1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SMALL BUSINESS IN TRANSPORTATION COALITION, Plaintiff

v. UNITED STATES DEPARTMENT OF TRANSPORTATION, et al ., Defendants Civil Action No. 20-883 (CKK)

MEMORANDUM OPINION (September 27, 2021) Plaintiff Small Business in Transportation Co alition (“SBTC”) brings 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 1 (collectively “Defendants”). SBTC alleges thatDefendants violated the Administrative Procedure Act (“APA”) by failing to take action on four se parate exemption requests submitted by SBTC and by failing to amend Hour of Serv ice (“HOS”) regulations and to adopt other protective measures in response to disruptions cause d by nationwide protests during th e summer of 2020. SBTC seeks to compel agency action on outst anding exemption requests and to enjoin Defendants from future similar delays. SBTC also alleges that its exem ption requests have been treated differently than requests by similarly situated groups, in deprivation of its First Am endment right to “petition” the government. Defendants moved to dismiss the SBTC’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6 ). Defendants argue that this Court lacks jurisdiction because

1 Under Federal Rule of Civil Procedure 25(d), these defendants are automatically substituted in their official capacities.2 SBTC’s challenges to Defendants’ action (or lack thereof) fall with the exclusive jurisdiction of the federal court of appeals conferred by the Hobbs Act, 28 U.S.C. § 2342. Defendants also argue that certain of SBTC’s claims are moot and that others fail to state a claim upon which relief may be granted. Nine months after briefing was completed on Defendants’ Motion to Dismiss, SBTC recently filed its [42] Third Motio n to Amend the Complaint, seek ing to add an additional claim alleging that Defendants failed to act on another petition submitted by SBTC in late 2020 and early 2021. As detailed below, SBTC also proposes to remove certain claims related to exemption requests upon which Defendants have acted since SB TC initiated this lawsuit. Defendants oppose SBTC’s request to amend the Complaint, except to the extent SBTC agrees to dismiss certain claims. Upon consideration of Defendants’ [38] Motion to Dismiss the Second Amended Complaint, SBTC’s [42] Third Motion to Am end Complaint, the associated pleadings, 2 the relevant legal authority, and the record as a whole, the Court GRANTS-IN-PART and HOLDSIN-ABEYANCE-IN PART Defendant’s Motion to Dismiss. Specifically, the Court
DISMISSES Counts 1, 2, 3, 4, and 5 of the Second Amende d Complaint for lack of subject matter

2 The Court’s consideration has focused on the following:

x Memorandum of Points & Authorities in Support of Defendants’ Motion to Dismiss the Second Amended Complaint (“Defs’ (2d) Mot. to Dismiss”), ECF No. 38;

x SBTC’s Memorandum of Points & Authorities in Opposition to Defendants’ Motion to Dismiss the Second Amended Complaint (“Pl.’s Opp’n to Defs.’ (2d) Mot. to Dismiss”), ECF No. 39;

x Reply in Support of Defendants’ Motion to Dismiss the Second Amended Complaint (“Defs.’ (2d) Mot. Reply”), ECF No. 40;

x Petition for Reconsideration of Order Directing No More Amendments to Complaint and Motion for Leave to File Second Amended Complaint (“Pl.’ s (3d) Mot. to Amend”), ECF No. 42;

x Defendants’ Opposition to Plaintiff’s Petition for Reconsideration of Or der Directing No More Amendments to Complaint and Partial Opposition to Plaintiff’s mo tion for Leave to File a Third Amended Complaint (“Defs.’ Opp’n to Pl.’s (3d) Mot. to Amend”), ECF No. 43; and

x Pl.’s Reply to Defendants’ Opposition to Plaintiff’s Petition for Reconsideration and Motion to Amend (“Pl.’s (3d) Mot. to Amend Reply”), ECF No. 44.3 jurisdiction. The Court also DISMISSES Count 6 of the Second Ame nded Complaint for failure to state a claim upon which relief may be granted to the extent SBTC seek s to state a claim under 42 U.S.C. § 1983. However, the Court shall HOLD-IN-ABEYANCE Count 6 of the Second Amended Complaint, to the extent SBTC seeks to state a claim under § 702 of the APA, and shall require the parties to respond to this MemorandumOpinion, addressing the issues raised by the Court in its discussion, infra Section II(A)(4). The Court shall also DENY Plaintiff’s Third Motion to Amend.
I. BACKGROUND Plaintiff SBTC is a 501(c)(6) industry trade group representing “int erstate truckers and motor carriers, among other small players in the transportation industry” Second Am. Compl. (“SAC”) ¶ 5, ECF No. 37. 3 In general terms, SBTC claims that Defendants have delayed or withheld decisions on its applications for exemptions from certain FMCSA regulations, to which SBTC’s members are subject. Give n the extensive procedural bac kground of this case and SBTC’s recent request to introduce a new claim into this litigation, the Court sh all first summarize the procedural posture of the case, and then sha ll provide the relevant statutory and regulatory background and the facts underlying each of SBTC’s pending and propos ed supplemental claims.
A. Procedural Background SBTC filed its Original Complaint and Request for a Temporary Restraining Order on April 1, 2020. See Orig. Compl., ECF No. 1. In its Origin al Complaint, SBTC sought declaratory

3 The Second Amended Complaint is the operative complaint in this case, filed at ECF No. 37 on the public docket, in the same PDF file as Plaintiff’s Motion for Leave to File Second Amended Complaint (which was SBTC’s second motion to amend the Original Complaint). In Plaintiff’s Third Motion to Amend, Plaintiff disputes that the operative complaint is correctly deemed the “Seconded Amended Comp laint,” because the Court never granted its First Motion to Amend. See Pl.’s (3d) Mot. to Amend at 1 n.2. Because SBTC itself entitled the operati ve complaint the “Second Amended Complaint” and pleadings and Court orders have referred to it as such, the Court shall continue to identify the operative complaint in this matter as the “Second Am ended Complaint,” referring to the complaint filed at ECF No. 37.4 and injunctive relief with resp ect to Defendants’ alleged failu re to act on three requests for exemptions from FMCSA regulations submitted by SBTC on behalf of its members. Orig. Compl. ¶¶ 40–69. SBTC also alleged that Defendants engage d in “purposeful discri mination” against its members, depriving SBTC of its “opportunity to petition FMCA on issues and regulations” affecting its members. Orig. Compl. ¶¶ 71–75. Soon thereafter, on April 27, 2020, SBTC filed its first Motion for a Pre liminary Injunction, seeking to compel Defendants to grant or deny one of the exemption requests at issue in the Original Complaint. See Pl.’s (1st) Mot. for Prelim. Inj., ECF No. 10. In Defendants’ Opposition to SBTC’s first motion for a preliminary injuncti on, Defendants indicated th at they had taken the actions requested in Plaintiff's motion, rendering the request for a preliminary injunction moot. Defs.’ Opp’n to Pl.’s (1st) Mot. for Prelim. Inj. at 20–21, ECF No. 15. The Court, therefore, denied Plaintiff’s First Motion for a Preliminary Injunction as moot. See Order, ECF No. 18. On the same day they filed an opposition to SBTC’s first motion for a preliminary injunction, Defendants filed a Motion to Dismiss the Orig inal Complaint. See Defs.’ (1st) Mot. to Dismiss, ECF No. 16. That motion was ripe as of June 1, 2020. See Pl.’s Opp’n to Defs.’ (1st) Mot. to Dismiss, ECF No. 19; Defs.’ (1st) Mot. to Dismiss Reply, ECF No. 20 On June 26, 2020, SBTC filed a second motion for a preliminary injunction, seeking to compel “limited depositions” of FMCSA officials. See Pl.’s (2d) Mot. for Prelim. Inj., ECF No. 24. The Court denied the motion on June 29, 2020. See Order, ECF No. 25. On the same day, SBTC filed a [26] Motion for Discovery, seeking virtually the same relief as its Second Motion for a Preliminary Injunction—to compel depositions of cert ain FMCSA personnel pending the Court’s decision on Defendants’ Motion to Dismiss the Original Complaint. The Court, again, denied SBTC’s request. See Order, ECF No. 41.5 SBTC next filed its [28] Firs t Motion for Leave to File anAmended Compla int on July 28,
2020. See Pl.’s (1st) Mot. to Amend, EC F No. 28. In that motion, SBTC sought to supplement its Complaint by adding a claim that Defendants viol ated 49 U.S.C. § 31136(a)(2) by failing to suspend or amend “Hours of Service” regulations in the wake of nationwide protests during the summer of 2020. Id. at 2–3. Defendants opposed SBTC ’s first motion to amend. See Defs.’ Opp’n to Pl.’s (1st) Mot. to Amend, ECF No. 32. Before the Court ruled on SBTC’s fully-brief ed First Motion to Amend the Complaint, SBTC filed a [37] Motion for Leave to File a Second Amended Complaint, seeking to add an additional claim that Defendants had failed to act on a fourth exemption request submitted by
SBTC. See Pl.’s (2d) Mot. to Amend at 2–3, ECF No. 37. In a Minute Order dated September 24, 2020, the Court granted Plaintiff’ s later-filed Motion for Leave to File a Second Amended Complaint, but directed that, “thi s Second Amended Complaint shall be the final operative Complaint ” and that the Court “shall not freely grant any further amendments to the Complaint at this point in the litigation.” Minute Order (Sept. 24, 2020) (emphasis added). As a result of the Court’s Minute Order, the document entitled the “Second Amended Complaint,” became the operative complaint in this action. Defendants filed their now-pending [38] Motion to Dismiss the Second Amended Complaint on October 8, 2020. SBTC filed its response to Defendant’s Motion to Dismiss the Second Amended Complaint on November 6, 2020, and Defendants filed their reply on November 20, 2020. Nine months later, on August 20, 2021, SBTC f iled a [42] Petition fo r Reconsideration of Order Directing No More Amendments to Complaint and Motion for Leave to File an Amended Complaint (“Pl.’s (3d) Mot. to Amend”). SBTC seeks to supplement the Second Amended6 Complaint by adding a new claim, which is discussed infra Section I(C)(1)(e). SBTC also seeks to remove certain claims from the Second Amended Complaint; th e Court shall a ddress in its discussion infra Section I(C)(1) the clai ms SBTC agrees should be dismissed. Despite its earlier order indicating that “the Second Amended Complaint would be the final operative complaint in this action” and that it would “not freely grant a ny further amendments,” Minute Order (Sept. 24, 2020), the Court ordered De fendants to respond to Plaintiff’s motion to amend, “focusing on Plaintiff’s proposal to add a new claim. ” Minute Order (Aug. 25, 2021). Defendants filed their response to SBTC’s Third Motion to Amend on September 3, 2021, indicating that they did not oppose SBTC’s request to voluntarily dismis s certain claims—though they disagreed that filing an amended complaint was necessary to do so. See Defs.’ Opp’n to Pl.’s (3d) Mot. to Amend at 3. Defendants, however, oppose SBTC ’s request to supplement its Second Amended Complaint by adding a new claim. Id. at 3–6.
B. Statutory and Regulatory Background In its Second Amended Complaint, SBTC allege s that Defendants delaye d or failed to act on applications for exemptions to FMCSA regulati ons pertaining to hours of service and electronic logging devices requirements for commercial motor vehicle driv ers, and bond requirements for transportation brokers. Accordingl y, a brief discussion of the appl icable statutory and regulatory framework related to the exemption requests is useful to understanding SBTC’s claims.
1. Hours of Service (“HOS”) and Electroni c Logging Device (“ELDs”) Regulations and Exemptions “The federal government has regulated the hours of service (HOS) of commercial motor vehicle operators since the late 1930s, whenthe Interstate Commerce Commission (ICC) promulgated the first HOS regulations under the authority of the Motor Carrier Act of 1935.” Owner-Operator Indep. Drivers Ass’n, In c. v. Fed. Motor Carrier Safety Admin ., 494 F.3d 188,7 193 (D.C. Cir. 2007). Pursuant to the Motor Carr ier Act of 1935, the Secretary of Transportation “may prescribe requirements” for “maximum hours of service of employees” of a motor carrier. 49 U.S.C. § 31502(b)(1). In addition to the 1935 Act, the Motor Carrie r Safety Act of 1984, as amended, directs the Secretary of Transportation to “prescribe regulat ions on commercial motor vehicle safety.” 49 U.S.C. § 31136(a). These regulations prescrib e “minimum safety standards” for commercial motor vehicles.” § 31136(a). Among other considerat ions, these regulations mu st ensure that “the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely,” that the “physic al condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely” and that the “operation of a commercial motor vehicles does not have a dele terious effect on the physical condition of the operators.” § 31136(a)(2)–(4). FMCSA is the agency charged with promul gating regulations rega rding maximum hours of service and minimum safety standards fo r commercial motor vehicles. Among these regulations, FMCSA promulgates “H ours of Service” (“HOS”) rules, which restrict the number of hours that commercial drivers can drive. See 49 C.F.R. § 395; Owner-Operator , 494 F.3d at 193. FMCSA’s regulations also require that commer cial motor vehicles involved in interstate commerce and operated by a driver subject to HOS requirements are equi pped with electronic logging devices (“ELDs”) to ensure compliance with HOS rules. See 49 C.F.R. §§ 395.22–395.38. Under § 31136(e), FMCSA may grant “in acc ordance with section 31315 waivers and exemptions from . . . regulations prescribed under th is section.” § 31136(e). Section 31315, in turn, provides the framework for FMCSA to consid er an exemption request. As pertinent to SBTC’s claims here, FMCSA “may grant” an “ex emption from a regulation prescribed under this8 chapter [Chapter 313, “Commercia l Vehicle Operators”] or sect ion 31136 if [it] finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” § 31315(b)(1). The statute sp ecifies the procedures the agency must follow upon receip t of an exemption request: (A) Upon receipt of a request. — Upon receipt of an exemption reque st, the Secretary shall publish in the Federal Register . . . a notice e xplaining the request that has been filed and shall give the public an opportunity to inspect the safety analysis and any other relevant information known to the Secretary and to comment on the request. Th is subparagraph does not require the release of information protected by law from public disclosure. § 31315(b)(6)(A). And it further directs: “The Secr etary shall grant or deny an exemption request after a thorough review of its safe ty implications, but in no case later than 180 days after the filing date of such request.” § 31315(b)(7). If FMCSA grants the exemption request, then, before the effective da te of the exemption, it “shall publish” in th e Federal Register “the name of the person granted the exemption, the provisions from which the person is exempt, the effective period, and the terms and conditions of the exemption.” § 31315(b)(6)(B). If the agency denies an ex emption request, then it “shall publish” in the Federal Register the name of th e person denied the exemption and the reasons for such denial. § 31315(b)(6)(C).
2. Transportation Broker Bond Requirement and Exemptions In addition to the requiremen ts discussed above, all “brokers and freight forwarders” subject to FMCSA’s jurisdiction ar e required to maintain$75,000 in financial s ecurity, in the form of a surety bond or trust fund. See 49 U.S.C. § 13906(b)(3), (c)( 4); 49 C.F.R. § 387.307(a); 49 C.F.R. § 387.403T(c). As with HOS regulations, those subject to this “Broker Bond Requirement” can request an exemption. However, unlike HOS regulations, exemptions from the Broker Bond9 Requirement fall under 49 U.S.C. § 13541(a). 4 Under § 13541(a), the Secretary “shall exempt a person” from “the application, in whole or in part , of a provision of this part” when the Secretary finds “that the application of that provision – (1) is not necessary to carry out the transportation policy of section 13101; (2) is not needed to prot ect shippers from the abuse of market power or that the transaction or se rvice is of limited scope; and (3) is in the public interest.” § 13541(a). The Secretary may “begin a proceeding under this s ection” on his own “ini tiative or on application of an interested party,” and the Secretary “may specify the period of time during which an exemption granted under this section is effective.” § 13541(b), (c). Unlike the process for exemption requests to HOS and ELD regulations under § 31315(b), § 13541 contains no requirement thatthe Secretary must grant or deny an exemption request for the Broker Bond Requirement within a specified time period, nor does it requi re that the decision be published in the Federal Register by a specified deadline. See § 13541.
C. Facts Underlying Plaintiffs’ Claims in the Second Amended Complaint and Proposed Supplemental Claim Counts 1, 2, 4, and 5 of the Second Amended Complaint assert various claims under the Administrative Procedure Act (“APA”) against De fendants, stemming from their alleged failure to act on four petitions for exemptions from FMCS A regulations submitted by SBTC. In its Third Motion to Amend, SBTC seeks to add a fifth cla im—not pertaining to an exemption request, but instead alleging that Defendants have failed respond to a “petition” seeking a motor vehicle safety standard within a separate statutory time period. See Pl.’s (3d) Mot. to Am end at 3. The Court shall address below the facts pert aining to each of the four ex emption requests and the proposed

4 Section 13541(a) applies to “any matter subject to jurisdiction under this part.” 49 U.S.C. § 13541(a). This “part” refers to Part B of Subtitle IV of U.S. Code Title 49, which includes §§ 13101–14916. The exemption provision with respect to HOS and associated ELD requirements, in contrast , applies only to regulations “issued under this chapter or section 31136.” § 31315(b). This “chapter” in § 31315(b) refers to Chapter 313 of Subtitle VI, Part B, which includes §§ 31301–31317.10 fifth claim. But first, the Cour t shall summarize the causes of acti ons with respect to each count of SBTC’s Second Amended Complaint. With respect to each exemption application de scribed below, SBTC asserts claims under the APA based on Defendants’ “failure to adhere to procedures required by law” (Counts 1 and 2, SAC ¶¶ 47–66), its “arbitrary and ca pricious” treatment of exemptio n applications filed by SBTC (Count 4, SAC ¶¶ 76–89), and its unreasonable w ithholding or delay in acting on SBTC’s exemptions requests (Count 5, SAC ¶¶ 90–97). Generally speaking, SBTC contends that Defendant failed to adhere to th e statutory deadlines detailed supra Section I(B), by failing to publish or by delaying publication of the exemption request in th e Federal Register and/or by failing to render a final decisi on on the exemption request. SBTC also asserts a claim under the APA base d on Defendants’ allege d failure to “amend [HOS] regulations” to account for traffic disrup tions during protests inthe summer of 2020 and for failing to “protect commercial motor vehicl e drivers” from allegedly being “physically attacked, beaten, and often killed” by protesters (Count 3, SAC ¶¶ 67–75). Finally, in Count 6, SBTC claims that Defe ndants have “discriminated” against SBTC and its members and deprived them of the “the same opportunity to petition the FMCSA on issues and regulations that affect them as members of other similarly situ ated trucking associations,” in violation of the First Ame ndment (Count 6, SAC ¶¶ 98–104).
1. SBTC’s Claims Related to Re quests Submitted to Defendants a) ELD Exemption Application On December 16, 2015, FMCSA published its El ectronic Logging Devices and Hours of Service Supporting Documents, 80 Fed. Reg. 78,292 (Dec. 16, 2015) (“ELD Rule”). In summary terms, the ELD Rule establishes “[m]inimum pe rformance and design st andards” for electronic logging devices, as well as “requirements for the mandatory use of these devices by drivers11 currently required to prepare HOS records of du ty status,” and “requirements concerning HOS supporting documents.” Id. FMCSA noted that these revi sed requirements for ELDs “will improve compliance with the HOS rules.” Id. FMCSA required carriers subject to the ELD Rule to comply by December 18, 2017. Id. at 78,295. In February 2018, SBTC filed an application for an exem ption from ELD requirements, seeking relief from the ELD regul ations for small private, common and contract motor carriers with fewer than 50 employees. See Am. Compl. ¶ 11, SBTC v. Dep’t of Transp. et al. , Civ. A No. 1311 (JEB) (D.D.C.). On June 5, 2018, Defendants published notice of this exemption request in the Federal Register. See Hours of Service of Drivers: Applic ation for Exemption; SBTC, 85 Fed. Reg. 20,563 (June 5, 2018). On July 17, 2019, FMCSA pu blished notice of its decision to deny Plaintiff’s exemption request. See Hours of Service of Drivers: Application for Exemption; SBTC, 84 Fed. Reg. 34,250 (July 7, 2019). On August 9, 2019, Plaintiff requested that FMCS A reconsider its denial of Plaintiff’s request for an exemption. See SAC ¶ 12; SAC Ex. A. SBTC’s re quest for reconsid eration is at issue in this case and shall be referred to as SBTC’s “ELD Exemption Application.” Id. On October 29, 2019, the FMCSA posted a Notice in th e Federal Register reque sting public comments on SBTC’s ELD Exemption Application. SAC ¶ 15; Hours of Service of Dr ivers: Application for Exemption; SBTC, 84 Fed. Reg. 57,932 (Oct. 29, 2019). On April 13, 2020—after SBTC filed its Original Complaint on April 1, 2020—FMCSA published in the Federal Register its decision to deny Plaintiff’s ELD Exemption Application. See Hours of Service of Drivers: Application for Exemption; SBTC, 85 Fed. Reg. 20,562 (Apr. 13, 2020). FMCSA stated that it had “analyzed SBTC ’s petition for reconsid eration and the public12 comments received and ha[d] determined that neither the applicant nor the commenters provided information that would change the Agency’s previous decision to deny the exemption.” Id. SBTC alleges that FMCSA’s failure to publis h notice of its ELD Exemption Application “upon receipt” and failure to render a deci sion within 180 days violated 49 U.S.C. § 31315(b)(6)(A), (7). SAC ¶¶ 51, 52. SBTC claims that this fail ure is actionable under § 706(1) of the APA, which authorizes a district court to “compel agency action unlawfully withheld or unreasonably delayed.” SAC ¶¶ 50, 93. SBTC also claims that Defendants’ failure to comply with the statutory deadline was “arbitrary, caprici ous” and “in excess of statutory . . . authority,” actionable under § 706(2) of the APA. SAC ¶¶ 78, 80, 82, 84. SBTC seeks an order requiring FMCSA to “immediately grant or deny the SB TC’s ELD Exemption A pplication request and publish that decision in the Federal Register[.]” SAC ¶¶ 57, 87, 96. SBTC also seeks a declaratory judgment that Defendants’ failur e to render a decision on the ELD Exemption Application within the statutory time period violated the APA and 49 U.S.C. §§ 31315( b)(7). SAC at 20 ¶ (a). b) Midland HOS Exemption Application In 2018, the city of Midland, Texas enacted an ordinance that prohibited commercial vehicles from parking on public st reets and private areas citywide . SAC ¶ 25. On February 12, 2019, SBTC filed an application with FMCSA for a “class exemp tion” from the HOS regulations on behalf of SBTC members and all other truc k and bus drivers who operate in interstate transportation and pass thr ough the city of Midland, Te xas (“Midland HOS Exemption Application”). SAC ¶ 28. SBTC sought an ex emption from the HOS regul ations for drivers who were required to pass through Midland on the basi s that the city’s ordina nce prevented affected commercial motor vehicle operato rs from complying with HO S requirements. SAC ¶ 26. On March 15, 2019, FMCSA acknowledged rece ipt of the Midland HOS Exemption Application, but notifie d SBTC that its petition had not pr ovided certain required information. See13 Defs.’ (2d) Mot. to Dismiss, Ex. 2, ECF No. 38- 2. SBTC claims that its Midland HOS Exemption Application “was in full compliance with the Fe deral regulations relati ng to the process and procedure for filing an exemption re quest with the FMCSA.” SAC ¶ 29. SBTC alleges that FMCSA’s failure to pub lish its Midland HOS Ex emption Application in the Federal Register “upon receipt” and its failu re to grant or deny th e application within 180 days violated 49 U.S.C. § 31315(b)(6)(A) and (b)(7). SAC ¶¶ 54–55. SBTC claims that this failure is actionable under § 706(1) of the APA, which authorizes a di strict court to “compel agency action unlawfully withheld or unreasonably de layed.” SAC ¶¶ 50, 54, 55, 97. SBTC also claims that Defendants’ failure to publish the application in the Federal Register and failure to render a decision on the exemption request within 180 days were “arbitrary, caprici ous” and “in excess of statutory . . . authority,” ac tionable under § 706(2) of the APA. SAC ¶¶ 78, 80, 82, 84. SBTC seeks an order requiring FMCSA to “immediate ly publish the SBTC’s [Midland HOS Exemption Application],” to “commence a notice comment peri od in the Federal Register,” and to render a decision within 180 days.” SAC ¶¶ 59, 88, 97; id. at 21 ¶ (h). SBTC also seeks declaratory relief that Defendants’ failure to publish the HOS Midland Exemption Application “upon receipt” violated 49 U.S.C. § 31315(b)(6)(A). SAC at 20 ¶ (d). In its pending Third Motion to Amend its Complaint, SBTC indicates that it “withdrew” its Midland HOS Exemption Applica tion because Plaintiff’s membership is “no longer interested in pursuing this issue.” Pl.’s (3d) Mot. to Amend at 6. c) Domestic Animals HOS Exemption Application On March 2, 2020, SBTC filed a Class HOS Exemption Application for Drivers Traveling in Interstate Commerce with Domestic An imals (“Domestic Animals HOS Exemption Application”).” SAC ¶ 44. In this application, SBTC requested a five-year exemption from the ELD and the HOS requirements for a class of “operators of commercial motor vehicles operating14 in interstate commerce who operate such ve hicles whenever accompanied by any domestic animal[.]” SAC Ex. C at 4. On March 11, 2020, FMCSA published notice of the Domestic Animals HOS Exemption Application in the Federal Register, seeking public comments. See Hours of Service (HOS) of Drivers: SBTC Application for Exemption fromELD and Certain HOS Re quirements, 85 Fed. Reg. 14,289 (Mar. 11, 2020). On October 16, 2020, FM CSA published in the Federal Register its denial of SBTC’s Domestic Animals HOS Exemption Application. See Hours of Service (HOS) of Drivers: SBTC Application for Exemption from ELD and Cert ain HOS Requirements, 85 Fed. Reg. 65,896 (Oct. 16, 2020). In its Second Amended Complaint, SBTC claims that FMCSA violated 49 U.S.C. § 31315(b)(7) by failing to render a decisi on on its Domestic Animals HOS Exemption Application within 180 days. SAC ¶ 64. SBTC claims that this fa ilure is actionabl e under § 706(1) of the APA, which authorizes a district court to “compel agency action unlawfully withheld or unreasonably delayed.” SAC ¶¶ 62, 93. SBTC also cl aims that Defendants’ failure to render and publish a decision on the Domestic Animals HOS Exemption Application was “arbitrary, capricious” and “in excess of statutory . . . author ity,” actionable under § 706(2) of the APA. SAC ¶¶ 78, 80, 82, 84. SBTC seeks an order requiring FMCSA to “immediately grant or deny the SBTC’s [Domestic Animals HOS Exemption Applicat ion] and publish that de cision in the Federal Register[.]” SAC ¶¶ 66, 96; id. at 21 ¶ (i). SBTC also seeks a declaratory judgment that Defendants’ failure to render a decision on th e Domestic Animals HOS Exemption Application violated the APA and 49 U.S.C. §§ 31315(b)(7). SAC at 20 ¶ (b). In its pending Third Motion to Amend its Compla int, SBTC indicates that it would remove claims pertaining to this exemption request, conceding that “relief is no longer needed” with15 respect to this request because “Defendants rendered a decision” and “published said decision in the Federal Register.” Pl.’ s Mot. to Amend at 6. d) Broker Bond Exemption Application In addition to the HOS and ELD exemption requests previously discussed, SBTC submitted an exemption request related to broker bond requ irement established by 49 U.S.C. § 13906(c) (the “Broker Bond Exemption Application”). On Se ptember 10, 2019, the SBTC filed a resubmission of Transportation Intermediary Bond Exempti on Application. SAC ¶ 13. Plaintiff sought reconsideration of an applic ation for an exemption from the $75,000 bond requirement for all property brokers and freight forwarders that had previously been denied. See Registration and Financial Security Requirements for Brokers of Property and Freight Forwarders; SBTC Exemption Application, 85 Fed. Reg. 20,334 (Apr. 10, 2020). On April 10, 2020, FMCSA published in the Fede ral Register notice of Plaintiff’s Broker Bond Exemption Application and a request for public comments. See id. FMCSA indicates that, due to an administrative drafting error, itinitially published th e Broker Bond Exemption Application with an inaccurate docket number. Defs.’ (2d) Mot. to Dismiss at 8. FMCSA subsequently republished the Broker Bond Exempti on Application in the Federal Register on May 4, 2020, with a new docket number and agreed to extend the public comment period by 30 days. Id. ; see Registration and Financial Secu rity Requirements for Broke rs of Property and Freight Forwarders; SBTC Exemption Appl ication, 85 Fed. Reg. 26,516 (May 4, 2020). The Second Amended Complaint alleges that FMCSA failed to publish a notice seeking comments on SBTC’s Broker Bond Exemption Applicat ion and failed to issue a final decision in the Federal Register within 180 days, in violat ion of 49 U.S.C. § 31315(b)(7). SAC ¶¶ 17, 21, 52. SBTC also claims that Defendants’ failur e to “acknowledge” its Broker Bond Exemption Application was “arbitrary and cap ricious,” and that Defendants “ unreasonably delayed” action on16 this application. SAC ¶¶ 80, 84. SBTC seeks an order requiring FMCSA to “immediately publish the SBTC’s [Broker Bond Exemption Applicatio n] and commence a notice and comment period in the Federal Register[.]” SAC ¶¶ 58, 88. SB TC also requests a declaratory judgment that Defendants’ failure to publish the Broker Bond Exemption Application “ upon receipt” violated the APA and 49 U.S.C. § 31315(b)(6)(A). SAC at 20 ¶ (c). e) Petition for Motor Vehicle Safety Standards In its Third Motion to Amend, Plaintiff seeks to supplement the Second Amended Complaint by adding a claim, alleging that Defe ndants failed to act on its “Petition for Motor Vehicle Safety Standards and En forcement” within 120 days. See Pl.’s (3d) Mot. to Amend at 4. This proposed supplemental claim does not involve an exemption request. Rather, SBTC alleges that it petitioned the Secretary fo r “Motor Vehicle Safety Standard s and Enforcement” pursuant to 49 U.S.C. § 30162 twice—first on December 13, 20219 and again on March 8, 2021. Pl.’s (3d) Mot to Amend at 4. Section 30162 permits “any au thorized person” to “file a petition with the Secretary of Transportation,” requ esting the Secretary be gin a proceeding to “prescribe a motor vehicle safety standard.” § 30162(a)(1). The Secret ary “shall grant or deny a petition not later than 120 days after the petition is filed. If a petition is granted, the Secretary sh all begin the proceeding promptly. If a petition is denied, the Secretary shal l publish the reasons for the denial in the Federal Register.” § 30162(d). Plaintiff cl aims that its Petition for Motor Vehicle Safety Standards “was required to be processed within 120 days by eith er commencing a proceeding or publishing a denial in the Federal Register, but that Plaintif fs have failed to render a decision. See Pl.’s (3d) Mot. to Amend at 4; Pl.’s Proposed Am. Compl. 5 ¶¶ 22–26, 31.

5 “Proposed Amended Complaint” refers to the version of the Complaint contained in the same PDF file as SBTC’s Third Motion to Amend, ECF No. 42.17 2. SBTC’s Claim Regarding Failure to Am end 49 U.S.C. § 31136 in Response to Nationwide Protests In addition to claims regard ing the specific exemption requ ests identified above, the Second Amended Complaint also alleges that De fendants failed to amend HOS regulations to account for disruptions to the flow of motor vehi cle traffic caused by protests during the summer of 2020. SAC ¶¶ 35–37. SBTC contends that the tr affic disruptions caused by these protests caused many commercial drivers “to violate existi ng HOS regulations” as they were delayed or forced to find alternate routes. SAC ¶ 38. Defendants do not disp ute that they did not make any specific regulations in response to the protests. See Defs.’ Mot. to Dismiss at 20. SBTC seeks an order compelling Defendants to “amend the Hours of Service re gulations to account for the disruptions to the flow of co mmercial motor vehicle traffi c caused by protests around the country[.]” SAC at 21 ¶ (f). SBTC also claims that truc k drivers were “purposefully and intentiona lly physically attacked and often killed” by protesters when they operated their vehicles near the protest sites. SAC ¶ 38. With respect to this claim, SBTC seeks a court or der requiring Defendants to “take action to allow drivers to carry legally registered firearms to protect themselves and their cargo from physical attacks[.]” SAC ¶ at 21 (g). In its Third Motion to Amend, SB TC indicates that “relief is no longer needed” as to these claims because they arose from “a temporary social unres t situation that no l onger exists.” Pl.’s (3d) Mot. to Amend at 5.
3. “Purposeful Discrimination” and First Amendment Violations In the final count of its Second Amended Comp laint, SBTC alleges that Defendants have violated its First Amendment righ ts because its members “are not given the same opportunity to petition the FMCSA on issues and regulations that affect them as members of other similarly18 situated trucking institutions.” SAC ¶ 104. SBTC, th erefore, claims that itis entitled to relief under 42 U.S.C. § 1983, and seeks an order “[e] njoin[ing] the Defendant from discriminating against SBTC and its members, a nd order[ing] Defendants to give SBTC and its member the same level of access to petition the FMCSA on issues a nd regulations that affect them[.]” SAC ¶¶ 98– 104, id. at 22 ¶( l). Although SBTC entitles Count 6 of the Second Amended Complaint “Purposeful Discrimination . . . in violation of 42 U.S.C. § 1983,” it also appears to rely on APA § 702 as a cause of action for the alleged First Amendment violations. See SAC ¶ 101.
II. DISCUSSION The parties’ briefing on Defendant’s Motion to Dismiss focuses, in large part, on whether SBTC’s claims fall within the scope of the Hobbs Act, 28 U.S. C. § 2342, which grants exclusive jurisdiction to the courts of appeals over clai ms arising from certain “final actions” of the Department of Transportation. See Defs.’ (2d) Mot. to Dismiss at 17–25; Pl.’s Opp’n to Defs.’ (2d) Mot. to Dismiss at 7–13. The Court, however , finds that other jurisd ictional issues prevent SBTC’s claims related to exempt ion requests and Defendants’ allege d failure to am end regulations in response to protests from proceeding, and so sha ll dismiss those claims. In light of the changed posture of the case since briefing on the pending motion to di smiss was completed, the Court shall hold in abeyance a decision on Coun t 6 of the Second Amended Comp laint, to the extent SBTC seeks relief under the APA, but sha ll dismiss that claim to the extent it relies on 42 U.S.C. § 1983. Finally, the Court shall deny SBTC’s late st motion to amend the complaint.19 A. Defendants’ Motion to Dismi ss the Second Amended Complaint 1. Legal Standards a) Federal Rule of Civil Procedure 12(b)(1) A court must dismiss a case pursuant to Federa l Rule of Civil Proce dure 12(b)(1) when it lacks subject matter jurisdicti on. In determining whether ther e is jurisdiction, the Court may “consider the complaint supplemented by undisput ed 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 , 333 F.3d 193, 198 (D.C. Cir. 2003) (internal citation omitted). In deciding whether to grant a motion to dismis s for lack of jurisd iction, the Court “may consider materials outsi de the pleadings.” Jerome Stevens Pharm., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253 (D.C. Cir. 2005). In reviewing a motion to dismiss pursuant to Rule 12(b)(1), courts must accept as true all factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole
Comm’n , 429 F.3d 1098, 1106 (D.C. Cir. 2005) (“At the motion to dismiss stage, counseled complaints as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact.”); Koutny v. Martin , 530 F. Supp. 2d 84, 87 (D.D.C. 2007) (“[A] cour t accepts as true all of the factual allegations contained in the complaint and may also consider undisputed facts evidenced in the record.” (internal citations and quotation marks omitted). Despite the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the plaintiff’s burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envt’l Prot. Agency , 121 F. Supp. 2d 84, 90 (D.D.C. 2000). “Although a court must accept as true all factual al legations contained in the compla int when reviewing a motion to20 dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12( b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd. , 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted). A court need not accept as true “a legal conclusion couched as a factual al legation” or an inference “unsuppor ted by the facts set out in the complaint.” Trudeau v. Fed. Trade Comm’n , 456 F.3d 178, 193 (D.C. Cir. 2006) (internal citation and quotation marks omitted). b) Federal Rule of Civil Procedure 12(b)(6) Pursuant to Federal Rule of Civil Procedur e 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]’ devoi d 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 w ithin 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 plea ds factual content that allows the court to draw the reasonable inference th at the defendant is liable for the misconduct alleged.” Iqbal , 556 U.S. at 678. Courts “do not a ccept as true, however, the plaintiff's le gal conclusions or inferences that are unsupported by th e facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S. , 758 F.3d 296, 314–15 (D.C. Cir. 2014).
2. SBTC’S ELD Exemption Application, Domestic Animals HOS Exemption Application, and Broker Bond Exemption Application Claims Are Moot The Court shall dismiss as moot SBTC’s cl aims for injunctive and declaratory relief regarding the ELD Exemption A pplication, the Domestic Animals HOS Exemption Application, and the Broker Bond Exemption Application b ecause Defendants have already taken the21 statutorily-required actions with respect to these exemption applications, and therefore there is no further relief that the Court can grant. Accordin gly, the Court must dismiss these claims for lack of jurisdiction. Fed. R. Civ. P. 12(h)(3). The jurisdiction of federal courts is limited by Article III of the Constitution to the adjudication of actual, ongoing cases or controversies. This limitati on “gives rise to the doctrines of standing and mootness.” Foretich v. United States , 351 F.3d 1198, 1210 (D.C. Cir. 2003); Sierra Club v. Jackson , 648 F.3d 848, 852 (D.C. Cir. 2011). Pursua nt to the mootness doctrine, it “the suit must remain alive throughout the course of litigation . . . If events outrun the controversy such that the court can grant no meaningful relie f; the case must be dismissed as moot.” People for the Ethical Treatment of Animals, Inc. v. U.S. Fish & Wildlife Serv. , 59 F. Supp. 3d 91, 95 (D.D.C. 2014) (internal quotation marks and citations omitted). “A case is moot when the challenged conduct ceases such thatthere is no reason able expectation that the wrong will be repeated in circumstances where it becomes impossi ble for the court to grant any effectual relief whatever to the prevailing party.” United States v. Philip Morris USA Inc. , 566 F.3d 1095, 1135 (D.C. Cir. 2009) (internal quotation marks omitted). With respect to the ELD Exemption Appli cation and Domestic Animals HOS Exemption Application, SBTC seeks an order compelling FM CSA to publish notice of the requests in the Federal Register and issue a final decision on them. See SAC ¶¶ 57, 66, 87, 89, id. at 21 ¶ (i). FMCSA has taken both actions with respect to both exemption requests, so th is relief is no longer available to SBTC; SBTC’s requests for injunctiv e relief with respect to these to exemption requests are moot. See Ctr. for Biological Diversity v. Kempthorne , 498 F. Supp. 2d 293, 296 (D.D.C. 2007) (concluding that agency’s “final d ecision” on petition rendered plaintiff’s request for order to issue decision on the petition moot).22 With respect to the Broker Bond Exemptio n Application, Plaintiff seeks an order compelling Defendants to “immediat ely publish” notice of its Broke r Bond Exemption Application and “commence a notice and comm ent period.” SAC ¶¶ 58, 88. Bu t FMCSA has already twice published notice of the Broker Bond Exemption Appli cation in the Federal Register, so there is also no further injunctive relief that the C ourt can grant with respect to this claim. See Defs.’ (2d) Mot. to Dismiss at 8. SBTC’s claims for declaratory relief with resp ect to these applications are also moot. To grant declaratory relief, there mu st be a dispute which “calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of [a] present right upon established facts.” Aetna Life Ins. Co. of Hartford v. Haworth , 300 U.S. 227, 242 (1937). Here, SBTC seek a declaratory judgment that Defendants violated the APA and § 31315(b)(7) by failing to publish a decision to grant or deny the ELD Exemption Applicat ion and Domestic Animals HOS Exemption Application within the time pe riod specified in § 31315(b)(7). See SAC at 20 ¶¶ (a), (b). SBTC also seeks an order declaring that Defendants failed to p ublish the Broker Bond Exemption Application “upon receipt.” 6 See SAC at 20 ¶ (c). But because Defendants have since issued decisions on the ELD Exemption Application and Domestic Animals HOS Exemption Application, and published notice of the Broker Bond Exemption A pplication, the Court “can do nothing to affect [Plaintiffs’] right s relative to [them], thus making this case classically moot for lack of a live controversy.” Akiachak Native Cmty. v. Dep’t of Interior , 827 F.3d 100, 106 (D.C.

6 In addition, SBTC points to no statutory authority requiring request for exemptions to Broker Bond requirements to be published “upon receipt.” As discussed supra Section I(B)(2), exemption requests related to broker bond requirements are anal yzed under § 13541— not § 31315, as SBTC contends. Section § 13541 does not contain the same timing requirements as § 31315, within which the Secretary must publish an exemption request and issue a decision on it.23 Cir. 2016). Because the agency ha s already taken the action Plaintif fs seek, there is no meaningful relief that the Court could grant SBTC at this time in relation to these exemption applications. SBTC, however, invokes the “the capable of repetition yet evading review” exception to the mootness doctrine, see Pl.’s Opp’n to Defs.’ (2d) Mot. to Dismiss at 6–7, pursuant to which a plaintiff may avoid dis missal on mootness grounds by demonstr ating that “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same co mplaining party would be subjected to the same action again.” Del Monte Fresh Produce Co. v. United States , 570 F.3d 316, 322 (D.C. Cir. 2009) (internal quotation marks and alterations omitted). SBTC cont ends that Defendants’ “failure to respond to SBTC’s petitions ina timely manner on “every petition” SBTC has filed” is “likely to be repeated.” Pl.’s Opp’n to De fs.’ (2d) Mot. to Dismiss at 6. To satisfy this exception to mootness, a plaint iff must demonstrate that “the action that [is] repeatable is the ‘precise controversy’ between the parties. Planned Parenthood of Wisc., Inc. v.
Azar , 942 F.3d 512, 517 (D.C. Cir. 2019) (i nternal citations omitted). “In other words, the capableof-repetition exception permits adjudication of an otherwise-moot case on the theory that it is capable of repetition; the exception does not per mit the adjudication of one otherwise-moot case in anticipation of a different live one.” Id. “If the exception swept that broadly, it would be inconsistent with ‘the Constitution’s requirement, se t forth in Article III, that courts resolve only continuing controversies between the parties.’” Id. (quoting People for the Ethical Treatment of Animals v. Glittens , 396 F.3d 416, 422 (D.C. Cir. 2005)). Here, SBTC has not demonstrated that the le gal controversy between the parties satisfies this exception. SBTC’s claims i nvolve at least two distinct type s of petitions submitted to DOT and FMCSA (three, including the supplemental clai m proposed in Plaintiff’s Third Motion to24 Amend), to which different substant ive and timing requirements apply. See supra Section I(B). SBTC attempts invoke the “capab le of repetition, yet evadin g review” exception on the grounds that Defendants allegedly fail to timely respond to “every” petition it sub mits. But, as the D.C. Circuit has indicated, the “capable of repetition” exception does not “permit the adjudication of one otherwise-moot case in antici pation of a different live one.” Planned Parenthood of Wisc.,
Inc. , 942 F.3d at 517. Here, SBTC seeks to do justthat, by attempting to substitute new claims involving distinct legal and factua l issues for otherwis e-moot claims. Accordingly, SBTC has failed to demonstrate that its claims f it within this exception to mootness. For the foregoing reasons the Court shall dis miss the Second Amende d Complaint’s Count 2 in full and Counts 1, 4, and 5 to the extent they rely on the ELD Exemption Application, the Domestic Animals HOS Exemption Application, and the Broker Bond Exemption Application. The Court lacks jurisdiction to consider those claims because they are moot.
3. The Midland HOS Exemptions Applicatio n and Claims Related to Defendants’ Failure to Respond to Protests No Longer Present a Live Controversy The Court shall also dismiss the claims for which SBTC concedes in its Third Motion to Amend there is “no further relief” that can be granted—specifical ly SBTC’s claims pertaining to the Midland HOS Exemption A pplication and those related to the summer 2020 protests. 7
Article III of the Constituti on permits federal courts to adjudicate only “actual, ongoing controversies.” Honig v. Doe , 484 U.S. 305, 317 (1988). “It has l ong been settled that a federal court has no authority to . . . to declare principles or rules of law which cannot af fect the matter in issue in the case before it.” Sierra Club v. Jackson , 648 F.3d 848, 852 (D.C. Cir. 2011) (internal citation and quotation marks omitted) . “Article III denies federa l courts the power to decide

7 Plaintiff also consents to dismissing the Domestic Animals HOS Exemption Application, Pl.’s (3d) Mot. to Amend at 6, which the Court found to be moot, supra Section III(A)(2).25 questions that cannot affect the ri ghts of litigants in the case be fore them, and c onfines them to resolving real and substantial controvers[ies] admitting of specific relie f through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477 (1990) (quoting N.C.
v. Rice , 404 U.S. 244, 246 (1971)) (internal quotation marks omitted). Here, SBTC concedes that there is “no further relief” that the Court can grant with respect to the Midland HOS Exemption Application and it s claims regarding Defe ndants’ alleged failures to amend HOS regulations and take other actions in response to protests during the summer of
2020. See Pl.’s (3d) Mot. to Am. at 5–6. Accordi ngly, the Court shall dismiss Counts 1, 4, and 5 to the extent they rely on the Midland HOS Ex emption Application, and shall also dismiss Count 3 in full (which addresses claims related Defendan ts’ alleged failure to amend regulations in light of the 2020 protests).
4. The Court Shall Require Supplemental Brie fing on SBTC’s First Amendment Claims Due to the Changed Posture of the Case Having dismissed SBTC’s claims related to th e four specific exemption applications at issue in the Second Amended Complaint, as well as the claims pertaining to Defendants’ alleged failure to respond to challenges arising during th e protests, the Court turn s to SBTC’s claim of alleged First Amendment violations—the only remaining claim in the Second Amended Complaint. SBTC claims that it is en titled to relief under 42 U.S. C. § 1983 and APA § 702 based on Defendants’ “purposeful discrimination.” See SAC ¶¶ 99, 101. Specifically, SBTC alleges that Defendants “treat[ ] the [SBTC], and its 15,000 memb ers differently than [t hey] treat[ ] other similarly situated trucking associ ation[s][.]” SAC ¶¶ 19, 99, 101. SBTC argues that this alleged “discrimination” violates the organization’s ri ght under the First Amendment to “petition the26 Government for a redress of grie vances.” SAC ¶ 100. SBTC conte nds that “its members are not given the same opportunityto petition FMCSA on issues and re gulations that af fect them as members of other similarly situated trucking as sociations.” SAC ¶ 104. It seeks an order “declar[ing] the Defendants’ purposeful discrimi nation of SBTC and its membership a violation of [§ 1983] and the First Amendmen t,” and requests that the Cour t “enjoin the Defendants from discriminating against SBTC and its members, and order Defenda nts’ to give SBTC and its members the same level of access to petition the FMCSA on issues and regulations that affect them.” SAC at 20 ¶ (e), 22 ¶ ( l). Defendants’ primary argument is that SBTC’s claim of allege d First Amendment violations is “inescapably intertwined” with its challenges to Defendants’ delay or inaction on its exemption applications—and that those claims fall within the exclusive jurisdiction of the courts of appeals under the Hobbs Act, 28 U.S.C. § 2342. See Defs.’ (2d) Mot. to Di smiss at 25–26. SBTC has since conceded that it no longer seeks relief for several of its claims, and the Court has concluded that others must be dismissed as moot. See supra II(A)(2), (3). Accordingly, there appears to be no remaining agency “rule, regula tion[ ], or final order[ ],” 28 U.S.C. § 2342, at issue in this lawsuit—and nothing with which SBTC’s const itutional claim can be “intertwined.” In the alternative to their jurisdictional ar guments, Defendants contend (albeit, in a footnote) that Count 6 of the Second Amended Co mplaint fails to state a claim upon which relief may be granted because “[s]ection 1983 does not appl y to Federal actors.” Defs.’ (2d) Mot. to Dismiss at 25 n.9 (quoting Settles , 429 F.3d at 1103); see also Williams v. United States , 396 F.3d 412, 415–16 (D.C. Cir. 2005) (“Section 1983 does not apply to federal offici als acting under color of federal law.”); Mullen v. Bur. of Prisons , 843 F. Supp. 2d 112, 116 (D.D.C. 2012). Here, SBTC’s claims of First Amendmen t violations pl ainly apply to federal actors acting under federal27 law, and so SBTC cannot rely on a cause of action under § 1983. See, e.g. , Richardson v. Dep’t of Interior , 740 F. Supp. 15, 20 (D.D.C. 1990). To the exte nt SBTC attempts to do so, that claim plainly fails and sh all be dismissed. However—despite labeling its First Amendment claim as a “violation of 42 U.S.C. § 1983”—SBTC also appears to rely on APA § 702 as the source of its caus e of action for alleged First Amendment violations, see SAC ¶ 101, which 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. The D.C. Circuit app ears to have recognized § 702 as an appropriate vehicle to raise claims ag ainst the federal government based on alleged constitutional violations. See We The People Fdn., Inc. v United States , 485 F.3d 140, 143 (D.C. Cir. 2007). It has also, however , held that the First Amendmen t right to petition government agencies does not “guarantee[ ] a citi zen’s right to receive a government response to or official consideration of a petition for redr ess of grievances.” Am. Bus. Ass’n v. Rogoff , 649 F.3d 734, 739 (D.C. Cir. 2011) (internal citations and quotation marks o mitted). In other words, “[n]othing in the First Amendment . . . suggests that the ri ghts to speak, associate, and petition require government policymakers to listen or respond to individuals’ communicati ons on public issues.” Minn. State Bd. For Comm. Colleges v. Knight , 465 U.S. 271, 285 (1984) (citing Smith v. Ark. State Highway Emp., Local 1315, 441 U.S. 463, 464–65 (1979)). De fendants did not raise these issues in their motion to dismiss—likely due to th e case being in a different procedural posture, as there were still “live” claims pertaining to exemption requests. Given the developments in this litigation since the parties completed briefing on th e motion to dismiss, the Court shall require the parties to respond to these issues raised by the Court, addressing whether Count 6 of the Second28 Amended Complaint states a claim for violations of SBTC’s First Amendment “right to petition” the government pursuant to the APA. For the reasons set forth above, the Court sh all dismiss Count 6 of the Second Amended Complaint for failure to state claim upon which relie f may be granted, to the extent it seeks to state a claim for relief under § 1983. However, the parties shall respond to the points raised by the Court regarding whether Count 6 states a claim upon which relief may be granted under the APA, based on alleged violations of the First Amendment. The parties shall respond in accordance with the schedule and page limitations se t forth in the accompanying Order.
B. Plaintiff’s Third Motion to Amend the Complaint SBTC’s Third Motion to Amend seeks leave to “amend” the Second Amended Complaint by dismissing certain claims and to supplemen t the Second Amended Complaint by adding a new claim alleging Defendants failed to initiate a “proceeding” in response to a petition for motor vehicle safety standards. See supra Section I(C)(1)(e). The Court has previously addressed the claims which SBTC concedes are no longer at issue in this case, supra Section II(A). Accordingly, the Court shall analyze SBTC’s proposed new cl aim under the legal standard for supplementing a complaint.

1. Legal Standard Pursuant to Federal Rule of Civil Procedure 15(d), on “m otion and reasonable notice, a court may, on just terms, permit a party to supple ment its pleadings to set out any transaction, occurrence or event that happened after the date of the pleading to be supplemented.” Fed .R. Civ. P. 15(d). Motions to supplement un der Rule 15(d) are subject to th e same standard as motions to amend . See Wildearth Guardians v. Kempthorne , 592 F. Supp. 2d 18, 23 (D.D.C 2008). The decision whether to grant leave to amend or supplement a complaint is within the discretion of the29 district court, but leave should be freely given unless there is a good reas on to the contrary. See
Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996); Willoughby v. Potomac Elec. Power
Co. , 100 F.3d 999, 1003 (D.C. Cir. 1996) . “[T]he Court must cons ider (1) undue delay; (2) prejudice to the oppos ing party; (3) futi lity of the amendment; (4) ba d faith; and (5) whether the plaintiff has previously amended the complaint.” Howell v. Gray , 843 F. Supp. 2d 49, 54 (D.D.C. 2012) (citing Atchinson v. Dist. of Columbia , 73 F.3d 418 (D.C. Cir. 19 96)). “In the absence of any apparent or declared reason —such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure defici encies by amendments previously allowed, undue prejudice to the oppos ing party by virtue of al lowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’” Foman v. Davis , 371 U.S. 178, 182 (1962). “[A] district court has disc retion to deny a motion to am end on grounds of futility where the proposed pleading would not su rvive a motion to dismiss.” In re Interbank Funding Corp. Sec. Litigation , 629 F. 3d 213, 215 (D.C. Cir. 2010). As a result, a court’s decision as to whether to grant or deny on futility grounds a motion to ame nd “is for practical purposes, identical to review of a 12(b)(6) dismissal based on the allegation in the amended complaint.” Id. at 215–16. And “[w]here ... the complaint, as am ended, would radically alter the scope and nature of the case and bears no more than a tangential relationship to the original ac tion, leave to amend should be denied.” Miss. Ass’n of Cooperatives v. Farmers Home Admin ., 139 F.R.D. 542, 544 (D.D.C. 1991).
2. Leave to Supplement the Second Amende d Complaint is Not Warranted In its proposed new complaint, SBTC seeks to add a new claim that De fendants have failed to respond to a “petition” requesting the Secretary to begin a proceeding to “prescribe a motor vehicle safety standard” under § 30162( a)(1). SBTC claims that Defendants failed to grant or deny30 the petition within 120 days. See Pl.’s (3d) Mot. to Amend at 4; Pl.’s Proposed Am. Compl. ¶¶ 22– 26, 31. SBTC has not provided sufficient justification to once again amend its complaint to introduce this new claim into this lawsuit. SBTC’s proposed ne w claim bears “no more than a tangential relationship to the original action.” De Sousa v. Dep’t of State , 840 F. Supp. 2d 92, 115 (D.D.C. 2012). It involves a diff erent type of request, implicating a different statute, different timing requirements, and differen t considerations by Defendants than the claims included in previous iterations of the compla int. And, Defendants no te that authority to consider and respond to section 30162 petitions has beendelegated to the Administrator of the National Highway Traffic Safety Administration (“NHTSA”), not FMCSA, the defendant here. 8 Defs.’ Opp’n to Pl.’s (3d) Mot. to Amend at 5–6. A new action would be the better mechanism for SBTC raise its proposed new claim, if it elects to do so. See De Sousa , 840 F. Supp. 2d at 115 (denying leave to amend where it “would do far more than allow plaintiff to fully litigate all the legal dimensions of [its] initial action, it would permit plai ntiff to transform [its] case into something entirely new”). Moreover, the Court previously granted SBTC leave to amend its complaint after briefing on Defendants’ motion to dismi ss the original complaint had already been completed. See Minute Order (Sept. 24, 2020). Doing so ag ain would further delay resoluti on of this action and prejudice Defendants by requiring them to re spond to new claims, when most of the other claims have been dismissed on jurisdictional grounds. The Court sh all not permit SBTC to delay resolution of the case or attempt to revive otherwise-moot clai ms against Defendants by continuing to add new claims to this case. SBTC’s Third Motion to Amend the Complain t shall be denied.

8 Defendants also contend that “the substance” of the “pe tition” submitted by SBTC addresses “technical specifications for [ELDs], which are not regulated by a ‘motor vehicle standard’ as they are not a part of the initial design and manufacture of a motor vehicle.” Defs.’ Op p’n to Pl.’s (3d) Mot. to Amend at 5–6.31 III. CONCLUSION For the reasons above, the Court GRANTS-IN-PART and HOLDS-IN-ABEYANCE-IN
PART Defendants’ [38] Motion to Dismiss the Second Amended Complaint. The Court
DISMISSES Counts 1, 2, 3, 4, and 5 of the Second Amende d Complaint for lack of subject matter jurisdiction. The Court also DISMISSES Count 6 of the Second Ame nded Complaint for failure to state a claim upon which relief may be granted to the extent SBTC seek s to state a claim under 42 U.S.C. § 1983. However, the Court HOLDS-IN-ABEYANCE Count 6 of the Second Amended Complaint, to the extent SBTC seeks to state a claim under the APA, and shall require the parties to respond to this Memorandum Opinion, addressing the issues raised by the Court in its discussion, supra Section II(A)(4). The Court also DENIES Plaintiff’s Third Motion to Amend. An appropriate Order accompan ies this Memorandum Opinion. /s/ COLLEEN KOLLAR-KOTELLY United States District Judge Date : September 27, 2021