Petition for Writ of Certiorari — Ronald Clark Fleshman, Jr., Petitioner v. Volkswagen, AG, et al.

Supreme Court briefMar 28, 2019

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Text

No. _______

In The

Supreme Court of the United States

RONALD CLARK FLESHMAN, JR.,

Petitioner,

VOLKSWAGEN, AG, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Elwood Earl Sanders, Jr., Esq.

Counsel of Record

8357 Curnow Drive

Mechanicsville, VA 23111

(804) 644-0477

(804) 644-3336 (Fax)

eesjresquire@netscape.net

James B. Feinman, Esq.

1003 Church Street

P. O. Box 697

Lynchburg, VA 24505

(434) 846-7603

(434) 846-0158 (Fax)

jb@jfeinman.com

Counsel for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTIONS PRESENTED

1. Can the Environmental Protection Agency

revise clear statutory terms of the Clean Air Act to

allow the importation, sale, and use of motor

vehicles with “defeat devices” when Congress

expressly prohibited the same in enacting section

203 of the Clean Air Act, 42 U.S.C. § 7522?

2. Can the Environmental Protection Agency

revise clear statutory terms of the State

Implementation Plans of seventeen States to allow

the use of motor vehicles with “defeat devices?”

3. Can a citizen intervene under 42 U.S.C. §

7604 or Federal Rule of Civil Procedure 24 when the

Environmental Protection Agency refuses to enforce

the Clean Air Act and the emissions standards and

limitations found in 42 U.S.C. § 7522?

4. Was it an abuse of discretion for the District

Court, as affirmed by the Ninth Circuit Court of

Appeals, to approve a class action settlement

condoning illegal activity by allowing 487,500

clandestinely imported vehicles to remain in the

United States in violation of 42 U.S.C. § 7522(a)(1)

and (b)(2), 19 U.S.C. § 1595a (c)(1)(A), and to remain

in use in violation of the Clean Air Act and the State

Implementation Plans of 17 States?

LIST OF ALL PARTIES TO THE PROCEEDING

IN THE COURT WHOSE JUDGMENT IS

SOUGHT TO BE REVIEWED

In United States Court of Appeals for the Ninth

Circuit Case No. 16-17060, In re: Volkswagen

“Clean Diesel” Marketing, Sales Practices, and

Products Liability Litigation, there is one named

plaintiff, six named defendants, and one proposed

intervenor.

The plaintiff is:

THE UNITED STATES OF AMERICA,

The defendants are:

VOLKSWAGEN AG; AUDI AG; VOLKSWAGEN

GROUP OF AMERICA, INC.; VOLKSWAGEN

GROUP OF AMERICA CHATTANOOGA

OPERATIONS, LLC; DR. ING. H.C. F. PORSCHE

AG; PORSCHE CARS NORTH AMERICA, INC,

The proposed intervenor is:

RONALD CLARK FLESHMAN, Jr.

iii

In United States Court of Appeals for the Ninth

Circuit Case No. 16-17183, In re: Volkswagen “Clean

Diesel” Marketing, Sales Practices, and Products

Liability Litigation, there are seventy-eight

plaintiffs, one objector, and seven defendants.

The plaintiffs are:

JASON HILL; RAY PRECIADO; SUSAN

TARRENCE; STEVEN R. THORNTON; ANNE

DUNCAN ARGENTO; SIMON W. BEAVEN;

JULIET BRODIE; SARAH BURT; AIMEE

EPSTEIN; GEORGE FARQUAR; MARK HOULE;

REBECCA KAPLAN; HELEN KOISK-WESTLY;

RAYMOND KREIN; STEPHEN VERNER; LEO

WINTERNITZ; MARCUS ALEXANDER DOEGE;

LESLIE MACLISE-KANE; TIMOTHY WATSON;

FARRAH P. BELL; JERRY LAWHON; MICHAEL R.

CRUISE; JOHN C. DUFURRENA; SCOTT BAHR;

KARL FRY; CESAR OLMOS; BRITNEY LYNNE

SCHNATHORST; CARLA BERG; AARON JOY;

ERIC DAVIDSON WHITE; FLOYD BECK

WARREN; THOMAS J. BUCHBERGER; RUSSELL

EVANS; ELIZABETH EVANS; CARMEL RUBIN;

DANIEL SULLIVAN; MATTHEW CURE; DENISE

DE FIESTA; MARK ROVNER; WOLFGANG

STEUDEL; ANNE MAHLE; DAVID MCCARTHY;

SCOTT MOEN; RYAN JOSEPH SCHUETTE;

MEGAN WALAWENDER; JOSEPH MORREY;

MICHAEL LORENZ; NANCY L. STIREK;

REBECCA PERLMUTTER; ADDISON MINOTT;

RICHARD GROGAN; ALAN BANDICS; MELANI

BUCHANAN FARMER; KEVIN BEDARD;

ELIZABETH BEDARD; CYNTHIA R. KIRTLAND;

MICHAEL CHARLES KRIMMELBEIN; WILL

HARLAN; HEATHER GREENFIELD; THOMAS W.

AYALA; HERBERT YUSSIM; NICHOLAS BOND;

BRIAN J. BIALECKI; KATHERINE MEHLS;

WHITNEY POWERS; ROY MCNEAL; BRETT

ALTERS; KELLY R. KING; RACHEL OTTO;

WILLIAM ANDREW WILSON; DAVID

EBENSTEIN; MARK SCHUMACHER; CHAD

DIAL; JOSEPH HERR; KURT MALLERY; MARION

B. MOORE; LAURA SWENSON; BRIAN

NICHOLAS MILLS,

The objector is:

RONALD CLARK FLESHMAN, Jr.,

The defendants are:

VOLKSWAGEN, AG; VOLKSWAGEN GROUP OF

AMERICA, INC.; AUDI, AG; AUDI OF AMERICA,

LLC; PORSCHE CARS NORTH AMERICA, INC.;

ROBERT BOSCH GMBH; ROBERT BOSCH, LLC.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ............................ ii

TABLE OF CONTENTS ............................................. v

TABLE OF AUTHORITIES ...................................... ix

OPINIONS BELOW .................................................... 1

STATEMENT OF JURISDICTION ........................... 2

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS................................................. 3

STATEMENT OF THE CASE .................................... 6

REASONS FOR GRANTING THE PETITION ....... 24

THE INTENT OF CONGRESS .............. 24

A. NEW VEHICLES IMPORTED

WITHOUT A VALID CERTIFICATE

OF CONFORMITY MUST BE

SEIZED AND FORFEITED ............... 25

B. NEW OR USED VEHICLES WITH

DEFEAT DEVICES CANNOT BE

SOLD – AND THE EPA CANNOT

VALIDLY DETERMINE

OTHERWISE...................................... 27

C. VEHICLES THAT EXCEED

EMISSIONS STANDARDS AND

LIMITATIONS CANNOT BE

USED. ................................................. 29

II.

THIS COURT SHOULD GRANT THE

WRIT TO PREVENT THE APPROVAL

OF A CLASS ACTION SETTLEMENT

THAT CONDONES ILLEGAL

ACTIVITY ................................................. 32

III.

THIS COURT SHOULD GRANT THE

WRIT TO PREVENT THE

NULLIFICATION OF SEVENTEEN

STATE IMPLEMENTATION PLANS

BY THE ENVIRONMENTAL

PROTECTION AGENCY.......................... 34

IV.

THE NINTH CIRCUIT HAS

INTERPRETED 42 U.S.C. §7604—THE

CITIZEN’S SUIT PROVISION—TO

INSURE NO CITIZEN EVER

INTERVENES IN A GOVERNMENT

ENFORCEMENT ACTION WHICH IS

DIRECTLY CONTRARY TO INTENT

OF CONGRESS ........................................ 37

CONCLUSION .......................................................... 40

vii

APPENDIX TABLE OF CONTENTS

United States Court of Appeals for the Ninth

Circuit Opinion, 16-17157, et al., dated July 9,

2018 .......................................................................... A1

United States Court of Appeals for the Ninth

Circuit Opinion, 16-17060, dated July 3, 2018 ..... A42

United States District Court, Northern

District of California Order, dated October 26,

2016 ........................................................................ A76

United States District Court, Northern

District of California Order, dated October 4,

2016 .......................................................................A152

United States Court of Appeals for the Ninth

Circuit Order on Rehearing, 16-17183, dated

October 29, 2018....................................................A169

United States Court of Appeals for the Ninth

Circuit Order on Rehearing, 16-17060, dated

October 29, 2018....................................................A172

U.S.C.A. Const. Art. I § 1 ......................................A175

42 U.S.C.A. § 7522 (excerpt) .................................A176

42 U.S.C.A. § 7521 (excerpt) .................................A181

19 U.S.C.A. § 1595a ..............................................A189

42 U.S.C.A. § 7604 ................................................A193

viii

Various State Statutes:

Ala. Admin Code 335-3-9-.04...........................A200

Ariz. Admin Code R18-2-1029 .........................A200

Conn Agencies Reg 14-164c-4a........................A201

7 Del. Admin Code 1126-3.0 ............................A202

18 DCMR Chapter 7 ........................................A202

Ga. Comp. R. & Regs. 391-3-20-.06 .................A203

Haw. Code R. 11-60.1-34 .................................A204

Ill. Admin. Code tit. 35, § 240.103...................A204

COMAR 11.14.08.06 ........................................A205

Minn. R. 7023.0120 ..........................................A206

Nev. Admin Code 4458.575 .............................A206

N.J. Admin. Code § 7:27-14.3 ..........................A207

N.D. Admin. Code 33-15-08-02........................A208

R.I. Code R. 47-1-37:1.12 .................................A208

9 VAC 5-40-5670 ..............................................A208

VA Code Ann. § 46.2-1048 ...............................A210

Wis. Admin. Code NR § 485.06 .......................A212

Wyo. Admin. Code § ENV AQ Ch. 13 s 2 ........A210

Exhibit 2 – Statement of Facts .............................A214

Notice of Violation Letter .....................................A243

Frequent Questions about Volkswagen

Violations ...............................................................A255

TABLE OF AUTHORITIES

CASES

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 122 S.Ct.

941, 151 L.Ed.2d. 908 (2002) .................................... 27

Bayview Hunters Point Community Advocates v.

Metropolitan Transp. Com'n, 366 F.3d 692 (2004) .. 34

Center for Auto Safety v. Ruckelshaus, 747 F.2d 1

(D.C. Cir. 1984) ......................................................... 30

Friends of the Earth v. Carey, 535 F.2d 165

(2d Cir. 1976) ................................................. 34, 37, 40

General Motors Corp. v. Ruckelshaus, 742 F.2d 1561

(D.C. Cir. 1989) ......................................................... 31

Grunin v. International House of Pancakes,

513 F.2d 114 (8th Cir. 1975) ..................................... 32

Gwaltney v. Smithfield, Ltd. V. Chesapeake Bay

Foundation, Inc. 484 U.S. 49, 108 S.Ct. 376, 98

L.Fd.2d 306 (1987) .................................................... 40

Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982) ... 32

Keck v. U.S., 172 U.S. 434, 19 S.Ct. 254, 43 L.Ed.

505 (1899) .................................................................. 26

Mass. Wholesale Elec. Co. v. Town of Danvers, 577

N.E.2d 283 (Mass. 1991) ........................................... 33

McMullen v. Hoffman, 174 U.S. 639 (1899) ............. 32

Natural Resources Defense Council, Inc. v. Train,

166 U.S. App. D.C. 312, 510, F.2d 692, (1975) ......... 38

Robertson v. NBA, 556 F.2d 682 (2d Cir. 1977) ...... 32

Train v. National Resources Defense Council, Inc.,

421 U.S. 60, 95 S.Ct. 1470, 43, L.Ed.2d 731

(1975) ......................................................................... 35

U.S. v. Mardirosian, 602 F.3d 1 (1st Cir. 2010) ....... 32

United States of America v. Volkswagen AG, United

States District Court for the Eastern District of

Michigan, 2:16-cr-20394-SFC-APP, Document 68 ..... 6

Utility Air Regulating Group v. EPA, 134 S.Ct.

2427, 189 L.Ed. 2d 372 (2014) ............................ 24, 27

STATUTES & CONSTITUTIONAL

PROVISIONS

U.S. Const., Art. I, § I ................................................. 3

19 U.S.C. § 1595 .............................................. 3, 15, 26

28 U.S.C. § 1254 .......................................................... 2

28 U.S.C. § 1291 .......................................................... 2

28 U.S.C. § 1331 ......................................................... 2

28 U.S.C. § 1332 .......................................................... 2

28 U.S.C. § 1345 .......................................................... 2

28 U.S.C. § 1355 .......................................................... 2

28 U.S.C. § 1357 ......................................................... 2

28 U.S.C. § 1361 .......................................................... 2

28 U.S.C. § 1367 .......................................................... 2

42 U.S.C. § 7401 ........................................................ 25

42 U.S.C. § 7413 .................................................. 17, 34

42 U.S.C. § 7522 ................................................ passim

42 U.S.C. § 7521 .......................................................... 3

42 U.S.C. § 7523 .................................................... 2, 14

42 U.S.C. § 7524 ........................................ 2, 14, 17, 33

42 U.S.C. § 7541 ................................ 15, 16, 19, 29, 31

42 U.S.C. § 7602 ........................................................ 40

42 U.S.C. § 7604 ........................................ 3, 20, 37, 39

CAA § 101 ................................................................. 25

CAA § 113 .................................................................. 36

CAA § 202 .................................................................... 3

CAA § 203 .................................................................... 7

CAA § 207 ................................................................. 32

xii

CAA § 304 ............................................................ , 3, 35

Va. Code §46.2-1048 .............................................. 5, 19

RULES

Supreme Court Rule 14.1 (f) ....................................... 3

FRCP 24(a)(2) ............................................................ 22

REGULATIONS

40 C.F.R. §86.1811-04 ......................... 3, 15, 16, 17, 19

40 C.F.R. §86.1854-12 ................................................. 7

STATE IMPLEMENTATION PLANS

Alabama Administrative Code 335-3-9-04

Original: 39 F.R. 14338

Revision: 55 F.R. 10062 .................................... 3

Arizona Administrative Code R 18-2-1029; 68

Fr 2912 ........................................................................ 3

Connecticut Agencies Register 14-164c-4a; 73

Fr 74019 ...................................................................... 3

18 District Of Columbia Municipal Regulations

Chapter 7, §751; 64 Fr 31498 ..................................... 4

Georgia Comp. Rules & Regulations, 391-3-20-.06

Original: 62 Fr 42916

Revision: 67 Fr 45909

Revision: 68 Fr 40786 ....................................... 4

xiii

Hawaii Code Of Regulations 11-60.1-34; 77

Fr 25084 ..................................................................... 4

Illinois Administrative Code Title 35, §240.103; 70

Fr 47377 ...................................................................... 4

Code Of Maryland Regulations 11.14.08.06; 68

Fr 2208 ........................................................................ 4

Minnesota Regulations 7023.0120 ............................. 4

Nevada Administrative Code 445b.575; 73

Fr 38124 ...................................................................... 4

New Jersey Administrative Code §7:27-14.3; 24

Fr 17781 ...................................................................... 4

North Dakota Administrative Code 33-15-08-02;

44 Fr 63102.................................................................. 4

Rhode Island Code Of Regulations 47-1-37:1.12 ....... 4

Virginia Administrative Code 9 Vac 5-40-5670; 65

Fr 21315 ................................................................ 4, 14

Wisconsin Administrative Code Natural Resources

§485.06; 78 Fr 57501 ................................................... 5

Wyoming Administrative Code § Environment Air

Quality Ch 13 §2 ......................................................... 5

xiv

OTHER AUTHORITIES

Oral Argument, Case No. 16-17060

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012786

25:08-25:30, 21:05-21:27 and 22:31-22:52 .......... 21, 30

David Shepardson, VW Storing Around 300,000

Diesels at 37 Facilities Around U.S., Reuters (March

29, 2018), https://www.reuters.com/article/usvolkswagen-emissions-storage/vw-storing-around300000-diesels-at-37-facilities-around-u-sidUSKBN1H50GQ .................................................... 15

Laurel Wamsley, Why 300,000 Volkswagens Are

Being Stored In These Massive Auto Boneyards, The

Two-Way: NPR (March 29,

2018), https://www.npr.org/sections/thetwoway/2018/03/29/597991227/why-300-000volkswagens-are-being-stored-in-these-massive-autoboneyards .................................................................. 15

Nearly 300,000 VW Diesels are Sitting in Lots

Across the U.S., Fox News (March 30, 2018),

https://www.foxnews.com/auto/nearly-300000-vwdiesels-are-sitting-in-lots-across-the-u-s .................. 15

Damian Carrington, Four More Carmakers

Join Diesel Emissions Row, The Guardian,

October 9, 2015,

https://amp.theguardian.com/environment/201

5/oct/09/mercedes-honda-mazda-mitsubishidiesel-emissions-row ................................................. 40

IN THE

SUPREME COURT OF THE UNITED STATES

________________________________________________

PETITION FOR A WRIT OF CERTIORARI

________________________________________________

Petitioner Ronald Clark Fleshman respectfully

prays that a writ of certiorari issue to review the

judgments below.

OPINIONS BELOW

Pursuant to Rule 12.4 of the Rules of the United

States Supreme Court, Petitioner Fleshman seeks

simultaneous review of two judgments of the United

States Court of Appeals for the Ninth Circuit which

involve identical and closely related questions. The

opinions of the Ninth Circuit are published at 895

F.3d 597 (9th Cir. 2018) and 894 F.3d 1030 (9th Cir.

2018).

JURISDICTION

The United States Court of Appeals for the

Ninth Circuit issued its decision in Fleshman,

Petitioner and Proposed Intervenor below v. United

States, et al. on July 3, 2018, and that Court denied

a timely petition for rehearing on October 24, 2018.

This Court, by order of the Honorable Associate

Justice Elena Kagan dated January 23, 2019,

granted an extension of time to file the Petition for a

Writ of Certiorari to and including March 28, 2019.

The United States Court of Appeals for the

Ninth Circuit issued its decision in Fleshman,

Petitioner and Objector below v. Volkswagen AG, et

al. on July 9, 2018, and that Court denied a timely

petition for rehearing on October 24, 2018. This

Court, by order of the Honorable Associate Justice

Elena Kagan dated January 23, 2019, granted an

extension of time to file the Petition for a Writ of

Certiorari to and including March 28, 2019.

The jurisdiction of this Court is invoked under

28 U.S.C. §1254 (1).

The jurisdiction of the United States District

Court for the Northern District of California in

Fleshman, Petitioner and Proposed Intervenor below

v. United States, et al. in the action brought by the

U.S. Department of Justice on behalf of the

Environmental Protection Agency was established

pursuant to 28 U.S.C. §§1331, 1345, and 1355, and

42 U.S.C. §§7523 and 7524.

The jurisdiction of the United States District

Court for the Northern District of California in the

litigation of the class action against Volkswagen was

established pursuant to 28 U.S.C. §§ 1331, 1332,

1357, 1361, 1367.

The jurisdiction of the United States Court of

Appeals of the Ninth Circuit for review of these two

cases was established pursuant to 28 U.S.C. § 1291.

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED IN THE

CASE

The Constitutional provisions, statutes, and

regulations involved in this case are lengthy.

Pursuant to Rule 14.1 (f), the citation to these

provisions are provided here and their pertinent text

is set out in the Appendix.

1. U.S. Constitution, Article I, Section I

2. Clean Air Act of 1977, §203, 42 U.S.C. §7522,

3. Clean Air Act of 1977, §202, 42 U.S.C. §7521,

4. Clean Air Act of 1977, §304, 42 U.S.C. §7604,

5. 40 C.F.R. §88.1811-04, “Emission standards”

for light-duty vehicles, light-duty trucks, and

medium-duty passenger vehicles

6. Tariff Act of 1930, 19 U.S.C. §1595(c)(1)

State Implementation Plans

7. Alabama Administrative Code 335-3-9-04

Original: 39 F.R. 14338

Revision: 55 F.R. 10062

8. Arizona Administrative Code R 18-2-1029;

68 FR 2912

9. Connecticut Agencies Register 14-164c-4a;

73 FR 74019

10. 18 District of Columbia Municipal

Regulations Chapter 7, §751; 64 FR 31498

11. Georgia Comp. Rules & Regulations, 391-320-.06

Original: 62 FR 42916

Revision: 67 FR 45909

Revision: 68 FR 40786

12. Hawaii Code of Regulations 11-60.1-34; 77

FR 25084

13. Illinois Administrative Code Title 35,

§240.103; 70 FR 47377

14. Code of Maryland Regulations 11.14.08.06;

68 FR 2208

15. Minnesota Regulations 7023.0120

16. Nevada Administrative Code 445B.575; 73

FR 38124

17. New Jersey Administrative Code §7:27-14.3;

24 FR 17781

18. North Dakota Administrative Code 33-15-0802; 44 FR 63102

19. Rhode Island Code of Regulations 47-137:1.12

20. Virginia Administrative Code 9 VAC 5-405670; 65 FR 21315

21. Wisconsin Administrative Code Natural

Resources §485.06; 78 FR 57501

22. Wyoming Administrative Code §

Environment Air Quality Ch 13 §2

Virginia Statutes

23. Virginia Code § 46.2-1048

STATEMENT OF THE CASE

This is an unusual case where all the relevant

facts have been admitted and stipulated by appelleedefendant, Volkswagen. As part of a Plea Agreement

to criminal charges brought by the Justice

Department, Volkswagen acknowledged the truth of

a “Statement of Facts,” and agreed to its

admissibility in any proceeding. Volkswagen is

prohibited by the Plea Agreement from contesting

anything in the “Statement of Facts.” See, United

States of America v. Volkswagen AG, United States

District Court for the Eastern District of Michigan,

2:16-cr-20394-SFC-APP, Document 68]. The

“Statement of Facts” is found in the Appendix at pp.

A214-A242.

This litigation started on September 18, 2015

when the Environmental Protection Agency issued a

“Notice of Violation.” The Notice of Violation (“NOV”)

is found in the Appendix at pp. A243-A254. The NOV

carefully described the “Law Governing Alleged

Violations.” App. A244-A248. To summarize, a

foreign manufacturer cannot import a new motor

vehicle or engine unless it is “covered” by a valid

Certificate of Conformity (“COC”) 42 U.S.C.

§7522(a)(1). To obtain a valid COC, a manufacturer

must submit an application to the EPA in a manner

that conforms with the applicable federal

regulations. App. A246. The regulations require the

manufacturer seeking to import a new motor vehicle

or engine to disclose any “defeat device” in the

application for a COC. 40 C.F.R. 86.1844-01(d)(11). A

“defeat device” “reduces the effectiveness of the

emission control system under conditions which may

reasonably be expected to be encountered in normal

vehicle operation on use.” 40 C.F.R. §86.1803-01.

“Motor vehicles equipped with defeat devices, such as

those at issue here, cannot be certified” to receive a

COC. EPA Advisory Circular Number 24: Prohibition

on Use of Emission Control Defeat Device (Dec. 11,

1972. See also, 40 C.F.R. §§86-1809-01, 86-1809-10,

86-1809-12.

For purposes of importing a new motor vehicle or

engine under 42 U.S.C. §7522(a)(1), a vehicle is

“covered by a Certificate of Conformity only if they

are in all material respects as described in the

manufacturer’s application for certification…” 40

C.F.R. §86.1848-10(c)(6). App. A247. “Similarly, a

COC issued by [the] EPA including those issued to

Volkswagen, state expressly ‘[t]his certificate covers

only those new motor vehicles or vehicle engines

which conform, in all material respects, to the design

specifications’ described in the application for that

COC.” App. A247. See, 40 C.F.R. §86.1848-01(b)

(authorizing the EPA to issue COCs on any terms

that are necessary or appropriate to assure that new

motor vehicle satisfy the requirements of the Clean

Air Act and its regulations.)

The EPA’s NOV expressly states it is prohibited

for any person to sell or offer to sell any vehicle

which has a defeat device as a “part of” it “where the

person knows or should know that such part or

component is being offered for sale or installed for

such use or put to such use.” App. A248. See, CAA

§203(a)(3)(B), 42 U.S.C. §7522(a)(3)(B); 40 C.F.R.

§86.1854-12(a)(3)(ii). The NOV expressly stated

manufacturers are prohibited from “importing any

new motor vehicle unless that vehicle is covered by an

EPA-issued COC.” App. A247. CAA §203(a)(1), 42

U.S.C. §7522(a)(1), 40 C.F.R. §86.1854-12(a)(1).

The NOV described the secretly installed “defeat

device” in over 487,500 Volkswagen diesel engines

(also known as the “Subject Vehicles,”) and how

Volkswagen admitted the scheme after the EPA

threatened not to issue future COCs for Volkswagen

vehicles. App. A250. The defeat device sensed when

a vehicle was undergoing emission testing and

caused the emission system to produce compliant

emission results. However, when the vehicle was not

undergoing testing, and was in normal vehicle

operation, the effectiveness of the emissions system

was reduced, resulting in NOx emissions “10-40

times above the EPA compliant levels.” App. A249.

Volkswagen admits the applications to the EPA

for Certificates of Conformity for over 487,500 diesel

vehicles contained the following signed statement:

The Volkswagen Group states that any

element of design, system, or emission

control devise installed on or incorporated in

the Volkswagen Group’s new motor vehicles

or new motor vehicle engines for the purpose

of complying with standards prescribed

under section 202 of the Clean Air Act, will

not, to the best of the Volkswagen Group’s

information and belief, cause the emission

into the ambient air of pollutants in the

operation of its motor vehicles or motor

vehicle engines which cause or contribute to

an unreasonable risk to public health or

welfare except as specifically permitted by

the standards prescribed under section 202

of the Clean Air Act. The Volkswagen Group

further states that any element of design,

system, or emission control device installed

or incorporated in the Volkswagen Group’s

new motor vehicles or new motor vehicle

engines, for the purpose of complying with

standards prescribed under section 202 of

the Clean Air Act, will not, to the best of the

Volkswagen Group’s information and belief,

cause or contribute to an unreasonable risk

of public safety.

...

All the vehicles have been tested in

accordance with good engineering practice to

ascertain that such test vehicles meet the

requirement of this section for the useful life

of the vehicle.

App. A222-A223.

Based on these applications, the EPA issued

Certificates of Conformity for the diesel vehicles

allowing them to be imported and sold into the

United States. As admitted in the “Statement of

Facts.”

[Volkswagen] represented to its U.S.

customers, U.S. dealers, U.S. regulators and

others in the United States that the Subject

Vehicles met the new and stricter U.S.

emissions standards . . . Further,

[Volkswagen] designed a specific marketing

campaign to market these vehicles to U.S.

customers as ‘clean diesel’ vehicles.

App. A223.

From

approximately

May

2006

approximately November 2015, VW AG,

through Supervisors A-F and other VW

employees, agreed to deceive U.S. regulators

and U.S. customers about whether the

[Volkswagen diesel vehicles] complied with

U.S. emissions standards.

During their

involvement with design, marketing and/or

sale of the [Volkswagen diesel vehicles] in

the United States, Supervisors A-F and other

VW employees: (a) knew that the

[Volkswagen diesel vehicles] did not meet

U.S. emissions standards; (b) knew that VW

was using software to cheat the U.S. testing

process by making it appear as if the

[Volkswagen diesel vehicles] met U.S.

emissions standards when, in fact, they did

not; and (c) attempted to and did conceal

these facts from U.S. regulators and U.S.

customers.

App. A224.

Volkswagen admitted that its supervisors and

employees:

designed a defeat device to recognize whether

the vehicle was undergoing standard U.S.

emissions testing on a dynamometer (or

“dyno”) or whether the vehicle was being

driven on the road under normal driving

conditions. The defeat device accomplished

this by recognizing the standard drive cycles

used by U.S. regulators. If the vehicle’s

software detected that it was being tested, the

vehicle performed in one mode, which satisfied

U.S. NOx emissions standards. If the defeat

device detected that the vehicle was not being

tested, it operated in a different mode, in

which the effectiveness of the vehicle’s

emissions control systems was reduced

substantially, causing the vehicle to emit

substantially higher NOx, sometimes 35 times

higher than U.S. standards.

App. A225.

Volkswagen admits “that if they had told the

truth and disclosed the existence of the defeat device,

[Volkswagen] would not have obtained the requisite

certificates for the Subject Vehicles and could not

have sold any of them in the United States.” App.

A229. Further, Volkswagen admits their vehicles are

not allowed entry into the United States:

In order to import the Subject Vehicles into

the United States, [Volkswagen] was

required to disclose to [Customs and Border

Patrol] whether the vehicles were covered by

valid certificates for the United States.

[Volkswagen] did so by affixing a label to the

vehicles’ engines. [Volkswagen] employees

caused to be stated on the labels that the

vehicles complied with applicable EPA and

CARB emissions regulations and limitations,

knowing that if they had disclosed that the

Subject Vehicles did not meet U.S. emissions

regulations and limitations, [Volkswagen]

would not have been able to import the

vehicles into the United States.

App. A229.

Inexplicably, on the same date the Notice of

Violation was issued, September 18, 2015, the EPA

released a press release stating, in pertinent part, as

follows:

Car owners should know that although these

vehicles have emissions exceeding standards,

these violations do not present a safety

hazard and the cars remain legal to drive

and resell. Owners of cars of these models

and years do not need to take any action at

this time. (emphasis added).

App. A255-A260.

The EPA made this declaration that the vehicles

are “legal to drive and resell,” in spite of 42 U.S.C.

§7522(a)(1) and (3)(B), respectively, which prohibit

the importation and sale of these vehicles. The State

Implementation Plans of 17 States, approved by the

EPA according to law, also prohibit the use of the

diesel vehicles with cheat devices. See, App. A200A213. Petitioner Fleshman’s home State of Virginia

has a statute stating, in pertinent part, as follows:

§46.2 – 1048 Pollution Control Systems or Devices

It shall be unlawful for any person to

operate a motor vehicle, as herein described,

on the highways in the Commonwealth with

its pollution control system or device

removed or otherwise rendered inoperable.

App. A210.

Virginia’s EPA-approved State Implementation

Plan contained 9 VAC 5-40-5670 (A), which declares:

9 VAC 5-40-5670 A. Emissions Control Systems

No motor vehicle or engine shall be

operated with the motor vehicle pollution

control system or device removed or

otherwise rendered inoperable.

App. A208.

Immediately after the September 18, 2015,

“Notice of Violation,” the Nation’s class action bar

cranked out hundreds of class action suits.

Multidistrict Litigation #2672 “In Re: Volkswagen

“Clean Diesel” Marketing, Sales Practices, and

Products Liability Litigation” was established in the

United States District Court for the Northern

District of California, the Honorable Charles R.

Breyer, Senior District Judge, presiding. The

District Court appointed a Plaintiffs’ Steering

Committee (“PSC”) consisting of 21 class action

attorneys from around the Nation to serve as counsel

to the alleged class. The District Court appointed

San Francisco attorney Elizabeth Cabraser as lead

counsel.

On January 4, 2016, the United States brought a

civil enforcement action against the Volkswagen

defendants at the request of the Administrator of the

EPA pursuant to 42 U.S.C. §§ 7523 and 7524 “for

injunctive relief and the assessment of civil penalties”

for violations of the Clean Air Act. The suit the

United States brought at the request of the

Administrator is based solely on the scheme of

implementing the defeat device described above. Id.

At this point, it was impossible for the general

public, including Mr. Fleshman, to know what form

of “injunctive relief” the Administrator was seeking

against VW. “Injunctive relief” could include

mandatory rescission of the sale and exportation of

all the Dirty Diesels which did not have valid

certificates of conformity and which contained defeat

devices, the sale, and use of which are expressly

prohibited by Congress. See, 42 U.S.C. § 7522(a)(1),

(3)(B). The District Court ordered the PSC, United

States, and Volkswagen to work together in strict

confidentiality to see if a settlement could be

reached.

On June 28, 2016, the PSC filed a “Plaintiffs’

Notice of Motion, Motion, and Memorandum in

Support of the Class Action Agreement and Approval

of Class Notice.” That same day, the United States

filed a proposed Partial Consent Decree which was

later amended. Together, these interrelated

documents, submitted to the District Court as a

package, proposed a global resolution to the 2.0 Liter

diesel engine defeat device debacle. This was the

first opportunity for Mr. Fleshman and the rest of

the public to know the contents of the proposed

resolution to Volkswagen’s scheme.

Upon receiving the lengthy proposed Class

Action Settlement and the proposed Partial Consent

Degree, Mr. Fleshman learned the proposed

settlements would allow ongoing illegal conduct.

Specifically, the proposed settlements did not require

the 487,500 vehicles to be removed from the United

States as mandated by 42 U.S.C. §7522(b)(2) and 19

U.S.C. 1595a(c)(1)(A)1. The proposed settlements

allowed the sale and re-sale the vehicles in violation

of 42 U.S.C. §7522(a)(3)(B). The proposed

settlements allowed the continuing use of the

vehicles in violation of 42 U.S.C. §7541 and 40

C.F.R. §86.1811-04 which prohibits the use of motor

vehicles which exceed specified emission standards

and limitations. Finally, the proposed settlements

allow the continuing use of the vehicles in violation

of the State Implementation Plans of 16 States. See,

citation to State Implementation Plans at App.

A200-A213. Under the proposed settlements owners

and lessees of the Subject Vehicles had several

options, including the option of doing nothing.

On August 5, 2016, during the public comment

period, Mr. Fleshman, by counsel, alerted the

1 As of the submission of this Petition, hundreds of

thousands of the Subject Vehicles are in “storage” at 37

locations around the Nation. Several thousands are “stored” on

the bank of the James River in Mr. Fleshman’s home district in

Central Virginia. See, David Shepardson, VW Storing Around

300,000 Diesels at 37 Facilities Around U.S., Reuters (March

29, 2018), https://www.reuters.com/article/us-volkswagenemissions-storage/vw-storing-around-300000-diesels-at-37facilities-around-u-s-idUSKBN1H50GQ; Laurel Wamsley, Why

300,000 Volkswagens Are Being Stored In These Massive Auto

Boneyards, The Two-Way: NPR (March 29,

2018), https://www.npr.org/sections/thetwoway/2018/03/29/597991227/why-300-000-volkswagens-arebeing-stored-in-these-massive-auto-boneyards; Nearly 300,000

VW Diesels are Sitting in Lots Across the U.S., Fox News

(March 30, 2018), https://www.foxnews.com/auto/nearly300000-vw-diesels-are-sitting-in-lots-across-the-u-s.

Department of Justice that the proposed settlement

would allow ongoing illegal conduct. This was before

the EPA’s proposed settlement was submitted to the

District Court for approval. On August 23, 2016 Mr.

Fleshman filed a Motion to Intervene in United

States v. Volkswagen AG, et al, asserting, as an

owner of one of the Subject Vehicles, a resident of

Virginia, and a citizen of the United States, he “has

an interest in seeing that the lawsuit filed by

the…United States actually enforces the provisions of

the Clean Air Act, including all applicable State

Implementation Plans that have been incorporated

therein.” Mr. Fleshman brought to the District

Court’s attention that the proposed settlements

allowed the importation, sale, and use of the vehicles

in violation of 42 U.S.C. §7522, in violation of 42

U.S.C. §7541 and 40 C.F.R. §86.1811-04, and in

violation of the State Implementation Plans of 17

states, the citation to which was provided to the

District Court. Mr. Fleshman demonstrated to the

District Court that Volkswagen was actually

republishing and re-broadcasting the EPA’s incorrect

statement that the vehicles are legal to drive and

sell to improperly convince owners of these vehicles,

and even Congress, that the vehicles did not need to

be removed from use. See, testimony of Michael

Horn, President and CEO of Volkswagen Group of

America, Inc., before the Subcommittee on Oversight

and Investigations of the Committee on Energy and

Commerce of the House of Representatives:

“Ms. DeGette: Okay, but the 430,000 cars that

are already on the road, what are those

customers supposed to do? Their cars cannot

pass the emissions test.

Mr. Horn: The EPA has said, and they have

reported this also in their statement, that

these cars are legal and safe to drive.”

See, Volkswagen’s Emissions Cheating

Allegations: Initial Questions: Hearing

before the Subcomm. On Oversight &

Investigations of the H. Comm. On Energy &

Commerce, 114th (2015) at [p. 23].

Mr. Fleshman sought to intervene to command

compliance of the CAA to require removal of the

Subject Vehicles pursuant to 42 U.S.C. §7522(a)(1)

and (b)(2), to prohibit sale of the Subject Vehicles

pursuant to §7522(a)(3)(B), and to prohibit the use of

the vehicles pursuant to 42 U.S.C. §86.1811-04, 40

C.F.R. §86.1811-04 and the State Implementation

Plans of 17 States. Mr. Fleshman alerted the Court

to 42 U.S.C. §7524(c)(3)(B) which states that even if

a violator pays civil penalties for CAA infractions,

they must still comply with the Act. Mr. Fleshman

also alerted the District Court that pursuant to 42

U.S.C. §7413(a)(1) the Administrator of the EPA has

a mandatory duty to notify any person in violation of

any requirement or prohibition of a State

Implementation Plan. This required the

Administrator to inform the thousands of users of

the Subject Vehicles in the applicable 17 States that

they were in violation of their State Implementation

Plan.

On August 26, 2016, the Plaintiffs Steering

Committee filed a Motion and Memorandum in

Support of Final Approval of the 2.0 Liter TDI

Consumer and Reseller Dealer Class Action

Settlement. On September 16, 2016, Mr. Fleshman

file an “Objection to Approval of the Proposed Class

Action Settlement.” Mr. Fleshman’s objections

described how all the operative facts of the case are

admitted; how the EPA, and consequently the PSC

and the Court, had proceeded under a fundamental

error of law from the beginning of the case; how the

Clean Air Act requires elimination of all

nonconforming vehicles, and that since there is no

repair, the only statutory remedy is elimination of

the nonconforming vehicles; how the EPA has a

mandatory, nondiscretionary duty to notify the

owners and lessees to inform them that the dirty

diesels are in violation of law; how the proposed

settlement expressly leaves the nonconforming

vehicles in use; how Volkswagen had a strong

financial incentive to leave nonconforming vehicles

in use; how Volkswagen has made a concerted

national effort to republish the EPA’s incorrect

statement—“the cars remain legal to drive”; that

despite the EPA’s error, any person can utilize the

CAA’s “independent enforcement authority” to

enforce the to Act; and that it is unconscionable to

release the claims of 487,532 Dirty Diesel owners

and lessees against Volkswagen, as the settlements

do, when they have been told repeatedly by the EPA

and Volkswagen that their vehicles are legal to

drive, when in reality the vehicles are subject to

mandatory elimination when the Clean Air Act and

State Implementation Plans are enforced, as the

Partial Consent Decree requires.

On September 30, 2016, the PSC responded to

Mr. Fleshman’s objections to the proposed Class

Settlement. In support of the Class Settlement, the

PSC expressly relied on the incorrect EPA

statements that the Subject Vehicles are legal to

drive and sell and that the EPA “will not confiscate

your vehicle or require you to stop driving”. The PSC

asserted Mr. Fleshman “cites no persuasive

authority for his arguments that State or Federal

authority believe that the Class vehicles are illegal to

drive.”

On October 4, 2016 the District Court denied Mr.

Fleshman’s motion to intervene to command

compliance with the CAA. The District Court held

that Mr. Fleshman was not seeking “to enforce the

same standard, limitation, or order as does the

United States such that the CAA mandates his

intervention.” The District Court made this ruling

even though Mr. Fleshman incorporated by reference

the government’s Complaint into his own, thereby

adopting by reference “the same, standard,

limitation, or order” as asserted by the United

States. The only difference was that the remedy

sought by the government did not enforce the

mandatory requirements of the CAA, while Mr.

Fleshman’s proposed remedy did enforce the

mandatory requirements of the CAA.

Similarly, the District Court overruled Mr.

Fleshman’s objections to the Class Action

Settlement. Again, the District Court rejected Mr.

Fleshman’s citation of 42 U.S.C. §7522, 42 U.S.C.

§7541, 40 C.F.R. §86.1811-04, the State

Implementation Plans of 17 States, and Va. Code

§46.2-1048 by holding that “No Federal or state

authority has declared the eligible vehicles illegal to

drive.” Clearly the District Court accepted the EPA’s

declaration that the vehicles are legal to drive and to

sell. Mr. Fleshman alerted the District Court that in

spite of what the EPA said, the “independent

enforcement authority” given to any citizen by 42

U.S.C. §7604 will allow enforcement of the Clean Air

Act, but when that happens, the District Court’s

approval of the Class Settlement will have released

all the remedies against Volkswagen. The Class

members will be caught in a bind with illegal

vehicles they believed were legal to use and to sell

based on the statements of the EPA which were

repeated over and over by the PSC, Volkswagen, and

the District Court. The District Court overruled all

of Mr. Fleshman’s objections.

Mr. Fleshman sought timely appeal to the

United States Court of Appeals for the Ninth Circuit

of the District Court’s final Orders in the United

States’ enforcement action and the class action.

Again, Mr. Fleshman demonstrated the settlements

approved by the District Court allowed ongoing

illegal activity by allowing the 487,500 vehicles

illegally imported to stay in the United States, by

allowing the sale of the vehicles with defeat devices

even though Congress expressly prohibited such

sale, and by allowing the continuing use of many

thousands of the vehicles which emit 10-40 times

more than the permissible limit of NOx in violation

of Federal regulations and State Implementation

Plans.

The Ninth Circuit Panel at oral argument

seemed to understand the Settlements allowed

continuing illegal activity. In questioning counsel for

the United States the Panel stated:

“THE COURT:…at the time of the original

press release, EPA said car owners should

know that although these vehicles have

emissions exceeding standards, these

violations do not present a safety hazard and

the cars remain legal to drive and resell. That

seem to be…It’s a statement that it’s legal,

and it’s not true.”

See, Oral Argument, Case No. 16-17060

at: https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012786

21:05-21:27.

In questioning Volkswagen’s counsel, the Panel

asked:

“THE COURT: So what happens? So when

somebody comes in for their annual smog

check in California or Virginia and the

vehicle doesn’t pass because the defeat device,

I assume, has not been disabled or doesn’t

pass because they say, well, you’ve got a

defeat device and we know what happens

when it turns on, so California just says you

can drive it anyway?

Ms. Nelles: That’s correct, Your Honor.”

See, https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012786

22:31-22:52.

The Ninth Circuit affirmed the District Court’s

denial of Mr. Fleshman’s Motion to Intervene and

his objections to the approval of the Class

Settlement. The Ninth Circuit held that there was

no right to intervene under the CAA because the

EPA’s suit to enforce 42 U.S.C. §7522 was not a suit

“seeking to enforce any ‘standard, limitation, or

order’ as those terms are used in the Clean Air Act.”

App. p. A74. The Court of Appeals held that Mr.

Fleshman had no standing to seek enforcement of

the CAA, so he could not intervene under FRCP

24(a)(2). Id.

In approving the Class Action Settlement, the

Ninth Circuit acknowledged Mr. Fleshman’s

assertion that the Settlement allowed ongoing illegal

activity because class members can decline to

participate in the settlement and continue to drive

their unmodified vehicles as long as they wish”. App.

p. A35. However, the Ninth Circuit held “The EPA

and the vast majority of states have stated

unequivocally that they will permit unmodified

vehicles to stay on the road, and none has specifically

declared them illegal to drive.” App. p. A36.

The Ninth Circuit attached in support of its

ruling an EPA document entitled “Frequent

Questions about Volkswagen Violations.” App. A255A260. On the face of this documents the illegality of

the Volkswagen diesel vehicles is again established:

How much more pollution is being

emitted than should be?

NOx emission levels from the 2.0 liter

vehicles with defeat devices were 10-40 times

higher than emissions standards. NOx

emissions levels from the 3.0 liter vehicles

were up to nine times higher than the

emissions standards.

How does NOx pollution affect people’s

health?

NOx pollution contributes to atmospheric

levels of nitrogen dioxide, ground-level ozone,

and fine particulate matter. Exposure to

these pollutants has been linked with a

range of serious health effects, including

increased asthma attacks and other

respiratory illnesses that can be serious

enough to send people to the hospital.

Exposure to ozone and particulate matter

have also been associated with premature

death due to respiratory-related or

cardiovascular-related effects. Children, the

elderly, and people with pre-existing

respiratory disease are particularly at risk

for health effects of these pollutants.

Will EPA take or confiscate my vehicle?

Absolutely not. EPA will not confiscate your

vehicle or require you to stop driving. For

more detail about choices and options for

owners or lessees of diesel vehicles under the

settlement visit VWCourtSettlement.com or

Volkswagen Clean Air Act Partial

Settlement.

App. A255-A260.

The Ninth Circuit is aware of the tens of

thousands of vehicles that emit 10-40 times the

permissible level of NOx. The last filed report of the

“Report of Independent Claim Supervisor on

Volkswagen’s Progress and Compliance Related to

2.0 Liter Resolution Agreements Entered October 25,

2016,” dated November 26, 2018, demonstrates

32,138 non-compliant 2.0 Liter Volkswagen diesels

remain in use and have not been modified. Using a

hypothetical average of $20,000 for buying back

these vehicles, it would cost Volkswagen

$642,760,000 to remove these vehicles from use. The

21 members of the Plaintiffs’ Steering Committee

were paid $175,000,000 for their work in creating

and supporting the settlement.

REASONS FOR GRANTING THE PETITION

The Court should grant the writ to prevent the

EPA, Volkswagen, and the Plaintiffs’ Steering

Committee, as affirmed by the Ninth Circuit, from

rewriting clear statutory terms to suit their own

sense of how the Clean Air Act should operate. As

shown by its reference and incorporation into its

opinion of the EPA’s rewriting of the Clean Air Act

and State Implementation Plans, the Ninth Circuit,

in effect, overrules Utility Air Regulating Group v.

EPA, 134 S.Ct. 2427, 2446, 189 L.Ed. 2d 372 (2014)

in which this Court held “We reaffirm the core

administrative-law principle that an agency may not

rewrite clear statutory terms to suit its own sense of

how the statute should operate.”). Simply put, the

EPA, the class action lawyers, and Volkswagen have

made a highly profitable deal that allows 487,500

illegal vehicles to remain in the United States and

the use and sale of tens of thousands of polluting

vehicles when Congress expressly declared this is

not allowed.

THE INTENT OF CONGRESS.

In enacting the Clean Air Act, Congress found, in

part, that “the increasing use of motor vehicles. . . has

resulted in mounting dangers to the public health

and welfare.” CAA § 101(a)(2), 42 U.S.C. §

7401(a)(2). Congress’ purpose in creating the Clean

Air Act was “to protect and enhance the quality of the

Nation’s air resources so as to promote the public

health and welfare and the productive capacity of its

population.” CAA § 101(b)(1), 42 U.S.C. § 7401(b)(2).

Congress knew “that the automobile is

responsible for 60 percent of all air pollution in the

United States” and stated that “Our goal must be the

attainment of pollution free vehicles as a complete

substitute for our present types in the shortest period

of time.” U.S. Cong. Senate, Committee on Public

Works, Committee Prints “A Legislative History of

the Clean Air Act Amendments of 1970,” Vol. 2, p.

885 (statement of Congressman Gilbert Gude (Md.

R)).

A. New Vehicles Imported Without a Valid

Certificate of Conformity must be

Seized and Forfeited.

Congress tackled the problem by regulating to

ensure that before new vehicles are imported into

the Country, or offered for sale by domestic

manufacturers, they must meet emissions standards

clearly defined by regulation. Congress made it clear

that it is “prohibited” to import vehicles without a

valid Certificate of Conformity. Such a vehicle “shall

be refused admission into the United States.” 42

U.S.C. § 7522(b)(2). If the vehicle is imported

without a valid Certificate of Conformity “the

Secretary of the Treasury shall, if finally refused

admission under this paragraph, cause disposition

thereof in accordance with the customs laws. . .”

Here the subject vehicles were admitted on the

condition that the Certificates of Conformity were

valid. Volkswagen has admitted that “if they had

disclosed that the subject vehicles did not meet U.S.

emissions regulations and limitations, [Volkswagen]

would not have been able to import the vehicles into

the United States.” App. A229.

The prohibition on importing vehicles without a

valid Certificate of Conformity is clear. The remedy

is clear – the vehicles “shall” be disposed “in

accordance with the customs laws.” 42 U.S.C. §

7522(b)(2). The customs laws are clear and

mandatory. 19 U.S.C. § 1595a(c) provides, in

pertinent part:

Merchandise which is introduced or

attempted to be introduced into the United

States contrary to law shall be treated as

follows:

(1) The merchandise shall be seized and

forfeited if it –

(A) is stolen, smuggled, or clandestinely

imported or introduced. (Emphasis

added.)

This Court has held that “smuggling” has a

“definite legal meaning.” “It consists in bringing on

shore, or carrying from the shore, goods, wares, or

merchandise. . . of which the importation or

exportation is prohibited, - an offense productive of

various michiefs [sic] to society.” Keck v. U.S., 172

U.S. 434, 446, 19 S.Ct. 254, 258, 43 L.Ed. 505 (1899).

Contrary to the clear will of Congress, the EPA,

Volkswagen, and the Plaintiffs’ Steering Committee,

as allowed by the Ninth Circuit, has determined the

vehicles smuggled into the United States shall be

free to stay. The EPA, Volkswagen, and the

Plaintiffs’ Steering Committee do not have “the

power to revise clear statutory terms that turn out

not to work in practice.” Utility Air Regulatory

Group v. EPA, 134 S.Ct. 2427, 2446, 189 L.Ed. 2d

372 (2014) (“We reaffirm the core administrative law

principle that an agency may not rewrite clear

statutory terms to suit its own sense of how the

statute should operate.”) (Citing Barnhart v. Sigmon

Coal Co., 534 U.S. 438, 462, 122 S.Ct. 941, 151

L.Ed.2d. 908 (2002) holding “agency lacked authority

to develop new guidelines or to assign liability in a

manner inconsistent with” an “unambiguous

statute.”)

In allowing continuing illegal activities on a

massive scale, the Ninth Circuit has decided an

important Federal question in a way that departs

from this Court’s precedent and the Clean Air Act.

Respectfully, this Court should exercise its

supervisory power to correct this error of law vital to

the public health and welfare of our Nation.

B. New or Used Vehicles with Defeat

Devices Cannot be Sold – And the EPA

Cannot Validly Determine Otherwise.

To allow a motor vehicle with a defeat device to

be used and sold renders the whole exercise useless.

Congress knew this and clearly stated in the

“Prohibited Acts” of 42 U.S.C. § 7522(a)(3)(B) that it

is prohibited for any person to sell any motor vehicle

or engine with a part where a principal effect of the

part is to “bypass, defeat, or render inoperative” the

emissions systems “where the person knows or

should know that such part or component is. . .

installed for such use or put to such use.”

Volkswagen admitted in the Consent Decree

settling the EPA’s civil enforcement action in which

Mr. Fleshman sought to intervene that:

“WHEREAS, [Volkswagen] admit that

software in the 2.0 Liter Subject Vehicles

enables the vehicles’ ECMs to detect when the

vehicles are being driven on the road, rather

than undergoing Federal Test Procedures,

and that this software renders certain

emissions control systems in the vehicles

inoperative when the ECM detects the

vehicles are not undergoing Federal Test

Procedures, resulting in emissions that

exceed EPA – compliant and CARB –

Compliant levels when the vehicles are

driven on the road.” (Emphasis added).

In spite of the admitted facts and the clear

prohibition on the sale of any vehicle with a defeat

device, the EPA declared the vehicles are legal to

sell. Volkswagen and the Plaintiffs Steering

Committee join in, in spite of clear statutory terms,

and argue no “authority has declared the vehicles

illegal to sell.” The District Court and the Ninth

Circuit made this “finding” as the lynchpin to their

rulings affirming the settlements below. The Ninth

Circuit, the District Court, the EPA, Volkswagen,

and the Plaintiffs’ Steering Committee do not

consider the United States Congress as an

“authority” capable of declaring vehicles with defeat

devices illegal to sell. The Ninth Circuit has

departed so far from the accepted and usual course

of judicial proceedings by ignoring the expressed will

and intent of Congress as to call for an exercise of

this Court’s supervisory power. Again, the EPA,

Volkswagen, and the Plaintiffs’ Steering Committee

lack authority to develop new guidelines or to assign

liability in a manner inconsistent with an

unambiguous statute. Respectfully, this Court

should grant the Writ to resolve this important

question of Federal law.

C. Vehicles that Exceed Emissions Standards

and Limitations Cannot be Used.

Congress made it clear that motor vehicles must

not only meet emissions standards before they are

sold as new, but they must also conform to the

emissions standards and limitations “when in actual

use throughout their useful life.” 42 U.S.C. §

7541(c)(1). The Administrator of the EPA has a

nondiscretionary duty when he or she learns a

“substantial number of. . . vehicles or engines,

although properly maintained and used, do not

conform to the [emissions standards and limitations]

when in actual use throughout their useful life.” The

Administrator “shall require the manufacturer” to

submit a plan which “shall provide that the

nonconformity of any such vehicles or engines which

are properly used and maintained will be remedied

at the expense of the manufacturer.” 42 U.S.C. §

7541(c)(1). At oral argument, Volkswagen’s counsel

stated that instead of mandatory removal or repair,

Volkswagen was paying “to mitigate any damage to

the environment as a result of” the hundreds of

thousands of diesel engines polluting the air by

emitting 10-40 times the allowable amount of

nitrogen oxide into the atmosphere. See, Oral

Argument, Case No. 16-17060 at:

https://www.ca9.uscourts.gov/media/view_video.php?

pk_vid=0000012786, 25:08-25:30.

The Plaintiffs’ Steering Committee’s lead counsel

stated it was the “consumers,” or the owners, that

would enforce the Clean Air Act: “frankly, it’s the

economic incentives that have put the consumers

themselves at work here to enforce the Clean Air Act

and their own consciences by making sure these cars

are bought back and off the road or fixed and

operated legally.” See, Oral Argument, Case No. 1616731 at: https://www.ca9.uscourts.gov/media/view_

video.php?pk_vid=0000012787, 30:08-30:38.

Neither Volkswagen’s mitigation nor the

Plaintiffs’ Steering Committee’s voluntary

participation comply with the CAA. In Center for

Auto Safety v. Ruckelshaus, 747 F.2d 1 (D.C. Cir.

1984.) then Circuit Court Judge Antonin Scalia

writing for the unanimous Court, held that both

mitigation of environmental damage and voluntary

participation are not a substitute for the remedy of

mandatory elimination of the nonconforming

vehicles. In 1979 General Motors vehicles were

tested for nitrogen oxide. “All ten test vehicles

exceeded the NOx emission standard of 2.0 grams

per mile for reasons which neither the EPA nor GM

was able to determine.” 747 F.2d at 3. The EPA

approved a plan which “proposed not recalling and

repairing the nonconforming” vehicles, but to allow

GM “to meet a target lower than mandatory NOx

standards” in future vehicles which “would offset the

excessive emissions from the 1979 vehicles.” Id. This

plan was challenged “as unlawful on the ground that

the offset plan” was not permissible under Section

207(c), 42 U.S.C. §7541(c) of the Clean Air Act.

“Nothing but recall and repair of the nonconforming

vehicles themselves,” said the Petitioners, “is an

acceptable remedy under the statute.” Id.

The District of Columbia Circuit held the Clean

Air Act “requires recall and repair as the only

statutory remedy for nonconformity.” Center for Auto

Safety, 747 F.2d at 6. The Court explained that the

Clean Air Act “is addressed to public needs rather

than private entitlements…Absent evidence of

contrary intent, the words in the statute must be

presumed to bear their normal meaning of

eliminating, rather than merely providing

compensation for the effects of, the condition that is to

be ‘remedied’. Here that means eliminating the

nonconformity of the GM vehicles or engines.” 747

F.2d at 4 (emphasis added).

That same year, the District of Columbia Circuit,

with future Justices Ginsburg and Scalia in the

majority, went further and held that “To the degree

that the members of a nonconforming class can be

repaired to decrease their pollution potential even

after their useful lives have expired, the public is

benefitted. By the same token, to the degree that

they elude correction both during and beyond their

useful lives, the public is cheated.” General Motors

Corp. v. Ruckelshaus, 742 F.2d 1561, 1571, 1572

(D.C. Cir. 1989). (Emphasis added). Here, the Ninth

Circuit has entered a decision in conflict with the

decisions of the Court of Appeals for the District of

Columbia, a Court with specialized knowledge and

expertise in the Clean Air Act. This conflict in an

important area of Federal law vital to the health and

welfare of the Nation should be corrected by the

exercise of this Court’s supervisory power.

II. THIS COURT SHOULD GRANT THE

WRIT TO PREVENT THE APPROVAL OF

A CLASS ACTION SETTLEMENT THAT

CONDONES ILLEGAL ACTIVITY.

This Court should grant certiorari to protect

what was, before now, an unquestioned principle of

law: that no court can approve an agreement, in any

context, that allows for the continuation of illegal

activity. This principle has been maintained in

several Courts throughout the country, throughout

the centuries. See, Kaiser Steel Corp. v. Mullins, 455

U.S. 72, 76 (1982) (“There is no statutory code of

federal contract law, but our cases leave no doubt

that illegal promises will not be enforced in cases

controlled by the federal law.”); see also, McMullen v.

Hoffman, 174 U.S. 639, 654, 669 (1899) (“The

authorities from the earliest times to the present

unanimously held that no court will lend its

assistance in any way towards carrying out the terms

of an illegal contract.”); Robertson v. NBA, 556 F.2d

682, 686 (2d Cir. 1977) (“. . . a settlement that

authorizes the continuation of clearly illegal conduct

cannot be approved. . .”); Grunin v. International

House of Pancakes, 513 F.2d 114, 124 (8th Cir. 1975)

(where, in antitrust law, an agreement cannot be

approved if it constitutes a “per se violation” of

antitrust law); U.S. v. Mardirosian, 602 F.3d 1, 7

(1st Cir. 2010) (declaring that in both federal law

and State common law, “[w]hen a contract is void ab

initio, the contract ‘may not be enforced,’ and the

court will treat the contract ‘as if it had never been

made.’”) (quoting Mass. Wholesale Elec. Co. v. Town

of Danvers, 577 N.E.2d 283, 292-93 (Mass. 1991).

This unquestioned precedent is relevant to this

case not only because of the numerous illegalities

detailed supra, but also because 42 U.S.C. §

7524(c)(3)(B) mandates that “[n]o action by the

Administrator under this subsection shall affect any

person’s obligation to comply with any section of this

chapter.” In effect, no individual or company can

purchase an exemption from the requirements of the

Clean Air Act by paying a civil penalty. The Ninth

Circuit disagreed with this statute. In spite of Mr.

Fleshman’s careful descriptions of the ongoing illegal

activity, the Ninth Circuit ignored the illegality and

held the District Court did not abuse its discretion in

finding the settlements were fair and reasonable.

895 F.3d 617.

The Ninth Circuit expressly refused to consider

the carefully documented continuing illegal activity.

See, 895 F.3d 616 (where the Ninth Circuit stated

“leaving to the side whether his interpretation of the

Clean Air Act is correct,” and then manufactured a

“central premise” for Mr. Fleshman, which was not

his central premise, and then defeated Mr.

Fleshman’s “central premise” approving the

settlements that allow continuing illegal activity on

a massive scale across the country. Respectfully, this

Court should grant the writ to prevent the approval

of a settlement which will violate the Clean Air Act.

III.

THIS COURT SHOULD GRANT THE WRIT

TO PREVENT THE NULLIFICATION OF

SEVENTEEN STATE IMPLEMENTATION

PLANS BY THE ENVIRONMENTAL

PROTECTION AGENCY

The Clean Air Act requires each State to create

State Implementation Plans (SIPs) to attain the

national primary and secondary ambient air

standards. After the EPA approves a SIP, the SIP

gains the full force and effect of Federal law. See,

Bayview Hunters Point Community Advocates v.

Metropolitan Transp. Com'n, 366 F.3d 692, 695

(2004) (citing Friends of the Earth v. Carey, 535 F.2d

165, 169 (2d Cir. 1976), cert. denied, 434 U.S. 902

(1977). The Administrator of the EPA, under 42

U.S.C. § 7413, has a duty to “notify the person and

the State in which the plan applies of” the owner’s

nonconformity with the applicable SIP. 42 U.S.C. §

7413(a)(1). The EPA, as discussed supra, has not

notified owners of nonconforming Volkswagen

vehicles in the 17 relevant States that those owners

are in possession of nonconforming vehicles. Mr.

Fleshman, when seeking to intervene in the

Government’s action against Volkswagen, also

sought to enforce 42 U.S.C. § 7413(a)(1) by having

the Administrator of the EPA notify the

nonconforming vehicle owners of their

noncompliance with the Clean Air Act. The Ninth

Circuit denied Mr. Fleshman’s request.

Furthermore, the EPA has no authority to

change or revise a State Implementation Plan in this

context. As asserted in the District Court and the

Court of Appeals below, this Court has plainly held

the EPA cannot change the 17 State Implementation

Plans that prohibit the use of motor vehicles with

inoperable emission systems:

“The Agency [EPA] is plainly charged by the

Act with the responsibility for setting the

national ambient air standards. Just as

plainly, however, it is relegated by the Act to

a secondary role in the process of determining

and enforcing the specific, source by-source

emission limitations which are necessary if

the national standards it has set are to be

met. […] The Act gives the Agency no

authority to question the wisdom of the

State's choices of emission limitations if they

are part of a plan which satisfies the

standards of § 110 (a) (2), and the Agency

may devise and promulgate a specific plan of

its own only if a State fails to submit an

implementation plan which satisfies those

standards.”

Train v. National Resources Defense Council,

Inc., 421 U.S. 60, 79, 95 S.Ct. 1470, 1481, 43

L.Ed.2d 731 (1975).

Here, the EPA, by assuming a primary role

instead of a secondary role in the enforcement of the

Clean Air Act, impairs Virginia’s [and the 16 other

States’] ability to enforce its implementation plan.

Virginia has the primary role in this enforcement

and the EPA “enforcement,” or lack thereof, must

not intervene, interfere, impair, or impede Virginia’s

enforcement of its own laws.

The EPA itself has found it has no power or

authority to exempt that which is prohibited by a

State Implementation Plan. See, 78 FR 12486:

“Where there is little or no public process

concerning such ad hoc exemptions…

enforcement by the EPA or through a citizen

suit may be severely compromised. As

explained in the 1999 SSM Guidance, the

EPA does not interpret the CAA to allow

SIP provisions that would allow the exercise

of director’s discretion concerning violations

to bar enforcement by the EPA or through a

citizen suit. The exercise of director’s

discretion to exempt conduct that would

otherwise constitute a violation of the SIP

would interfere with effective enforcement of

the SIP. Such provisions are inconsistent

with and undermine the enforcement

structure of the CAA provided in CAA

sections 113 and 304, which provide

independent authority to the EPA and

citizens to enforce SIP provisions, including

emission limitations. Thus, SIP provisions

that allow discretionary exemptions from

applicable SIP emission limitations through

the exercise of director’s discretion are

substantially inadequate to comply with CAA

requirements, as contemplated in CAA

section 110(k)(5)”. Id., at p. 12460, 12486.

Here the EPA has refused to comply with its

non-discretionary duty to notify violators, while

exercising authority it does not have to in effect

revise the State Implementation Plans of 17 states

to allow the use of vehicles that do not have operable

emission systems. The Ninth Circuit has allowed the

EPA to decide important questions of Federal law in

a way that conflicts with the decisions of this Court.

Respectfully, this Court should grant the writ to

correct this issue which is important to the

administration of the Clean Air Act and the Nation’s

health and welfare.

IV.

THE NINTH CIRCUIT HAS

INTERPRETED 42 U.S.C. §7604—THE

CITIZEN’S SUIT PROVISION—TO

INSURE NO CITIZEN EVER

INTERVENES IN A GOVERNMENT

ENFORCEMENT ACTION WHICH IS

DIRECTLY CONTRARY TO INTENT OF

CONGRESS

The Ninth Circuit has interpreted the

intervention provision of 42 U.S.C. §7604(b)(1)(B) to

mean a citizen can only intervene in a government

enforcement action if the citizen desires to assert the

same standard and to enforce it in the same way

with the same remedy as sought by the government.

App. p. 56-62. This begs the question: Why would a

citizen seek to intervene if only to assert the same

standard and the same remedy in the same fashion

as the government? Such an effort would be for

vanity purposes only.

In enacting 42 U.S.C. §7604 “Congress made

clear that citizens groups are not to be treated as

nuisances or troublemakers but rather as welcomed

participants in the vindication of environmental

interest.” See, Friends of the Earth v. Carey, 535

F.2d 165, 172 (2d. Cir. 1976):

“Fearing that administrative

enforcement might falter or stall ‘the citizen

suits provision reflected a deliberate choice

by Congress to widen citizen access to the

courts, as a supplemental and effective

assurance that the Act would be

implemented and enforced.’ Natural

Resources Defense Council, Inc. v. Train, 166

U.S. App. D.C. 312, 510, F.2d 692, 700

(1975). The Senate Committee responsible for

fashioning the citizen suit provision

emphasized the positive role reserved for

interested citizens:

‘The House bill contained no provision for

citizen suits. The Senate version prevailed in

Conference Committee. See, Committee of

Conference. H.R.Rep.No. 91-1783, 91st Cong.

2d Sess. (1970), reprinted in U.S.E.P.A.,

Legal Compilation (Air), Vol. III, at 1386

(1973).’

‘Government initiative in seeking

enforcement under the Clean Air Act has been

restrained. Authorizing citizens to bring suits

for violations of standards should motivate

government and abatement proceedings.’

Senate Committee on Public Works,

S.Rep.No. 91-1196, 91st Cong., 2d Sess., at

35-36 ( 1970). See also Committee of

Conference, H.R.Rep.No. 91-1783, 91st Cong.,

2d. Sess. (1970) U.S. Code Cong. & Admin.

News 1970, p. 5356, reprinted in U.S.E.P.A.,

Legal Compilation (Air), Vol. III at 1386-87

(1973)…Thus the Act seeks to encourage

citizen participation rather than to treat it as

a curiosity or a theoretical remedy. Possible

jurisdictional barriers to citizens actions,

such as amount in controversy and standing

requirements, are expressly discarded by the

Act.”

535 F.2d 172-173.

Contrary to the intent of Congress, the Ninth

Circuit has parsed the intervention provision to

insure no citizen ever intervenes in a government

action, to enforce standards, limitations, and orders

of the CAA. Furthermore, the Ninth Circuit held 42

U.S.C. §7522 is not “an emission standard or

limitation” within the meaning of §7604. §7522 is the

primary “timetable of compliance” for the process of

importing and selling new motor vehicles. §7604(f)

defines “emission standard or limitation” to include

a “timetable of compliance”. The term “timetable of

compliance means a schedule of required measures

including an enforceable sequence of actions or

operations leading to compliance with an emission

limitation, other limitation, prohibition, or

standard.” See, 42 U.S.C. §7602 “Definitions” at “p.”

The Ninth Circuit holding that 42 U.S.C. §7522 is

not an “emission standard or limitation” under the

meaning of 42 U.S.C. §7604 ensures that no citizen

will be able to bring a citizen’s suit, or intervene in a

governmental enforcement action, related to the

importation, sale, and use of new and used motor

vehicles. Motor vehicles contribute 60% of the

Nation’s air pollution. This was not the intent of

Congress, it is wrong as matter of law, and,

respectfully, this Court should grant the writ to

correct this important issue vital to the health and

welfare of the Nation.

The Ninth Circuit also erred by holding that Mr.

Fleshman did not have standing to intervene in the

government’s action. In addition to his personal

exposure to the pollutants caused by the

nonconforming vehicles, Mr. Fleshman has standing

to pursue intervention under Friends of the Earth v.

Carey, 535 F.2d at 172 (“Possible jurisdictional

barriers to citizens’ actions, such as amount in

controversy and standing requirements, are expressly

discarded by the Act.”). The Ninth Circuit’s denial

based on alleged lack of standing has created a

Circuit split that only this Court can resolve by

granting the writ of certiorari.

CONCLUSION

This Petition demonstrates the diligent and

earnest effort of an ordinary citizen to seek

enforcement of the Clean Air Act. The admitted facts

and unambiguous law found here illustrates that

Title II of the Clean Air Act has not been enforced in

the largest case involving new and used motor

vehicles ever to be litigated in our Federal Courts.

News reports indicate many other manufacturers

have vehicles with similar issues to those apparent

here. See, https://amp.theguardian.com/environment/

2015/oct/09/mercedes-honda-mazda-mitsubishidiesel-emissions-row. This Court should grant the

Petition because of the importance of these issues

here and in other cases.

Our citizens have the right, given to them by

Congress, to “command compliance” with the Clean

Air Act. Gwaltney v. Smithfield, Ltd. V. Chesapeake

Bay Foundation, Inc. 484 U.S. 49, 62, 108 S.Ct. 376,

384, 98 L.Fd.2d 306 (1987). This right has been

ignored and effectively destroyed by the Court of

Appeals and the District Court. In place of the Clean

Air Act enacted by Congress, we are governed by an

agreement made by the EPA, Volkswagen, and the

Plaintiffs’ Steering Committee. None of them have

the right to revise clear statutory terms and

substitute their own idea for how we should be

governed. Only this Court can stop this. Mr.

Fleshman prays this Honorable Court grant a Writ

of Certiorari on the grounds stated herein.

Respectfully Submitted,

Elwood Earl Sanders, Jr., Esq.

Counsel of Record

8357 Curnow Drive

Mechanicsville, VA 23111

(804) 644-0477

(804) 644-3336 (Fax)

eesjresquire@netscape.net

James B. Feinman, Esq.

1003 Church Street

P.O. Box 697

Lynchburg, VA 24505

(434) 846-7603

(434) 846-0158 (Fax)

jb@jfeinman.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.