Unpublished Disposition, 937 F.2d 612 (9th Cir. 1991)

MEMORANDUM^* 

OVERVIEW

John Steven Johnson ("Johnson"), in his individual capacity and as president of Steve Johnson and Sons Trucking, Inc., along with Steve Johnson & Sons Trucking, Inc. ("the company"), a corporation, (collectively, the "petitioners") request review of the Federal Highway Administration's ("FHWA") denial of a hearing and imposition of a $19,700 fine. The fine was imposed as a civil penalty for various violations of regulations promulgated pursuant to the Motor Carrier Safety Act of 1984 and the Motor Carrier Act of 1980. Petitioners contend (1) their initial reply letter to the FHWA's claim letter was sufficient to entitle them to a hearing; (2) the FHWA should be estopped from denying them a hearing because it engaged in affirmative misconduct; and (3) the FHWA erred in imposing the fine on both Johnson and the company. We affirm in part and remand in part for further consideration by the FHWA.

JURISDICTION

We have jurisdiction pursuant to 49 U.S.C. § 1653(c); see also Owner-Operators Indep. Drivers Ass'n of Am., Inc. v. Skinner, 931 F.2d 582 (9th Cir. 1991) (and cases cited therein).

DISCUSSION

The petitioners contend that the FHWA erred in denying them a hearing based on what they characterize as a "technical deficiency" in their initial reply. This contention lacks merit.

FHWA regulations provide that " [a] request for a hearing must contain a listing of all material factual issues believed to be in dispute." 49 C.F.R. Sec. 386.14(b) (2) (1990). The FHWA then reviews the request to determine whether there are indeed any material factual issues in dispute. 49 C.F.R. 386.16(b) (1990).¹  The decision whether there are any material factual issues in dispute upon which a hearing should be granted is reviewed under an arbitrary and capricious standard. Cf. Calif. Dept. of Educ. v. Bennett, 843 F.2d 333 at 340 (9th Cir. 1988).

The petitioners' reply letter contains no request for a hearing, nor does it specify any material facts believed to be in dispute, or suggest the existence of any evidence to rebut any of the FHWA charges. A party seeking a hearing bears the burden of directing the agency's attention to "evidence that raises a material issue of fact on which a meaningful hearing might be held." Community Nutrition Inst. v. Young, 773 F.2d 1356, 1364 (D.C. Cir. 1985), cert. denied, 475 U.S. 1123 (1986). This the petitioners did not do. Their reply letter was insufficient to require the FHWA to grant them a hearing.

The petitioners contend that even if their letter was insufficient to require the FHWA to grant them a hearing, the FHWA is estopped from denying them a hearing due to its "affirmative misconduct" in accepting their initial reply and negotiating with them without informing them that their letter was deficient. We disagree.

Although the Supreme Court has reversed every circuit court finding of estoppel against the government that it has reviewed, OPM v. Richmond, 110 S. Ct. 2465, 2470 (1990), it consistently has left for another day the question whether estoppel would ever lie against the government. Id. at 2471; see also Heckler v. Community Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 (1984); INS v. Miranda, 459 U.S. 14, 19 (1982) (per curiam); Schweiker v. Hansen, 450 U.S. 785, 788 (1981) (per curiam); INS v. Hibi, 414 U.S. 5, 8 (1973) (per curiam); Montana v. Kennedy, 366 U.S. 308, 315 (1961). However, from its earliest discussions of governmental estoppel, the Supreme Court has stated consistently that "the Government may not be estopped on the same terms as any other private litigant." Community Health Servs., 467 U.S. at 60.

In this circuit, we have held that estoppel will lie against the government only if two elements, in addition to those required for traditional estoppel claims,²  are proven. Watkins v. United States Army, 875 F.2d 699, 706 (9th Cir. 1989) (en banc), cert. denied, 111 S. Ct. 384 (1990). "First, ' [a] party seeking to raise estoppel against the government must establish 'affirmative misconduct going beyond mere negligence'; even then, 'estoppel will only apply where the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage by imposition of the liability.' " Id. (quoting Wagner v. Director, Federal Emergency Management Agency, 847 F.2d 515, 519 (9th Cir. 1988)).

Here, the petitioners have failed to make any showing that the FHWA's action in response to their reply letter could be construed as "affirmative misrepresentation or affirmative concealment of a material fact by the government." Watkins, 875 F.2d at 706. Thus, the petitioners have failed to establish affirmative misconduct by the FHWA.

Petitioners finally contend that the FHWA erred in holding both Johnson, in his individual capacity, and the company liable for the $19,700 fine. Because we believe that the FHWA may have exceeded its statutory and regulatory authority in imposing this fine against Johnson individually, we remand to the FHWA for the limited purpose of conducting a hearing to review the appropriateness of imposing the fine against Johnson. See 49 U.S.C. § 521(b) (2) (A).

AFFIRMED in part and REMANDED in part for further consideration of the appropriateness of the fine against Johnson, the individual petitioner.