No IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 16-4159 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC. (a.k.a. OOIDA ) AND SCOTT MITCHELL, Petitioners, vs. UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION; AND THE UNITED STATES OF AMERICA, Respondents, On Appeal from the Federal Motor Carrier Safety Administration Medical Examiner s Certification Integration Final rule, published April 23, 2015, 80 Fed. Reg. 22790 and Denial of OOIDA s Petition for Reconsideration, on September 9, 2016. PETITION FOR PANEL REHEARING AND SUGGESTIONS FOR REHEARING EN BANC PAUL D. CULLEN, SR. PAUL D. CULLEN, JR. CHARLES R. STINSON The Cullen Law Firm, PLLC 1101 30 th Street NW, Suite 300 Washington, DC 20007 Tel: (202) 944-8600 Fax: (202) 944-8611 February 20, 2018 Counsel for Petitioners Appellate Case: 16-4159 Page: 1 Date Filed: 02/20/2018 Entry ID: 4631788

TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii QUESTIONS PRESENTED FOR REVIEW... 1 STATEMENT OF THE CASE... 2 ARGUMENT... 5 I. INJURY-IN-FACT FOR STANDING PURPOSES MAY BE ESTABLISHED PRIOR TO A RULE S EFFECTIVE DATE... 5 II. THE PANEL IGNORED THE VIOLATION OF PETITIONERS PROCEDURAL RIGHTS AS A BASIS FOR STANDING... 7 III. THE PANEL OVERLOOKED OOIDA S ASSOCIATIONAL STANDING... 9 IV. THE PANEL BRUSHED ASIDE PETITIONERS AFFIDAVITS WITHOUT ANALYSIS... 10 CONCLUSION... 13 ii Appellate Case: 16-4159 Page: 2 Date Filed: 02/20/2018 Entry ID: 4631788

TABLE OF AUTHORITIES Abbott Labs. v. Gardner, 387 U.S. 136 (1967)...1, 10 Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581 (8th Cir. 2006)... 8 Bearden v. Lemon, 475 F.3d 926 (8th Cir. 2007)... 8 Bowman Transp. Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281 (1974)... 4 Burlington Truck Lines v. United States, 371 U.S. 156 (1962)... 4 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)... 5 Clean Air Implementation Project v. E.P.A., 150 F. 3d 1200 (D.C. Cir. 1998)... 6 Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333 (1977)...9, 10 Iowa League of Cities v. E.P.A., 711 F.3d 844 (8th Cir. 2013)... 1, 6, 9, 11 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)... 1, 6, 7, 9, 11 Massachusetts v. EPA, 549 U.S. 497 (2007)... 8 Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236 (3d Cir. 2011)...7, 9 Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)... 4 iii Appellate Case: 16-4159 Page: 3 Date Filed: 02/20/2018 Entry ID: 4631788

Owner-Operator Indep. Drivers Ass n, Inc. v. Fed. Motor Carrier Safety Admin., 656 F.3d 580 (7th Cir. 2011)... 2, 3, 5, 7, 8, 10, 11 Pub. Water Supply v. City of Peculiar, 345 F.3d 570 (8th Cir. 2003)...11 United States v. Head, 340 F.3d 628 (8th Cir. 2003)... 8 Sabre, Inc. v. Dep't of Transp., 429 F.3d 1113 (D.C. Cir. 2005)... 8 Sierra Club v. E.P.A., 699 F.3d 530 (D.C. Cir. 2012)...7, 9 Sierra Club v. E.P.A., 292 F.3d 895 (D.C. Cir. 2002)...10 Statutes & Public Laws 5 U.S.C. 553(b)(3)(B)... 4 5 U.S.C. 706... 4 28 U.S.C. 2344... 1, 2, 5, 6 49 U.S.C. 31136...4, 5 Pub. L. 113-45 (2013)... 5 Regulations 49 C.F.R. 391.11...2, 3 49 C.F.R. 391.41-49...2, 3 Regulatory Proceedings Medical Examiner s Certification Integration, 78 Fed. Reg. 27343 (May 10, 2013)... 3 iv Appellate Case: 16-4159 Page: 4 Date Filed: 02/20/2018 Entry ID: 4631788

QUESTIONS PRESENTED FOR REVIEW The Panel held that because Petitioners assertion of injury as a result of a federal agency s new Final Rule was prospective and speculative, they did not demonstrate the causation element of standing necessary to bring their petition for review. Opinion at 4-5. This holding conflicts with decisions of the United States Supreme Court and with decisions of several Circuit courts, including the Eighth Circuit, holding that subjects of the challenged rule have sufficient injury to support standing to bring a pre-enforcement challenge to that rule. Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 62 (1992); Iowa League of Cities v. E.P.A., 711 F.3d 844, 871 (8th Cir. 2013). The Panel s decision also involves a question of exceptional importance. The Court s holding, that Petitioners pre-enforcement claims of injury were insufficient to demonstrate standing, sets a collision course with the statute giving the court jurisdiction to hear petitions for review of agency rules. Under the Hobbs Act, petitioners are required to file their petition for review challenging a final rule with a Circuit Court within 60 days of the entry of the agency s final order. 28 U.S.C. 2344. The Panel held that Petitioners could not demonstrate concrete injury fairly traceable to a rule on the basis of an affidavit prepared prior to the effective date of the rule. Op. at 5. The Panel s construct of standing all but grants agencies the discretion to deny potential petitioners the right to seek judicial 1 Appellate Case: 16-4159 Page: 5 Date Filed: 02/20/2018 Entry ID: 4631788

review of agency final rules by making those rules effective 61 days or more after their entry. See Owner-Operator Indep. Drivers Ass n, Inc. v. Fed. Motor Carrier Safety Admin., 656 F.3d 580, 586 (7th Cir. 2011) ( OOIDA I ). The question of whether or not a court can sanction federal agency action allowing it to avoid judicial review under one of the court s jurisdiction statutes is a question of exceptional importance. In the alternative, under Rule of Appellate Procedure 40, Petitioners respectfully suggest that the Panel overlooked or misapprehended this jurisprudence and the statements in Petitioners affidavits. OOIDA members are the subject of the challenged Final Rule, therefore they sufficiently demonstrate the causation of their injury to bring their Petition for Review. STATEMENT OF THE CASE Petitioners challenge the Federal Motor Carrier Safety Administration s (FMCSA s) amendments to rules that require truck drivers to meet physical qualification standards through a medical certification process. 49 C.F.R. 391.11(b)(4) & 391.41-49. The final rule (with corrections) was published on April 23, 2015. It established an effective date of June 23, 2015. The Petition for Review was filed within 60 days of the entry of the rule as required by 28 U.S.C. 2344. The Watkins affidavit, upon which the Petitioners rely for standing, was 2 Appellate Case: 16-4159 Page: 6 Date Filed: 02/20/2018 Entry ID: 4631788

executed on May 23, 2015, 30 days prior to the effective date of the Rule. Op. at 5. The Panel held that the injuries identified in Petitioners Watkins affidavit and foreseen by their Johnston affidavit were not traceable to the final rule because the rule did not become effective until after the affidavits were executed. Id. Under the final rule, truck drivers are required to submit to a review by a medical examiner who has the statutory authority to certify whether or not an individual meets the physical qualifications to operate a commercial motor vehicle safely. 49 C.F.R. 391.41 & 391.42. The medical examiner s decision determines whether, by law, a driver should be permitted to operate a commercial motor vehicle or be disqualified from such work. Id. FMCSA initiated the challenged rule by publishing a Notice of Proposed Rulemaking (NPRM) on May 10, 2013. The primary purpose of the NPRM was to combine into a single document the records of a driver s medical certification and commercial driver s license. Medical Examiner s Certification Integration, 78 Fed. Reg. 27343 (May 10, 2013). Petitioners generally support the paperwork savings of this rule. Petitioners challenge, however, FMCSA s promulgation of other parts of the Final Rule that amended and broadened the scope of the driver s Health History and the medical criteria that a medical examiner is required to assess before making a medical certification determination. The Panel never 3 Appellate Case: 16-4159 Page: 7 Date Filed: 02/20/2018 Entry ID: 4631788

addressed the merits of the Petition for Review. Petitioners set forth their basic claims here because they are relevant to the issue of standing. FMCSA violated the Administrative Procedures Act and the Motor Carrier Act because it did not propose, and therefore did not afford the public the opportunity to comment upon, an extensive list of medical criteria, appearing in its Final Rule as Appendix A to 49 C.F.R. Part 391. See 5 U.S.C. 706 & 553(b)(3)(B); 49 U.S.C. 31136. FMCSA thereby elevated what were once (unenforceable) agency guidelines labeled advisory criteria to the status of a rule independently established in the Code of Federal Regulations. Furthermore, in promulgating both the expanded Health History and Appendix A, FMCSA violated the APA by not performing or providing any analysis to explain how these new parts of the rule were the product of reasoned decision making. The agency must, of course, examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. Motor Vehicle Mfrs. Ass n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). A reviewing court will consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Motor Vehicle Mfrs. Ass n, 463 U.S. at 43; Bowman Transp. Inc. v. Arkansas-Best Freight System, Inc., 419 4 Appellate Case: 16-4159 Page: 8 Date Filed: 02/20/2018 Entry ID: 4631788

U.S. 281, 285 (1974); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Furthermore, FMCSA did not conduct a cost-benefit analysis required by the Motor Carrier Act for any elements of the expanded Health History or Appendix A. Such a cost-benefit analysis is required during the promulgation of motor carrier safety rules. 49 U.S.C. 31136(c)(2)(A). Finally, by incorporating the medical condition of sleep disorders, including obstructive sleep apnea, into both the Health History and in Appendix A, FMCSA violated Pub. L. 113-45 (2013), under which Congress required the agency to perform a rulemaking before incorporating any sleep disorder standard into the medical certification process. Pub. L. 113-45 (Oct. 15, 2014); 127 Stat. 557. ARGUMENT I. INJURY-IN-FACT FOR STANDING PURPOSES MAY BE ESTABLISHED PRIOR TO A RULE S EFFECTIVE DATE The Panel s holding conflicts with Supreme Court precedent and that of this and other Circuits when it held that the Watkins affidavit did not address injury fairly traceable to the rule because it was prepared prior to the rule s effective date. Op. at 5. The Hobbs Act requires Petitioners to file a petition for review within 60 days of an agency s final order. 28 U.S.C. 2344. Congress intended this statute to provide pre-enforcement judicial review of an agency s order. OOIDA I, 656 F.3d 5 Appellate Case: 16-4159 Page: 9 Date Filed: 02/20/2018 Entry ID: 4631788

at 587 (citing Clean Air Implementation Project v. E.P.A., 150 F. 3d 1200, 1204 (D.C. Cir. 1998)). If the Court s holding based on the prospective nature of the rule s impact on Petitioners were correct, then, as the Seventh Circuit noted, any final rule could be insulated from a pre-enforcement challenge by the simple expedient of setting an effective date 61 or more days after the rule was entered; ripeness would always stand as a bar to a petition. Id. The function of the Hobbs Act in providing Petitioners with pre-enforcement judicial review informs the nature of the evidence sufficient to support Petitioners standing. The Hobbs Act provides that [a]ny 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 wherein venue lies. 28 U.S.C. 2344. The party aggrieved relates to constitutional standing under Article III, requiring a petitioner to demonstrate a concrete and particularized injury, which has been caused by the agency, and which a court can redress. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 61 (1992). When a petitioner is the subject of agency action there is ordinarily little question that the action or inaction has caused him injury. Id. at 561 62 (cited with approval by Iowa League of Cities v. E.P.A., 711 F.3d 844, 871 (8th Cir. 2013)). The Panel s decision conflicts with this standard for finding causation of injury, and therefore standing. The decision would work to frustrate Congress's 6 Appellate Case: 16-4159 Page: 10 Date Filed: 02/20/2018 Entry ID: 4631788

determination that pre-enforcement review should be the norm for agency rules that fall under statutes like the Hobbs Act. OOIDA I, 656 F.3d at 587. The Panel s decision splits with the Supreme Court s holding on standing in Lujan, and the Seventh Circuit s holdings cited above and presents an issue of exceptional importance. II. THE PANEL IGNORED THE VIOLATION OF PETITIONERS PROCEDURAL RIGHTS AS A BASIS FOR STANDING Violation of procedural rights of interested parties during a rulemaking proceeding confers standing. Lujan 504 U.S. at 572 n.7. Procedural violations can include violation of the APA's notice-and-comment requirements, as those procedures are plainly designed to protect the sort of interest alleged. As to such requirements, [the petitioner association] enjoys some slack in showing a causal relation between its members' injury and the legal violation claimed. Sierra Club v. E.P.A., 699 F.3d 530, 533 (D.C. Cir. 2012); see also Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 247 n.4 (3d Cir. 2011) (agency action establish[ing] in violation of appellees' notice and comment rights a new substantive rule... suffices for standing purposes ). Here the Petitioners procedural interest includes FMCSA conducting a transparent and accountable rulemaking procedure, including the performance of a cost-benefit analysis of the imposition of various detailed medical criteria, and the agency s consideration and response to Petitioners comments. 7 Appellate Case: 16-4159 Page: 11 Date Filed: 02/20/2018 Entry ID: 4631788

If a petitioner is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant. Massachusetts v. EPA, 549 U.S. 497, 518, (2007). When a petition involves purely legal claims in the context of a facial challenge to a final rule, a petition is presumptively reviewable. OOIDA I, 656 F.3d at 586 (citing Sabre, Inc. v. Dep't of Transp., 429 F.3d 1113, 1119 (D.C. Cir. 2005)). In this action Petitioners are focused solely on the FMCSA s failure to comply with its statutory obligations when promulgating a rule. There is no need for the Court to conduct an individualized inquiry of the rules to decide the lawfulness of the agency s rulemaking on the merits. The Panel refused to reach the merits of Petitioners procedural standing argument, noting that it does not consider arguments raised for the first time in a reply brief. Op. at 5 n.4 (citing Bearden v. Lemon, 475 F.3d 926, 930 (8th Cir. 2007)). This narrow view overstates this Circuit s reluctance to consider such arguments. The Eighth Circuit is not precluded from doing so, particularly where, as here, the argument raised in the reply brief supplements an argument raised in a party's initial brief. Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006) (citing United States v. Head, 340 F.3d 628, 630 n.4 (8th Cir. 2003)). In this case, OOIDA s procedural standing argument in its reply brief clearly supplements the standing arguments raised in the Petitioners initial brief 8 Appellate Case: 16-4159 Page: 12 Date Filed: 02/20/2018 Entry ID: 4631788

and flows directly from Petitioners issues and merits arguments. Each of Petitioners issues, that FMCSA failed to follow statutory requirements when conducting a rulemaking, is solely procedural. Iowa League of Cities, 711 F.3d at 871 (finding that the APA rulemaking procedures were designed to protect some threatened concrete interest of [the petitioner] that is the ultimate basis of his standing (quoting Lujan, 504 U.S. at 573); see also Sierra Club, 699 F.3d at 533; Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 247 n.4 (3d Cir. 2011). III. THE PANEL OVERLOOKED OOIDA S ASSOCIATIONAL STANDING Because the Panel found that Petitioners did not demonstrate the actual implementation of the final rule as to individuals, the Court also dismissed OOIDA s claim to association standing. Op. at 3-4, n.2. However, an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have 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. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). Mr. Johnston s and Mr. Watkins s affidavits indisputably establish that OOIDA s individual members are the subject of the Final Rule at issue and, therefore, would have individual standing to sue in their own right. Mr. Johnston s affidavit describes how the rules for the medical certification of truck drivers are germane to the purpose of OOIDA as an advocate for the rights of truck drivers. 9 Appellate Case: 16-4159 Page: 13 Date Filed: 02/20/2018 Entry ID: 4631788

And by the nature of Petitioner s claims, focused on whether FMCSA complied with its statutory rulemaking obligations, there is no need for the participation of individual members in the lawsuit. Petitioners opening brief, therefore, demonstrated grounds for associational standing under Article III. Hunt, 432 U.S. at 343 (1977); Sierra Club, 292 F.3d at 898; OOIDA I, 656 F.3d at 586. IV. THE PANEL BRUSHED ASIDE PETITIONERS AFFIDAVITS WITHOUT ANALYSIS The Panel found Petitioners affidavits insufficient to establish the causation element of their standing. The Panel characterized Mr. Johnston s affidavit as generalized allegations of the types of harm that could stem from the Rule a far cry from the specific facts, id., we look for to support standing. Op. at 4. The Panel noted that Mr. Watkins s statement addressed events that occurred before the effective dates of the new rule, and therefore Petitioners had not adequately established that the new rule caused their members concrete injury sufficient to support standing. Op. at 5. The Panel s focus on Petitioners affidavits as speculation as to the future effects of the Final Rule and, therefore, as insufficient to establish standing contradict the well-established rule of Abbott Laboratories permitting preenforcement challenges of final agency rules. Abbott Labs., 387 U.S. at 149; see also Iowa League of Cities, 711 F.3d at 867 ( We do not require parties to operate beneath the sword of Damocles until the threatened harm actually befalls them, but 10 Appellate Case: 16-4159 Page: 14 Date Filed: 02/20/2018 Entry ID: 4631788

the injury must be certainly impending (citing Pub. Water Supply v. City of Peculiar, 345 F.3d 570, 573)); OOIDA I, 656 F.3d at 586 (Petitioners had standing to challenge FMCSA safety regulation in advance of its implementation date). Mr. Johnston s and Mr. Watkins s affidavits established that Petitioner OOIDA s members are the subjects of the Final Rule amending the Medical Certification rules. This is all the evidence Petitioners must demonstrate to show sufficient concrete and particularized injury to establish standing. See Lujan, 504 U.S. at 561-62; Iowa League of Cities, 711 F.3d at 871; see also OOIDA I, 656 F.3d at 585 (where petitioner truck drivers were the regulated subject of the (notyet-implemented) electronic logging device rules, standing was easily met ) On this jurisprudence alone, Mr. Johnston s and Mr. Watkins s affidavits, establishing that OOIDA members are the subject of the new medical certification rules, were sufficient to demonstrate Petitioners standing to challenge those rules. Petitioners affidavits, however, go further than simply demonstrating that OOIDA members are the object of a pending Final Rule. Because Petitioners challenge FMCSA s decision to transform its prior (unenforceable) certification guidelines into standalone rules in 49 C.F.R. Part 391, Appendix A, the effect of the application of those medical criteria on drivers is not merely prospective or speculative. As guidance, the medical criteria have been used by medical examiners to evaluate truck drivers for years. Mr. Watkins s affidavit details the 11 Appellate Case: 16-4159 Page: 15 Date Filed: 02/20/2018 Entry ID: 4631788

impact, cost, and harm they have imposed on OOIDA s members in the preceding months and years. Therefore, even though the courts have routinely found petitioners to have standing when they are to be the object of a final rule before it has been enforced, Dale Watkins s affidavit went further. Mr. Watkins specifically and concretely demonstrated the harm those medical criteria imposed on professional truck drivers when they existed as regulatory guidelines with no legal status. FMCSA s guidance documents created a non-uniform, unpredictable and sometimes costly medical certification process. OOIDA members received or were denied medical certification depending on which medical examiner they went to and that examiner s interpretation of the guidance. Now that FMCSA has elevated those same advisory criteria to a legally enforceable rule, the harm they impose on truck drivers is not speculative, it is certain. 12 Appellate Case: 16-4159 Page: 16 Date Filed: 02/20/2018 Entry ID: 4631788

CONCLUSION If under Fed. R. App. 40, if the Panel overlooks or misapprehended Petitioners arguments and affidavits, the Petition for Panel Rehearing should be granted. Alternatively, rehearing en banc should be ordered to eliminate a conflict with the U.S. Supreme Court and Eighth Circuit precedent and to resolve an issue of exceptional importance; to preserve Petitioners right to bring a pre-enforcement challenge to preserve FMCSA rules. Respectfully Submitted, Dated: February 20, 2018 /s/ Paul D. Cullen, Jr. Paul D. Cullen, Jr. The Cullen Law Firm, PLLC 1101 30 th Street NW, Suite 300 Washington, DC 20007 Tel: (202) 944-8600 Fax: (202) 944-8611 Counsel for Petitioners 13 Appellate Case: 16-4159 Page: 17 Date Filed: 02/20/2018 Entry ID: 4631788

CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32, 35 & 40 This Petition complies with the type-volume limitation of Fed. R. App. P. 35 & 40 because this Petition contains 2,836 words, excluding the parts exempted by Fed. R. App. P. 32(f). This Petition complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this Petition has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman font, size 14. Appellate Case: 16-4159 Page: 18 Date Filed: 02/20/2018 Entry ID: 4631788

CERTIFICATE OF SERVICE I hereby certify that on February 20, 2017 I caused to be filed with the Court and served on Respondents through the CM/ECF system the foregoing Petitioners Petition for Rehearing and Suggestion for Rehearing En Banc. /s/ Paul D. Cullen, Jr.. Paul D. Cullen, Jr. Appellate Case: 16-4159 Page: 19 Date Filed: 02/20/2018 Entry ID: 4631788