United States District Court,
S.D. Indiana,
Evansville Division.
Thomas VOGLER, Sr., Thomas Vogler, Jr., Tiffany M. Vogler, and Tammy Vogler, Plaintiffs,
v.
JAMES R. POSHARD & SON, INC., and Jonathan Shealey, Defendants.
No. 3:14–cv–00105–RLY–WGH. | Signed Oct. 20, 2015.
Attorneys and Law Firms
Gregory G. Fenlon, St. Louis Lawyers Group, Clayton, MO, David Wm. Horan, St. Louis Lawyers Group, Burton Newman, St. Louis, MO , for Plaintiffs.
Christopher P. Leritz, Kelly T. Kirkbride, Leritz Plunkert & Bruning PC, St. Louis, MO, for Defendants.

ENTRY ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
RICHARD L. YOUNG, Chief Judge.
*1 Plaintiffs, Thomas Vogler, Sr., Thomas Vogler, Jr., Tiffany M. Vogler, and Tammy Vogler, brought this action against Defendants, James R. Poshard & Son, Inc. (“Poshard”) and Jonathan Shealey, for damages arising out of a vehicular accident that occurred on U.S. Highway 231 on March 20, 2014. On that day, Shealey was driving a tractor-trailer owned by Poshard. Plaintiffs allege Shealey negligently crossed the center line and collided with Plaintiffs’ automobile. Defendants now move for summary judgment on Plaintiffs’ claim for punitive damages. For reasons explained below, the court GRANTS the motion.

I. Standard
Summary judgment is appropriate if the record “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). To survive summary judgment, the nonmoving party must present specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute of fact exists if, based on the evidence presented, a reasonable jury could find in favor of the non-moving party on a particular issue. Id. at 248. The court views all admissible evidence in the light most favorable to the nonmoving party, but it need not draw unreasonable inferences. Tindle v. Polte Home Corp., 607 F.3d 494, 496 (7th Cir.2010).

II. Background
A. Introduction
Poshard is a trucking company and the registered owner of the tractor involved in the collision on March 20, 2014. On that day, Shealey, employee of Poshard and driver of the tractor-trailer, was transporting coal from a coal mine in Corning, Indiana, to a power plant in Owensboro, Kentucky. Shealey would typically deliver three loads of coal from the mine to the power plant in a single day. The accident occurred at approximately one o’clock p.m. as Shealey headed northbound on U.S. Highway 231 to pick up a third load of coal. (Filing No. 86–9 (“Shealey Dep.”) at 8–10).

Highway 231 is a two-lane highway with a single lane for northbound traffic and a single lane for southbound traffic. The posted speed limit where the accident occurred was fifty-five miles per hour. (Filing No. 86–2 at 3–6). In response to interrogatories, Shealey stated that he was traveling fifty miles per hour. (Filing No. 86–10 at 7). Shealey testifies that he entered the southbound lane where he collided with another tractor-trailer heading south on Highway 231. After colliding with the tractor-trailer, Shealey testifies that he remained in the southbound lane where he collided head-on with Plaintiffs’ vehicle traveling in the southbound lane behind the tractor-trailer. Plaintiffs suffered serious injuries as a result of the collision. (Filing No. 86–2 at 6–7). Shealey pleaded guilty to a citation for crossing the center line. (Shealey Dep. 69–70; Filing No. 86–4 at 3).

B. Evidentiary Matters
*2 The court must address the parties’ objections to designated evidence. Defendants designate documents purportedly consisting of Shealey’s work history report, two different reports of his driving record, a drug test report, a photocopy of Shealey’s driver’s license, and a medical examiner’s certificate. Plaintiffs object to the documents on grounds that Defendants failed to authenticate them with affidavits.

Because the court has diversity jurisdiction over this matter, federal law governs admissibility of evidence. See Schrott v. Bristol–Myers Squibb Co., 403 F.3d 940, 943 (7th Cir.2005). On summary judgment, the court will not rely upon unsworn or unauthenticated documents to which the opposing party objects. Vukadinovich v. Bd. of Sch. Trs., 776 F.Supp. 1325, 1326 (N.D.Ind.1991), aff’d, 978 F.2d 403 (7th Cir.1992). Defendants have not attached any affidavits or supporting deposition testimony to the designations and therefore failed to meet their burden of producing evidence sufficient to support a finding that the documents are what Defendants claim them to be. See id.; Fed.R.Evid. 901(a). Thus, the court excludes the documents from its consideration.1

Defendants object to Plaintiffs’ reliance upon the Indiana Officer’s Standard Crash Report (Filing No. 86–2 (“Crash Report”)) as inadmissible hearsay. The court agrees. To the extent Plaintiffs rely upon witness statements reported in the Crash Report-as opposed to firsthand observations of the officer-the court finds it inadmissible. See Jordan v. Binns, 712 F.3d 1123, 1133 (7th Cir.2013) (citing the advisory committee’s note to Federal Rule of Evidence 803(8), observing that “[p]olice reports have generally been excluded except to the extent to which they incorporate firsthand observations of the officer”).

III. Discussion
In the Second Amended Complaint, Plaintiffs allege that Defendants’ conduct warrants the imposition of punitive damages. (See Filing No. 62 (“Sec.Am.Compl.”) at 6–12). Plaintiffs appear to base their claim for punitive damages against Poshard on a theory of vicarious liability.2 Defendants argue Plaintiffs have failed to establish a dispute of material fact on the issue of punitive damages against either defendant and, accordingly, the court should grant summary judgment.

Indiana law views punitive damages as a means of deterring and punishing wrongful activity. Yost, 3 N.E.2d at 523. Because punitive damages are not commonplace and rarely appropriate, a “plaintiff has an especially heavy burden of proof at trial.” Id. at 524. In tort actions, a plaintiff must show by clear and convincing evidence that the defendant either (1) engaged in “willful and wanton misconduct,” knowingly subjecting other persons to probable injury, or (2) acted maliciously, fraudulently, oppressively, or with gross negligence and such conduct “was not the result of a mistake of law or fact, honest error of judgment, overzealousness, mere negligence or other such noniniquitous human failing.” Id. at 523–24 (citations and internal quotation marks omitted).

*3 Consistent with purposes of deterrence and punishment, Indiana law does not impose punitive damages against an employer strictly on the basis of respondeat superior for the misconduct of an employee. Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 261 (Ind.Ct.App.2013). Rather, punitive damages against an employer require “evidence of positive or collusive action by the employer.” Id. To show such complicity, Indiana courts consider whether:
(a) the principal or a managerial agent authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.
Id. at 260 (citing Restatement (Second) of Torts § 909 (Am. Law Inst.1979)).

Defendants argue that Plaintiffs failed to present evidence that Poshard engaged in wrongful conduct that warrants punitive damages under Indiana law. Plaintiffs rely on deposition testimony of Shealey to support the assertion that Shealey routinely drove more than twelve consecutive hours in a fourteen-hour period in violation of 49 C.F.R. § 395.3(a), which limits commercial drivers to eleven hours. (See Filing No. 87 ¶¶ 35–36). Plaintiffs then assert, without citation to evidence, that Poshard willfully and wantonly disregarded Shealey’s practice of violating the eleven-hour limit. In support, Plaintiffs cite the following exchange:
Q: So you would be gone from home over 12 hours every day working; right?
A: Yes, sir.
(Shealey Dep. at 9). This exchange, however, follows Shealey’s testimony that he typically left home in his tractor at approximately 5:20 a.m. and that his day ended “[a]round 4:30, 5:00 [p.m.].” (Shealey Dep. at 8–9). Shealey also testified that, prior to the accident, he took a lunch break and “[t]alked to another fellow driver about 15 minutes or so.” (Id. at 10). Moreover, the collision occurred “somewhere near 1:00 [p.m.],” and Plaintiffs do not assert that driver fatigue contributed to the collision. See Cast N. Am. (Trucking) Ltd. v. NLRB, 207 F.3d 994, 999 (7th Cir.2000) (noting that regulations in § 395.3 are designed to prevent drivers from operating commercial vehicles while impaired by fatigue, illness, or any other cause).

As Defendants point out, the relevant inquiry is not how much time a driver spends away from home, but rather how much “driving time” he or she accrues within a fourteen-hour window. See 49 C.F.R. § 395.3(a)(3) (“A driver may drive a total of 11 hours during the 14–hour period specified in paragraph (a)(2) of this section”); 49 C.F.R. § 395.2 (“Driving time means all the time spent at the driving controls of a commercial motor vehicle in operation.”). In light of the entire exchange between Shealey and Plaintiffs’ counsel, (see Shealey Dep. at 8–10), Plaintiffs’ assertion of fact reflects a conflation of “time away from home” and “driving time.” This cursory attempt to show a violation of § 395.3(a) fails to establish a genuine dispute of fact, and the court declines to develop the argument for Plaintiffs. See Krepps v. NIIT (USA), Inc., No. 11C8787, 2013 WL 2636879, at *7 (citing Fabriko Acquisition Corp. v. Prokos, 536 F.3d 605, 609 (7th Cir.2008) for the proposition that it is not the court’s role “develop and/or support arguments on behalf of parties”). Even if the court assumes the truth of Plaintiffs’ assertion and its relevance to causation, they present no evidence that Poshard had knowledge of a violation nor provide any reason why such knowledge should be imputed to the company. Therefore, the court grants summary judgment as to Plaintiffs’ claim for punitive damages against Poshard.

*4 Plaintiffs fare no better in their claim for punitive damages against Shealey. Plaintiffs assert (1) that Shealey was speeding just before the collision; (2) that Shealey has a record of speeding; (3) that Shealey crossed the center line where he collided with one truck and Plaintiffs’ vehicle; (4) that Shealey referred to his record of speeding tickets as “being human”; (5) that Shealey was driving while impaired by controlled substances; (6) and that Shealey did not provide aid to the Plaintiffs immediately following the collision. Taken together, Plaintiffs maintain, these assertions create a genuine dispute of material fact as to whether Shealey operated his tractor with willful and wanton disregard for the safety of Plaintiffs. Defendants challenge each of these assertions of fact on grounds that they either obfuscate the evidence or simply fail to assert a degree of culpability that exceeds mere negligence.

The court need not address whether Shealey’s driving speed constituted a reckless disgregard for other drivers, as Plaintiffs’ own designated evidence establishes that Shealey’s driving speed did not exceed the posted limit. (See Crash Report at 3–6 (indicating posted speed limit of 55 miles per hour); Filing No. 86–10 at 7 (stating Shealey’s driving speed as 50 miles per hour)). Plaintiffs give the court no reason why the alleged conduct of Shealey immediately following a major vehicular accident should support a finding of misconduct that caused the accident. In any event, Shealey testified that he rendered no aid to Plaintiffs because when he asked one of the Plaintiff passengers whether they “were all right,” the passenger answered in the affirmative. (See Shealey Dep. at 19–20). Nor do Plaintiffs present any evidence that Shealey was driving while impaired. Indeed, Plaintiffs’ evidence indicates both that Shealey submitted to a drug test and that he was not charged with driving while impaired. (See Crash Report at 3; Filing No. 86–10 at 5; Shealey Dep. at 7, 20–21; Filing No. 86–4 at 3–4). Because Plaintiffs have failed to establish a degree of culpability required to support a claim of punitive damages against Shealey, the court grants summary judgment.

IV. Plaintiffs’ “Motion to Amend” the Response in Opposition to Partial Summary Judgment
On August 26, 2015, a month after filing their Response in Opposition to Partial Summary Judgment, Plaintiffs filed a “Motion to Amend Opposition to Motion for Partial Summary Judgment Regarding Punitive Damages to Add Newly Discovered Evidence” (Filing No. 106). Plaintiffs seek to make new assertions of fact based on the deposition testimony of Knox Whitt, the driver of the tractor-trailer with which Shealey’s tractor collided just prior to colliding with Plaintiffs’ vehicle. Specifically, Plaintiffs wish to assert (1) that Shealey was looking down at his cellular phone just prior to the accident, and (2) that Whitt overheard an exchange between a responding officer and Shealey confirming that Shealey had ended a phone call with his wife just prior to the accident. (See Filing No. 106 at 3–4).

*5 Plaintiffs provide no legal support for such a motion but nonetheless ask the court to consider the evidence to support their opposition to summary judgment on the claim for punitive damages. The court declines. Rule 56(d) permits a party to seek a stay of summary judgment proceedings when, by affidavit or declaration, it establishes that it needs more time to gather evidence to justify its opposition to summary judgment. As Defendants note, Whitt was involved in the accident and could have been deposed well before this stage of the proceedings.

V. Conclusion
For the foregoing reasons, the court GRANTS Defendants’ Partial Motion for Summary Judgment as to Plaintiffs’ Claim for Punitive Damages (Filing No. 73).

SO ORDERED.
All Citations
Slip Copy, 2015 WL 6158790

Footnotes
1
The court notes that Defendants declined to respond to Plaintiffs’ objections.
2
On September 10, 2015, the court granted Defendants’ motion for summary judgment on Plaintiffs’ claim of negligent entrustment. (See Filing No. 110). Additionally, Plaintiffs disavow of any claims of negligence on the basis that Poshard negligently hired Shealey, (see Filing No. 86–1 at 3–4), but they do not articulate a cause of action against Poshard. Punitive damages is not an independent cause of action. Yost v. Wabash College, 3 N .E.2d 509, 514 (Ind.2014). Thus, the court construes Plaintiffs’ evidence and arguments as supportive of a claim of vicarious liability against Poshard for the alleged negligence of its employee, Shealey.

United States Court of Appeals,
Tenth Circuit.
TRANSAM TRUCKING, INC., Petitioner,
v.
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION (FMCSA), Respondent.
No. 14–9503. | Oct. 23, 2015.
Petition for Review of an Order from the Federal Motor Carrier Safety Administration (FMCS No. FMCSA–2012–0127).
Attorneys and Law Firms
Christopher M. McHugh, Seigfreid Bingham, Kansas City, MO; (Kendra D. Hanson, Seigfreid Bingham, Kansas City, MO, 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.
Opinion
MORITZ, Circuit Judge.

*1 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, [ ] FMCSA inspectors perform periodic on-site compliance reviews, in which they assess points for regulatory violations and preventable accidents.” Id. at 839.

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).

*2 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, 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 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. 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.

*3 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 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 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.

*4 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.

[1] [2] 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 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, 95 S.Ct. 600, 42 L.Ed.2d 558 (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”).

*5 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).

[3] 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. 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).
[4] 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.
*6 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 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.

[5] 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

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.

*7 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.

[6] 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 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 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.

*8 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 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 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 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, 108 S.Ct. 2166, 100 L.Ed.2d 811 (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, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995))).

*9 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).
[7] 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 § 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.

All Citations
— F.3d —-, 2015 WL 6444604

Footnotes
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.”
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).
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.
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., Weinberger v. Salfi, 422 U.S. 749, 763–67, 95 S.Ct. 2457, 45 L.Ed.2d 522 (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).
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. 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).
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.