Small Business in Transportation Coalition v. Department of Transportation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SMALL BUSINESS IN
TRANSPORTATION COALITION,
Plaintiff
Civil Action No. 20-883 (CKK)
v.
UNITED STATES DEPARTMENT OF
TRANSPORTATION, et al.,
Defendants
MEMORANDUM OPINION
(November 30, 2021)
Plaintiff Small Business in Transportation Coalition (“SBTC”) brought this action against
Defendants U.S. Department of Transportation (“DOT”), Pete Buttigieg in his official capacity as
Secretary of Transportation (“Secretary”), the Federal Motor Carrier Safety Administration
(“FMCSA”), and Meera Joshi in her official capacity as Acting Administrator of FMCSA
(“Administrator”), alleging that Defendants violated the Administrative Procedure Act (“APA”)
by failing to take timely action on SBCT’s requests for exemptions from regulations applicable to
its members. SBTC also alleged that Defendants’ alleged failure to address its petitions deprived
SBTC of its First Amendment right to petition the government.
Defendants moved to dismiss SBTC’s Second Amended Complaint. See Defs.’ Mot. to
Dismiss 2d Am. Compl. (“Defs.’ (2d) Mot. to Dismiss”), ECF No. 38. On September 27, 2021,
the Court granted in part and held in abeyance in part Defendants’ Motion to Dismiss. 1 See Order,
ECF No. 46; Mem. Op., ECF No. 47. The Court dismissed Counts 1, 2, 3, 4, and 5 of the Second
Amended Complaint for lack of subject matter jurisdiction. Mem. Op. at 20–25. The Court also
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In the same Memorandum Opinion and Order, the Court denied SBTC’s [42] Petition for Reconsideration of Order
Directing No More Amendments to Complaint and Motion for Leave to File an Amended Complaint.
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dismissed Count 6 of the Second Amended Complaint to the extent Plaintiff sought to state a claim
under 42 U.S.C. § 1983. Id. at 26–27. However, the Court held in abeyance Defendants’ Motion
to Dismiss as to Count 6 of the Second Amended Complaint to the extent Plaintiff sought to state
a claim under Section 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, based
on alleged First Amendment violations. Id. at 27–28. The Court ordered the parties to submit
supplemental briefs addressing whether Count 6 stated a plausible claim for relief under § 702. Id.
Upon review of the parties’ supplemental briefs, the relevant legal authorities, and the
record as a whole, the Court shall GRANT Defendant’s [38] Motion to Dismiss the Second
Amended Complaint as to the remainder of Count 6 that was not previously dismissed. As a result,
there are no longer any claims pending, and this action shall be DISMISSED with prejudice.
I. BACKGROUND
The Court recounted the factual and procedural background of this case extensively in its
[47] Memorandum Opinion, and so shall limit its discussion here to the background pertinent to
the sole remaining issue—whether Count 6 of Plaintiff’s Second Amended Complaint states a
plausible claim for relief under § 702 of the APA. See Mem. Op. at 3–18.
In Count 6 of its Second Amended Complaint, SBTC alleges that Defendants have violated
its “First Amendment rights” because its members “are not given the same opportunity to petition
the FMCSA on issues and regulations that affect them as members of other similarly situated
trucking institutions.” Second Am. Compl. (“SAC”) ¶ 104, ECF No. 37. 2 This claim relies on
SBTC’s allegations that Defendants failed to respond in a timely manner (or at all) to several
requests for exemptions from regulations applicable to its members. See, e.g., SAC ¶¶ 47–66,
76–97. SBTC claims that Defendants’ failure to address its exemption requests in a timely manner
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As the Court noted in its earlier Memorandum Opinion, the Second Amended Complaint, filed at ECF No. 37, is the
operative complaint in this case. See Mem. Op. at 3, n.3.
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amounts to “discrimination,” and violates the organization’s right under the First Amendment to
“petition the Government for a redress of grievances” because “its members are not given the same
opportunity to petition FMCSA on issues and regulations that affect them as members of other
similarly situated trucking associations.” Id. ¶¶ 100, 104.
Defendants’ arguments regarding Count 6 in their Motion to Dismiss the Second Amended
Complaint focused, in large part, on whether SBTC’s claims fell within the scope of the Hobbs
Act, 28 U.S.C. § 2342, which grants exclusive jurisdiction to the courts of appeals over claims
arising from certain “final actions” of DOT. See Mem. Op. at 18 (citing Defs.’ (2d) Mot. to
Dismiss at 17–25; Pl.’s Opp’n to Defs.’ (2d) Mot. to Dismiss at 7–13, ECF No. 39). Defendants
argued that SBTC’s claims related to purported First Amendment violations were “intertwined”
with is claims pertaining to Defendants’ failure to act on pending exemption requests, and therefore
that they fell within the exclusive jurisdiction of the courts of appeals under the Hobbs Act. See
Defs.’ (2d) Mot. to Dismiss at 25–26. The Court, however, concluded that other jurisdictional
barriers prevented it from considering SBTC’s claims related to its exemption requests, and so did
not reach any conclusion as to the applicability of the Hobbs Act. See Mem. Op. at 20–25. The
Court also concluded that SBTC’s Count 6 failed to state a claim for relief based on alleged First
Amendment violations under 42 U.S.C. § 1983. See id. at 25–27.
However, SBTC also appeared to rely on APA § 702 as a cause of action for the First
Amendment violations alleged in Count 6 of the Second Amended Complaint. See SAC ¶ 101.
Because the parties had not briefed whether or not Count 6 states a claim upon which relief may
be granted under the APA based on alleged First Amendment violations, and due to the significant
change in posture of the case (i.e., the dismissal of all of SBTC’s claims related to specific
exemption requests on jurisdictional grounds), the Court required the parties to submit
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supplemental briefs on this issue. Defendants filed their supplemental brief on October 8, 2021
and SBTC filed its supplemental brief on October 15, 2021. See Defs.’ Suppl. Br., ECF No. 48;
Pl.’s Suppl. Br., ECF No. 49.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint that “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007)). The factual allegations within a complaint, if accepted as true, must
be sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. Courts “do not accept as true, however, the plaintiff's legal conclusions or inferences that
are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296,
314–15 (D.C. Cir. 2014).
III. DISCUSSION
Section 702 of the APA provides that in a case “seeking relief other than money damages,”
a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”
5 U.S.C. § 702. As the Court noted in its previous Memorandum Opinion, the United States Court
of Appeals for the District of Columbia Circuit (“D.C. Circuit”) has recognized § 702 as an
appropriate vehicle to raise claims against the federal government based on alleged constitutional
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violations. See Mem. Op. at 27 (citing We the People Found., Inc. v United States, 485 F.3d 140,
143 (D.C. Cir. 2007)). Both parties here agree. See Defs.’ Suppl. Br. at 2; Pl.’s Suppl. Br. at 1–2.
In Count 6 of its Second Amended Complaint, SBTC alleges, “[a]s a result of
[Defendants’] discriminatory actions against the SBTC and its members, in violation of the 1st
Amendment of the U.S. Constitution . . . SBTC members are not given the same opportunity to
petition the FMCSA on issues and regulations that affect them as members of other similarly
situated trucking associations.” SAC ¶ 104. Defendants argue that Count 6 fails to state a claim
for relief based on alleged First Amendment violations because the First Amendment’s Petition
Clause does not “incorporate a right to receive a Government response to, or official consideration
of, a petition for redress of grievances.” Defs.’ Suppl. Br. at 2. Defendants’ position is plainly
correct based on binding D.C. Circuit precedent. In We the People, the D.C. Circuit held that the
First Amendment right to petition government agencies does not “guarantee[ ] a citizen’s right to
receive a government response to or official consideration of a petition for redress of grievances.”
Id. (citing Am. Bus. Ass’n v. Rogoff, 649 F.3d 734, 739 (D.C. Cir. 2011) (internal citations and
quotation marks omitted)). Accordingly, the Court agrees with Defendants that Count 6 fails to
state a claim based on alleged violations of the First Amendment.
SBTC’s attempts to circumvent this binding precedent are unavailing. First, SBTC
endeavors to distinguish We the People as applying only to petitions submitted to Congress and
not to Executive agencies. Pl.’s Suppl. Br. at 5. But the petitions at issue in We the People were
submitted to both the Legislative and Executive branches, and so the D.C. Circuit’s holding applies
with equal force to both. We the People, 485 F.3d at 140 (“[P]laintiffs submitted a petition
regarding similar issues to the Executive Branch, including the Department of Justice and the
Department of the Treasury.”).
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Next, SBTC contends that Count 6 also states a claim for a violation of SBTC’s “Equal
Protection” rights, claiming that it is “treated differently than a similarly situated organization.”
Pl.’s Suppl. Br. at 3. The Equal Protection Clause of the Fourteenth Amendment “commands that
no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which
is essentially a direction that all persons similarly situated should be treated alike.” City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S.
202, 216 (1982)). Equal Protection principles apply to the federal government through the Due
Process Clause of the Fifth Amendment to the Constitution. See Bolling v. Sharpe, 347 U.S. 497,
499 (1954).
The Second Amended Complaint fails to allege any facts supporting SBTC’s claim that it
was treated differently than any similarly situated organization; at most, it contains conclusory
legal assertions. See, e.g., SAC ¶ 22 (“It is the SBTC’s belief that every other ELD exemption
application that has been submitted to the FMCSA for consideration and published in the Federal
Register by other trucking associations, was decided upon within 6 months from the date of
filing[.]”); id. ¶ 23 (“The FMCSA purposely and intentionally discriminated against the SBTC and
its members by treating it differently than every other trucking association that filed an ELD
Exemption Application.”). The Court need not accept as true “a legal conclusion couched as a
factual allegation” or an inference unsupported by the facts set forth in the Complaint. Trudeau v.
FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Only now—in its supplemental brief responsive to the Court’s September 27, 2021
Order—does SBTC endeavor to allege facts in support of its theory that Defendants addressed the
petitions of the Owner Operator Independent Driver Association (“OOIDA”), another
“membership organization with thousands of members . . . represent[ing] independent trucking
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companies and drivers,” more promptly than it did SBTC’s petitions. Pl.’s Suppl. Br. at 3–4.
SBTC claims, for example, that both organizations filed applications for exemptions from
Electronic Logging Device (“ELD”) requirements one day apart in November 2017, and that
Defendants “accepted” OOIDA’s application but “rejected” SBTC’s application. Id. at 4. But it
is “axiomatic that a complaint may not be amended by the briefs in opposition to a motion to
dismiss.” Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d 18, 24 n.8 (D.D.C. 2000).
SBTC cannot now amend its complaint through briefing with new factual allegations to survive
Defendants’ motion to dismiss. And even if the Court did consider these facts, they are not
sufficient to survive a motion to dismiss under Rule 12(b)(6). SBTC, for example, provides no
factual support for the assertion that OOIDA is “similarly situated” to SBTC or for the inference
that Defendants’ alleged disparate treatment of the two groups was irrational. See XP Vehicles v.
Dep’t of Energy, 118 F. Supp. 3d 38, 76 (D.D.C. 2015). Accordingly, the Court shall grant the
remainder of Defendant’s Motion to Dismiss as to Count 6 of the Second Amended Complaint.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss as to Count
6 of the Second Amended Complaint. Because the Court has now granted Defendants’ Motion to
Dismiss as to all claims included in SBTC’s Second Amended Complaint, the Court shall
DISMISS this case with prejudice. An appropriate Order accompanies this Memorandum
Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
Date: November 30, 2021
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