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 Coalition (“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 FMCSA1

(collectively “Defendants”). SBTC alleges that Defendants violated the Administrative Procedure 

Act (“APA”) by failing to take action on four separate exemption requests submitted by SBTC and 

by failing to amend Hour of Service (“HOS”) regulations and to adopt other protective measures 

in response to disruptions caused by nationwide protests during the summer of 2020. SBTC seeks 

to compel agency action on outstanding exemption requests and to enjoin Defendants from future 

similar delays. SBTC also alleges that its exemption requests have been treated differently than 

requests by similarly situated groups, in deprivation of its First Amendment 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 Motion to Amend the Complaint, seeking 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 SBTC 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 Amend 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 Amended 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 Order Directing No More Amendments 

to Complaint and Partial Opposition to Plaintiff’s motion 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 Amended Complaint for failure 

to state a claim upon which relief may be granted to the extent SBTC seeks 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 Memorandum Opinion, 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 “interstate 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. Given the extensive procedural background of this case and SBTC’s 

recent request to introduce a new claim into this litigation, the Court shall first summarize the 

procedural posture of the case, and then shall provide the relevant statutory and regulatory 

background and the facts underlying each of SBTC’s pending and proposed 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 Original 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 Complaint,” 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 operative 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 Amended Complaint,” referring to the complaint filed at ECF 

No. 37. 
4 

and injunctive relief with respect to Defendants’ alleged failure 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 engaged in “purposeful discrimination” 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 Preliminary 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 injunction, Defendants indicated that 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 Original 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 certain 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] First Motion for Leave to File an Amended Complaint on July 28, 

2020. See Pl.’s (1st) Mot. to Amend, ECF No. 28. In that motion, SBTC sought to supplement its 

Complaint by adding a claim that Defendants violated 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-briefed 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, “this 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 filed a [42] Petition for 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 Amended 
6 

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; the Court shall address in its 

discussion infra Section I(C)(1) the claims 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 any further amendments,” 

Minute Order (Sept. 24, 2020), the Court ordered Defendants 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 dismiss 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 alleges that Defendants delayed or failed to act 

on applications for exemptions to FMCSA regulations pertaining to hours of service and electronic 

logging devices requirements for commercial motor vehicle drivers, and bond requirements for 

transportation brokers. Accordingly, a brief discussion of the applicable statutory and regulatory 

framework related to the exemption requests is useful to understanding SBTC’s claims. 

1. Hours of Service (“HOS”) and Electronic 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, when the 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, Inc. v. Fed. Motor Carrier Safety Admin., 494 F.3d 188, 
7 

193 (D.C. Cir. 2007). Pursuant to the Motor Carrier 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 Carrier Safety Act of 1984, as amended, directs the 

Secretary of Transportation to “prescribe regulations on commercial motor vehicle safety.” 49 

U.S.C. § 31136(a). These regulations prescribe “minimum safety standards” for commercial 

motor vehicles.” § 31136(a). Among other considerations, these regulations must ensure that “the 

responsibilities imposed on operators of commercial motor vehicles do not impair their ability to 

operate the vehicles safely,” that the “physical 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 deleterious effect on the physical condition of the 

operators.” § 31136(a)(2)–(4). 

FMCSA is the agency charged with promulgating regulations regarding maximum hours 

of service and minimum safety standards for commercial motor vehicles. Among these 

regulations, FMCSA promulgates “Hours 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 commercial motor vehicles involved in interstate 

commerce and operated by a driver subject to HOS requirements are equipped 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 accordance with section 31315 waivers and 

exemptions from . . . regulations prescribed under this section.” § 31136(e). Section 31315, in 

turn, provides the framework for FMCSA to consider an exemption request. As pertinent to 

SBTC’s claims here, FMCSA “may grant” an “exemption from a regulation prescribed under this 
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chapter [Chapter 313, “Commercial Vehicle Operators”] or section 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 specifies the procedures 

the agency must follow upon receipt of an exemption request: 

(A)Upon receipt of a request. — 

Upon receipt of an exemption request, the Secretary shall publish in 

the Federal Register . . . a notice explaining 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. This subparagraph does not require 

the release of information protected by law from public disclosure. 

§ 31315(b)(6)(A). And it further directs: “The Secretary shall grant or deny an exemption request 

after a thorough review of its safety 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 date of the exemption, 

it “shall publish” in the 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 exemption request, then it “shall 

publish” in the Federal Register the name of the 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 requirements discussed above, all “brokers and freight forwarders” 

subject to FMCSA’s jurisdiction are required to maintain $75,000 in financial security, 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 Bond 
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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 protect shippers from the abuse of market power or 

that the transaction or service is of limited scope; and (3) is in the public interest.” § 13541(a). 

The Secretary may “begin a proceeding under this section” on his own “initiative 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 that the Secretary must grant or deny an exemption request for 

the Broker Bond Requirement within a specified time period, nor does it require 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 Defendants, stemming from their alleged failure 

to act on four petitions for exemptions from FMCSA regulations submitted by SBTC. In its Third 

Motion to Amend, SBTC seeks to add a fifth claim—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 Amend at 3. The Court 

shall address below the facts pertaining to each of the four exemption 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 Court shall summarize the causes of actions with respect to each count 

of SBTC’s Second Amended Complaint. 

With respect to each exemption application described 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 capricious” treatment of exemption applications filed by SBTC 

(Count 4, SAC ¶¶ 76–89), and its unreasonable withholding or delay in acting on SBTC’s 

exemptions requests (Count 5, SAC ¶¶ 90–97). Generally speaking, SBTC contends that 

Defendant failed to adhere to the statutory deadlines detailed supra Section I(B), by failing to 

publish or by delaying publication of the exemption request in the Federal Register and/or by 

failing to render a final decision on the exemption request. 

SBTC also asserts a claim under the APA based on Defendants’ alleged failure to “amend 

[HOS] regulations” to account for traffic disruptions during protests in the summer of 2020 and 

for failing to “protect commercial motor vehicle drivers” from allegedly being “physically 

attacked, beaten, and often killed” by protesters (Count 3, SAC ¶¶ 67–75). 

 Finally, in Count 6, SBTC claims that Defendants 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 situated trucking associations,” in 

violation of the First Amendment (Count 6, SAC ¶¶ 98–104). 

1. SBTC’s Claims Related to Requests Submitted to Defendants 

a) ELD Exemption Application 

On December 16, 2015, FMCSA published its Electronic 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 performance and design standards” for electronic 

logging devices, as well as “requirements for the mandatory use of these devices by drivers 
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currently required to prepare HOS records of duty status,” and “requirements concerning HOS 

supporting documents.” Id. FMCSA noted that these revised 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 exemption from ELD requirements, 

seeking relief from the ELD regulations 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: Application for Exemption; SBTC, 85 Fed. 

Reg. 20,563 (June 5, 2018). On July 17, 2019, FMCSA published 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 FMCSA reconsider its denial of Plaintiff’s 

request for an exemption. See SAC ¶ 12; SAC Ex. A. SBTC’s request for reconsideration 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 the Federal Register requesting public comments 

on SBTC’s ELD Exemption Application. SAC ¶ 15; Hours of Service of Drivers: 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 reconsideration and the public 
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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 publish notice of its ELD Exemption Application 

“upon receipt” and failure to render a decision within 180 days violated 49 U.S.C. 

§ 31315(b)(6)(A), (7). SAC ¶¶ 51, 52. SBTC claims that this failure 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, capricious” 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 SBTC’s ELD Exemption Application request and 

publish that decision in the Federal Register[.]” SAC ¶¶ 57, 87, 96. SBTC also seeks a declaratory 

judgment that Defendants’ failure 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 streets and private areas citywide. SAC ¶ 25. On February 12, 

2019, SBTC filed an application with FMCSA for a “class exemption” from the HOS regulations 

on behalf of SBTC members and all other truck and bus drivers who operate in interstate 

transportation and pass through the city of Midland, Texas (“Midland HOS Exemption 

Application”). SAC ¶ 28. SBTC sought an exemption from the HOS regulations for drivers who 

were required to pass through Midland on the basis that the city’s ordinance prevented affected 

commercial motor vehicle operators from complying with HOS requirements. SAC ¶ 26. 

On March 15, 2019, FMCSA acknowledged receipt of the Midland HOS Exemption 

Application, but notified SBTC that its petition had not provided certain required information. See
13 

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 Federal regulations relating to the process and 

procedure for filing an exemption request with the FMCSA.” SAC ¶ 29. 

SBTC alleges that FMCSA’s failure to publish its Midland HOS Exemption Application 

in the Federal Register “upon receipt” and its failure to grant or deny the 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 district court to “compel agency 

action unlawfully withheld or unreasonably delayed.” 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, capricious” 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 publish the SBTC’s [Midland HOS Exemption 

Application],” to “commence a notice comment period 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 Application 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 Animals (“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 operating 
14 

in interstate commerce who operate such vehicles 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 from ELD and Certain HOS Requirements, 85 Fed. 

Reg. 14,289 (Mar. 11, 2020). On October 16, 2020, FMCSA 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 Certain 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 decision on its Domestic Animals HOS Exemption 

Application within 180 days. SAC ¶ 64. SBTC claims that this failure is actionable 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 claims that Defendants’ failure to render and 

publish a decision on the Domestic Animals HOS Exemption Application was “arbitrary, 

capricious” 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 

SBTC’s [Domestic Animals HOS Exemption Application] and publish that decision 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 the 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 Complaint, SBTC indicates that it would remove 

claims pertaining to this exemption request, conceding that “relief is no longer needed” with 
15 

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 requirement established by 49 U.S.C. § 13906(c) (the 

“Broker Bond Exemption Application”). On September 10, 2019, the SBTC filed a resubmission 

of Transportation Intermediary Bond Exemption Application. SAC ¶ 13. Plaintiff sought 

reconsideration of an application 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 Federal 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, it initially published the Broker Bond Exemption 

Application with an inaccurate docket number. Defs.’ (2d) Mot. to Dismiss at 8. FMCSA 

subsequently republished the Broker Bond Exemption 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 Security Requirements for Brokers of Property and Freight 

Forwarders; SBTC Exemption Application, 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 Application and failed to issue a final decision in 

the Federal Register within 180 days, in violation of 49 U.S.C. § 31315(b)(7). SAC ¶¶ 17, 21, 52. 

SBTC also claims that Defendants’ failure to “acknowledge” its Broker Bond Exemption 

Application was “arbitrary and capricious,” and that Defendants “unreasonably delayed” action on 
16 

this application. SAC ¶¶ 80, 84. SBTC seeks an order requiring FMCSA to “immediately publish 

the SBTC’s [Broker Bond Exemption Application] and commence a notice and comment period 

in the Federal Register[.]” SAC ¶¶ 58, 88. SBTC 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 Defendants failed to act on its “Petition for Motor 

Vehicle Safety Standards and Enforcement” 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 for “Motor Vehicle Safety Standards 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 authorized person” to “file a petition with the 

Secretary of Transportation,” requesting the Secretary begin a proceeding to “prescribe a motor 

vehicle safety standard.” § 30162(a)(1). The Secretary “shall grant or deny a petition not later than 

120 days after the petition is filed. If a petition is granted, the Secretary shall begin the proceeding 

promptly. If a petition is denied, the Secretary shall publish the reasons for the denial in the Federal 

Register.” § 30162(d). Plaintiff claims that its Petition for Motor Vehicle Safety Standards “was 

required to be processed within 120 days by either commencing a proceeding or publishing a denial 

in the Federal Register, but that Plaintiffs 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 Amend 49 U.S.C. § 31136 in Response to 

Nationwide Protests 

In addition to claims regarding the specific exemption requests identified above, the 

Second Amended Complaint also alleges that Defendants failed to amend HOS regulations to 

account for disruptions to the flow of motor vehicle traffic caused by protests during the summer 

of 2020. SAC ¶¶ 35–37. SBTC contends that the traffic disruptions caused by these protests 

caused many commercial drivers “to violate existing HOS regulations” as they were delayed or 

forced to find alternate routes. SAC ¶ 38. Defendants do not dispute 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 regulations to account for the 

disruptions to the flow of commercial motor vehicle traffic caused by protests around the 

country[.]” SAC at 21 ¶ (f). 

SBTC also claims that truck drivers were “purposefully and intentionally 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 order 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, SBTC indicates that “relief is no longer needed” as to these 

claims because they arose from “a temporary social unrest situation that no longer exists.” Pl.’s 

(3d) Mot. to Amend at 5. 

3. “Purposeful Discrimination” and First Amendment Violations 

In the final count of its Second Amended Complaint, SBTC alleges that Defendants have 

violated its First Amendment rights because its members “are not given the same opportunity to 

petition the FMCSA on issues and regulations that affect them as members of other similarly 
18 

situated trucking institutions.” SAC ¶ 104. SBTC, therefore, claims that it is 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, and order[ing] Defendants to give SBTC and its member the same 

level of access to petition the FMCSA on issues and 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 claims 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 jurisdictional issues prevent 

SBTC’s claims related to exemption requests and Defendants’ alleged failure to amend regulations 

in response to protests from proceeding, and so shall dismiss those claims. In light of the changed 

posture of the case since briefing on the pending motion to dismiss was completed, the Court shall 

hold in abeyance a decision on Count 6 of the Second Amended Complaint, to the extent SBTC 

seeks relief under the APA, but shall dismiss that claim to the extent it relies on 42 U.S.C. § 1983. 

Finally, the Court shall deny SBTC’s latest motion to amend the complaint. 
19 

A. Defendants’ Motion to Dismiss the Second Amended Complaint 

1. Legal Standards 

a) Federal Rule of Civil Procedure 12(b)(1) 

A court must dismiss a case pursuant to Federal Rule of Civil Procedure 12(b)(1) when it 

lacks subject matter jurisdiction. In determining whether there is jurisdiction, the 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, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal citation 

omitted). In deciding whether to grant a motion to dismiss for lack of jurisdiction, the Court “may 

consider materials outside 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] court 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 allegations contained in the complaint when reviewing a motion to 
20 

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 allegation” or an inference “unsupported 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 Procedure 12(b)(6), a party may move to dismiss a 

complaint that “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 

“[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 

enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 557 (2007)). The factual allegations within a complaint, if accepted as true, must 

be sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A 

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 

at 678. Courts “do not accept as true, however, the plaintiff's legal conclusions or inferences that 

are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 

314–15 (D.C. Cir. 2014). 

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 claims for injunctive and declaratory relief 

regarding the ELD Exemption Application, the Domestic Animals HOS Exemption Application, 

and the Broker Bond Exemption Application because Defendants have already taken the 
21 

statutorily-required actions with respect to these exemption applications, and therefore there is no 

further relief that the Court can grant. Accordingly, 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 limitation “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). Pursuant 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 relief; 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 that there is no reasonable expectation that the wrong will be 

repeated in circumstances where it becomes impossible 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 Application and Domestic Animals HOS Exemption 

Application, SBTC seeks an order compelling FMCSA 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 this relief is no longer 

available to SBTC; SBTC’s requests for injunctive 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 decision” on petition rendered plaintiff’s request 

for order to issue decision on the petition moot). 
22 

With respect to the Broker Bond Exemption Application, Plaintiff seeks an order 

compelling Defendants to “immediately publish” notice of its Broker Bond Exemption Application 

and “commence a notice and comment period.” SAC ¶¶ 58, 88. But FMCSA has already twice 

published notice of the Broker Bond Exemption Application in the Federal Register, so there is 

also no further injunctive relief that the Court can grant with respect to this claim. See Defs.’ (2d) 

Mot. to Dismiss at 8. 

SBTC’s claims for declaratory relief with respect to these applications are also moot. To 

grant declaratory relief, there must 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 Application and Domestic Animals HOS Exemption 

Application within the time period specified in § 31315(b)(7). See SAC at 20 ¶¶ (a), (b). SBTC 

also seeks an order declaring that Defendants failed to publish 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 Application, the Court “can do 

nothing to affect [Plaintiffs’] rights 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 analyzed 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 has already taken the action Plaintiffs 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 dismissal on mootness grounds by demonstrating 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 complaining 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 contends that Defendants’ “failure 

to respond to SBTC’s petitions in a timely manner on “every petition” SBTC has filed” is “likely 

to be repeated.” Pl.’s Opp’n to Defs.’ (2d) Mot. to Dismiss at 6. 

 To satisfy this exception to mootness, a plaintiff 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) (internal 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 permit 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, set 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 legal controversy between the parties satisfies 

this exception. SBTC’s claims involve at least two distinct types of petitions submitted to DOT 

and FMCSA (three, including the supplemental claim proposed in Plaintiff’s Third Motion to 
24 

Amend), to which different substantive and timing requirements apply. See supra Section I(B). 

SBTC attempts invoke the “capable of repetition, yet evading review” exception on the grounds 

that Defendants allegedly fail to timely respond to “every” petition it submits. But, as the D.C. 

Circuit has indicated, the “capable of repetition” exception does not “permit the adjudication of 

one otherwise-moot case in anticipation of a different live one.” Planned Parenthood of Wisc., 

Inc., 942 F.3d at 517. Here, SBTC seeks to do just that, by attempting to substitute new claims 

involving distinct legal and factual issues for otherwise-moot claims. Accordingly, SBTC has 

failed to demonstrate that its claims fit within this exception to mootness. 

For the foregoing reasons the Court shall dismiss the Second Amended 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 Application 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—specifically SBTC’s claims pertaining to 

the Midland HOS Exemption Application and those related to the summer 2020 protests.7

 

Article III of the Constitution permits federal courts to adjudicate only “actual, ongoing 

controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). “It has long been settled that a federal 

court has no authority to . . . to declare principles or rules of law which cannot affect 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 federal 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 rights of litigants in the case before them, and confines them to 

resolving real and substantial controvers[ies] admitting of specific relief 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 its claims regarding Defendants’ 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. Accordingly, the Court shall dismiss Counts 1, 4, and 5 

to the extent they rely on the Midland HOS Exemption Application, and shall also dismiss Count 

3 in full (which addresses claims related Defendants’ alleged failure to amend regulations in light 

of the 2020 protests). 

4. The Court Shall Require Supplemental Briefing on SBTC’s First Amendment 

Claims Due to the Changed Posture of the Case 

 Having dismissed SBTC’s claims related to the 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 the protests, the Court turns to SBTC’s claim of 

alleged First Amendment violations—the only remaining claim in the Second Amended 

Complaint. 

SBTC claims that it is entitled 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 members differently than [they] treat[ ] other 

similarly situated trucking association[s][.]” SAC ¶¶ 19, 99, 101. SBTC argues that this alleged 

“discrimination” violates the organization’s right under the First Amendment to “petition the 
26 

Government for a redress of grievances.” SAC ¶ 100. SBTC contends that “its members are not 

given the same opportunity to petition FMCSA on issues and regulations that affect them as 

members of other similarly situated trucking associations.” SAC ¶ 104. It seeks an order 

“declar[ing] the Defendants’ purposeful discrimination of SBTC and its membership a violation 

of [§ 1983] and the First Amendment,” and requests that the Court “enjoin the Defendants from 

discriminating against SBTC and its members, and order Defendants’ 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 alleged 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 Dismiss 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, regulation[ ], or final order[ ],” 28 U.S.C. § 2342, at issue in this 

lawsuit—and nothing with which SBTC’s constitutional claim can be “intertwined.” 

In the alternative to their jurisdictional arguments, Defendants contend (albeit, in a 

footnote) that Count 6 of the Second Amended Complaint fails to state a claim upon which relief 

may be granted because “[s]ection 1983 does not apply 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 officials 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 Amendment violations plainly apply to federal actors acting under federal 
27 

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 extent SBTC attempts to do so, that claim 

plainly fails and shall 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 cause 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 appears to have recognized § 702 as 

an appropriate vehicle to raise claims against 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 Amendment right to petition government 

agencies does not “guarantee[ ] a citizen’s right to receive a government response to or official 

consideration of a petition for redress of grievances.” Am. Bus. Ass’n v. Rogoff, 649 F.3d 734, 739 

(D.C. Cir. 2011) (internal citations and quotation marks omitted). In other words, “[n]othing in 

the First Amendment . . . suggests that the rights to speak, associate, and petition require 

government policymakers to listen or respond to individuals’ communications 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)). Defendants did not raise these 

issues in their motion to dismiss—likely due to the 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 the motion to dismiss, the Court shall require the 

parties to respond to these issues raised by the Court, addressing whether Count 6 of the Second 
28 

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 shall dismiss Count 6 of the Second Amended 

Complaint for failure to state claim upon which relief 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 set 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 supplement 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 claim under the legal standard for supplementing a 

complaint. 

1. Legal Standard 

Pursuant to Federal Rule of Civil Procedure 15(d), on “motion and reasonable notice, a 

court may, on just terms, permit a party to supplement 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 under Rule 15(d) are subject to the 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 the 
29 

district court, but leave should be freely given unless there is a good reason 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 consider (1) undue delay; (2) 

prejudice to the opposing party; (3) futility of the amendment; (4) bad 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. 1996)). “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 deficiencies by amendments previously allowed, undue 

prejudice to the opposing party by virtue of allowance 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 discretion to deny a motion to amend on grounds of futility where 

the proposed pleading would not survive 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 amend “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 amended, would radically alter the scope and nature of the case and 

bears no more than a tangential relationship to the original action, 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 Amended Complaint is Not Warranted 

In its proposed new complaint, SBTC seeks to add a new claim that Defendants 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 deny 
30 

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 new 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 different type of request, implicating a different statute, different 

timing requirements, and different considerations by Defendants than the claims included in 

previous iterations of the complaint. And, Defendants note that authority to consider and respond 

to section 30162 petitions has been delegated 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 plaintiff 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 dismiss the original complaint had already been completed. See Minute 

Order (Sept. 24, 2020). Doing so again would further delay resolution of this action and prejudice 

Defendants by requiring them to respond to new claims, when most of the other claims have been 

dismissed on jurisdictional grounds. The Court shall not permit SBTC to delay resolution of the 

case or attempt to revive otherwise-moot claims against Defendants by continuing to add new 

claims to this case. SBTC’s Third Motion to Amend the Complaint shall be denied. 

8

 Defendants also contend that “the substance” of the “petition” 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.’ Opp’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 Amended Complaint for lack of subject matter 

jurisdiction. The Court also DISMISSES Count 6 of the Second Amended Complaint for failure 

to state a claim upon which relief may be granted to the extent SBTC seeks 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 accompanies this Memorandum Opinion.

 /s/ 

 COLLEEN KOLLAR-KOTELLY 

 United States District Judge 

Date: September 27, 2021