Petition for Writ of Certiorari — Roman Melikov, Petitioner v. Ghilotti Bros., Inc.

No.

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NOV i 0 2023

ROMAN MELIKOV,

0,~>-r,E OF THE CI.FRk-

Petitioner,

v.

GHILOTTI BROS., INC.,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Roman Melikov

Pro Se

9550 W. Sahara Ave., #3022

Las Vegas, NV 89117-5373

Phone: 831-600-6369

Email: rmelikov74@gmail.com

RECEIVED

JAN-9 2BW

^£3

1

QUESTIONS PRESENTED FOR REVIEW

1)

Does the Federal-Aid Highway Act of 1956, 23

U.S.C. § 101-179, grant an express or implied pri­

vate cause of action for an automobile accident at

any time if a highway was once constructed and/or

renovated with Federal-aid highway funds?

2)

Does the Federal-Aid Highway Act of 1956, 23

U.S.C. § 101-179, grant an express or implied pri­

vate cause of action for an automobile accident on

a highway in limited circumstances, such as, when

an accident occurs at the time such a highway is

being constructed or renovated by a contractor,

such as Ghilotti Bros., Inc., under a contract uti­

lizing Federal-aid highway funds?

11

PARTIES TO THE PROCEEDING

The parties to the proceeding are:

Roman Melikov: Petitioner (Appellant, Plaintiff

in the lower courts)

Ghilotti Bros., Inc.: Respondent (Appellee, Defen­

dant in the lower courts)

DIRECTLY RELATED CASES

•

Melikov v. Ghilotti Bros., Inc., No. 21-cv-04074,

U.S. District Court for the Northern District of

California. Judgment entered May 16, 2022.

•

Roman Melikov v. Ghilotti Bros., Inc., No. 2215901, U.S. Court of Appeals for the Ninth Circuit.

Opinion entered August 1,2023. Petition for Panel

Rehearing denied August 15, 2023.

Ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW........

1

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

11

DIRECTLY RELATED CASES.............................

li

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

in

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

v

PETITION FOR WRIT OF CERTIORARI...........

1

OPINIONS BELOW................................................

1

JURISDICTION..,...................................................

1

CONSTITUTIONAL AND/OR STATUTORY

PROVISIONS INVOLVED.................................

2

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

2

REASONS FOR GRANTING THE WRIT............

13

CONCLUSION.........................................................

15

SIGNATURE OF ROMAN MELIKOV, PRO SE ...

15

APPENDIX

APPENDIX A

OPINION OF THE U.S.

COURT OF APPEALS FOR THE NINTH

CIRCUIT, FILED AUGUST 1, 2023............... App. 1

APPENDIX B - JUDGMENT OF THE U.S. DIS­

TRICT COURT FOR THE NORTHERN DIS­

TRICT OF CALIFORNIA, FILED MAY 16,

2022

App. 4

IV

TABLE OF CONTENTS - Continued

Page

APPENDIX C - ORDER OF THE U.S. COURT

OF APPEALS FOR THE NINTH CIRCUIT

DENYING PETITION FOR PANEL RE­

HEARING, FILED AUGUST 15, 2023

App. 16

APPENDIX D

KEY EXCERPTS FROM

GHILOTTI BROS., INC.’S FEDERALLY

FUNDED, 04-4K1104, CONTRACT WITH

App. 17

CALTRANS

V

TABLE OF AUTHORITIES

Page

Cases

Dyals v. Hodges, 659 So.2d 482 (Fla. 1st DCA

1995) . .......................................................................

12

Gorman v. Earhart, 876 S.W.2d 832 (Tenn.

1994)

10,11,13

In re Air Crash Disaster, 86 F.3d 498 (6th Cir.

1996) . .......................................................................

11

In re Oil Spill by the Oil Rig “Deepwater Horizon”

in the Gulf of Mexico, on Apr. 20, 2010, 21

F. Supp. 3d 657 (E.D. La. 2014)..........................

11

Miller v. U.S., 710 F.2d 656 (10th Cir. 1983)........

6-8

Morris u. United States, 585 F. Supp. 1543 (W.D.

Mo. 1984).................................................................

2-6

Ramos Pinero u. Puerto Rico, 359 F. Supp. 2d 56

(D.P.R. 2005), aff’d, 453 F.3d 48 (1st Cir.

2006).........................................................................

8

United States v. Lopez, 514 U.S. 549 (1995).........

9

Water Quality Ins. Syndicate v. United States,

522 F. Supp. 2d 220 (D.D.C. 2007).....................

11

Williams u. City of Minneola, 619 So.2d 983

(Fla. 5th DCA 1993)..............................................

12

Statutes

23 U.S.C. §101-179.

2, 3, 6, 8,10,11,13

23 U.S.C. § 109(e)(2)

..................... 2, 5-10

VI

TABLE OF AUTHORITIES - Continued

Page

23 U.S.C. § 401-408.....

2,6

23 CFR § 655.603........

2

23 CFR § 655.603(b)(3)

2,10

Other Authorities

National Manual on Uniform Traffic Control

Devices for Streets and Highways, 2009 Edi­

tion (May 2012)

5, 9,10,14

Manual of Model Civil Jury Instructions for the

District Courts of the Ninth Circuit (2017 Edi­

tion, 83)...............................................................

11

Restatement (Second) of Torts § 500....................

12

Restatement (Third) of Torts § 2 (2010).............

12

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Roman Melikov respectfully requests

this Court to review the judgment of the Ninth Circuit

Court of Appeals.

OPINIONS BELOW

The opinion by the U.S. Court of Appeals for the

Ninth Circuit is reported as Roman Melikov v. Ghilotti

Bros., Inc., No. 22-15901 (9th Cir. 2023), and is attached

at Appendix A, App. pp. 1-3. The judgment by the U.S.

District Court for the Northern District of California

is reported as Melikov v. Ghilotti Bros., Inc., No. 21-cv04074-JSW (N.D. Cal. 2022), and is attached at Ap­

pendix B, App. pp. 4-15. The order by the U.S. Court of

Appeals for the Ninth Circuit denying Appellant Ro­

man Melikov’s Petition for Panel Rehearing is at­

tached at Appendix C, App. p. 16.

JURISDICTION

This Petition for Writ of Certiorari has been filed

within ninety days of the denial for Appellant Roman

Melikov’s Petition for Panel Rehearing. The U.S. Court

of Appeals for the Ninth Circuit issued its judgment on

August 1,2023. The U.S. Court of Appeals for the Ninth

Circuit denied Appellant Roman Melikov’s Petition for

Panel Rehearing on August 15, 2023. (See Appendix C,

p. 39-40) App. p. 16

2

CONSTITUTIONAL AND/OR STATUTORY

PROVISIONS INVOLVED

The statutory provisions involved in this case are

23 U.S.C. § 101-179, including 23 U.S.C. § 109(e)(2),

23 U.S.C. § 401-408, and 23 CFR § 655.603, including

23 CFR § 655.603(b)(3).

STATEMENT OF THE CASE

This case will always come back to the federal cir­

cuit because new construction of a highway or mainte­

nance work on an existing highway is always going to

occur in some shape or form and federal funds admin­

istered through the Federal-Aid Highway Act of 1956,

23 U.S.C. § 101-179, will be providing the bulk, if not

the entirety, of such construction work.

This case began not with Plaintiff Roman Melikov,

but with another case going all the way back to the

year 1984. In Morris u. United States, 585 F. Supp.

1543 (W.D. Mo. 1984), the court found that no private

cause of action existed under the Federal-Aid Highway

Act of 1956. However, the numerous reasonings to find

such a conclusion were incorrectly ascertained.

Since that decision, despite the numerous other

cases with similarities to the original case, no federal

judge has ever attempted to explore the reasonings be­

hind the initial decision. This trend has continued for

this case as well. The Honorable Judge Jeffrey S. White

never analyzed the original reasonings found in Morris

3

v. United States repeated by other similar cases since

that decision and only cited the conclusion as a reason

for denial. Similarly, appellate judges from the Ninth

Circuit, Honorable Judges John B. Owens, Kenneth K.

Lee, and Patrick J. Bumatay, all avoided any explora­

tion into the original reasonings behind the conclusion

as well, even going so far as to not cite the case from

where their conclusion arrived.

There is nothing necessarily legally complex in

this case or its origins. Rather, this case and its origins

are more related to the childhood game of telephone

played in elementary school. The court in Morris v.

United States made huge mistakes in analyzing

whether the Federal-Aid Highway Act of 1956, 23

U.S.C. § 101-179, provided a private cause of action.

And these mistakes have been passed down from court

to court across the federal circuit without ever correct­

ing the initial conclusion. Plaintiff Roman Melikov will

now briefly delve into these mistakes to showcase why

the questions presented above should finally be given

proper adjudication.

First, the court in Morris v. United States became

fixated on the issue of alcoholism, and such a fixation

prevented the court from following the guidelines that

Congress had intended the courts to follow under such

circumstances relating to the death of Mr. David Allen

Morris.

The court in Morris v. United States initially con­

cluded that:

4

The defendant discharged its alternative duty

by appropriately warning all invitees of any

condition created by the placement of the

berm by its posting of the “Road Closed” sign

and by its placement of the reflectorized

markers on top of the berm. We further find

and conclude that whatever danger may have

been created by the closing of the road or by

placement of the berm was, in fact, a condition

which would be obvious and apparent to any

invitee who was acting in the exercise of ordi­

nary care. The undisputed evidence in this

case establishes that the decedent was not ex­

ercising ordinary care in that he was driving

his vehicle while intoxicated at a speed of 5055 miles per hour after passing the “Road

Closed” sign.

(See Morris v. United States, 585 F. Supp. 1543, 1550

(W.D. Mo. 1984))

The court then again further expanded on the is­

sue of alcoholism, stating that:

We further find and conclude that plaintiffs

cannot recover for still another reason; plain­

tiffs failed to adduce any credible evidence

that could be said to support a finding that de­

fendant’s actions, rather than those of the

plaintiffs’ decedent, were the proximate cause

of the decedent’s death. We find that the un­

disputed factual circumstances clearly estab­

lish that decedent’s state of intoxication was

the proximate cause of his death. We therefore

conclude that judgment must be entered for

5

the defendant under that alternative finding

of fact.

(See Morris v. United States, 585 F. Supp. 1543, 1551

(W.D. Mo. 1984))

Sec. 109(e)(2) of Title 23, U.S.C., requires that the

court compare the circumstances of the accident in­

volving temporary traffic control devices against the

parameters required within the National Manual on

Uniform Traffic Control Devices (MUTCD) when there

is an accident on a Federal-aid highway while it is un­

der construction with Federal-aid highway funds. Sec.

109(e)(2) of Title 23, U.S.C., states that:

(2) Temporary traffic control devices. - No

funds shall be approved for expenditure on

any Federal-aid highway, or highway affected

under chapter 2, unless proper temporary

traffic control devices to improve safety in

work zones will be installed and maintained

during construction, utility, and maintenance

operations on that portion of the highway

with respect to which such expenditures are

to be made. Installation and maintenance of

the devices shall be in accordance with the

Manual on Uniform Traffic Control Devices.

The court in Morris v. United States should have

evaluated all of the plaintiffs’ allegations against the

National MUTCD. However, the court only acknowl­

edged that the “Road Closed” traffic sign did in fact

match the requirement in the National MUTCD, while

ignoring the other allegations and focusing on the

presence of alcohol. The court in Morris v. United

States viewed that a contractor’s failure to adhere to

6

Sec. 109(e)(2) of Title 23, U.S.C., was not illegal or a

violation of the law. This legal train of thought is pre­

cisely opposite of the intentions of Congress that were

spelled out under Sec. 109(e)(2) of Title 23, U.S.C., and

is one of the fundamental issues of this case against

Defendant Ghilotti Bros., Inc.

Second, the court in Morris v. United States was

also influenced by the decision of the court in Miller v.

U.S., 710 F.2d 656 (10th Cir. 1983). The court in Miller

v. U.S. found that the Highway Safety Act of 1966 did

not provide a private cause of action. However, the

Highway Safety Act of 1966 is located in a vastly dif­

ferent section of Title 23, U.S.C. (Chapter 4), and has

nothing to do with the Federal-Aid Highway Act of

1956 (Chapter 1). Somehow, the court in Morris v.

United States took the conclusions of the court in

Miller v. US. regarding the Highway Safety Act of

1966, 23 U.S.C. § 401-408, and applied them to the

Federal-Aid Highway Act of 1956, 23 U.S.C. § 101-179.

Third, cases concerning whether the Federal-Aid

Highway Act of 1956,23 U.S.C. § 101-179, has a private

cause of action varies by one major distinction between

them. Most of the cases involve circumstances where

an automobile accident occurs on a Federal-aid high­

way that had received Federal-aid highway funds in

the past. However, this case against Defendant

Ghilotti Bros., Inc., much like Morris v. United States,

involves an accident that occurs at the time the con­

tractor is under an active contract for the construction

or maintenance of a Federal-aid highway involving

Federal-aid highway funds. This is a critical distinction

7

for two reasons. The chief reason is that one could as­

sume that based on the wording in Sec. 109(e)(2) of

Title 23, U.S.C., Congress only intended a private

cause of action to exist when an active contract was

present and a Federal-aid highway was under con­

struction or maintenance. This would dramatically

limit the liability a contractor and/or the United States

government could face since accidents on Federal-aid

highways, due to the fault of the contractor, which oc­

cur at the time of construction or maintenance of such

a highway, are rare when compared to the total num­

ber of automobile accidents across the United States of

America per year.

Furthermore, the second reason that such a dis­

tinction regarding the presence of an active contract

may be necessary, is that many lawsuits involving in­

dividuals who had crashed on a Federal-aid highway

that was previously constructed or renovated using

Federal-aid highway funds have created legal confu­

sion regarding whether a private cause of action does

truly exist because their cases did not involve an active

contract at the time of their accidents, yet no legal dis­

tinction was made regarding such a critical difference

by the federal judges who had adjudicated their cases.

Miller v. U.S., 710 F.2d 656 (10th Cir. 1983), is a

case that further illustrates such a situation. Not only

was Miller v. U.S. applied to the wrong section of Title

23, U.S.C., as previously noted, but it also involved an

accident that had no contractor working on the Fed­

eral-aid highway at the time of the accident. Yet Miller

v. US. can be cited by federal judges to deny a private

8

cause of action for the Federal-Aid Highway Act of

1956, 23 U.S.C. § 101-179 for litigants who do have an

accident while a contractor is presently working on the

Federal-aid highway. This is a situation that this Court

should clarify because it involves two vastly different

scenarios.

The Honorable Judge Jeffrey S. White cited Ramos

Pinero v. Puerto Rico, 359 F. Supp. 2d 56 (D.P.R. 2005),

aff’d, 453 F.3d 48 (1st Cir. 2006), when denying Plain­

tiff Roman Melikov a private cause of action under the

Federal-Aid Highway Act of 1956, 23 U.S.C. § 101-179.

However, Ramos Pinero v. Puerto Rico is very similar

to Miller v. U.S., because the accident in that case also

occurred when no contractor was actively working on

a Federal-aid highway at the time of the accident. This

situation is again a good example of how a vastly dif­

ferent underlining situation is adjudicated equally in

the federal circuit. Plaintiff Roman Melikov believes

that such an equal adjudication of vastly different un­

derlining situations may not be legally correct when

considering if the Federal-Aid Highway Act of 1956,23

U.S.C. § 101-179, has a private cause of action.

The Honorable Judges of the Ninth Circuit, Judges

Owens, Lee, and Bumatay, stated that “Ghilotti’s fed­

erally funded contract with Caltrans also does not

confer federal question jurisdiction because the con­

tract does not implicate a federal cause of action for

willful and wanton misconduct.” (See App. A, App. p. 2)

Nonetheless, this statement seems to be an oxymoron

because it goes against the wishes of Congress. Under

Sec. 109(e)(2) of Title 23, U.S.C., Congress specifically

9

outlined the responsibility of a contractor working on

a Federal-aid funded highway as highlighted above,

notably concluding that the contractor must follow the

guidelines of the National MUTCD. The National

MUTCD takes the legal guesswork out of the court­

room and provides judicial efficiency because it can

specifically highlight the operational mistakes of a con­

tractor, such as Defendant Ghilotti Bros., Inc., upon

comparison against the work done on the actual con­

struction site.

Furthermore, Defendant Ghilotti Bros., Inc. also

engaged in interstate commerce in the execution and

fulfillment of their contract with Caltrans because

their concrete came from Oregon. (See App. D, App.

p. 27) Under the first broad category that the U.S. Con­

gress can regulate under the Commerce Clause is the

use of the channels of interstate commerce. (See

United States v. Lopez, 514 U.S. 549, 558 (1995)) Fur­

thermore, it is important to note that no effect on in­

terstate commerce needs to be shown or proven under

this first broad category of the Commerce Clause.

Hence, the contract plays an important role be­

cause it places Defendant Ghilotti Bros., Inc. under

federal regulation twice. The presence of the contract

enables federal courts to hold Defendant Ghilotti

Bros., Inc. accountable to the National MUTCD under

the interpretation of Sec. 109(e)(2) of Title 23, U.S.C.,

and also again places them under federal regulation

due to their engagement in interstate commerce.

10

The case of Gorman v. Earhart, 876 S.W.2d 832

(Tenn. 1994), found that the standards set forth in the

MUTCD apply only to public authorities engaged in or

concerned with construction, operation, or mainte­

nance work on public roads and highways and those

persons or other legal entities having a contractual

relationship with public authorities. (See Gorman v.

Earhart, 876 S.W.2d 832, 836 (Tenn. 1994)) While

Gorman v. Earhart refers to a state specific MUTCD

since the case is in state court, such a state specific

MUTCD must be in substantial conformance with the

National MUTCD within 2 years of any changes issued

in the National MUTCD. (See 23 CFR § 655.603(b)(3))

The case of Gorman u. Earhart thus suggests that Con­

gress had intended a private cause of action under the

Federal-Aid Highway Act of 1956, 23 U.S.C. § 101-179.

In summary, since Gorman u. Earhart allows a contrac­

tor to be held to a right or a wrong standard based on

a state specific MUTCD, and because a state specific

MUTCD must substantially conform to the National

MUTCD, the case of Gorman u. Earhart suggests that

the National MUTCD can also hold a contractor, such

as Defendant Ghilotti Bros., Inc., to a right or a wrong

standard. This further suggests, from working in re­

verse from the decision in Gorman v. Earhart, that be­

cause Congress had intended, under Sec. 109(e)(2) of

Title 23, U.S.C., that the installation and maintenance

of temporary traffic control devices be regulated in ac­

cordance with the National MUTCD, that Congress

had intended an express or implied private cause of

action from the Federal-Aid Highway Act of 1956, 23

U.S.C. § 101-179. Lastly, the case of Gorman v. Earhart

11

also highlights the significance of a presence of a con­

tract between a contractor and a governmental entity,

highlighting that a contract can indeed have a cause

of action for ‘Willful and Wanton Misconduct’, or its

federally equivalent or interchangeable standard of

‘Reckless Disregard’ following the logic above. Hence,

from the reading of the decision in Gorman v. Earhart,

not only did Congress intend on an express or implied

private cause of action from the Federal-Aid Highway

Act of 1956, 23 U.S.C. § 101-179, but further did so in

limited circumstances when concerning legal entities,

such as Defendant Ghilotti Bros., Inc., who were in a

contractual relationship with a governmental entity.

(See Gorman v. Earhart, 876 S.W.2d 832, 835-836

(Tenn. 1994))

Defendant Ghilotti Bros., Inc. committed a series

of mistakes that caused Plaintiff Roman Melikov to

crash into their construction site. Federal courts have

held that a series of negligent acts or omissions may

constitute recklessness or willful misconduct under

the Clean Water Act, see In re Oil Spill by the Oil Rig

“Deepwater Horizon” in the Gulf of Mexico, on Apr. 20,

2010, 21 F. Supp. 3d 657, 742-43 (E.D. La. 2014), the

Oil Pollution Act, see Water Quality Ins. Syndicate v.

United States, 522 F. Supp. 2d 220, 229-30 (D.D.C.

2007), and the Warsaw Convention, see In re Air Crash

Disaster, 86 F.3d 498, 545-46 (6th Cir. 1996).

In addition, the Manual of Model Civil Jury In­

structions for the District Courts of the Ninth Circuit

states that punitive damages may be awarded if the

defendant’s conduct that harmed the plaintiff was

12

“malicious, oppressive or in reckless disregard of the

plaintiff’s rights.” (2017 Edition, 83)

Moreover, the Restatement (Third) of Torts § 2

(2010) defines recklessness as:

“(a) The person knows of the risk of harm created

by the conduct, or knows facts that make the risk ob­

vious to another in the person’s situation, and (b) The

precaution that would eliminate or reduce the risk

involves burdens that are so slight relative to the mag­

nitude of the risk as to render the person’s failure to

adopt the precaution a demonstration of the actor’s

indifference to the risk.” This third version removes

the intentional standard, which previously held that

the risk-taker desires to cause the consequence of his

act, or that he believes that the consequences are sub­

stantially certain to result from it, and also removes

the requirement that the risk-taker know that his con­

duct exceeds the legal threshold for negligence.

Lastly, “reckless conduct is the equivalent of will­

ful and wanton conduct.” Williams v. City ofMinneola,

619 So.2d 983, 986 (Fla. 5th DCA 1993). In Dyals v.

Hodges, 659 So.2d 482, 484 (Fla. 1st DCA 1995), the

first district court equated ‘Willful and Wanton Mis­

conduct’ with reckless conduct as described in section

500 of the Restatement (Second) of Torts. The Ninth

Circuit judges did not correct Plaintiff Roman Melikov

regarding the series of mistakes argument, showing

that Defendant Ghilotti Bros., Inc. did in fact make

numerous mistakes that resulted in Plaintiff Roman

Melikov’s accident.

13

As this Court can see, all of the necessary legal

elements are present to remand this case for trial on

Count II if this Court finds that the Federal-Aid High­

way Act of 1956, 23 U.S.C. § 101-179, provides an ex­

press or implied private cause of action.

REASONS FOR GRANTING THE WRIT

The U.S. Court of Appeals for the Ninth Circuit

has decided an important question of federal law that

has not been, but should be, settled by this Court. Fur­

thermore, the U.S. Court of Appeals for the Ninth Cir­

cuit has also decided an important federal question in

a way that conflicts with a decision by a state court of

last resort. (See Gorman v. Earhart, 876 S.W.2d 832

(Tenn. 1994))

This case is essential to the American driving pub­

lic because it offers a chance at financial recovery

against an unforeseen accident caused by a contractor

on a Federal-aid highway that is currently under con­

struction or renovation with Federal-aid highway

funds or has been in the past. Every year, millions of

people unknowingly traverse such highways. A state’s

standard for punitive damages is often impossible to

meet because doing so requires intentional behavior

on the part of a contractor. Only the federal standard

for ‘Reckless Disregard’, which does not require the

showing of intentional behavior, allows for a lawsuit

involving punitive damages to move forward.

14

A devastating accident or a related individual’s

automobile accident death leaves financial devastation

in its wake, and negligence payouts alone are often in­

sufficient to cover the real costs of financial recovery

for the injured individual or the loss of their loved ones.

It is therefore up to this Court to provide a chance for

financial recovery against terrifying contractors like

Defendant Ghilotti Bros., Inc., who had eyeballed the

entire construction site and never once consulted an

engineering survey or any other standardized param­

eters as required in the National MUTCD as intended

by Congress.

The courts who had adjudicated this case against

Defendant Ghilotti Bros., Inc., in addition to the nu­

merous courts who had adjudicated these issues in

the past, all got it wrong for the reasons highlighted

above.

15

CONCLUSION

In conclusion, Plaintiff Roman Melikov hopes that

this Court will resolve the questions presented in this

case against Defendant Ghilotti Bros., Inc. once and for

all for the sake of the American driving public.

Originally filed: November 7, 2023

Re-filed: January 5, 2023

Respectfully submitted,

Roman Melikov

In Pro Per

9550 W. Sahara Ave., #3022

Las Vegas, NV 89117-5373

Phone: 831-600-6369

Email: rmelikov74@gmail.com