OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INCORPORATED; STEVE DAVENPORT; TILDEN CURL, JR.; COLIN GENGE, Petitioners
UNITED STATES DEPARTMENT OF TRANSPORTATION; FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION; UNITED STATES OF AMERICA, Respondents
Petition for Review of an Order of the Department of
Transportation, Federal Motor Carrier Safety Administration
JONES, CLEMENT, and ELROD, Circuit Judges.
BROWN CLEMENT, Circuit Judge
an appeal of the Federal Motor Carrier Safety
Administration's ("FMCSA") grant of permanent
operating authority to two Mexico-domiciled motor carriers.
The Owner-Operator Independent Drivers Association and
several independent truckers (collectively "the
Association") argue that the FMCSA lacked authority to
grant permanent operating authority to these carriers.
Because we conclude that the Association failed to file a
timely appeal as required by statute, we DISMISS for lack of
2011, the United States initiated a Pilot Program to test the
safety of Mexican motor carriers conducting
"cross-border, long-haul" operations throughout the
United States. Designed and administered by the FMCSA, the
Pilot Program was intended to "test the effectiveness of
its regulations governing the registration and monitoring of
Mexico-domiciled motor carriers." The Pilot Program
involved extensive vetting and monitoring processes, with
additional oversight by the Department of Transportation
Inspector General and a subcommittee, the Motor Carrier
Safety Advisory Committee (MCSAC). In ordering the Pilot
Program, Congress "directed that DOT not open the
borders to long-haul trucking until the granting of authority
was first tested as part of a pilot program[.]"
January 2015, FMCSA issued its final report to Congress,
"conclud[ing] that the Pilot Program successfully
demonstrated that Mexican motor carriers can and do operate
throughout the United States at a safety level equivalent to
U.S. and Canada-domiciled motor carriers and consistent with
the high safety standards that FMCSA imposed on all motor
carriers authorized to operate in the United States." As
a result, FMCSA began granting permanent operating authority
to Mexico-domiciled motor carriers engaged in long-haul
trucking. In addition, FMCSA has accepted Mexican commercial
driving licenses ("CDLs") as equivalent to American
November 2015, the Association protested FMCSA's grant of
permanent operating authority to two Mexico-domiciled motor
carriers. The Association broadly contended that FMCSA lacked
authority to (1) grant operating authority to
Mexico-domiciled motor carriers, and (2) accept Mexican CDLs
as equivalent to state-issued CDLs. On the first claim, the
Association alleged that FMCSA lacked such authority because
it did not adequately conduct the Pilot Program. Alleged
deficiencies included an insufficient number of participants,
an insufficient number of inspections, and unreliable
comparative data, among others. On the second claim, the
Association alleged that 49 U.S.C. §§ 31302 and
31308 require Mexican drivers to obtain state-issued CDLs.
December 23, 2015, FMCSA "rejected and dismissed"
both protests in two separate orders. FMCSA explained that,
under its implementing regulations, an application for
operating authority "can be opposed only on the grounds
that the applicant is not fit [e.g., is not in compliance
with applicable financial responsibility and safety fitness
requirements]." Here, FMCSA wrote, the Association
"does not allege, and provides no evidence to show, that
Applicant is not fit to provide the relevant transportation
or that Applicant is not able to comply with applicable
January 8, 2016, the Association filed a "Motion for
Reconsideration." On March 23, 2016, FMCSA sent the
Association a series of letters, stating that it "will
not consider the motion for reconsideration" because its
regulations "do not provide for motions for
reconsideration of an agency decision denying a protest"
and the December 23 decisions "[were] final agency
action[s]." The Association filed its petition for
review with this court on May 20, 2016.
to oral argument, we requested supplemental briefing to
clarify whether we have appellate jurisdiction. "We
review questions of subject matter jurisdiction de
novo, and may consider such questions sua
sponte because 'subject matter delineations must be
policed by the courts on their own initiative.'"
Ezike v. Holder, 383 F.App'x 470, 472 (5th Cir.
2010) (quoting Gasch v. Hartford Acc. & Indem.
Co., 491 F.3d 278, 281 (5th Cir. 2007)).
jurisdiction to hear appeals from "final orders" of
the "Secretary of Transportation." 28 U.S.C. §
2342(3). "Any party aggrieved by the final order may,
within 60 days after its entry, file a petition to
review the order in the court of appeals." Id.
§ 2344 (emphasis added). "Th[is] 60 day period for
seeking judicial review . . . is jurisdictional in nature,
and may not be enlarged or altered by the courts."
Council Tree Investors, Inc. v. F.C.C., 739 F.3d
544, 551 (D.C. Cir. 2014) (quoting Nat. Res. Def. Council
v. Nuclear Regulatory Comm'n, 666 F.2d 595, 602
(D.C. Cir. 1981)). As such, the jurisdictional question boils
down to which agency action-the December 23, 2015 orders
rejecting and dismissing the Association's protest or the
March 23, 2016 letters refusing to "consider ...