Transam Trucking, Inc. v. Federal Motor Carrier Safety Administration

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS October 23, 2015

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

TRANSAM TRUCKING, INC.,

Petitioner,

v. No. 14-9503

FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION (FMCSA),

Respondent.
_________________________________

Petition for Review of an Order from the
Federal Motor Carrier Safety Administration
(FMCS No. FMCSA-2012-0127)
_________________________________

Christopher M. McHugh, Seigfreid Bingham, Kansas City, Missouri; (Kendra D. Hanson,
Seigfreid Bingham, Kansas City, Missouri, on the briefs), for Petitioner.

Robert D. Kamenshine, Attorney (Paul M. Geier, Assistant General Counsel for
Litigation and Joy Park, Trial Attorney, Department of Transportation; T.F. Scott
Darling, III, Chief Counsel and Valerie Beck, Attorney Advisor, FMCSA, of Counsel;
Stuart F. Delery, Assistant Attorney General and Matthew Collette, Attorney, with him
on the brief) U.S. Department of Justice, Washington, D.C., for Respondent.
_________________________________

Before HARTZ, GORSUCH, and MORITZ, Circuit Judges.
_________________________________

MORITZ, Circuit Judge.
_________________________________
 The Administrative Orders Review Act, better known as the Hobbs Act, 28 U.S.C.

§§ 2341-2351, grants the courts of appeals exclusive jurisdiction to set aside or determine

the validity of certain “rules, regulations, or final orders” of the Federal Motor Carrier

Safety Administration. In this case, TransAm Trucking, Inc. petitions for review of an

email it received from FMCSA’s counsel expressing the agency’s refusal to issue

TransAm a third amended compliance review report pursuant to the parties’ settlement

agreement. We conclude that email was not a “final order” within the meaning of 28

U.S.C. § 2342(3)(A), and we dismiss TransAm’s petition for lack of jurisdiction. Because

we lack jurisdiction, we also dismiss TransAm’s motion to transfer the petition to the

district court under 28 U.S.C. § 2347(b)(3).

BACKGROUND

Although the parties and this court are quite familiar with the procedural history of

this case, we summarize it here to provide necessary context for resolving the

jurisdictional question before us.

I. TransAm’s 2012 Compliance Review and Administrative Proceedings

FMCSA is an administrative agency within the Department of Transportation.

Through powers delegated to it by the Secretary of Transportation, the agency assigns

safety fitness ratings to owners and operators of commercial motor vehicles. See 49

U.S.C. §§ 113(a), (f)(1); 49 U.S.C. § 31144; see also 49 C.F.R. § 1.87 (delegating

authorities vested in Secretary of Transportation to Administrator of FMCSA); Midwest

Crane and Rigging, Inc. v. Fed. Motor Carrier Safety Admin., 603 F.3d 837, 838-39

(10th Cir. 2010) (summarizing history of motor carrier regulation). “Towards that end, []

2
FMCSA inspectors perform periodic on-site compliance reviews, in which they assess

points for regulatory violations and preventable accidents.” Id. at 839.

3
The compliance review is defined as

an on-site examination of motor carrier operations, such as drivers’ hours of
service, maintenance and inspection, driver qualification, commercial
drivers license requirements, financial responsibility, accidents, hazardous
materials, and other safety and transportation records to determine whether
a motor carrier meets the safety fitness standard. A compliance review may
be conducted in response to a request to change a safety rating, to
investigate potential violations of safety regulations by motor carriers, or to
investigate complaints or other evidence of safety violations. The
compliance review may result in the initiation of an enforcement action.

49 C.F.R. § 385.3.

Following a compliance review, the agency considers factors enumerated in 49

C.F.R. § 385.7 and utilizes a prescribed methodology to assign the motor carrier one of

three possible safety fitness ratings: satisfactory, conditional, or unsatisfactory. 49 C.F.R.

§§ 385.3, 385.9(a). If a motor carrier believes FMCSA erred in assigning a proposed or

final safety rating, the carrier can seek administrative review of the rating by submitting a

written request to the chief safety officer. 49 C.F.R. §§ 385.11(e), 385.15. A motor carrier

assigned a proposed or final rating of less than satisfactory may also take corrective

actions and request a rating change at any time by submitting a written request to the

appropriate FMCSA service center. 49 C.F.R. §§ 385.11(f), 385.17(a), (b). If FMCSA

denies a motor carrier’s request for a rating change, the carrier can seek administrative

review of that denial under 49 C.F.R. § 385.15. 49 C.F.R. § 385.17(j). See also 49 C.F.R.

§ 385.423(a) (explaining administrative review of proposed safety ratings).

In February 2012, an FMCSA inspector performed an on-site compliance review

at TransAm’s Kansas headquarters. In a compliance review report dated February 22,

4
2012, the inspector cited TransAm for several violations, including a critical violation of

49 C.F.R. § 395.8(k)(1),1 and assigned TransAm a proposed conditional rating.

TransAm challenged the proposed rating on two fronts. First, TransAm filed a

request to change the proposed safety rating based on corrective actions taken by

TransAm after FMCSA issued the citation. See 49 C.F.R. §§ 385.11(f), 385.17(a), (b). A

few weeks later, while that request remained pending, TransAm filed a petition for

administrative review of the proposed safety rating. See 49 C.F.R. §§ 385.11(e), 385.15.

FMCSA granted TransAm’s request for a rating change on June 5, 2012,

retroactively upgrading TransAm’s rating to satisfactory effective April 4, 2012. See In

the Matter of TransAm Trucking, Inc. USDOT# 315503, FMCSA-2012-0127, 2013 WL

2146669, at *1 (May 14, 2013) (discussing TransAm’s administrative challenges to

proposed safety rating). Nevertheless, through its petition for administrative review,

TransAm maintained its challenge to the agency’s citation of TransAm for a

§ 395.8(k)(1) violation. TransAm argued that despite the upgraded safety rating, FMCSA

continued to report on a publicly accessible website that TransAm had been cited for a

serious violation within the last 12 months. Id.

FMCSA’s Assistant Administrator issued a written decision on May 14, 2013,

dismissing TransAm’s petition for administrative review as moot. The Administrator

reasoned that even if the inspector erred in finding the violation, the only relief available

1
49 C.F.R. § 395.8(k)(1) requires motor carriers to “maintain records of duty
status and all supporting documents for each driver it employs for a period of six months
from the date of receipt.”
5
to TransAm was an upgraded safety rating, and TransAm’s rating had already been

upgraded to satisfactory through its request for a rating change. The Administrator also

characterized as moot TransAm’s concern regarding FMCSA’s continued reporting of the

violation on an agency website because the relevant 12-month reporting period had

elapsed. Id. at *1-2.

II. TransAm’s Petitions for Judicial Review and the Settlement Agreement

TransAm filed a petition for judicial review, the second in a series of three,

challenging the Administrator’s dismissal of TransAm’s petition for administrative

review.2 We later granted TransAm’s motion to abate appellate proceedings while the

parties discussed settlement. The parties eventually executed a settlement agreement on

October 17, 2013, in which FMCSA agreed to remove TransAm’s violation of 49 C.F.R.

395.8(k)(1) and the resulting proposed conditional safety rating from the February 22,

2012, compliance review by issuing an amended compliance review report that didn’t

include any reference to the violation or proposed conditional rating. In return, TransAm

agreed to dismiss its second petition for judicial review.

FMCSA subsequently issued two amended compliance review reports. Neither

report referred to the § 395.8(k)(1) violation, the original proposed conditional safety

rating, or the upgraded satisfactory rating. Instead, both reports indicated, “Your

proposed safety rating is: This Review is not Rated.” Agency Record (AR), 21, 33.

2
TransAm filed its first petition for judicial review of the proposed safety rating in
April 2012. After the FMCSA granted TransAm’s request for an upgraded safety rating
in June 2012, the parties filed a joint stipulation of dismissal, and we dismissed
TransAm’s first petition for review. See Fed. R. App. P. 42(b).
6
According to the agency, these amendments satisfied its obligations under the settlement

agreement and didn’t alter TransAm’s satisfactory rating even though neither report

reflected that rating. But TransAm balked at dismissing its petition for judicial review,

contending FMCSA breached the settlement agreement by refusing to issue an amended

compliance review report expressly identifying TransAm’s satisfactory rating.

In November 2013, TransAm’s counsel and FMCSA’s counsel exchanged several

emails discussing TransAm’s claim that FMCSA had breached the settlement agreement.

Agency counsel’s final email, dated November 20, 2013, expressed the agency’s position

that it had complied with the settlement agreement, that it wouldn’t issue any further

amended compliance review reports, and that the settlement agreement required

TransAm to dismiss its second petition for judicial review.

Instead, TransAm filed a status report informing this court of the parties’

settlement agreement dispute and seeking additional time “to file a motion to enforce

settlement and accompanying brief.” Case No. 13-9572, Pet’r Status Report, dated Dec.

2, 2013. We directed TransAm to file an opening brief on or before January 2, 2014, but

questioned our jurisdiction to consider a motion to enforce “a collateral settlement

agreement for which no record exists.” Case No. 13-9572, Order, dated Dec. 2, 2013. We

further instructed TransAm that if it filed a motion to enforce the settlement agreement,

the motion must include an explanation of the jurisdictional basis and “why the proper

procedure wouldn’t be to initiate a separate action in a trial court to determine the

enforceability of the proposed settlement agreement and then, if unsatisfied with the

outcome of that proceeding, to initiate an appeal.” Id. But TransAm declined to file such

7
a motion; instead, on December 30, 2013, the parties filed a joint stipulation of dismissal,

and we dismissed TransAm’s second petition for review. See Fed. R. App. P. 42(b).

Three weeks later, on January 17, 2014, TransAm filed the instant petition for

review of “the final decision of [FMCSA] refusing to issue an amended Compliance

Review pursuant to a fully-executed settlement agreement with TransAm Trucking.”3

Case No. 14-9503, Pet. for Rev., 1. Again, we questioned our jurisdiction, noting that it

appeared from the docketing statement that TransAm sought “to enforce the terms of the

settlement agreement . . . rather than [seeking] review of a final agency order.” Case No.

14-9503, Order, dated Feb. 6, 2014, at 1. Based on this concern, we directed the parties to

file responses addressing this potential jurisdictional defect. After receiving those

responses, we continued to question jurisdiction but ordered the parties to proceed with

merits briefing.

DISCUSSION

As our recitation of the case history reveals, the parties have reached an impasse.

FMCSA refuses to issue TransAm the only thing TransAm seeks—an amended

compliance review report expressly confirming the agency’s modification of TransAm’s

safety rating to satisfactory. And TransAm refuses to accept FMCSA’s explanation for its

3
On January 22, 2014, TransAm also filed an action against FMCSA in district
court, asserting breach of contract and due process claims, seeking monetary damages
under the Little Tucker Act, 28 U.S.C. § 1346(a)(2), and seeking a declaration that the
settlement agreement required FMCSA to issue an amended compliance review with a
satisfactory safety rating. TransAm later added a claim under the Administrative
Procedure Act (APA), 5 U.S.C. §§ 701-706, seeking an order compelling the agency to
issue an amended compliance review report. The district court has stayed that proceeding
pending our resolution of the jurisdictional question in this appeal.
8
refusal—i.e., that the agency lacks authority to issue an amended report reflecting the

modified rating and that even if it could issue such a report, that report wouldn’t alter the

status quo because TransAm has had a satisfactory safety rating since April 2012.

This impasse, regardless of its seemingly minor implications, has generated three

separate petitions for review to this court and now presents us with the jurisdictional issue

that’s been bubbling just below the surface of this controversy since December 2013.

That’s when the parties jointly dismissed TransAm’s second petition for review after this

court pointed out the potential jurisdictional issue raised when TransAm expressed its

intent to seek appellate enforcement of the parties’ settlement agreement.

We review the legal question of jurisdiction de novo. Huerta v. Gonzales, 443

F.3d 753, 755 (10th Cir. 2006). TransAm, as the petitioner, bears the burden of

establishing the basis of our jurisdiction. See Radil v. Sanborn W. Camps, Inc., 384 F.3d

1220, 1224 (10th Cir. 2004).

I. The plain language of 28 U.S.C. § 2342(3)(A) limits our jurisdiction to “final
orders” issued by FMCSA under specified statutes.

TransAm argues the Hobbs Act, § 2342(3)(A), provides us with jurisdiction. That

section gives circuit courts

exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part) or to
determine the validity of . . . all rules, regulations, or final orders of . . . the
Secretary of Transportation issued pursuant to . . . part B or C of subtitle
IV, subchapter III of chapter 311, chapter 313, or chapter 315 of title 49.

Because TransAm doesn’t challenge a rule or regulation, our jurisdiction here

hinges on whether FMCSA’s email, which expressed the agency’s refusal to issue an

9
amended compliance review report reflecting TransAm’s upgraded safety rating, is a

“final order” within the meaning of § 2342(3)(A).

TransAm initially suggests that the Hobbs Act doesn’t define the term “final

order,” and urges us to derive its meaning from an Administrative Procedure Act (APA)

provision, 5 U.S.C. § 551(6), defining “order” as “the whole or a part of a final

disposition, whether affirmative, negative, injunctive, or declaratory in form, of an

agency in a matter other than rule making but including licensing.”

Applying § 551(6) and other authorities, TransAm characterizes FMCSA’s

November 20, 2013, email as a “final disposition” that “marked the consummation of the

agency’s decision-making process” because it expressed the agency’s refusal to issue a

third amended compliance review report. Pet’r Br. 16. See Farrell-Cooper Mining Co. v.

U.S. Dep’t of the Interior, 728 F.3d 1229, 1235 (10th Cir. 2013) (analyzing

administrative “finality” and explaining “[a]gency action is final when it marks the

consummation of the agency’s decisionmaking process and is one by which rights or

obligations have been determined, or from which legal consequences will flow” (citations

and internal quotation marks omitted)). Further, TransAm suggests, “the email had

determinate consequences” because “there was no way TransAm was going to get what it

bargained for in the Settlement Agreement absent legal action.” Pet’r Br. 16. See Int’l

Tel. & Tel. Corp., Commc’ns Equip. and Sys. Div. v. Local 134, Int’l Bhd. of Elec.

Workers, AFL-CIO, 419 U.S. 428, 443 (1975) (explaining that “when Congress defined

‘order’ in terms of a ‘final disposition,’ it required that ‘final disposition’ to have some

determinate consequences for the party to the proceeding”).

10
 As we will discuss, TransAm’s latter point supports FMCSA’s position that

TransAm seeks enforcement of the settlement agreement rather than review of a “final

order.” But more fundamentally, the initial premise of TransAm’s argument—i.e., that

the Hobbs Act doesn’t define “final order”—is flawed.

In fact, § 2342(3)(A) of the Hobbs Act defines and limits the term “final order” by

specifically referring to “final orders of . . . the [FMCSA] issued pursuant to . . . part B or

C of subtitle IV, subchapter III of chapter 311, chapter 313, or chapter 315 of title 49.”

(Emphasis added.) See, e.g., Dandino, Inc. v. U.S. Dep’t of Transp., 729 F.3d 917, 919-20

(9th Cir. 2013) (interpreting phrase “final order issued under this section” in 49 U.S.C.

§ 521(b)(9) and concluding that “issued under this section” defines and limits meaning of

“final order” to orders issued under § 521).

As relevant here, the Secretary of Transportation has delegated its duties under

subchapter III of chapter 311, relating to the assessment of motor carrier safety and the

assignment of safety ratings, to FMCSA. See 49 U.S.C. §§ 113(a), (f)(1); 49 U.S.C.

§ 31144; see also 49 C.F.R. § 1.87 (delegating authorities vested in Secretary of

Transportation to Administrator of the FMCSA). And compliance review is the agency’s

primary tool for carrying out those duties. See 49 C.F.R. § 385.9(a) (explaining process

of assigning safety ratings following compliance review).

In other words, the Hobbs Act limits the universe of “final orders” directly

reviewable in the courts of appeals to FMCSA orders issued pursuant to FMCSA’s duties

to assess motor carriers’ compliance with safety regulations and assign safety ratings.

11
And, as we discuss next, we are not persuaded by TransAm’s argument that FMCSA’s

email fits within this limited universe of reviewable FMCSA orders.

II. FMCSA’s email is not a “final order” within the meaning of 28 U.S.C.
§ 2342(3)(A).

TransAm argues agency counsel’s November 20, 2013, email was a “final order”

under the Hobbs Act because (1) the issuance of a compliance review report is central to

FMCSA’s regulatory duties; (2) any compliance review report FMCSA issues must

contain a safety rating; (3) the parties’ settlement agreement obligated FMCSA to issue

an amended compliance review report; and (4) the agency’s email conveyed the agency’s

final decision refusing to issue an amended compliance review report reflecting a

satisfactory rating.

The November 20, 2013, email from FMCSA’s counsel to TransAm’s counsel

provided in full,

We believe that FMCSA has complied fully with the terms of the
settlement agreement. As you are well aware, TransAm has had a
Satisfactory rating since April 2012. You brought this petition to challenge
the underlying 395.8(k)(1) violation, and we agreed to remove that
violation by issuing a new Compliance Review. That’s exactly what the
agency has done.
It now seems that, notwithstanding the removal of the violation and the
longstanding Satisfactory rating, TransAm wants more than the removal of
the violation (and the accompanying “Conditional” rating) from the
previous Compliance Review. As I understand it, you insist that the new
Compliance Review include a Satisfactory rating, based upon the theory
that FMCSA is forbidden from issuing an “unrated” compliance review.
I suppose we can continue this litigation, and file briefs on the meaning of
“Compliance Review” as it is used in the settlement agreement. We added
that language merely as a way of describing the process by which we would
accomplish the primary focus of the litigation and the agreement--removal
of the challenged violation. I don’t think further litigation would be

12
 productive, given TransAm’s current Satisfactory rating and the removal of
the challenged violation, but that’s a decision for you to make.
I should note, however, that TransAm’s view that FMCSA is somehow
prohibited from issuing a non-ratable review is incorrect. In your e-mail of
November 11, 2013, you referred to the Assistant Administrator’s interim
order in In the Matter of Western Freight Carrier, Inc., FMCSA-2012-0179
(Sept. 7, 2012). Yet that order merely asked FMCSA to provide an
explanation for converting a Compliance Review into a non-ratable review.
The agency in fact provided such an explanation, and the final order in
Western Freight recognized that FMCSA acted properly in replacing the
previous Compliance Review with a non-ratable review. See In the Matter
of Freight Carrier, Inc., FMCSA-2012-0179 (Sept. 28, 2012). I have
attached that decision for your convenience.
In sum, we believe the settlement agreement requires TransAm to dismiss
the petition for review. If you decide not to do so, please let me know.

AR, 38.

The email clearly recognizes that the gist of the parties’ disagreement concerns

the meaning of the term “compliance review” in the settlement agreement—i.e., FMCSA

interprets it one way and TransAm interprets it another. Thus, on its face, the email

appears to be nothing more than an effort to communicate to opposing counsel FMCSA’s

position regarding disputed rights and obligations under the settlement agreement.4

4
We agree with the parties that the informal nature of the email communication
doesn’t necessarily determine whether it was a “final order” within the meaning of
§ 2342(3)(A). See, e.g., Paskar v. U.S. Dep’t of Transp., 714 F.3d 90, 97, 99 (2d Cir.
2013) (identifying cases in which courts treated agency letters as reviewable final orders);
Aerosource, Inc. v. Slater, 142 F.3d 572, 577 (3d Cir. 1998) (stating “letters and other
communications can be final orders depending upon the surrounding circumstances and
other indicia of finality”); Creed v. Nat’l Transp. Safety Board, 758 F. Supp. 2d 1, 5
(D.D.C. 2010) (concluding letter from NTSB general counsel denying Creed’s requests to
avoid disclosing his medical information in a public meeting was “final order”
reviewable under 49 U.S.C. § 1153(a) because “NTSB’s decisions about which facts to
publicly document” are “central to its investigative duties as mandated by Congress”).
Instead, to determine whether the email may be characterized as a final order, we focus
on the relevant regulations and the circumstances giving rise to the email. See, e.g.,
13
 Apparently recognizing that the email’s explicit language doesn’t elevate it to

“final order” status, TransAm argues the email’s implicit meaning gets it there, albeit

circuitously. TransAm points out that the issuance of a compliance review report is

central to FMCSA’s regulatory duties and that under 49 C.F.R. § 385.9(a), “[a]

Compliance Review must contain a safety rating for the motor carrier.” Pet’r Br. 19.

Thus, TransAm suggests that FMCSA’s email—which explicitly refused to issue a third

amended compliance review report expressly identifying TransAm’s upgraded

satisfactory rating—implicitly signaled the agency’s refusal to comply with § 385.9(a).

According to TransAm, this implicit refusal elevates FMCSA’s email to “final order”

status.

TransAm correctly identifies § 385.9(a) as governing FMCSA’s duty to assign a

safety rating following a compliance review. That regulation states,

Following a compliance review of a motor carrier operation, the FMCSA,
using the factors prescribed in § 385.7 as computed under the Safety
Fitness Rating Methodology set forth in appendix B of this part, shall
determine whether the present operations of the motor carrier are consistent
with the safety fitness standard set forth in § 385.5, and assign a safety
rating accordingly.

TransAm reads too much into this regulation. TransAm’s interpretation implicitly

suggests § 385.9(a) requires FMCSA to issue an amended compliance review report

reflecting an upgraded rating any time it grants a motor carrier relief through the

Weinberger v. Salfi, 422 U.S. 749, 763-67 (1975) (interpreting meaning of phrase “final
decision”—a phrase left undefined in direct-review provision of Social Security Act—by
looking to regulations establishing administrative review process).

14
administrative review process or provides an amended compliance review report pursuant

to the terms of a settlement agreement. We see no such requirement in § 385.9(a)’s plain

text, and TransAm fails to point us to any other regulations imposing such a requirement.

Moreover, both the broader regulatory framework within which FMCSA operates

and the procedural facts in this case demonstrate the flaw in TransAm’s argument.

Specifically, more than three years ago, FMCSA fulfilled its obligations under § 385.9(a)

by performing an on-site compliance review of TransAm’s headquarters and assigning

TransAm a proposed conditional safety rating. FMCSA further complied with its

regulatory duties by providing TransAm with written notice of that proposed rating,

considering TransAm’s administrative challenges to that proposed rating, and issuing a

written decision finally disposing of TransAm’s challenges. See 49 U.S.C. § 31144; 49

C.F.R. §§ 385.3-385.17 (outlining FMCSA’s duties to assess motor carrier safety fitness,

assign safety fitness ratings, provide written notice of compliance review results, and

consider administrative challenges to those results).

Importantly, TransAm sought judicial review of that written decision when it filed

its second petition for judicial review in this court. And, but for the parties’ joint

stipulation of dismissal, this court could have reviewed that final decision5 to determine

5
Other circuits have assumed without deciding that FMCSA written decisions
finally disposing of administrative challenges to safety fitness ratings are subject to
review under the Hobbs Act. See, e.g., Multistar Indus., Inc. v. U.S. Dep’t Transp, 707
F.3d 1045, 1052-53(9th Cir. 2013) (exercising Hobbs Act jurisdiction to review
“FMCSA’s denial of Multistar’s petition for administrative review,” which “upheld the
‘unsatisfactory’ rating, and therefore represented the ‘consummation of the agency’s
decisionmaking process’ on the rating matter” (quoting Hells Canyon Pres. Council v.
15
whether it was arbitrary, capricious, an abuse of discretion, or otherwise unlawful. See 5

U.S.C. § 706 (explaining APA scope of review and remedies); see also Midwest Crane

and Rigging, Inc., 603 F.3d at 840 (reviewing FMCSA order to determine whether it was

“‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’”

as provided in 5 U.S.C. § 706(2)(A)). Instead, TransAm chose to dismiss its petition for

judicial review as consideration for the parties’ settlement agreement.

Thus, TransAm consciously chose not to pursue judicial review of a written

decision signed by FMCSA’s Assistant Administrator memorializing the agency’s

determination that TransAm had received all the administrative relief it was entitled to

receive regarding its challenges to the assigned conditional safety rating. Importantly, the

path to that agency decision—from compliance review and assignment of a proposed

safety rating to FMCSA’s written decision issued at the end of the administrative review

process—was entirely consistent with § 385.9(a) and the administrative review process

outlined in §§ 385.11 through 385.17.

Instead, through the instant petition, TransAm sought this court’s review of an

email from FMCSA’s counsel memorializing the agency’s position that it had complied

with its obligations under the settlement agreement. Unquestionably, the path to this

agency decision differs significantly from the path to the final decision discussed above.

Most notably, before TransAm dismissed its second petition for review, it advised this

U.S. Forest Serv., 593 F.3d 923, 930 (9th Cir. 2010))); A.D. Transport Express, Inc. v.
United States, 290 F.3d 761, 765-66 (6th Cir. 2002) (exercising Hobbs Act jurisdiction to
review motor carrier’s petition for review of FMCSA order affirming assignment of
“conditional” safety rating and denying carrier’s request for an upgraded rating).
16
court of the parties’ dispute over the settlement agreement but nonetheless dismissed the

petition. Almost immediately thereafter, TransAm filed the instant petition for review.

Yet between TransAm’s dismissal of the second petition challenging the agency’s final

action and the instant petition challenging the agency’s email, no agency action

occurred—there was no intervening compliance review, no new assigned safety rating,

no administrative challenge to a proposed or final safety rating, and no written decision

from FMCSA finally determining a challenge to a safety rating. Instead, in the instant

petition, TransAm presented us with a string of emails between TransAm and the

agency’s counsel culminating in FMCSA’s email—an email TransAm now asserts is a

“final order.”

The lack of any FMCSA activity pursuant to the relevant regulatory framework—

a framework which defines and gives meaning to the term “final order”—weighs heavily

in favor of our conclusion that agency counsel’s email was not a final order subject to this

court’s review. Nor are we persuaded that TransAm’s decision to forego judicial review

of FMCSA’s final decision in lieu of the settlement agreement somehow transformed

FMCSA’s subsequent email—expressing the agency’s position that it complied with the

terms of that agreement—into a “final order.” Thus, we reject TransAm’s reliance on

§ 385.9(a) and we conclude FMCSA’s email is not a “final order” within the meaning of

§ 2342(3)(A).

TransAm’s briefing and statements at oral argument only fortify this conclusion.

As TransAm’s counsel candidly conceded at oral argument, TransAm’s instant petition

17
for review concerns a settlement agreement.6 Distilled to its essence, TransAm’s petition

seeks an order from this court directing FMCSA to issue a third amended compliance

review report expressly identifying TransAm’s satisfactory safety rating because

TransAm believes that the terms of the parties’ settlement agreement require such action.

While FMCSA is legally obligated to comply with the terms of the settlement

agreement, that obligation arises from its status as a party to the agreement, not from its

status as an administrative agency. Thus, although FMCSA’s alleged failure to comply

with the terms of the settlement agreement may provide the impetus for a breach of

contract claim,7 it does not provide TransAm with a “final order” subject to direct review

in this court under 28 U.S.C. § 2342(3)(A).

Finally, TransAm suggests it “may have no remedy other than” this petition for

review to obtain relief from FMCSA’s alleged breach of the settlement agreement. Pet’r

Br. 17. But we need not and cannot consider whether TransAm has alternative avenues

through which to seek relief for the alleged breach of the settlement agreement. Nor may

6
More specifically, TransAm’s petition for review concerns FMCSA’s alleged
breach of the parties’ settlement agreement. See Pet’r Third Pet. for Rev., 1 (seeking
“review of the final decision of the [FMCSA] refusing to issue an amended Compliance
Review pursuant to a fully-executed settlement agreement with TransAm” (emphasis
added)); Pet’r Memo. on Jurisdiction, 2 (“This is an appeal of the FMCSA’s refusal to
comply with that settlement agreement.” (emphasis added)); Pet’r Br., 19 (“[T]he
FMCSA’s refusal to issue a new Compliance Review was a breach of the Settlement
Agreement.” (emphasis added)); Id. at 20-21 (suggesting “the Court should hold the
FMCSA accountable to its sole obligation under the contract and grant TransAm relief in
the form of an order directing the FMCSA to issue a full amended Compliance Review”
(emphasis added)).
7
As discussed, TransAm has filed an action in district court alleging the agency
breached the settlement agreement and asserting other claims. See supra note 3.
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we contemplate the likely success of any such efforts. Instead, the only question before us

is whether we possess jurisdiction under the Hobbs Act to consider TransAm’s claim in

this case. Regardless of whether TransAm can seek relief elsewhere, we cannot ignore

the plain language of the Hobbs Act limiting our review to “final orders” issued under

enumerated statutes. Nor can we ignore the unusual procedural path of the instant

petition, which fortifies our conclusion that FMCSA’s email was not a “final order”

under the Hobbs Act. See, e.g., Christianson v. Colt Indus. Operating Corp., 486 U.S.

800, 818 (1988) (noting that “a court may not in any case, even in the interest of justice,

extend its jurisdiction where none exists . . . .”); Brodsky v. U.S. Nuclear Regulatory

Comm’n, 578 F.3d 175, 180 (2d Cir. 2009) (noting “[t]he Supreme Court has commanded

‘strict fidelity to the[] terms’ of judicial review provisions that create jurisdiction, such as

those contained in the Hobbs Act” (quoting Stone v. INS, 514 U.S. 386, 405 (1995))).

Because FMCSA’s email expressing the agency’s refusal to issue a third amended

compliance review report pursuant to the settlement agreement was not a “final order”

within the meaning of 28 U.S.C. § 2342(3)(A), we lack subject matter jurisdiction.

Consequently, we dismiss TransAm’s petition for review.

III. Because we lack jurisdiction over TransAm’s petition for review, we also
dismiss TransAm’s motion to transfer the petition to district court under 28
U.S.C. § 2347(b)(3).

When it filed its petition for review, TransAm also filed a motion requesting that

we transfer the petition to the district court pursuant to 28 U.S.C. § 2347(b)(3). But we

agree with FMCSA that transfer under § 2347(b)(3) is inappropriate because that

provision operates only if we have jurisdiction over the petition for review under

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§ 2342(3)(A). Because we lack jurisdiction under § 2342(3)(A), we also dismiss the

motion for transfer under § 2347(b)(3).

CONCLUSION

We dismiss TransAm’s petition for review for lack of jurisdiction and dismiss its

motion to transfer on that same basis.

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