UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

ROGER HAINES, 

 Plaintiff, Case No. 14-cv-14438 

v Honorable Thomas L. Ludington 

FEDERAL MOTOR CARRIER SAFETY 

ASSOCIATION, et al., 

 Defendants. 

__________________________________________/ 

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DENYING 

PLAINTIFF’S MOTION TO AMEND 

On November 19, 2014, Plaintiff Roger Haines filed suit against Defendant Federal 

Motor Carrier Safety Association and several of its agents. Haines alleges that Defendants 

violated the Administrative Procedures Act, 5 U.S.C. § 101 et seq., and his Fourteenth 

Amendment rights when it declared one of his motor coaches an “imminent hazard” to public 

safety. 

 On March 9, 2015, Defendants filed a motion to dismiss, contending that this Court lacks 

subject matter jurisdiction over Haines’s APA claim and that Haines had not stated a claim with 

respect to his Fourteenth Amendment allegations. Because Haines is not appealing a “final 

agency decision,” this Court lacks jurisdiction over the claim and it will be dismissed without 

prejudice. Moreover, Haines’s Fourteenth Amendment claims will be dismissed because 42 

U.S.C. § 1983 authorizes suits against state actors only, and Haines is suing federal actors. 

 While Defendants’ motion to dismiss was pending, Haines filed a motion for leave to 

amend his complaint. The proposed amendment would clarify that he is bringing a Bivens action 

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against the federal actors, rather than a § 1983 action. However, because the proposed 

amendment would be futile, Haines’s motion to amend will be denied. 

I.

Haines owns and operates Haines Tours, a for-hire passenger carrier headquartered in 

Gladwin, Michigan. Am. Compl. ¶ 10. In 2000, Haines modified the luggage area of one of his 

buses to become a new sleeper area. Id. ¶ 13. 

 In August 2010, the FMCSA—a division of the Department of Transportation—

conducted a compliance review of one of Haines’s buses. During the compliance review, the 

FMCSA safety investigator found that two of Haines’s buses were equipped with sleeper berths 

in the buses’ luggage compartments that did not conform to the requirements of 49 C.F.R. § 

393.76. Specifically, the investigator cited Haines for: 

- using a sleeper berth that does not allow an occupant’s direct and ready exit, 

49 C.F.R. § 393.76(a)(3); 

- using a sleeper berth that does not have at least two exits, at opposite ends of 

the vehicle, that are usable by the occupant without the assistance of any other 

person, 49 C.F.R. § 393.76(c)(2)(ii). 

Am. Compl. Ex. 4. The FMCSA disallowed the use of the sleeper berth but approved the bus for 

normal operations on May 16, 2011. Am. Compl. ¶ 21. 

 About two weeks later, on May 29, 2011, Haines “had a trip with no need for the driver 

to use the sleeper.” Am. Compl. ¶ 22. Therefore, Haines “had some of his family in there for 

the trip.” Id. According to Haines, someone “noticed the family in the sleeper area and notified 

the authorities.” Id. 

 On June 10, 2011, the FMCSA issued an Out-of-Service Order to Haines, finding that 

Haines’s bus was an “imminent hazard” to public safety. Am. Compl. ¶ 24. The Out-of-Service 

Order concluded that Haines’s practice of “transport[ing] passengers in the luggage 

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compartments of motor coaches . . . violates 49 C.F.R. § 392.62(c)(2) and (3) and substantially 

increase[s] the likelihood of serious injury or death to HAINES’ passengers.” Am. Compl. Ex. 

4. The Out-of-Service Order directed Haines to “cease all commercial motor vehicle operations . 

. . .” Ex. 4. As a result of the immediate cessation of all operations, two buses were stranded in 

Chicago, IL. Am. Compl. ¶ 25. 

 Four days later, on June 14, 2011, Haines contacted Defendant Jones, Administrator of 

the FMCSA Midwest Field Office, to dispute the Out-of-Service Order. Am. Compl. ¶ 27. 

Jones rescinded the Out-of-Service Order on June 15, 2011, noting the “corrective action 

measure implemented by Roger Haines dba Haines Tours have abated the condition of imminent 

hazard, as described in the June 10, 2011 Operations Out-of-Service Order.” Am. Compl. Ex. E. 

 The next day, on June 16, 2011, Defendant Farro, then FMCSA Administrator, reversed 

Jones’s determination and reinstated the Out-of-Service Order. Am. Compl. ¶ 28. Farro 

concluded that “I do not find that the corrective action measures implemented by Haines are 

sufficient to [ab]ate the imminent hazard posed by this carrier.” Am. Compl. Ex. G. 

 About eight months later, in February 2012, the FMCSA rescinded the Out-of-Service 

Order. 

II. 

 Defendants challenge Haines’s complaint on two grounds: First, they contend that this 

Court lacks jurisdiction over Haines’s APA claims because he did not exhaust his administrative 

remedies. Second, they contend that Haines has not asserted a claim pursuant to § 1983 because 

that statute only applies to state actors, not federal actors. 

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A.

 Defendants first claim that this Court lacks subject matter jurisdiction over Haines’s APA 

claims because he has not exhausted his administrative remedies. In his amended complaint, 

Haines contends that the FMCSA’s designation of his motorcoach as an “imminent hazard” was 

arbitrary and capricious. 

Under the APA, exhaustion of administrative remedies does not apply absent a 

requirement by statute or agency rule. Darby v. Cisneros, 509 U.S. 137, 153 (1993). Until a 

plaintiff has pursued available administrative relief, an APA “suit is premature and must be 

dismissed.” Reiter v. Cooper, 507 U.S. 258, 269 (1993). “‘Exhaustion’ applies where a claim is 

cognizable in the first instance by an administrative agency alone.” United States v. W. Pac. R.R. 

Co., 352 U.S. 59, 63 (1956). Federal courts generally hold that “[e]xhaustion of DOT 

procedures should be required” in those circumstances concerning issues that “fall[] squarely 

within the regulatory scheme and (substantive expertise) of DOT.” Campbell v. Federal Express 

Corp., 918 F. Supp. 912, 918 (D. Md. 1996); Prado v. Continental Air Transp. Co., 982 F. Supp. 

1304, 1308 (N.D. Ill. 1997) (“The court will not abrogate clear congressional intent which vests 

driver fitness issues in the Secretary of Transportation.”); Harris v. P.A.M. Transport, Inc., 339 

F.3d 635, 638 (8th Cir. 2003). 

 Here, the DOT—and by extension, the FMCSA which is a division of the DOT—is 

charged with setting guidelines outlining the parts and accessories of motor vehicles that are 

necessary for safe operation. See 49 C.F.R. § 393. Thus, the DOT is much better equipped to 

handle resolution of disputes of motor vehicle safety qualifications and can do so far more 

expertly and efficiently than a reviewing court. Therefore, Haines must exhaust his 

administrative remedies before challenging the DOT’s action in federal court. 

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 Haines did not exhaust his administrative remedies, and therefore this Court lacks subject 

matter jurisdiction over his APA claims. Accordingly, the APA claims will be dismissed without 

prejudice. 

B.

 Haines disputes that he needed to exhaust his administrative remedies prior to filing suit 

in federal court. But even if he did not need to exhaust his administrative remedies, this Court 

would still lack jurisdiction over his APA claims because the decisions at issue were not “final 

agency actions.” 

The APA provides persons the general right of judicial review when they are aggrieved 

by an agency action. 5 U.S.C. § 702. Such judicial review is limited to a “final agency action.” 

5 U.S.C. § 704. In the absence of a “final agency action” under the APA, a district court does 

not have subject matter jurisdiction over the claim. LaMarca v. United States, 34 F. Supp. 3d 

796, 804 (N.D. Ohio 2014). 

 For agency action to be considered “final”, two conditions must be satisfied: “First, the 

action must mark the ‘consummation’ of the agency’s decision making process. It must not 

merely be tentative or interlocutory in nature. And second, the action must be one by which 

‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” 

Bennet v. Spear, 520 U.S. 154, 178 (1997). The “core question is whether the agency has 

completed its decisionmaking process, and whether the result of that process is one that will 

directly affect the parties.” Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997). The finality 

doctrine must be applied in a “flexible” and “pragmatic way.” Abbott Labs v. Gardner, 387 U.S. 

136, 149-150 (1967) (superseded on other grounds in Lubrizol Corp. v. Train, 547 F.2d 310 (6th 

Cir. 1976)). 

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 Here, it appears that Haines is seeking review of the June 10, 2011 Out-of-Service Order. 

Am. Compl. Ex. 4. The Out-of-Service order notified Haines that his motor carrier operations 

“constitute an ‘imminent hazard,” and required that Haines immediately cease all commercial 

motor vehicle operations. Id. at 2-3. But this Out-of-Service Order was not a final agency action 

because it contemplated further agency action: “While a compliance review is currently being 

conducted of HAINES’ operations, this Imminent Hazard Order is necessary to put an immediate 

stop to this highly dangerous practice.” Am. Compl. Ex. 4 (emphasis added). Thus, by its own 

terms, the Out-of-Service Order was a temporary order pending continued investigation. 

Moreover, the Out-of-Service Order was rescinded twice and re-instated once—indicating that 

the original Out-of-Service Order was not final, but changeable. Indeed, after the investigation, 

the Out-of-Service Order was permanently rescinded on December 6, 2012, when the FMCSA 

reinstated Haines’s authority to operate motor carriers interstate. Am. Compl. ¶ 41. 

 Because the Out-of-Service Order was rescinded by a subsequent FMCSA finding and 

order, the Out-of-Service Order was not the “consummation of the agency’s decision making 

progress.” Bennet, 520 U.S. at 178. Therefore, the temporary Out-of-Service Order was not a 

binding, final decision. See Lasmer Industries, Inc. v. Defense Supply Center Columbus, 2008 

WL 2457704, at *6 (S.D. Ohio June 13, 2008) (issuance of notice of debarment not final action 

“because the legal conclusions contained in it . . . are subject to change as the administrative 

procedure moves forward.”); Air Brake, 357 F.3d at 645 (“Initiating enforcement proceedings 

against a company . . . may have a devastating effect on the company’s business, but that does 

not make the agency’s action final.”). 

Similarly, the June 16, 2011 Order vacating the rescission order issued by Defendant 

Farro was also a temporary decision—it was rescinded in March 2012. Therefore, it was not the 

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“consummation of the agency’s decision making progress,” Bennett, 520 U.S. at 178, and not a 

final agency action that would confer subject matter jurisdiction. 

 Neither the 2011 Out-of Service Order issued by the FMCSA nor the June 16 2011, 

Order was a final agency action, and this Court has no authority under the APA to review it.1

 

C. 

 In addition to his APA claim, Haines also asserted claims against Defendants under the 

Fourteenth Amendment for violation of procedural due process and the equal protection. Haines 

brings the claims pursuant to 42 U.S.C. § 1983, which permits suits against state officials. 

Because Haines is suing only federal officials, however, his Fourteenth Amendment claims will 

be dismissed. Floyd v. Cleland, 2007 WL 2822796, at *1 (E.D. Mich. Sept. 25, 2007) (“42 

U.S.C. § 1983 does not apply to actions against federal officials, because they are not state actors 

acting under color of state law.”) (citing Benson v. United States, 969 F. Supp. 1129, 1135 (N.D. 

Ill. 1997)). 

D. 

 In summary, this Court lacks jurisdiction to review Haines’s APA claims because the 

June 10, 2011 Out-of-Service Order and the June 16, 2011 Order rescinding the rescission were 

not “final agency actions” that are subject to judicial review. And, even if they were final 

actions, courts of appeal alone are vested with the jurisdiction to review appeals of the DOT’s 

final orders. Therefore, Haines’s APA claim will be dismissed without prejudice pursuant to 

Rule 12(b)(1). 

 

1 It is important to note that, even if the 2011 Out-of-Service Order was a “final agency action”, this Court still 

would not have subject matter jurisdiction. The Hobbs Act grants the court of appeals exclusive jurisdiction to set 

aside or determine the validity of certain “rules, regulations, or final orders” of the Secretary of Transportation. 28 

U.S.C. § 2342(3); Alliance for Safe, Efficient and Competitive Truck Transp. v. Federal Motor Carrier Safety 

Admin., 755 F.3d 946, 949 (D.C. Cir. 2014); see also 49 U.S.C. § 351(a) (providing that an action taken by FMCSA 

pursuant to delegated authority “may be reviewed judicially to the same extent and in the same way as if the action 

had been an action by the department.”). 

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 In addition, Haines has not stated a claim for which relief may granted with respect to his 

procedural and due process claims. Although he is suing only federal actors, he nonetheless 

brought suit pursuant to 42 U.S.C. § 1983. Because § 1983 does not apply to federal actors, 

Haines’s § 1983 claims will be dismissed with prejudice pursuant to Rule 12(b)(6). 

III.

 On March 25, 2015, Haines filed a motion to amend his complaint.2

 Haines seeks to 

correct his mispleading: instead of erroneously bringing suit under 42 U.S.C. § 1983, Haines 

wants to amend his complaint to clarify that he is suing federal actors pursuant to Bivens v. Six 

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). At the very least, 

this proposed amendment would cure the fatal error discussed above. 

 Unless a party is entitled to amend as of right, “a party may amend its pleading only with 

the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).3

 “The court 

should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court may also 

deny leave to amend when the proposed amendment would be futile. See Yuhasz v. Brush 

Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003). To determine whether an amendment would 

be futile, the Court determines whether the amendment could survive a motion to dismiss 

pursuant to Rule 12(b)(6). Keely v. Dep’t of Veterans Affairs, 2011 WL 824493, at *1 (E.D. 

Mich. 3, 2011). 

 Here, Haines’s proposed amendment, which would allege Bivens claims, would be futile. 

First, the statute of limitations on Haines’s Bivens claim has already expired. The Sixth Circuit 

 

2

 To be clear, Haines filed only a motion; he did not file a supporting brief that explained why this Court should 

grant his motion. See E.D. Mich. LR 7.1(d)(1) (“Unless the court permits otherwise, each motion and response to a 

motion must be accompanied by a single brief.”). Defendants filed a response to the motion on April 8, 2015, 

contending that Haines’s motion to amend should be denied. See ECF No. 14. Haines did not file a reply. In other 

words, Haines has made no arguments for why his motion to amend should be granted. 

3

 Rule 15(a)(1), which allows amendment as a matter of course, does not apply here because Haines has already 

amended once as of right. See Am. Compl., ECF No. 5. 

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has explained that “[i]n addressing the timeliness of a federal constitutional damages action, ‘the 

settled practice has been to adopt a local time limitation as federal law if it is not inconsistent 

with federal law or policy to do so.’” Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005) 

(quoting Wilson v. Garcia, 471 U.S. 261, 266-67 (1985)). This practice applies to Bivens claims. 

Id. (citing McSurely v. Hutchinson, 823 F.3d 1002, 1005 (6th Cir. 1987)). 

 For civil rights suits filed in Michigan, the statute of limitations is three years. Mich. 

Comp. Laws § 600.5805(8); Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 1986). In this case, 

the three-year statute of limitations began to run on June 10, 2011—the date the FMCSA issues 

the Out-of-Service order that Haines is challenging. Thus, Haines had until June 10, 2014 to file 

his Bivens claims. However, Haines did not file this lawsuit until five months later, on 

November 19, 2014, and he did not attempt to include a Bivens claim until March 2015. 

Accordingly, his Bivens claims are untimely and would not survive a Rule 12(b)(6) motion to 

dismiss. 

 But even if Haines’s Bivens claims were timely, they would not survive a Rule 12(b)(6) 

motion because Bivens does not provide a remedy in this case. Haines’s proposed Bivens claims 

assert that Defendants violated his Fifth Amendment due process and equal protection rights by 

instituting the Out-of-Service Order. But Bivens actions “do not cover every constitutional right 

and do not apply in every context.” Krafsur v. Davenport, 736 F.3d 1032, 1035 (6th Cir. 2013) 

(citing Wilkie v. Robbins, 551 U.S. 537 (2007)). Wilkie outlined a two-step process to guide 

courts in their determination of whether or not a Bivens remedy is available. First, the court 

should consider whether there is an alternative existing process that is sufficient to protect the 

interests at issue. Second, if no such remedial scheme exists, the court must consider whether 

there are other alternative tribunals or special factors counseling hesitation in creating a new kind 

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of federal litigation. Wilkie, 551 U.S. at 550. “The Court has not created additional Bivens

remedies where the design of the government program suggests that Congress provided what it 

considered adequate remedial mechanisms for constitutional violations that may occur in the 

course [of the program’s] administration.” Jones v. Tennessee Valley Authority, 948 F.2d 258, 

263 (6th Cir. 1991) (citing Schweiker v. Chilicky, 487 U.S. 412, 421-23 (1988)). 

 Here, a Bivens remedy is not available because the APA provides an adequate alternative 

remedy for unfavorable agency actions. The APA expressly declares itself to be a 

comprehensive remedial scheme: it states that 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,” 5 U.S.C. § 702, and the sets forth procedures for such 

review. See id. §§ 704, 706. “The APA’s comprehensive provisions . . . allow any person 

‘adversely affected or aggrieved’ by agency action to obtain judicial review thereof, so long as 

the decision challenged represents a ‘final agency action for which there is no other adequate 

remedy in a court.’”. Webster v. Doe ̧ 486 U.S. 592, 599 (1988) (quoting 5 U.S.C. §§ 701-706). 

Indeed, in Wilkie, the Supreme Court noted that the plaintiff had an adequate remedy for an 

“unfavorable agency action[]” because “[f]or each claim, administrative review was available, 

subject to ultimate judicial review under the APA.” Id. at 552. In sum, the comprehensive 

nature of the APA raises the inference that Congress “expected the Judiciary to stay its Bivens

hand” and therefore “the APA leaves no room for Bivens claims based on agency action or 

inaction.” Western Radio Services Co. v. U.S. Forest Service, 578 F.3d 1116, 1123 (9th Cir. 

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2009). Accordingly, Haines’s proposed Bivens claims based on the FMCSA’s actions would not 

survive a motion to dismiss.4

 

 Haines’s proposed Bivens claims are untimely and would be futile. Therefore, Haines’s 

motion to amend his complaint will be denied. 

IV. 

 Accordingly, it is ORDERED that Defendants’ Motion to Dismiss (ECF No. 8) is 

GRANTED. Count 1 of Haines’s Amended Complaint (Violation of the APA) is DISMISSED 

WITHOUT PREJUDICE for lack of subject matter jurisdiction pursuant to Federal Rule of 

Civil Procedure 12(b)(1). Counts 2 (Violation of Procedural Due Process) and 3 (Violation of 

Equal Protection) are DISMISSED WITH PREJUDICE for failure to state a claim pursuant to 

Federal Rule of Civil Procedure 12(b)(6). 

 It is further ORDERED that Plaintiff Haines’s Motion for Leave to File Second 

Amended Complaint (ECF No. 11) is DENIED. 

 It is further ORDERED that the motion hearing set for May 27, 2015 is CANCELLED. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: April 27, 2015 

 

 

4

 It is also noteworthy that any Bivens claim against the FMCSA would be futile for another reason: the Supreme 

Court has held that no Bivens remedy is available against a federal agency. See FDIC v. Meyer, 510 U.S. 471, 484 

(1994). 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on April 27, 2015. 

 s/Karri Sandusky 

 Karri Sandusky, Acting Case Manager 

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