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

1 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.

1 dismissed Count 6 of the Second Amended Complaint to the extent Plaintiff sought to state a claim

under

.

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”),

, based

on alleged First Amendment violations.

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

2 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.

2 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,

, 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

. See

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

3 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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(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,

. “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,

. 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.,

,

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.”

. 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

4 violations. See Mem. Op. at 27 (citing We the People Found., Inc. v United States,

(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.”

(citing Am. Bus. Ass’n v. Rogoff,

(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,

(“[P]laintiffs submitted a petition

regarding similar issues to the Executive Branch, including the Department of Justice and the

Department of the Treasury.”).

5 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.,

(1985) (quoting Plyler v. Doe,

(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,

(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,

(D.C. Cir. 2006) (quoting Papasan v. Allain,

(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

6 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.,

, 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,

(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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