El Conejo Americano of Texas, Inc. v. Department of Transportation

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 2002 Decided February 1, 2002

No. 00-1431

El Conejo Americano of Texas, Inc., et al.,
Petitioners

v.

Department of Transportation and
United States of America,
Respondents

On Petition for Review of an Order of the
United States Department of Transportation

Richard H. Streeter argued the cause for petitioners. With
him on the briefs was Richard P. Krinsky. Mark J. An-
drews entered an appearance.

Bruce G. Forrest, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief was
Leonard Schaitman, Attorney.

 Before: Sentelle and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: El Conejo Americano of Texas, Inc.
and its officers, Raymond D. Sena and his son, Daniel Sena,
(collectively "El Conejo") petition for review of the July 28,
2000 decision of the Federal Motor Carrier Safety Adminis-
tration ("FMCSA"), denying their application for registration
as a motor common carrier of passengers pursuant to 49
U.S.C. s 13902. We deny the petition.

El Conejo contends that the FMCSA's determination that
it and its officers are unfit ignores their past compliance with
the safety fitness rating methodology approved by this court
and is arbitrary, capricious, and unsupported by substantial
evidence. Specifically, referencing Department of Transpor-
tation v. ICC, 733 F.2d 105 (D.C. Cir. 1984), and Wilkett v.
ICC, 710 F.2d 861 (D.C. Cir. 1983), El Conejo maintains that
the standards applied by the Interstate Commerce Commis-
sion ("ICC") continue to govern and that the FMCSA failed
to apply them. This contention raises the threshold question
whether the FMCSA is bound by the decisions of its prede-
cessor agency, the ICC. The FMCSA does not address this
point in its brief, maintaining instead that "[t]he statute [49
U.S.C. s 13902] does not confine examination of a registration
application to an applicant's fitness ratings or restrict the
agency's consideration to matters presented by the appli-
cant." Resp't's Br. at 15. Ultimately, we conclude that it is
unnecessary to resolve the binding nature of ICC decisions in
this appeal.

El Conejo's contention depends on the following reasoning.
Prior to Congress's enactment of the ICC Termination Act of
1995, Pub. L. No. 104-88, 109 Stat. 803 (1995) (codified as
amended in scattered sections of 49 U.S.C.), the ICC con-
trolled the granting of certificates authorizing the provision of
transportation as a motor common carrier, pursuant to 49
U.S.C. s 10922(b)(1) (repealed 1995), and formulated a five-
factor test for evaluating the extent to which past safety

violations could preclude a motor carrier license. Under the
five-factor test, the ICC considered:

(1) [t]he nature and extent of ... [the carrier's] past
violations, (2) the mitigating circumstances surrounding
the violations, (3) whether the carrier's conduct repre-
sents a flagrant and persistent disregard of [the] Com-
mission's rules and regulations, (4) whether it has made
sincere efforts to correct its past mistakes, and (5)
whether the applicant is willing and able to comport in
the future with the statute and the applicable rules and
regulations thereunder.

Dep't of Transp., 733 F.2d at 110 (quoting Curtis, Inc. v. ICC,
662 F.2d 680, 687-88 (10th Cir. 1981) (quoting Associated
Transp., Inc., Extension-TVA Plant, 125 M.C.C. 69, 73
(1976))). In the ICC Termination Act, Congress abolished
the ICC and transferred its authority to certify motor com-
mon carriers to the Department of Transportation. See Pub.
L. No. 104-88, ss 101, 103, 109 Stat. at 804, 880-84. In so
doing, Congress replaced s 10922, the ICC's motor carrier
certifying provision, with s 13902, a substantially similar
provision, under which the Department of Transportation
oversees the registration of motor carriers. See id. s 103,
109 Stat. at 880-84. The ICC Termination Act, however, also
included a savings provision, which provided that the ICC's
legal documents, orders, determinations, rules, and regula-
tions "shall continue in effect according to their terms until
modified, terminated, superseded, set aside, or revoked in
accordance with law by ... an[ ] authorized official, a court of
competent jurisdiction, or operation of law." Id. s 204, 109
Stat. at 941-93. The Department of Transportation, acting
through the Federal Highway Administration, recognized,
pursuant to this savings provision, the continuing legal vitali-
ty of ICC decisions; it gave public notice that it interpreted
the savings provision to cover "all legal documents of the ICC
that were issued or granted by an official authorized to effect

such document...." Continuation of the Effectiveness of
Interstate Commerce Commission Legal Documents, 61 Fed.
Reg. 14,372 (1996); see also Registration of For-hire Motor
Carriers, Property Brokers, and Freight Forwarders, 63 Fed.
Reg. 7,362, 7,363 (1998); General Jurisdiction over Freight
Forwarder Service, 62 Fed. Reg. 4,096, 4,097 (1997). While
the entity responsible for overseeing motor carrier safety
functions has shifted within the Department,1 there is no
indication that any of these entities has revised or repudiated
ICC decisions on motor carrier registration.

Because of the substantial similarity between the statutory
registration provisions of the ICC and its successor and the
continuing vitality of ICC decisions, El Conejo, in effect,
would have the court hold that the FMCSA could not modify,
without explicit explanation, the ICC's decisions setting forth
a five-factor test for the consideration of past violations in
granting motor carrier registration. Cf. Atchison, Topeka &
Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808
(1973); Brusco Tug & Barge Co. v. NLRB, 247 F.3d 273, 278
(D.C. Cir. 2001). The court need not resolve this issue now,
however. Assuming that the FMCSA is bound by ICC
decisions interpreting its substantially similar registration
provision and should have applied the ICC's five-factor test
does not change the result in this appeal.

The court must uphold the FMCSA's decision unless it is
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." 5 U.S.C. s 706(2)(A). "[I]f satisfied
that the agency has taken a hard look at the issues with the

__________
1 Initially, the Federal Highway Administration, in the Depart-
ment of Transportation, had the duty to oversee motor carrier
safety; this duty was briefly shifted to the Office of Motor Carrier
Safety in the Department in 1999, Organization and Delegation of
Powers and Duties; Recission of Delegation to the Administrator,
Federal Highway Administration and Redelegation to Director,
Office of Motor Carrier Safety, 64 Fed. Reg. 56,270 (1999). Shortly
thereafter, Congress established the FMCSA as an administration
within the Department and shifted motor carrier safety functions to
it. Motor Carrier Safety Improvement Act of 1999, Pub. L. No.
106-159, s 101, 113 Stat. 1748, 1750-52 (1999).

use of reasons and standards, the court will uphold its find-
ings, though of less than ideal clarity, if the agency's path
may reasonably be discerned...." Hall v. McLaughlin, 864
F.2d 868, 872 (D.C. Cir. 1989) (quoting Greater Boston Televi-
sion Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970)).
Although the FMCSA did not explicitly articulate the five-
factor test, it considered each of its factors in concluding that
El Conejo did not meet the statutory standard for motor
carrier registration. As to the first and third factors, the
FMCSA took into account State court findings of Mr. Ray-
mond Sena's and El Conejo's violations of a stipulation en-
tered into with the New Mexico Attorney General in a
proceeding before the New Mexico Public Safety Commission
with regard to Mr. Raymond Sena's operation of another bus
company. It also had a report from its field staff regarding
El Conejo's limited cooperation in the inspection of its equip-
ment, evidence provided by the New Mexico Attorney Gener-
al's office of several safety violations that occurred under the
management of Mr. Raymond Sena in the operation of anoth-
er bus company, as well as protests from the general public.
As to the remaining factors, the FMCSA had affidavits
submitted by El Conejo attempting to mitigate this evidence
of past safety violations. FMCSA also evaluated the fact that
Mr. Raymond Sena's son, Daniel Sena, was president of El
Conejo, concluding that Mr. Raymond Sena was actually in
charge of the daily operations of El Conejo. In addition,
FMCSA considered El Conejo's predecessor's "Satisfactory"
safety rating and El Conejo's descriptions of its future safety
policies as evidence of future compliance. Further, in deny-
ing the application, the FMCSA specifically found "evidence
of [Mr. Raymond Sena's] general disregard for safety re-
quirements" and an absence of "the requisite intent and
ability" to maintain compliance with safety standards notwith-
standing "finely worded statements of policy and procedure
put forward on their behalf." FMCSA Order at 5, 9 (July 28,
2000).

Thus, although the FMCSA did not articulate the five-
factor test, it did adhere to it. Indeed, rather than contend
that the FMCSA's failure to articulate the five-factor test was
arbitrary and capricious despite its substantive adherence to

the test, El Conejo instead seeks to have this court reweigh
the evidence. El Conejo had an opportunity to have the
evidence reweighed in an administrative appeal, see 49 C.F.R.
s 365.111, but did not pursue such an appeal. The question
before the court is whether FMCSA's conclusion was reason-
able, as the court's role is not to reweigh the evidence. See
Sec'y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096,
1104 (D.C. Cir. 1998); see also Throckmorton v. Nat'l Transp.
Safety Bd., 963 F.2d 441, 444 (D.C. Cir. 1992). Based on the
evidence before it, the FMCSA reasonably concluded that El
Conejo would not comply with safety fitness standards in the
future in light of evidence of its inability to comply with the
stipulation it entered into with the New Mexico Attorney
General, its failure to comply with the tenor of the agency's
inspection order, and numerous past safety violations.

El Conejo's remaining contentions are meritless. The plain
terms of s 13902 contemplate the consideration of evidence
beyond past compliance with the safety fitness rating method-
ology under s 31144. See 49 U.S.C. s 13902(a). The ICC's
five-part test, approved by the court, see Wilkett, 710 F.2d at
864-65, confirms this. Further, FMCSA's procedures were
adequate, see, e.g., Am. Farm Lines v. Black Ball Freight
Serv., 397 U.S. 532, 538-39 (1970); Dist. No. 1, Pac. Coast
Dist., Marine Eng'rs Beneficial Ass'n, 215 F.3d 37, 42 (D.C.
Cir. 2000); Fried v. Hinson, 78 F.3d 688, 690-91 (D.C. Cir.
1996); Crawford v. U.S. Dep't of Agric., 50 F.3d 46, 49 (D.C.
Cir. 1995), and any shortcomings did not rise to the constitu-
tional level. See Pension Benefit Guar. Corp v. LTV Corp.,
496 U.S. 633, 653-56 (1990). Finally, as noted, ample evi-
dence supported the FMCSA's decision.

Accordingly, we deny the petition.