FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTERNATIONAL BROTHERHOOD Nos. 15-70754
OF TEAMSTERS; TEAMSTERS 16-71137
JOINT COUNCIL NO. 7; 16-71992
TEAMSTERS JOINT COUNCIL NO.
42; ADVOCATES FOR HIGHWAY TRAN No.
AND AUTO SAFETY; TRUCK FMCSA-2011-0097
SAFETY COALITION,
Petitioners,
OPINION
OWNER-OPERATOR
INDEPENDENT DRIVERS
ASSOCIATION, INC.,
Intervenor,
v.
U.S. DEPARTMENT OF
TRANSPORTATION; FEDERAL
MOTOR CARRIER SAFETY
ADMINISTRATION; ELAINE L.
CHAO, Secretary of the U.S.
Department of Transportation;
T.F. SCOTT DARLING III,
Administrator of the Federal
Motor Carrier Safety
Administration; UNITED STATES
OF AMERICA,
Respondents.
2 INT’L BHD. OF TEAMSTERS V. USDOT
On Petition for Review of an Order of the
Department of Transportation, National Transportation
Safety Board
Argued and Submitted March 15, 2017
San Francisco, California
Filed June 29, 2017
Before: Kim McLane Wardlaw, Ronald M. Gould,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Wardlaw
SUMMARY *
Agency
The panel denied petitions for review challenging the
Federal Motor Carrier Safety Administration’s (“FMCSA”)
statutory authority to issue permits for U.S. long-haul
operations to Mexico-domiciled trucking companies.
The panel held that the International Brotherhood of
Teamsters and Intervenor Owner-Operator Independent
Drivers Association, Inc. had Article III constitutional
standing to challenge the FMSCA’s approval of Mexico-
domiciled carriers. The panel further held that the U.S.
Troop Readiness, Veterans’ Care, Katrina Recovery, and
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
INT’L BHD. OF TEAMSTERS V. USDOT 3
Iraq Accountability Appropriations Act of 2007
encompassed the Teamsters’ and the Drivers Association’s
claims. Finally, the panel held that the Teamsters and the
Drivers Association also had third-party organization
standing.
The panel held that it could not review the petition for
review of the issuance of a Pilot Program Report because it
was not a final agency action under the Administrative
Procedure Act, and dismissed the petition challenging it.
The panel held that the FMSCA’s grant of a long-haul
operating permit to Mexico-domiciled carrier Trajosa SA de
CV, and the denial of the Teamster’s challenge to the permit
granting Trajosa operating authority, were reviewable final
agency actions.
The panel held that it had Hobbs Act jurisdiction for
direct appellate review over the petitions for review of the
decision to grant Trajosa a permit. The panel held, however,
that it could not review the FMSCA’s decision to grant
Trajosa an operating permit because the decision whether to
grant long-haul authority based on the results of a pilot
program is committed to agency discretion by law.
The panel held that it could not consider the Drivers
Association’s argument – that the FMSCA exceeded its
statutory authority in granting a permit to a Mexico-
domiciled carrier without requiring the carrier’s drivers to
first obtain a U.S. driver’s license – because it was precluded
by Int’l Bhd. Of Teamsters v. U.S. Dep’t of Transp., 724 F.3d
206, 210–11 (D.C. Cir. 2013).
4 INT’L BHD. OF TEAMSTERS V. USDOT
COUNSEL
Eric Brown (argued), Barbara J. Chisholm, and Jonathan
Weissglass, Altshuler Berzon LLP San Francisco,
California; Henry Jasny, Advocates for Highway and Auto
Safety, Washington, D.C.; for Petitioners.
Paul Cullen, Jr. (argued), Joyce E. Mayers, and Paul D.
Cullen, Sr., The Cullen Law Firm PLLC, Washington, D.C.,
for Intervenor.
Dana Kaersvang (argued) and Michael S. Raab, Attorneys,
Appellate Staff; Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington, D.C.; Peter J. Plocki,
Deputy Assistant General Counsel; Paul M. Geier, Assistant
General Counsel; Molly J. Moran, Acting General Counsel;
Office of the General Counsel, Office of Litigation and
Enforcement, United States Department of Transportation,
Washington, D.C.; Charles J. Fromm, Acting Chief Counsel,
and Debra S. Straus, Office of Chief Counsel, Federal Motor
Carrier Safety Administration, Washington, D.C.; for
Respondents.
OPINION
WARDLAW, Circuit Judge:
In the latest chapter of a long-running dispute between
Mexico and the United States over Mexico-domiciled
trucking companies’ U.S. operations, the Federal Motor
Carrier Safety Administration (“FMCSA”) recently began
granting permits for U.S. long-haul operations to those
companies, concluding that they operate at a level of safety
INT’L BHD. OF TEAMSTERS V. USDOT 5
at least equivalent to those of U.S. and Canada-domiciled
truckers. Petitioners International Brotherhood of
Teamsters, et al. (“Teamsters”) and Intervenor Owner-
Operator Independent Drivers Association, Inc. (“Drivers
Association”) challenge the FMCSA’s statutory authority to
issue those permits. Because none of the parties’ claims is
properly before this Court, we deny the petitions for review.
I.
The present challenge arises from a thirty-five-year-long
dispute between Mexico and the United States over cross-
border trucking operations. U.S.-domiciled truckers have
long opposed the entry of Mexico-domiciled truckers
through both the political process and in the courts under the
banner of highway safety, though their real concern appears
to be preventing the increased competition threatened by the
entrance of Mexico-domiciled carriers. Most recently, U.S.-
domiciled truckers represented by the Teamsters and the
Drivers Association challenged the adequacy of a pilot
program which Congress required the FMCSA 1 to conduct
before granting long-haul operating authority to Mexico-
domiciled carriers. See U.S. Troop Readiness, Veterans’
Care, Katrina Recovery, and Iraq Accountability
Appropriations Act of 2007, Pub. L. No. 110–28, § 6901,
121 Stat. 112, 183 (2007) (“2007 Act”). This is the
Teamsters’ and Drivers Association’s second legal
challenge to that program. The first, a challenge to the
adequacy of the FMCSA’s plan for conducting the program,
1
The FMCSA is a branch of the Department of Transportation. We
follow the parties in describing the Department of Transportation’s
actions as those of the FMCSA, except where we discuss statutory
obligations that fall specifically on the department itself or the
Transportation Secretary.
6 INT’L BHD. OF TEAMSTERS V. USDOT
was heard in the U.S. Court of Appeals for the D.C. Circuit.
Writing for the court, Judge Kavanaugh recounted the
relevant history leading up to the pilot program:
Before 1982, trucking companies from
Canada and Mexico could apply for a permit
to operate in the United States. In 1982,
concerned that Canada and Mexico were not
granting reciprocal access to American
trucking companies, Congress passed and
President Reagan signed a law that prohibited
the U.S. Government from processing
permits for companies domiciled in those two
countries. The trucking dispute between the
United States and Mexico has lingered since
then.
The United States and Mexico attempted
to resolve the impasse when negotiating the
North American Free Trade Agreement.
After NAFTA took effect in 1994, the U.S.
Government announced a program that
would gradually allow Mexico-domiciled
trucking companies to operate throughout the
United States. Soon thereafter, however, the
U.S. Government announced that Mexico-
domiciled trucking companies would be
limited to specified commercial zones in
southern border states.
Mexico then complained to a NAFTA
arbitration panel about that limited access.
The panel ruled that the United States had to
allow Mexico-domiciled trucking companies
to operate throughout the United States. But
INT’L BHD. OF TEAMSTERS V. USDOT 7
the panel also explained that the United
States could require those companies to
comply with the same regulations that apply
to American trucking companies. The panel
also ruled that if the United States failed to
allow Mexico-domiciled trucks to operate
throughout the United States, Mexico would
be permitted to impose retaliatory tariffs.
In response, Congress passed and
President George W. Bush signed a law that
authorized the Federal Motor Carrier Safety
Administration, part of the Department of
Transportation, to grant permits to Mexico-
domiciled trucking companies so long as the
trucking companies complied with U.S.
safety requirements. See Pub. L. No. 107–87,
§ 350, 115 Stat. 833, 864 (2001). As the U.S.
Government worked to establish a permitting
regime, Congress passed and President Bush
signed another law requiring the Department
of Transportation to implement a pilot
program to ensure that Mexico-domiciled
trucks would not make the roads more
dangerous.
In 2007, the FMCSA instituted a pilot
program, but Congress passed and President
Obama signed a law that expressly defunded
the program before it was completed. After
Mexico imposed $2.4 billion in retaliatory
tariffs in response, Congress passed and
President Obama signed a law reinstating
funds for the program. In 2011, the agency
again instituted a pilot program, . . . .
8 INT’L BHD. OF TEAMSTERS V. USDOT
Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp., 724 F.3d
206, 210–11 (D.C. Cir. 2013) (Teamsters I) (citations
omitted).
The Teamsters and the Drivers Association petitioned
the D.C. Circuit to enjoin the pilot program before it began.
The Teamsters argued, among other things, that the FMCSA
had not planned for the “number of participants necessary to
yield statistically valid findings,” as required by statute,
49 U.S.C. § 31315(c)(2)(C), because it had not established a
threshold for the number of trucking companies that would
need to participate in the pilot program before the agency
would deem the program’s results statistically valid, see
Pilot Program on the North American Free Trade Agreement
(NAFTA) Long-Haul Trucking Provisions, 76 Fed. Reg.
40,420 (July 8, 2011) (“Pilot Program Plan”). Teamsters I,
724 F.3d at 216. The D.C. Circuit rejected this argument,
holding that the FMCSA had planned for an adequate sample
size by allowing “an unlimited number of trucking
companies” to participate in the program. Id.
The Drivers Association, meanwhile, argued that the
FMCSA’s decision to allow Mexico-domiciled motor
carriers to use Mexican driver’s licenses violated other
statutory requirements. Id. at 212–13. The D.C. Circuit
rejected this contention as well, concluding that “U.S. law
permits Mexican truckers to use their Mexican commercial
drivers’ licenses and to rely on those licenses as proof of
medical fitness to drive.” Id. at 214.
The FMCSA completed the pilot program, and in
January 2015 released a report detailing its findings.
FMCSA, United States-Mexico Cross-Border Long-Haul
Trucking Pilot Program Report to Congress (2015) (“Pilot
Program Report”). Only thirteen carriers participated in the
pilot program. Id. at 2. The Department of Transportation’s
INT’L BHD. OF TEAMSTERS V. USDOT 9
Office of Inspector General reviewed the department’s
findings and issued its own report, concluding that thirteen
drivers was too small a sample from which to draw any
inferences about the safety of the entire population of
Mexico-domiciled carriers expected to receive long-haul
authority within the United States. Office of Inspector
General, U.S. Dep’t of Transp., FMCSA Adequately
Monitored Its NAFTA Cross-Border Trucking Pilot
Program but Lacked a Representative Sample to Project
Overall Safety Performance 12–13 (2014).
Nevertheless, the FMCSA concluded that the data were
representative, for two reasons. First, it noted that Mexican
authorities and industry representatives did not expect many
more carriers to apply for long-haul authority following full
NAFTA implementation than the ones that had applied for
provisional authority through the pilot program. Pilot
Program Report at 36. Second, the FMCSA concluded that
the data were representative because the agency
supplemented the data it gathered from the thirteen pilot
program participants with data from 952 other Mexico-
owned long-haul carriers operating in the U.S. The FMCSA
found that “all Mexican carrier groups performed as well as
their comparison groups [of U.S. and Canada-domiciled
carriers] in the majority of measures used in the study,” and
that “[i]n those instances where they did not, the disparity
[was] generally small.” Id. at 36.
Having analyzed the data, the FMCSA concluded that
“Mexico-domiciled motor carriers[] conducting long-haul
operations beyond the commercial zones of the United
States[] operate at a level of safety levels [sic] that is
equivalent to, or greater than, the level of safety of U.S. and
Canada-domiciled motor carriers operating within the
United States.” Id. Accordingly, the FMCSA
10 INT’L BHD. OF TEAMSTERS V. USDOT
“recommend[ed] that no significant changes be made to the
Federal Motor Carrier Safety Regulations at this time.” Id.
In a letter accompanying the report, U.S. Transportation
Secretary Anthony R. Foxx informed Congress that the
Department of Transportation would be “taking steps to
normalize acceptance of application[s] for authority from
Mexico-domiciled trucking companies.”
In the present petition (“Teamsters II”), the Teamsters
challenge the FMCSA’s grant of long-haul trucking
authority to Mexico-domiciled carriers following the
completion of the pilot program. They argue that the results
of the program were based on an insufficient sample of
carriers.
The Drivers Association asserts additional claims
challenging the statistical validity of the FMCSA’s analysis.
It also reiterates its Teamsters I claim that the agency acted
unlawfully by allowing drivers for Mexico-domiciled
carriers to use Mexico-issued licenses.
II.
We must evaluate whether the Teamsters and the Drivers
Association have standing to bring this suit. Standing has a
constitutional as well as a statutory component.
A. The Teamsters and the Drivers Association have
constitutional standing.
To establish that it has constitutional standing, a party
must meet three requirements. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992). First, it must show
that it has suffered an injury in fact. Id. at 560. Second, it
must demonstrate that its injuries are fairly traceable to the
INT’L BHD. OF TEAMSTERS V. USDOT 11
allegedly wrongful conduct. Id. at 561. Third, it must show
that a favorable ruling would redress its injuries. Id.
The D.C. Circuit has recognized that “economic actors
suffer an injury in fact when agencies lift regulatory
restrictions on their competitors or otherwise allow
increased competition against them.” Sherley v. Sebelius,
610 F.3d 69, 72 (D.C. Cir. 2010) (quotation marks and
alteration omitted). This doctrine of “competitor standing”
is grounded in the “‘basic law of economics’ that increased
competition leads to actual injury.” Id. (quoting New World
Radio, Inc. v. FCC, 294 F.3d 164, 172 (D.C. Cir. 2002)).
In Teamsters I, the D.C. Circuit held that the Teamsters
and the Drivers Association had properly alleged an injury
in fact “[b]ecause the pilot program allows Mexico-
domiciled trucks to compete with [their] members.”
724 F.3d at 212. The D.C. Circuit reasoned that “[t]he
causation and redressability requirements of Article III
standing are easily satisfied because, absent the pilot
program, members of these groups would not be subject to
increased competition from Mexico-domiciled trucks
operating throughout the United States.” Id.
We agree with the D.C. Circuit that the Teamsters and
the Drivers Association have constitutional standing to
challenge the FMCSA’s approval of Mexico-domiciled
carriers. The FMCSA’s grant of long-haul operating
authority to Mexico-domiciled carriers has introduced new
competition into the market, making it more difficult for
stateside truckers to profit. This is sufficient to establish
Article III injury.
The element of redressability is also easily satisfied. If
we were to resolve the petitions in favor of the Teamsters
and the Drivers Association and conclude that the FMCSA
12 INT’L BHD. OF TEAMSTERS V. USDOT
exceeded its authority by granting long-haul permits to
Mexico-domiciled carriers, the members of the Teamsters
and the Drivers Association would face less competition
from Mexico-domiciled carriers, and would thus be better
off.
B. The 2007 Act encompasses the Teamsters’ and the
Drivers Association’s claims.
The D.C. Circuit also concluded that the Teamsters and
the Drivers Association met the “zone of interests” test. Id.
This test is often described as “prudential” standing.
However, the Supreme Court recently clarified that the
proper way to think about the issue is to ask “whether a
legislatively conferred cause of action encompasses a
particular plaintiff’s claim,” using “traditional tools of
statutory interpretation.” Lexmark Int’l, Inc. v. Static
Control Components, Inc., —U.S.—, 134 S. Ct. 1377, 1387
(2014).
In Teamsters I, the D.C. Circuit reasoned that, “In
authorizing the pilot program, Congress balanced a variety
of interests, including safety, American truckers’ economic
well-being, foreign trade, and foreign relations.” 724 F.3d
at 212. Thus, the court concluded that the Teamsters’ and
the Drivers Association’s claims were “plainly within the
zone of interests of the statutes governing the pilot program.”
Id. We agree with the D.C. Circuit’s analysis and hold that
the claims of the Teamsters and the Drivers Association fall
within the 2007 Act’s zone of interests.
C. The Teamsters and the Drivers Association also have
third-party organizational standing.
An organization has standing to assert the interests of its
members where “(a) its members would otherwise have
INT’L BHD. OF TEAMSTERS V. USDOT 13
standing to sue in their own right; (b) the interests it seeks to
protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n,
432 U.S. 333, 343 (1977). The D.C. Circuit concluded that
the Teamsters and the Drivers Association both had third-
party organizational standing because “[t]heir members are
hurt by increased competition, and the groups exist to protect
the economic interests of their members.” Teamsters I,
724 F.3d at 212. We agree with the D.C. Circuit on this
point, as well.
“[T]he presence of one party with standing is sufficient
to satisfy Article III’s case-or-controversy requirement.”
Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc., 547 U.S.
47, 52 n.2 (2006). Accordingly, we need not evaluate
whether the Teamsters’ co-petitioners have standing.
III.
Petitioners bring their challenge under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706.
The APA requires courts to set aside final agency action that
is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law,” id. § 706(2)(A), or “in excess
of statutory jurisdiction, authority, or limitations, or short of
statutory right,” id. § 706(2)(C). However, the APA does
not provide for judicial review of agency action that is not
final, id. § 704, or that is “committed to agency discretion by
law,” id. § 701(a)(2).
A. The grant of a long-haul operating permit to a
Mexico-domiciled carrier and the denial of the
Teamsters’ challenge to that grant are final agency
actions.
14 INT’L BHD. OF TEAMSTERS V. USDOT
Section 704 of the APA provides for judicial review of
“[a]gency action made reviewable by statute and final
agency action for which there is no other adequate remedy
in a court.” 5 U.S.C. § 704. The Supreme Court has
identified two conditions for agency action to be deemed
final within the meaning of § 704. First, “the action must
mark the consummation of the agency’s decisionmaking
process.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997)
(internal quotation marks omitted). Second, “the action must
be one by which rights or obligations have been determined,
or from which legal consequences will flow.” Id. at 178
(internal quotation marks omitted).
The Teamsters filed three separate petitions in this Court
to ensure that they were bringing a reviewable challenge to
final agency action. They filed petitions for review of the
Pilot Program Report; of the FMCSA’s grant of Provisional
Motor Carrier Operating Authority to a particular Mexico-
domiciled carrier, Trajosa SA de CV (“Trajosa”); and of the
FMCSA’s denial of the Teamsters’ protest to Trajosa’s
permit application. We have consolidated all three petitions
for review.
The FMCSA’s grant of a long-haul operating permit to
Trajosa marked the consummation of the agency’s
decisionmaking process to grant long-haul permits to
Mexico-domiciled carriers. Legal consequences flowed
from the decision, because it allowed Trajosa to operate
lawfully anywhere in the United States. Thus, the issuance
of the permit was final agency action.
The FMCSA’s denial of the Teamsters’ challenge to the
permit granting Trajosa operating authority is also final
agency action. The denial marked the consummation of the
agency’s resolution of the Teamsters’ challenge, and had
legal consequences because it enabled Trajosa to proceed
INT’L BHD. OF TEAMSTERS V. USDOT 15
with its operations. See Wind River Mining Corp. v. United
States, 946 F.2d 710, 716 (9th Cir. 1991) (rejection of
administrative challenge to agency decision was final
agency action).
However, the issuance of the Pilot Program Report was
not final agency action. The report had no legal
consequences. To be sure, it was the final step in completing
the pilot program, clearing the way for the permitting of
Mexico-domiciled carriers. But the submission of the report
did not change the legal situation, because the FMCSA
maintained discretion over whether or not to begin issuing
permits to Mexico-domiciled carriers. See 2007 Act
§ 6901(a). In other words, the FMCSA could have lawfully
declined to issue permits despite completing the pilot
program. Therefore, we may not review the Pilot Program
Report, and must dismiss the petition challenging it.
However, that the issuance of the Pilot Program Report
was not final agency action does not affect our review of the
Teamsters’ and the Drivers Association’s claims, because
the substance of those claims is identical across the three
petitions. Accordingly, we proceed to evaluate those claims,
as raised in the Teamsters’ other two petitions.
B. We have Hobbs Act jurisdiction over the petition for
review of the decision to grant Trajosa a permit.
Ordinarily, a party must file a petition for review in the
district court in the first instance. However, the Hobbs Act
provides for direct appellate review of “rules, regulations, or
final orders” of the Transportation Secretary. 28 U.S.C.
§ 2342(3)(A). The FMCSA concedes that the Hobbs Act
provides for jurisdiction over the grant of operating authority
to Trajosa. That grant was plainly a “final order” within the
meaning of § 2342(3)(A). See Carpenter v. Dep’t of
16 INT’L BHD. OF TEAMSTERS V. USDOT
Transp., 13 F.3d 313, 317 (9th Cir. 1994). Thus, we may
review the Teamsters’ and the Drivers Association’s claims
in the first instance.
C. Whether to grant long-haul authority based on the
results of the pilot program is “committed to agency
discretion by law” and is thus unreviewable.
As in Teamsters I, the parties’ challenge here is grounded
in the 2007 Act’s requirement that the FMCSA conduct a
pilot program before granting long-haul operating authority
to Mexico-domiciled carriers:
(a) Hereafter, funds limited or appropriated
for the Department of Transportation may be
obligated or expended to grant authority to a
Mexico-domiciled motor carrier to operate
beyond United States municipalities and
commercial zones on the United States-
Mexico border only to the extent that—
(1) granting such authority is first tested
as part of a pilot program;
(2) such pilot program complies with the
requirements of section 350 of Public
Law 107–87 and the requirements of
section 31315(c) of title 49, United States
Code, related to pilot programs; and
(3) simultaneous and comparable
authority to operate within Mexico is
made available to motor carriers
domiciled in the United States.
2007 Act § 6901(a).
INT’L BHD. OF TEAMSTERS V. USDOT 17
This statutory language is straightforward. Section
6901(a)(1) requires the Secretary to conduct a “test” of the
Department of Transportation’s authority to issue long-haul
permits. In turn, § 6901(a)(2) explains that a “test” is only
valid if it complies with two other statutes: the law passed
by Congress and signed by President Bush in 2001 that sets
out the substantive safety requirements for Mexico-
domiciled carriers conducting long-haul operations in the
United States, Pub. L. No. 107–87, § 350, 115 Stat. 833, 864
(2001) (“2001 Act”); and 49 U.S.C. § 31315(c), which
establishes general requirements with which all pilot
programs conducted by the Department of Transportation
must comply.
The Teamsters argue that the FMCSA’s conclusion in
the Pilot Program Report that Mexico-domiciled carriers
would operate safely was unsupported by the data the agency
collected through the program, because it relied on too small
a sample. Thus, the Teamsters reason, the FMCSA lacked
authority to finalize the pilot program and grant Trajosa an
operating permit.
However, the source of the requirement that the pilot
program “test” result in data that meet some statutorily
unarticulated threshold of statistical validity is unclear.
Apart from the requirements in § 6901(a)(2), § 6901(a)
imposes no express requirements on the pilot program “test.”
Nor do any other provisions of the 2007 Act mandate a
particular level of statistical significance in the data
generated through the pilot program. By its express terms,
§ 6901(b) imposes reporting requirements that apply only
“[p]rior to the initiation of the pilot program.” 2007 Act
§ 6901(b) (emphasis added). And § 6901(c) only imposes
reporting requirements on the Inspector General of the
Department of Transportation. It does not require the
18 INT’L BHD. OF TEAMSTERS V. USDOT
Transportation Secretary to take any action in response to the
report. Given that § 6901(a)(2) expressly describes the
substantive requirements with which the Secretary must
comply in conducting the pilot program, we reject the
Teamsters’ invitation to find an implied requirement of
statistical validity in the 2007 Act’s other provisions.
Accordingly, if the 2007 Act imposes any such
requirement on the results of the pilot program, this
requirement would be found in either the 2001 Act or
49 U.S.C. § 31315(c), the two statutes cited in § 6901(a)(2)
of the 2007 Act. The Teamsters do not argue that the 2001
Act imposes any requirements relevant here. However, they
do find a requirement of statistical validity in 49 U.S.C.
§ 31315(c)(2), the same provision under which they
challenged the pilot program plan:
(2) . . . The Secretary shall include, at a
minimum, the following elements in each
pilot program plan: . . . (C) A reasonable
number of participants necessary to yield
statistically valid findings.
49 U.S.C. § 31315(c)(2).
The plain language of § 31315(c)(2) forecloses the
Teamsters’ contention that this provision imposes a
requirement of statistical validity on the data yielded by the
pilot program. By its express terms, § 31315(c)(2) applies
to “pilot program plan[s].” Id. § 31315(c)(2). If Congress
had wanted the statute to apply to “results” in addition to
“plans,” it would have said so. We need look no further than
the statute’s plain language to arrive at this conclusion.
We thus reject the Teamsters’ argument that the 2007
Act imposes any requirements of sample size or statistical
INT’L BHD. OF TEAMSTERS V. USDOT 19
validity on the pilot program’s results before the FMCSA
may make its decision. The 2007 Act entrusts the Secretary
with evaluating the results of the pilot program and deciding
whether to grant long-haul authority to Mexico-domiciled
carriers in light of those results. In other words, the 2007
Act commits these decisions to the Secretary’s discretion,
and the Secretary may include as the basis for its ultimate
decision other relevant and logical factors, as it did here.
Agency action “committed to agency discretion by law”
is exempt from APA review. 5 U.S.C. § 701(a)(2); Heckler
v. Chaney, 470 U.S. 821, 830–31 (1985). This exemption
applies where “[a] statute is drawn so that a court would have
no meaningful standard against which to judge the agency’s
exercise of discretion.” Heckler, 470 U.S. at 830. A statute
need not expressly preclude review for the agency’s action
to be “committed to agency discretion.” 33 Charles Alan
Wright & Charles H. Koch, Jr., Federal Practice &
Procedure § 8392 (1st ed. 2017). Rather, the statute may
simply leave nothing for the courts to review, vesting all
authority to the agency. Id.
The 2007 Act provides “no meaningful standard against
which to judge the agency’s exercise of discretion” in
interpreting the data generated through the pilot program and
granting long-haul operating permits to Mexico-domiciled
carriers. Heckler, 470 U.S. at 830. Accordingly, the
FMCSA’s decision to grant Trajosa a long-haul operating
permit is “committed to agency discretion by law,” id. at
835, and is exempt from our review.
The Teamsters and the Drivers Association maintain that
we could still find the FMCSA’s decision “arbitrary and
capricious” in violation of APA § 706(2)(A). However,
arbitrary and capricious review does not apply in the absence
of a statutory benchmark against which to measure an
20 INT’L BHD. OF TEAMSTERS V. USDOT
agency’s exercise of discretion. “[I]f no judicially
manageable standards are available for judging how and
when an agency should exercise its discretion, then it is
impossible to evaluate agency action for ‘abuse of
discretion.’” Heckler, 470 U.S. at 830; see also Or. Nat. Res.
Council v. Thomas, 92 F.3d 792, 798–99 (9th Cir. 1996)
(“[W]here there is no law to apply for purposes of section
701(a)(2), it is legally irrelevant whether an agency has made
a ‘finding’ that is ‘contrary to the evidence before it’ or that’s
‘so implausible that it couldn't be ascribed to a difference in
view or the product of agency expertise.’” (quoting Motor
Vehicles Mfrs. Ass’n of United States, Inc. v. State Farm
Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983))).
Accordingly, we may not review the FMCSA’s decision
to grant Trajosa an operating permit. 2
IV.
The Drivers Association suggests a second reason why
the FCMSA’s grant of a long-haul permit to a Mexico-
domiciled carrier violates the APA. It contends that the
FMCSA exceeded its statutory authority in granting a permit
to a Mexico-domiciled carrier without requiring the carrier’s
drivers to first obtain a U.S. driver’s license. However, we
may not consider this argument, either, for it is precluded by
Teamsters I.
2
Because we lack jurisdiction to review claims based on the
statistical foundation for the FMCSA’s decision to grant Mexico-
domiciled carriers long-haul operating authority, we also reject the
Drivers Association’s claim that the FMCSA’s refusal to supplement the
administrative record with additional statistical information was
arbitrary and capricious. In a separately filed order, we deny the Drivers
Association’s motion as moot.
INT’L BHD. OF TEAMSTERS V. USDOT 21
“The preclusive effect of a federal-court judgment is
determined by federal common law.” Taylor v. Sturgell,
553 U.S. 880, 891 (2008). Under federal common law, issue
preclusion “bars successive litigation of an issue of fact or
law actually litigated and resolved in a valid court
determination essential to [a] prior judgment, even if the
issue recurs in the context of a different claim.” Id. at 892
(internal quotation marks omitted).
Teamsters I rejected on the merits the Drivers
Asssociation’s claim that the FMCSA lacked authority to
allow foreign carriers to operate without U.S. driver’s
licenses. That decision was essential to the court’s decision
to deny relief. The Drivers Association contends that the
issues in the two suits are different because the Teamsters I
court only reviewed whether American driver’s licenses
were required in the specific context of the pilot program.
However, nothing in the Teamsters I opinion suggests that
its decision was so limited. The D.C. Circuit’s conclusion
was simple and unambiguous: Congress had decided “to
allow Mexican truckers with Mexican commercial drivers’
licenses to drive on U.S. roads.” Teamsters I, 724 F.3d at
213. Accordingly, the issues are identical, and the Drivers
Association may not raise the same argument here.
V.
The parties do not raise any arguments the merits of
which we may review.
PETITIONS DENIED.