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LOPEZ v. U.S.

March 23, 2004.

GUILLERMO BERRIOCHOA LOPEZ, et al. Plaintiffs,
v.
UNITED STATES OF AMERICA, et al. Defendants



The opinion of the court was delivered by: EMMET SULLIVAN, District Judge

MEMORANDUM OPINION

I. Introduction

Plaintiffs, Mexican citizens who own or have an interest in Mexican trucking companies, bring this suit against the United States, several government agencies, and former high-ranking government officials, including President William J. Clinton, Secretary of Transportation Federico. Pena, and other Department of Transportation officials. Plaintiffs, who also seek to certify a class pursuant to Fed.R.Civ.P. 23,*fn1 bring tort claims under the Federal Tort Claims Act ("FTCA"), the Alien Tort Page 2 Claims Act ("ATCA"), and various constitutional torts claims under Bivens v. Six Unnamed Federal Narc. Agents, 403 U.S. 388 (1971).*fn2 Defendants filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6).*fn3

  II. Legal Background

  Plaintiffs' suit arises from the conflict between the North American Free Trade Agreement ("NAFTA") and certain domestic legislation barring Mexican citizens from gaining permission to operate as motor carriers in the United States.

  In 1982, Congress passed the Bus Regulatory Reform Act, creating a moratorium on the Interstate Commerce Commission's ("ICC") issuance of new motor carrier operating authority to Page 3 foreign carriers. Pub.L. No. 97-261, § 6(g), 96 Stat. 1102, 1107-08 (1982). Later that year, the President signed a memorandum excluding Canada from the prohibition and declaring explicitly that the moratorium would be enforced against Mexico. The President and his successors extended the moratorium in the subsequent years of 1984, 1986, 1988, 1990, 1992, and 1995.*fn4

  In 1995, Congress passed the ICC Termination Act, which transferred motor carrier operating authority responsibilities to the Department of Transportation ("DOT"). Pub.L. No. 104-88, §§ 103-104, 109 Stat. 803 (1995) (codified as amended at 49 U.S.C. § 13501 (2000)). The Act extended the validity of existing regulations, including the 1982 Bus Regulatory Reform Act, but gave DOT the power to modify or eliminate the existing moratorium. See 49 U.S.C. § 13902(c)(4)(B) (2000).

  By that time, however, the United States had already entered into NAFTA, which was signed by the three nations on December 18, 1992, and took effect January 1, 1994. In Annex I of NAFTA, the parties agreed that Mexican nationals would be permitted to obtain operating authority to provide cross-border trucking services in four border states three years after the signing of the agreement (December 18, 1995) and that Mexican nationals would be authorized to operate throughout the United States six Page 4 years after the treaty signing (January 1, 2000). Additionally, Annex I provided that foreign nationals, specifically Mexicans, would be able to invest in U.S.-domiciled trucking companies as of December 18, 1995 (three years after the treaty was signed).

  Since at least 1995, the United States government has been and remains incapable of agreeing on unified medical, vehicular, and safety compliance standards under NAFTA. The United States announced that it would accept Mexican applications for operating authority, but no applications — including the 184 applications submitted since July 20, 1999 — have been approved since the moratorium went into effect. The United States maintains the moratorium by requiring applicants to indicate on the standard forms whether they are Mexican nationals. See 49 C.F.R. § 1182.2(a) (10) (2000). The United States also maintains a complete ban on Mexican nationals' owning or controlling U.S. cargo and passenger motor carrier service providers.

  In 1998, Mexico. formally requested, under the dispute resolution mechanism of NAFTA, the formation of an arbitral panel to decide whether the U.S. restrictions of cross-border trucking operations and investment violated the terms of NAFTA. All three signatories to the treaty participated in the hearings, and the panel issued its final report in February 2001. In the Matter of Cross Border Trucking Services, Secretariat File No. USA-MEX-98-2008-01 (Feb. 6, 2001), available at http://dmses.dot.gov/docimages/pdf63/128100_web.pdf (last visited Page 5 March 23, 2004). The Arbitral Panel found that the United States' fears over Mexican compliance with relevant standards were an insufficient reason to refuse to comply with the provisions of Annex I but that the United States was not required to treat Mexican companies and individuals the same as those from the United States and Canada when disparate treatment served the purpose of promoting compliance with established rules. Nevertheless, the panel found that no application from a Mexican national had been or would be approved. Id. at 51 295-298.

  The United States concedes that its policies violated Annex I of NAFTA but notes in its Motion to Dismiss that, since the panel issued its report, the Government has taken steps to ameliorate the situation, including lifting the ban on the issuance of operating permits to motor carriers domiciled in the United States but owned or controlled by Mexican nationals. In addition, the United States has taken measures that signal a further loosening of the moratorium, but those measures have been temporarily halted, by a challenge in the Ninth Circuit unrelated to this lawsuit.*fn5 Page 6

  III. Discussion

  A. NAFTA Implementation Legislation

  The United States signed NAFTA with the heads of state of Canada and Mexico. on December 18, 1992. President Clinton submitted the Agreement to Congress the following year, and Congress passed comprehensive legislation to enact the Agreement into law. North American Free Trade Agreement Implementation Act, Pub.L. No. ...


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