ALETA A. TRAUGER, District Judge.
The defendant has filed a Motion to Dismiss Counts One through Nine (Docket No. 26), to which the government filed a Response in opposition (Docket No. 28), and the defendant filed a Reply (Docket No. 29). For the reasons stated herein, the Motion to Dismiss will granted.
Defendant Dorian Ayache owned and operated a business called "Three Angels Farms," which transported horses from auctions to a location in Texas. In January 2012 and again in June 2012, Three Angels Farms vehicles were involved in serious traffic accidents that killed some of the horses being transported.
On June 28, 2012, the FMCSA issued an Imminent Hazard Operations Out of Service Order ("First Imminent Hazard Order" or "First IHO") to Ayache and Three Angels Farms. (See Docket No. 26, Ex. A, First Imminent Hazard Order.) The First IHO stated that the FMCSA had "uncovered widespread regulatory violations that demonstrate a continuing and flagrant disregard for compliance" with applicable federal regulations. Among other things, the order stated that Three Angels Farms (1) had failed to maintain vehicle inspection, repair, and maintenance records, leading to an "alarmingly" poor vehicle inspection rating, (2) had a "disturbingly" negative fatigued driving score relative to its drivers, (3) had failed to follow controlled substance testing requirements for its drivers, and (4) had failed to follow driver qualification requirements. Pending compliance with multiple safety and licensing directives, the First IHO ordered Ayache and Three Angels Farms to cease all commercial operations, prohibited the operation of four specific vehicles, and forbade Ayache from engaging in "any sale, lease, or other transfer of equipment" without the written approval of a regional administrator. Essentially, the First IHO completely shut down Three Angels Farms and precluded Ayache from operating or disposing of the referenced commercial motor vehicles without express DOT authorization.
On September 9, 2011, the government filed a twelve-count Indictment against Ayache and Vincent. Counts One through Nine of the Indictment purport to charge Ayache with misdemeanor offenses under 49 U.S.C. § 521(b)(6)(A) for violating certain restrictions in the First and/or Second IHOs.
Ayache argues that Counts One through Nine should be dismissed for the following reasons:
For the reasons stated herein, the court agrees with Ayache that, as a matter of law, violating an IHO is not a misdemeanor offense. Therefore, the court will only address Ayache's first argument, the court expresses no opinion concerning Ayache's two alternative arguments, and no evidentiary
Motions to dismiss are governed by Rule 12 of the Federal Rules of Criminal Procedure, which permits pretrial consideration of any defense "the court can determine without a trial of the general issue." Fed.R. Crim.P. 12(b)(2). This includes a motion alleging a defect in the indictment for failure to state an offense. Fed. R.Crim.P. 12(b)(3)(B).
Here, the parties do not dispute any factual issues. Instead, they raise a purely legal question: does violating an IHO constitute a misdemeanor crime under 49 U.S.C. § 521(b)(6)(A)? This appears to be a question of first impression in the federal courts.
As an initial matter, "[o]ne may be subjected to punishment for crime in the federal courts only for the commission or omission of any act defined by a statute, or by regulation having legislative authority, and then only if punishment is authorized by Congress." Viereck v. United States, 318 U.S. 236, 241, 63 S.Ct. 561, 87 L.Ed. 734 (1943). "Where the charge is of crime [sic], it must have clear legislative basis." United States v. George, 228 U.S. 14, 22, 33 S.Ct. 412, 57 L.Ed. 712 (1913).
Here, in order to determine whether Congress made the violation of a § 521(b)(5) IHO a misdemeanor offense, the court must undertake a careful analysis of the interlocking statutes and regulations relating to commercial motor vehicle safety standards, licensing standards, and IHOs.
Subtitle VI of Title 49 relates to "Motor Vehicle and Driver Programs." Chapter 311 of Part B of that subtitle contains laws relating to "Commercial Motor Vehicle Safety." Subchapter III of Chapter 311 (i.e., Subchapter III of the laws concerning Commercial Motor Vehicle Safety) contains laws relating to the "Safety Regulation" of commercial motor vehicles.
In 49 U.S.C. § 31136(a) — a provision within Subchapter III of Chapter 311 — Congress authorized the Secretary of Transportation (the "Secretary") to "prescribe regulations on commercial motor vehicle safety" relating to "minimum safety standards for commercial motor vehicles," including regulations ensuring that "commercial motor vehicles are maintained, equipped, loaded, and operated safely" and that "the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely." See 49 U.S.C. § 31136(a)(1)-(2). The court will refer to these regulations as "Safety Regulations."
In 49 U.S.C. §§ 31302 to 31305, Congress imposed requirements relating to the licensing and fitness of commercial motor vehicle drivers, including, inter alia, requiring drivers to possess a commercial driver's license, requiring drivers to notify their employer of any traffic violations, and imposing record-keeping requirements on the drivers' employers. See generally id. at §§ 31303-04. The court will refer to these statutory provisions as the "Licensing Laws." In § 31305 of the Licensing Laws, Congress authorized the DOT to pass regulations implementing the Licensing Laws, including minimum standards for vehicle testing and fitness. The court will refer to these regulations as "Licensing Regulations."
In sum, Congress enacted Safety and Licensing Laws and gave the DOT authority to promulgate Safety and Licensing Regulations to implement them.
As set forth in 49 U.S.C. § 521, people who violate commercial motor vehicle Safety Regulations and/or Licensing Regulations can face both civil and criminal penalties. As the court construes § 521, the penalties are as follows:
In sum, an individual who violates a Safety Regulation (i.e., a regulation issued under a Safety Law) or a Licensing Regulation (i.e., a regulation issued a Licensing Law) faces both civil and criminal misdemeanor penalties.
Section 521 also includes a third type of remedy available to the Secretary: under § 521(b)(5), if the Secretary finds that a violation (or combination of violations) of the Safety and Licensing Laws or Regulations imposes an "imminent hazard to safety," the Secretary "shall order a vehicle or employee operating such vehicle out of service, or order an employer to cease all or part of the employer's commercial motor vehicle operations." See id. at § 521(b)(5)(A).
Section 521(b)(2)(F), entitled "Penalty for violations relating to out of service orders," provides that anyone who violates "an imminent hazard out of service order issued under subsection (b)(5) of this section" is liable for a civil penalty of up to $25,000. Although Section 521 contains this civil penalty provision for violation a § 521(b)(5) IHO, § 521 does not contain a corresponding criminal misdemeanor penalty provision. That is, although Congress imposed stiff civil penalties (set forth in § 521(b)(5)(F)) for someone who violates a § 521(b)(5) IHO, Congress did not include a provision making it a misdemeanor crime to violate this type of an IHO.
Finally, 49 U.S.C. § 526 — entitled "General criminal penalty when specific penalty
In determining statutory meaning, the court starts, "as always, with the language of the statute." Dean v. United States, 556 U.S. 568, 572, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009). The court must "ordinarily resist reading words or elements into the statute that do not appear on its face." Bates v. United States, 522 U.S. 23, 29, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997). Furthermore, under the doctrine of expressio unius est exclusio alterius, "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Dean, 556 U.S. at 573, 129 S.Ct. 1849 (citing Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983)). Finally, the court "must read statutes to give effect to each [statute] if it can do so while preserving their sense and purpose." Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981).
Here, the canons of statutory instruction compel a finding that § 521(b) does not on its face make violating a § 521(b)(5) IHO a misdemeanor offense. As described in the preceding analysis, § 521 contains provisions specific to Safety Regulations, Licensing Regulations, and IHO, establishing the following penalty structure:
Given that the statute contains specific provisions authorizing both civil and criminal penalties for Safety Regulations and Licensing Regulations, but contains a separate specific provision authorizing only civil penalties for violating an IHO, the court must conclude that Congress intentionally and purposely declined to include an associated criminal misdemeanor provision for violating a § 521(b)(5) IHO. Indeed, the inclusion of the catch-all petty offense provision in § 526 demonstrates that Congress recognized that the violation of certain "orders" of the Secretary were not otherwise punishable as a criminal offense.
In sum, under a straightforward reading of the statute, 49 U.S.C. § 521 affords the Secretary the following remedies against individuals who violate Safety and/or Licensing Regulations: (1) to provide immediate protection to the public, the Secretary can issue a narrowly tailored IHO to restrain the violator from causing an imminent
As Ayache persuasively argues, from a policy perspective, there are valid reasons why Congress may have chosen not to make violating a § 521(b)(5) IHO a misdemeanor criminal offense. Before becoming law, the Safety and Licensing Laws and Regulations were subject to legislative or quasi-legislative processes (i.e., formal rulemaking after the requisite notice and comment period). By contrast, § 521(b)(5) IHOs reflect a short-term ad hoc decree by an administrator, without the checks imposed by the public procedural safeguards of a legislative or quasi-legislative process.
Moreover, Congress's authorization to the DOT to issue § 521(b)(5) IHOs was not without teeth: Congress authorized the Secretary to pursue stiff civil penalties (up to $25,000 per violation) against individuals who violate a § 521(b)(5) IHO. Furthermore, through the catch-all provision in § 526, Congress also may have authorized criminal fines (but not imprisonment) for individuals who violate § 521(b)(5) IHOs. Thus, even if violating an IHO does not constitute a misdemeanor, the Secretary can punish offenders and deter others through the civil remedies set forth in § 521(b)(2)(F) and, perhaps, through the assessment of additional fines in a criminal proceeding.
The government argues that, notwithstanding a straightforward construction of 49 U.S.C. § 521, Ayache nevertheless committed a Class A misdemeanor offense under § 521(b)(6)(A) when he violated the First and Second IHOs. In 49 C.F.R. § 386.72, the DOT essentially duplicated the IHO provisions set forth by Congress in 49 U.S.C. § 521(b)(5). The government argues that this particular regulation was promulgated "under" a Safety Law — i.e., that it is a Safety Regulation, the violation of which constitutes a misdemeanor offense under § 521(b)(6)(A). In response, Ayache argues that, regardless of how the DOT may have characterized the basis for IHO provisions relating to commercial motor vehicles set forth in 49 C.F.R. § 386.72, the relevant portion of the regulation is not a "Safety Regulation" subject to the criminal penalty provisions in § 521(b)(6). Instead, contends Ayache, the actual basis for the relevant provisions of the regulation is § 521(b)(5) — i.e., the subpart of § 521(b) that specifically relates to IHOs. As explained herein, the court agrees with Ayache. See United States v. Saade, 652 F.2d 1126 (1st Cir.1981) (determining that more specific statutory grant of regulatory authorization legally authorized the regulation at issue, rather than a more general grant of regulatory authority within the same subchapter of the federal code).
The IHO provision in 49 U.S.C. § 521(b)(5) was enacted into law as Section 213(b) of the Motor Carrier Safety Act of 1984 ("MSCA"). In 1985, the DOT promulgated 49 C.F.R. § 386.72, which purported to "implement" 49 U.S.C. § 521(b)(5). See Fed.Reg. 40304-01, 1985 WL 129686, 40305 (Oct. 2, 1985). In essence, the DOT simply reiterated the statutory requirements for IHOs set forth in § 521(b)(5). At the time, the DOT did not purport to invoke Subchapter III of Chapter 311 as the basis for the regulation.
In 2008, pursuant to the new statutory mandate in § 31151(a)(3)(I), the Secretary amended 49 C.F.R. § 386.72 to include explicit references to IHOs related to intermodal equipment providers. See generally 73 Fed.Reg. 76794-01 (Dec. 17, 2008). Thus, unlike the pre-existing regulatory provisions relating to § 521(b)(5) IHOs, the 2008 revisions to the regulation were made pursuant to a provision in Subchapter III, namely § 31151(a)(3)(I). Presumably for that reason, the DOT invoked Subchapter III as grounds for the regulatory revisions to 49 C.F.R. § 386.72 as they related to intermodal equipment providers.
Here, the government argues that the DOT's recent invocation of Subchapter III of Chapter 311 as a basis for 49 C.F.R. § 386.72 shows that the regulation as a whole is a "Safety Regulation" under Subchapter III of Chapter 311. However, as the court's previous analysis demonstrates, the relevant provisions of the current version of 49 C.F.R. § 386.72 (i.e., provisions other than those specific to intermodal equipment providers) all drew, and continue to draw, their statutory authorization from § 521(b)(5), not the Safety Laws.
The current version of the regulation itself confirms the court's construction: multiple provisions of the regulation continue to refer back to § 521(b)(5) as the source of authority.
In sum, for these reasons, the court does not construe the relevant IHO provisions in 49 C.F.R. § 386.72 as "Safety Regulations." Because those provisions are not Safety Regulations, they do not fall within the ambit of a violation of § 521(b)(6)(A).
If the court were to construe the relevant portions of 49 C.F.R. § 386.72 as "Safety Regulations," it would create internal inconsistencies within § 521.
First, as discussed above, the statute itself indicates that Congress only authorized civil penalties for violations of a § 521(b)(5) IHO. Thus, a construction of the relevant portions of 49 C.F.R. § 386.72 as Safety Regulations would essentially require the court to read back into the statute a criminal penalty that Congress intentionally did not include. There is no reason for the court to construe the DOT as effectively creating a misdemeanor offense (via § 521(b)(6)(A)) that Congress, by omission, did not authorize.
Second, if the court were to construe the relevant portions of 49 C.F.R. § 386.72 as Safety Regulations, it would mean that a violation of § 386.72 would subject the violator to civil penalties under both § 521(b)(2)(A) (providing civil penalties for violating Safety Regulations) and § 521(b)(2)(F) (providing civil penalties for violating § 521(b)(5) IHOs). Those two civil penalty provisions are materially different: § 521(b)(2)(A) caps civil penalties for violating Safety Regulations at $10,000 per violation, whereas § 521(b)(2)(F) caps civil penalties for violating § 521(b)(5) IHOs at $25,000 per violation. Thus, to the extent that the DOT has promulgated a schedule of fines for violating § 521(b)(5) IHOs that includes fines over $10,000 — which the DOT has (see Appendix A to 49 C.F.R. § 386, at Part IV) — those fines would violate § 521(b)(2)(A) under the position advanced by the government here. The court finds no reason to read such an inconsistency into § 521 in violation of traditional standards of statutory construction, which counsel the court to read provisions in harmony to the extent possible.
Coming back to the issue presented, Counts One through Nine charge Ayache with Class A misdemeanors under § 521(b)(6)(A) for violating the First and Second IHOs. However, for the reasons explained herein, Congress did not make violating a § 521(b)(5) IHO a misdemeanor offense. Accordingly, Counts One through Nine of the Indictment against Ayache must be dismissed.
For the reasons stated herein, the Motion to Dismiss will granted and Counts One through Nine against Ayache will be dismissed.
An appropriate order will enter.
For the reasons set forth in the accompanying Memorandum, defendant Dorian Ayache's Motion to Dismiss (Docket No. 26) is
It is so