UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILLIAM P. D. CADE, : : Plaintiff, : Civil Action No.: 23-2227 (RC) : v. : Re Document No.: 5 : UNITED STATES ENVIRONMENTAL : PROTECTION AGENCY, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

Plaintiff William Cade petitions for a writ of mandamus to compel the United States

Environmental Protection Agency and its Administrator, Michael S. Regan, in his official

capacity (collectively “the EPA”), to enforce certain “right-to-repair” requirements against

manufacturers of farm and other nonroad vehicles. 1 The EPA has moved to dismiss this case for

lack of subject-matter jurisdiction. See Mot. to Dismiss for Lack of Subject Matter Jurisdiction

(“Defs.’ Mot.”), ECF No. 5. For the reasons explained below, Defendants’ motion is granted,

and the case is dismissed.

1 Cade includes as co-plaintiff on all of his filings the National Farmers Union. But because the National Farmers Union has not entered an appearance through an attorney, it is not a party to this case. See Rowland v. California Men's Colony, Unit II Men's Advisory Council,

, 202 & n.5 (1993) (explaining that artificial entities are required to enter an appearance through counsel); see also Lennon v. McClory,

, 1462 n.1 (D.D.C. 1998) (“[A corporation] must be represented by counsel or it will be treated as not having appeared at all . . . .”). II. BACKGROUND

Cade filed a petition for writ of mandamus to compel the EPA to enforce right-to-repair

obligations—which would require manufacturers to provide service tools and information to

consumers and independent repair facilities for the purpose of repairing their equipment. See

Petition for Writ of Mandamus (“Petition”) at 8, ECF No. 1; Letter from Michael S. Regan,

Adm’r, U.S. Env’t Prot. Agency, to Rob Larew, Pres., Nat’l Farmers Union (Aug. 4, 2023); see

generally Gabriel Dominic Gomez, Note, Have Some Heart for the Heartland: A Call for a

Federal Right to Repair Law,

, 151–54 (2024) (explaining rationale behind right-

to-repair laws for farm equipment). Cade’s petition specifically concerns “electronic emission

control systems” used in the engines of nonroad vehicles. See Petition at 3.

As relevant here, the Clean Air Act (“CAA”) requires the EPA to promulgate rules to

reduce emissions from sources such as vehicles,

(a)(1), including through the

use of “major emission control components” such as “electronic emissions control unit[s],”

§ 7541(i)(2). In a recent rulemaking, the EPA explained that the phrase “electronic emissions

control unit” refers to “electronic control modules”—computers that control, among other things,

the ratio of fuel mixture in engines. See Greenhouse Gas Emissions Standards for Heavy-Duty

Vehicles—Phase 3,

, 29463, 29610 (April 22, 2024).

As acknowledged by the EPA, the CAA mandates that it promulgate regulations

requiring manufacturers of “motor vehicles or motor vehicle engines . . . [to] provide . . . any and

all information needed to make use of the emission control diagnostics system . . . including

instructions for making emission related diagnosis and repairs.”

(m)(5)

(emphasis added); see Defs.’ Mot. at 2. This requirement, however, does not apply to nonroad

vehicles because the CAA defines “motor vehicle” as “any self-propelled vehicle designed for

2 transporting persons or property on a street or highway.”

(2) (emphasis added).

Following an inquiry from Cade, an EPA employee advised Cade through email correspondence

that “there is nothing that prevents” nonroad manufacturers from following the guidance of

§ 7521(m)(5) but that nothing requires it either. Pl.’s Opp’n Mot. Dismiss at 2 (“Pl.’s Opp’n”),

ECF No. 7.

Unhappy with the EPA’s failure to adopt and enforce his preferred policy on right-to-

repair for nonroad vehicles, Cade, proceeding pro se, filed a petition for writ of mandamus

requesting the Court compel the EPA to act. See Petition at 1. Cade’s petition asks the Court to

compel the EPA “to enforce the consumer protection provisions within the [CAA].” Id. at 3.

The EPA has moved to dismiss for lack of subject-matter jurisdiction on the grounds that Cade

lacks standing and that the EPA’s decision not to enforce is discretionary and nonreviewable and

the United States has not waived its sovereign immunity. See Defs.’ Mot. at 2, 5. Cade has filed

a brief in opposition, see Pl.’s Opp’n at 4, Defendants filed a reply brief in support of their

motion, see Defs.’ Reply to Mot. to Dismiss (“Reply”), ECF No. 8, and Cade filed a surreply, see

Pl.’s Reply to Defs.’ Reply (“Surreply”), ECF No. 10. EPA’s motion is now ripe for review.

III. LEGAL STANDARD

Under Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure, courts must

dismiss any claim over which they lack subject-matter jurisdiction. It is Plaintiff’s burden to

establish that the Court has subject-matter jurisdiction. See Lujan v. Defs. of Wildlife,

(1992). To determine whether jurisdiction exists, a court may “consider the complaint

supplemented by undisputed facts evidenced in the record, or the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground

Expansion v. Mineta,

(D.C. Cir. 2003) (citation omitted). While pro se

3 pleadings are held to a “less stringent standard than formal pleadings drafted by lawyers,”

Erickson v. Pardus,

(2007) (citation omitted), pro se plaintiffs must still comply

with the Federal Rules of Civil Procedure and the Court may not assume the role of the

plaintiff’s advocate, see Jarrell v. Tisch,

(D.D.C. 1987); Sun v. D.C.

Gov’t,

, 168 n.6 (D.D.C. 2015) (“[I]t is not the Court’s job to canvass the

record for documents supporting a pro se party’s position.”).

IV. ANALYSIS

Cade’s complaint and subsequent filings allege—to the best of the Court’s

understanding—that the EPA has a statutory duty to enforce “right-to-repair” laws under the

CAA and to require manufacturers of nonroad equipment such as farm vehicles to provide,

apparently for free, “engines emission system parts, software tools, and documentation required

by the CAA[.]” Petition at 5. It is unclear under what statute or statutes Cade justifies his

petition—possibly either the Administrative Procedure Act (“APA”),

, or the

“citizen suit” provision of the CAA,

(a)(2). Regardless, as explained below,

Cade does not have standing to sue and neither statute provides a waiver of sovereign immunity

as to the relief sought in Cade’s petition.

1. Standing

The Court begins with standing. To establish standing, Cade must demonstrate “three

elements—injury in fact, causation, and redressability—which together constitute the

‘irreducible constitutional minimum of standing.’” Siegel v. U.S. Dep’t of Treasury,

(D.D.C. 2018) (quoting Lujan,

). “A petitioner bears the burden

of establishing each of the elements of standing.” Ohio v. Env’t Prot. Agency,

(D.C. Cir. 2024). “[W]hen, as here, the petitioner is not [him]self the object of the government

4 . . . inaction he challenges, standing is not precluded, but is ordinarily substantially more difficult

to establish.”

(cleaned up).

For injury in fact, a plaintiff must point to the “invasion of a judicially cognizable interest

which is (a) concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical.”

at 299–300 (citation omitted). For causation, the plaintiff’s injury must be

“fairly traceable to the challenged action of the defendant, and not the result of the independent

action of some third party not before the court.”

(citation omitted). And for

redressability, a plaintiff’s injury must be “remediable by the court’s control of the defendant.”

Action All. of Senior Citizens of Greater Phila. v. Heckler,

(D.C. Cir. 1986);

Ohio,

(“[I]t must be likely, as opposed to merely speculative, that the injury will

be redressed by a favorable decision.” (quotation marks and citation omitted)). Cade cannot

show causation or redressability.

Cade appears to argue that he has an injury that is traceable to the EPA because he

purchased software from a manufacturer that did not include features that would have been

included, he says, if the EPA had taken the enforcement actions he seeks to compel. See Pl.’s

Opp’n at 4. Specifically, Cade says that he “purchased service software known as Customer

Service ADVISOR from John Deere & Company” that did not include “[e]mbedded [s]oftware

repair capabilities.” Id. at 4, 7. Furthermore, Cade points to a Memorandum of Understanding

between John Deere and the American Farm Bureau Association in which John Deere agreed to

provide “Farmers” with access to “embedded software.” See id. at 4 n.4. Assuming arguendo

that John Deere’s failure to provide certain software features could constitute an injury in fact, 2

2 It is altogether uncertain that John Deere’s failure to provide the features Cade desires caused Cade an injury. Cade asserts, in part, that his injury arises from the fact that John Deere

5 Cade nevertheless lacks standing because his injury is not traceable to Defendants’ conduct, nor

is it redressable by a Court order requiring the EPA to enforce existing law.

To the extent that Cade suffered an injury because of John Deere’s failure to provide

“[e]mbedded [s]oftware repair capabilities” in connection with Cade’s purchase of “service

software,” id. at 4, 7, that injury cannot be traced to the challenged inaction of the EPA. The

EPA correctly observes that none of the statutes and regulations invoked by Cade require the

manufacturers of nonroad vehicles or engines to provide such software, let alone that they do so

for free. See Reply at 2–3. Moreover, the EPA is not a party to the Memorandum of

Understanding between John Deere and the American Farm Bureau Federation. As such, any

failure by the EPA to take enforcement action could not have caused Cade’s injury because his

alleged injury bears no relation to any enforcement action the EPA could have taken. C.f. Fla.

Audubon Soc’y v. Bentsen,

(D.C. Cir. 1996) (en banc) (plaintiff must

demonstrate “substantial probability” that agency action caused harm); Cherry v. F.C.C.,

, 495–498 (D.C. Cir. 2011) (plaintiff did not have standing to appeal FCC approval of

license assignments because plaintiff’s alleged injury—loss of ownership and voting rights—was

caused by third parties, not by FCC action). Cade’s alleged injury cannot be traced to EPA’s

failure to enforce a non-existent obligation because the EPA had no obligation to take the

agreed, in a Memorandum of Understanding with the American Farm Bureau Federation (“FB”), “to include [e]mbedded [s]oftware repair capabilities” with the purchase of certain equipment. Pl.’s Opp’n. at 4 (citing Memorandum of Understanding from American Farm Bureau Federation and John Deere (“MOU”) (Jan. 8, 2023)). But there is nothing in the record to suggest that Cade is a beneficiary of the MOU because he does not assert that he is a “Farmer” or “Independent Repair Facility.” Id.; MOU § I(B) (“The intended beneficiaries of this MOU are Farmers and Independent Repair Facilities located in all fifty (50) United States and Puerto Rico.”). However, because lack of causation and redressability each independently doom Cade’s standing argument, the Court need not decide whether the MOU can form the basis for an injury in fact.

6 enforcement action Cade seeks. See Am. Freedom L. Ctr. v. Obama,

, 49–51 (D.C.

Cir. 2016).

For the same reason, Cade’s alleged injury cannot be redressed by this Court; even if

every right-to repair law and regulation were fully enforced by the EPA, Cade’s injury would not

be remedied. “In a case like this, in which relief for the petitioner depends on actions by a third

party not before the court, the petitioner must demonstrate that a favorable decision would create

‘a significant increase in the likelihood that the plaintiff would obtain relief that directly

redresses the injury suffered.’” Klamath Water Users Ass’n v. FERC,

(D.C.

Cir. 2008) (quoting Utah v. Evans,

(2002)); see also Turner v. McGee,

(10th Cir. 2012) (“[R]edressability turns on the scope of authority of the

defendants. We ask: Could these defendants, enjoined as [the plaintiff] has requested, remedy

[the plaintiff’s injury]?”); cf. Doe v. Piper,

(D. Minn. 2016) (“The

standing doctrine’s ‘redressability prong is not met when a plaintiff seeks relief against a

defendant with no power to enforce a challenged statute’ because in that scenario it is not

possible for a court to grant a remedy that would redress the plaintiff’s complained-of injury.”

(quoting Bronson v. Swensen,

(10th Cir. 2007))). Because Cade’s injury—

assuming he has one—was not caused by EPA’s conduct and because that injury is not

redressable, Plaintiff lacks standing, and the Court must dismiss this case.

2. Petition for Writ of Mandamus

Cade’s petition requests that this Court issue a writ of mandamus compelling the EPA to

“enforce the consumer protection provisions within the Clean Air Act” by requiring

manufacturers of nonroad vehicles to provide “right to repair” information. See Petition at 3, 8.

Even if Cade had standing, Cade’s petition would be a nonstarter because an essential element of

7 a writ of mandamus is “a showing of a clear and indisputable right to the issuance of the writ.”

Miller v. French,

(2000) (internal quotations omitted). Cade has identified no

statutes (nor any other sources of law) which compel the EPA to take the enforcement actions he

desires. The statute and regulations that Cade does point to—the CAA and its implementing

regulations—do not obligate the EPA to require nonroad vehicle manufacturers to provide the

right to repair information that Cade seeks. See generally

et seq.;

et seq. And the Court has found no other source of law imposing upon the EPA a clear

non-discretionary duty to require that right to repair information.

For a court to issue mandamus relief against a federal agency, a plaintiff must prove that

the agency is in “most transparent violation” of a “crystal-clear legal duty” such as defying a

court order or acting with unreasonable delay in its legal duties. See In re Ctr. for Biological

Diversity,

(D.C. Cir. 2022). Because the EPA has no “crystal-clear legal duty”

to require manufacturers of agricultural equipment or vehicles to provide “right to repair”

information—given that no statute or regulation requires the EPA to do so—mandamus relief

would be inappropriate here.

(“Absent a violation of a clear duty, this court is powerless to

grant mandamus.”). Mandamus relief is also inappropriate here given the inherently

discretionary nature of the EPA’s enforcement decisions. See Work v. United States ex rel.

Rives,

(1925) (“[Mandamus] cannot be used to compel or control a duty in the

discharge of which by law [a federal officer] is given discretion.”); see also Ass’n of Irritated

Residents v. E.P.A.,

(D.C. Cir. 2007) (explaining that EPA’s exercise of

enforcement discretion is generally nonreviewable); Swecker v. Midland Power Coop.,

, 473 (D.C. Cir. 2018) (“[A]n agency’s decision not to take enforcement action is

8 generally committed to an agency’s absolute discretion and is therefore presumptively

unreviewable.”). Accordingly, Cade’s petition for a writ of mandamus is denied.

3. Sovereign Immunity

Additionally, even if Cade’s petition for writ of mandamus is treated as a complaint

challenging the EPA’s conduct under the APA (and assuming Cade had standing), dismissal

would still be warranted. As an independent basis for dismissal, the EPA correctly observes that

the United States has not waived its sovereign immunity with respect to Cade’s claim and thus

this Court has no subject-matter jurisdiction. See Defs.’ Mot. at 2, 5; United States v. Mitchell,

(1983) (“It is axiomatic that the United States may not be sued without its

consent and that the existence of consent is a prerequisite for jurisdiction.”). Cade argues that

“itself constitutes a waiver of sovereign immunity in cases where individuals seek

relief other than monetary damages for wrongs due to federal agency actions for failure to act or

[a]n abuse of discretion.” Pl.’s Opp’n at 4. But Cade fails to recognize that § 702 does not

waive sovereign immunity “if any other statute that grants consent to suit expressly or impliedly

forbids the relief which is sought.”

.

Here, the CAA’s “citizen suit” provision provides for a conditional waiver of sovereign

immunity where the Administrator has failed to perform a non-discretionary duty.

(a)(2); see Sierra Club v. Wheeler,

(D.C. Cir. 2020). Because

permits suits against the EPA under specific circumstances, the waiver of

sovereign immunity in

is inapplicable here. In other words, if the “CAA does not

create a nondiscretionary duty . . . [Cade] cannot rely on the APA as an alternative vehicle to

provide subject matter jurisdiction in this case.” Sierra Club v. Wheeler,

,

421 n.5 (D.D.C. 2018). The question therefore becomes whether the CAA creates a

9 nondiscretionary duty that EPA has failed to perform. See Defs. of Wildlife v. Jackson,

(D.D.C. 2012) (“The court has jurisdiction only if the EPA has failed to fulfill a

nondiscretionary duty.”).

“A duty is nondiscretionary under the CAA if it is ‘clear-cut’ and requires the

Administrator to act by a ‘date-certain deadline.’” Sierra Club v. Wheeler,

(quoting Sierra Club v. Thomas,

(D.C. Cir. 1987)). Here, there is certainly no

requirement that the Administrator act by any deadline and there is no statute which requires or

otherwise directs the EPA to take the enforcement actions Cade seeks. Stated differently, there

is no “date-certain deadline,” or “clear-cut” requirement governing EPA’s enforcement of its

regulations on “embedded software repair capabilities” with respect to nonroad equipment.

Thus, the government has not waived its sovereign immunity.

Moreover, even if the APA’s waiver of sovereign immunity applied, the Court would

nonetheless hold that Cade’s claim fails because the APA does not generally authorize judicial

review of agency enforcement decisions. In Heckler v. Chaney, the Supreme Court held that an

agency’s enforcement decision was “presumptively unreviewable” because “such a decision has

traditionally been committed to agency discretion, and . . . the Congress enacting the APA did

not intend to alter that tradition.”

(1985) (internal quotation omitted). The

Heckler Court explained that because “the substantive statute [had not] provided guidelines for

the agency to follow in exercising its enforcement powers,” there was “no law to apply.”

. Here—to an even greater degree than in Heckler—“there is no law to apply.” Citizens

to Pres. Overton Park, Inc. v. Volpe,

(1971) (citation omitted). Cade has not

pointed to any statute requiring the EPA to apply its “embedded software repair capabilities”

regulation to nonroad vehicles. Because the EPA has not failed to perform any nondiscretionary

10 duty, the Court concludes that Congress has not waived the government’s sovereign immunity.

Accordingly, this Court lacks subject-matter jurisdiction over Cade’s claim. 3

V. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss and

DISMISSES this case. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: July 17, 2024 RUDOLPH CONTRERAS United States District Judge

3 In his brief in opposition, Cade briefly argues that regulating “highway and nonroad vehicles differently without a rational or substantial basis for th[e] distinction” violates the Equal Protection Clause of the Fourteenth Amendment. See Pl.’s Opp’n at 5. This equal protection argument fails for several reasons. First, “[a] plaintiff cannot amend a complaint through opposition papers” and Cade did not raise an Equal Protection Claim in his petition. See Montgomery v. McDonough,

, 14 (D.D.C. 2023). Second, it does not appear that Cade would have standing to bring an equal protection claim because the “injury in fact element of standing in an equal protection case is the denial of equal treatment resulting from the imposition of the barrier,” Am. Freedom Law Ctr. v. Obama,

(D.C. Cir. 2016), and here Cade argues that certain vehicle manufactures have been denied equal treatment rather than that he has been denied equal treatment, see Petition at 8. Third, “[t]he Equal Protection Clause of the Fourteenth Amendment applies only to the states” and here Cade’s petition relates to the inaction of a federal agency. See Metro. Washington Chapter v. District of Columbia,

, 28 n.14 (D.D.C. 2014). Fourth, even if the Court inferred that Cade intended to bring a claim under the Fifth Amendment, that claim would fail because Cade has insufficiently alleged that manufacturers of highway and nonroad vehicles are similarly situated. See Women Prisoners of D.C. Dep’t of Corrections v. District of Columbia,

(D.C. Cir. 1996) (“[T]he [d]issimilar treatment of dissimilarly situated persons does not violate equal protection. The threshold inquiry in evaluating an equal protection claim is, therefore, to determine whether a person is similarly situated to those persons who allegedly received favorable treatment.” (citations omitted)).

11