those rules to the Department of Transportation (DOT), the House Report
made clear its intent that the DOT should not continue the ICC's practice
of resolving the private disputes:
The bill transfers responsibility for all the areas in which the ICC resolves
disputes to the Secretary (except passenger intercarrier disputes). The
Committee does not believe that DOT should allocate scarce resources to
resolving these essentially private disputes, and specifically directs that
DOT should not continue the dispute resolution functions in these areas.
The bill provides that private parties may bring actions in court to enforce
the provisions of the Motor Carrier Act. This change will permit these private,
commercial disputes to be resolved the way that all other commercial disputes
are resolved-by the parties.
Pet. App. 5a-6a (quoting H.R. Rep. No. 311, 104th Cong., 1st Sess. 87-88
(1995) (emphasis omitted)).
3. On August 14, 1997, respondent Owner-Operator Independent Drivers Association,
Inc., and several named owner-operators brought a class action suit in the
district court against petitioners, alleging that petitioners had violated
the Truth-in-Leasing regulations and seeking damages for those violations.
Pet. App. 3a-4a, 18a. Petitioners moved to dismiss on grounds of primary
jurisdiction, failure to state a claim, and preemption. Id. at 20a. The
district court granted
the motion on primary jurisdiction grounds. Id. at 23a. Although the district
court believed it had jurisdiction to adjudicate the owner-operators' complaint,
it noted that DOT's Federal Highway Administration (FHWA) had concurrent
jurisdiction. Id. at 22a. The doctrine of primary jurisdiction was invoked
because, in the district court's view, the FHWA's "intimate knowledge
of [the Truth-in-Leasing] regulations and the reasoning behind them"
placed the agency "in a better position than the Court" to determine
the merits of petitioners' contention that the regulations did not control
this particular case. Ibid. In reaching that decision, the district court
did not seek, or obtain, the views of the FHWA.
The owner-operators appealed from that dismissal and, simultaneously, petitioned
the FHWA for clarification of its role in this matter. The owner-operators
sought an order from the FHWA declaring, inter alia, "that applicable
law does not confer upon the FHWA primary jurisdiction * * * in private
commercial Federal Court litigation arising under 49 U.S.C. § [] 14704,
and that such matters should be resolved by the Federal Courts pursuant
to the ICC Termination Act." Pet. App. 52a-53a.
On May 29, 1998, the FHWA issued an order stating that the agency had no
basis for it to become involved in this private commercial dispute. Pet.
App. 24a-30a. The agency agreed with the owner-operators that FHWA's specialized
expertise was "generally not needed" in disputes of this nature
because the regulations set forth "straightforward, non-technical requirements
which a court is ordinarily competent to construe." Id. at 29a. Accordingly,
"the FHWA will generally decline [to] exercise its primary jurisdiction
with regard to court referrals involving" the Truth-in-Leasing regulations.
Ibid.
Subsequently, the court of appeals consolidated several petitions for judicial
review of the FHWA's declination decision with the owner-operators' appeal
from the district court's dismissal of their complaint. Pet. App. 4a-5a.
Petitioners and their amicus curiae American Trucking Association argued,
inter alia, that the district court's judgment should be affirmed on the
ground that a private cause of action for damages could not be brought under
49 U.S.C. 14702(a) (Supp. III 1997) because the statute provided for suits
by persons alleging injuries arising from a violation of an "order"
of the Secretary of Transportation. The court of appeals agreed with petitioners
on that point, holding that the term "order" could not be construed
to include a violation of an agency regulation. Pet. App. 9a-10a.
The court of appeals, however, did find authority for the district court
to entertain those suits under the second sentence of 49 U.S.C. 14704(a)(1)
(Supp. III 1997): "A person may bring a civil action for injunctive
relief for violations of sections 14102 and 14103." The court stated:
Though this sentence refers only to violations of the statute, it must also
include violations of FHWA's implementing regulations. Because § 14102
contains no mandates or prohibitions but simply authorizes the Secretary
to adopt leasing requirements, it would be impossible for a carrier to violate
the statute other than by violating rules or regulations promulgated under
the statute.
Pet. App. 11a. The court expressly rejected petitioners' argument that the
second sentence of Section 14704(a) (1) was limited to actions to enforce
agency "orders," since that term is found in the first sentence
of the Section. The court concluded that the second sentence's "plain
language is not limited to violations of agency orders" and that petitioner's
approach to the sentence would render it mere surplusage because "a
party suing to enforce an agency order is unlikely to need relief beyond
enforcement of the order." Pet. App. 12a. The court further noted that
its reading of the second sentence was supported by the Conference Report,
which expressly indicated that private actions could be brought to enforce
the Truth-in-Leasing rules. Id. at 12 n.3.
The court of appeals also rejected petitioners' effort to set aside the
FHWA's decision not to utilize its enforcement resources in pursuit of the
owner-operators' allegations. Pet. App. 15a-16a (citing Heckler v. Chaney,
470 U.S. 821, 837 (1985) (agency decisions not to institute proceedings
are presumptively unreviewable under the Administrative Procedure Act)).
Accordingly, the court reversed the district court's dismissal of the owner-operators'
lawsuit and denied the petitions seeking review of the agency's declaratory
order. Pet. App. 17a.
ARGUMENT
The interlocutory decision of the court below, addressing a jurisdictional
issue that is not related to the merits of the underlying dispute, is correct
and does not conflict with any other court of appeals decision. Further
review therefore is not warranted.
1. The court of appeals correctly observed that, unless the second sentence
of 49 U.S.C. 14702(a)(1) (Supp. III 1997) is construed to permit private
actions to enforce the provisions of the Truth-in-Leasing regulations, that
sentence is rendered surplusage. See Pet. App. 12a. Moreover, in allowing
the owner-operators' private enforcement suit to proceed in the district
court, the judgment below is precisely what Congress intended when it added
the second sentence during its consideration of the ICC Termination Act.
See ibid.
Petitioners, however, ask this Court to infer an intent of Congress not
to create a private right of action from the lack of a statute of limitations
provision applicable to Section 14702(a). Pet. 10-13. That contention is
unpersuasive. The omission of a federal statute of limitations, an oversight
that is "commonplace in federal statutory law," Board of Regents
v. Tomanio, 446 U.S. 478, 483 (1980), cannot detract from Congress's specific
intent to provide that "[a] person may bring a civil action,"
49 U.S.C. 14704(a)(1) (Supp. III 1997). When Congress has omitted a statute
of limitations in other statutes, the federal courts have applied the analogous
state statute of limitations. See, e.g., North Star Steel Co. v. Thomas,
515 U.S. 29, 33-34 (1995). With respect to civil actions arising under federal
statutes enacted after December 1, 1990, such as the instant case, a four-year
limitations period applies. See 28 U.S.C. 1658.
2. There is no conflict among the courts of appeals. Petitioners themselves
correctly characterize the decision below as involving a matter of "first
impression in the courts of appeals." Pet. 2. Their assertion of an
intracircuit conflict with DeBruce Grain, Inc. v. Union Pacific Railroad,
149 F.3d 787 (8th Cir. 1998), is unpersuasive.
As petitioners concede (Pet. 8 n.3), the statutory provisions governing
enforcement of the railroad regulations (49 U.S.C. 11701-11707 (1994 &
Supp. III 1997)) that were construed in DeBruce Grain do not contain language
parallel to that added by Congress in the ICC Termination Act of 1995 as
the second sentence of 49 U.S.C. 14704(a)(1) (Supp. III 1997). Moreover,
petitioners fail to point out that the jurisdictional provision involved
in DeBruce Grain confers exclusive jurisdiction over certain types of railroad
matters on the Department of Transportation's Surface Transportation Board.
See DeBruce Grain, Inc. v. Union Pac. R.R., 983 F. Supp. 1280, 1283 (W.D.
Mo. 1997) (construing 49 U.S.C. 10501 (Supp. III 1997)). The corresponding
provision addressed by the court below, which deals with disputes concerning
the motor carrier industry, does not include that exclusivity language.
Cf. 49 U.S.C. 13501 (Supp. III 1997). Thus, the dictum in the Eighth Circuit's
DeBruce Grain decision (quoted at Pet. 7) does not address the issue raised
in the instant petition, and, in any event, is not in any way inconsistent
with the holding of the court below. And even if there were an intracircuit
inconsistency, that would be a matter for the court of appeals, rather than
this Court, to resolve. Wisniewski v. United States, 353 U.S. 901, 902 (1957)
(per curiam).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
ROBERT S. GREENSPAN
BRUCE G. FORREST
Attorneys
MARCH 2000