Petition for Writ of Certiorari — Trescott v. Federal Highway Administration

= Supreme Court, U.S.

.) i tLED

Y 0913598 MAY 14 7610

N {)

i

\

OFFICE OF THE CLERK

IN ‘THI

Supreme Court of the United States

Willham B. Trescott

Petitione)

The Federal Highway Administration

and

The Secretary of ‘Transportation

Responden {s

Qn Petition for a Writ of Certiorar!

to the United States Court of Appeal:

for the District of Columbia Circuit

PETITION FOR A WRIEP OF CERTIORARI

Witham BR. ‘Trescott

$O28 Farm to Market Road 45%

Bay City, Texas 77414

(979) 244-3134

QUESTIONS PRESENTED

| Whether truckers have a right to install safety

devices on their trucks despite statutory size and

weight limits that prohibit safety features

2 Whether a State transgresses substantive

limits on state action set by the Due Process Clause

when it restrains citizens ability to equip vehicle:

with satety features

= Whether the Federal Highway Administration

violates civil rights by threatening to cut off federal

highway funds to states that permit truckers to have

safety features lke motorists and industrial worker:

have—-hindering the constituted authorities of any

State or ‘Territory from giving or securing to all

persons within such State or ‘Territory the equal

protection of the laws

PARTIES

Petitioner is Wilham Bo Trescott, a trucker by trade

who has not issued debt securities to the public. Re

spondents are The Federal Highway Administration

and Ray LaHood, the Secretary of Transportation

TABLE OF CONTENTS

(yuestions Presented I

‘Table of Authorities Lil

Introduction

C)pinions Below )

Jurisdiction . . 3

Constitutional and Statutory

Provisions Involved

Statement of the Case ; ¥"

Reasons lor Granting the Writ 9

The DC Circuit has entered a decision that

has so far departed from the accepted and usual

course of pudicial proceedings “As to call for cit)

exercise of this Courts supervisory power S

| | The DC Circuit has decided an important

question of federal law in a way that conflets with

relevant decisions of this Court 14

Conclusion iY)

Appe ndix

ORDER: DC Circuit AN

ORDER: DC Circuit A-2

OPINION: USDC Dist. of Columbia A

ORDER: DC Cireuit A-]]

TABLE OF AUTHORITIES

CASES pages

Adi ocates for Highway & Auto safet y

v. HIMCSA, 429 F.3d 1136 (D.C. Cir. 2005)

Bell Atlantic Corp. v. Twombly,

090 US. 544 (2007) lO, 14, 16

City of Rochester v. Bond,

603 F.2d 927(D.C. Cir. 1979)

Conley v. Gibson, 355 U.S. 4141957) 1s

County of Sacramento v. Lewis

523 U.S. 833 (1998)

Daniels v. Williams, 474 US. 331¢1986)

DeShaney v. Winnebago County Dept. of

Soctal Servs... 489 U.S. 189 (1989)

Iestelle v. Gamble, 429 U.S. 9741976)

Nettzke v. Willtams, 490 US. 3819 (1989) 1O

Public Citizen v. FMCSA,

374 F sd 1209 (D.C. Cir. 2004) 1-8. 13,

Reochin v. California, 842 U.S. 165 (1952)

Sanjuan v. American Bd. of Psychtatry and

Neurology, Inc., 40 F.8d 247 (CAT 1994)

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U.S.C. § 30162(d) ls

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Uo. s1 13 oye ke

OTHER REFERENCES pages

Fatahty Analysis Reporting System, National

| 3

— et

Highway ‘Traffic Safety Admuintstration 6. 15

www lars nhl Got. pre VAlinalreport cim

title “Trends&stateid -O& year= 2005&titheZ= Lary Pruck Rela

hederal Railroad Administration, IC]

International, Comparative HMvaluation

of Ratl and Truck Fuel Efficiency

on ompettttt e ¢ ‘orridors

www tra dot pov/Downloads

Comparative valuation Kail Pract tit bothmouen pal

Joseph Cortright, Driven to the Brink.

How the Gas Price Spike Popped the Housing

Bubble and Devalued the Suburbs 2

www movinglorwardtogether. ne/2008/04/238/housing-bubble-popy

National Highway ‘Traffic Safety

Administration, Large Truck fact Sheet 6

www onhtsa dot pov/portal/nhtsa static tile downloader ys}

file=/statichles/DOTINHTSA/NE Y/Uontent{ 1 ot/200 7/78 109935 padl

National Highway ‘Traffic Safety

Administration, Traffic Safety Overvieu @

VA Wwonhtsa dot poy portal/nht ’ tatic fal Qow nloader psp /

file —/statichles/DOP/NHPSAINGCSA/Cont PSE72007/% LO98S pdt

‘Tapley, Turner, MacCleery, Lynn, Pelkey

huiccr, The Hidden Fatlures of Belts tn

Rollover Crashes, Public Citizen 14-15

citizen org/documents/belt_ report. pdf

t

INTRODUCTION

The Motor Carrier Act of 1935 revulated Chae

trucking industry as a public atality with significant

barners to competition. Under the protection of thi

Interstate Commerce Cominission, truckers could

easily negotiate the size and weight of their cargo to

comply with vehicle size and weight laws

The Motor Carrer Act of T1980) legalized

competition. Due to competitive pressures, trucker:

are now required to haul huge intermodal shipping

containers weighing fifty thousand pounds. If they

equip ther trucks with heavy safety features Ike

ears have such as collapse resistant roofs or crash

absorbent bumpers, they wall be fined for violating

the statutory eighty thousand pound vehicle weight

limit. Because the containers are eight and one half

feet wide, the same width as the statutory eight and

one half foot width limit, truckers are required to

carry these ~piant corrugated steel boxes in an unsafe

top-heavy manner sometimes causing their trucks to

roll over, rather than safely between the wheels. If

they equip their trucks with safety devices that

projgect outward more than a few inches from the side

of the vehicle, such as rear view video cameras, they

will be fined. Intermodal vehicles used in the same

manner as locomotives are — prohibited — from

complying with locomotive safety standards

Anyone having common sense wall recognize

that punishing a victim has the opposite effeet of

punishing a perpetrator. Trackers have no way of

knowing how much their cargo weighs Requiring

states to fine truckers if their tracks are overweight

increases the number of violations because shipper

Who intentionally overload tracks know | that

truckers cannot report the crime. ‘Truck size and

weight limits were first imposed by the federal Ard

Act of 1956 and have not been substantially chanyed

mee the Motor Carrier Act of 1980 They were

enacted long before there was a clear under: landing

of the causes of highway damage and the means of

preventing it Requiring truckers to avoid federal

highway when overloaded just shifts pavement

wear and tear onto state and county roads where the

likelihood of being injured in a collision is preates

lntermodalism eliminates pavement wear by

replacing dangerous high speed long haul track

with afer low pre d short haul mtermodal vehicle:

According loa recent tudy by the lederal Railroad

Administration,! intermodalism is up to five time:

more fuel efficient than Jong haul trucking The

Shock of fuel prices exceeding four dollars per pallon

togeered a recession in 2ZO00%-—harming the nation

‘The tatutory authority cited in the OpimMion below

apply only to regulations that are “needful nace 23

USC. § 815; 49 USC. § 104(c). A regulation cannot

be needful ifat harms the nation or has the opposite

effect intended. “A somewhat different standard fis]

appropriate for the failure to provide for a resident

ifety such a failure must be justified by a showing

Of substantial nec ity Younevberp v. Monveo, 454

Us ‘O7 at 818 (1982) quoting 644 I.2d at 164

1 ( npara ce | nof Kaal a Pract | duthicies on

( npetil { i Mok driternat

bitty \ fra.aot. 1) nloads/Comiy tive | beacats i

1} Prouck Pueld Kifhoency. pdt

“Driven to the Brink bi tne Gia ‘ jul Poppe 1 iti

Housing Babbl nd 1) lucd tl uburl loseph Cortright

byity m eto rdtogethes (/2008/04/28/housing

OPINIONS BELOW

Phe order of the Court of Appeals for the District of

Columbia Circuit that oral argument will not a sl

the courtis reproduced in the Appendix on page |

The orde. of the Court Ol Appeal fo} thie Lda: trict ol

Columbia Circuit transferring the case to the District

DW

Court is reproduced in the Appendix on page

The opinion of the District Court for the District of

Columbia is reproduced in the Appendix on pape 4

The orders of the Court of Appeals for the District of

Columbia Circuit granting summary afflirmance and

denying a petition for rehearing en banc. ar

reproduced bya Uda Appendix on page I]

JURISDICTION

The Judgment of the Court of Appeals wa

entered December 9'', 2009. A petition for Rehearing

len Bane was filed January 20%, 2O10O, which wa

denied on March 9! 2010 Thi: Cfourt ha

Jurisdiction under 28 U.S.C. §& 125401)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

‘The Fourteenth Amendment to the United

tates Constitution state

No State shall make or enforce any law which

hall abridge the privileges or immunities of

citizens of the United States: nor shall any

State deprive any person of life, Iyberty, o1

property without due process of law; nor deny

fo any person within its purisdiction the equal

protection of the leaaws

9 USC. § 41186(a)() provide

\t a minimum, the regulations shall ensure

that...the operation of commercial motor

vehicles doe not have a deleterious effect on

thie phy weal condition of the Operator

19 U.S.C. § 1138 (e) provide

The head of the Administration hall be...an

individual with professional experience in

motor carrier salety

421) SC€ 1980 provide

if two or more persons...conspire OF oO IN

disguise...for the purpose of preventing o1

hindering. the equal protection of the law:

the party so injured or deprived may have an

achwon for the rTeCOVETY ol damage

STA'TEMICN'T OF THE CASE

Motor Carrier Satety 43 an Ippled CleNCs

relying on accurate data and precise mathematical

formula By detecting and eliminating workplace

hazard occupational safety professionals prevent

piyuric and fatalities in the same way that other

health care provide diagnose and treat disease if

take just as long for a trucker to accumulate the

hundreds of thousands of crash free mil and

PudPeroUus alety award needed LO qualify for

employment as a motor carrier safety professional a

a doctor takes to attend college and graduate from

medical school Allowing a fiormer stat poles offices

who had never driven ai truck for a_etliving to

mnpersonate a motor carrier safety professional in

Violation of 49 U.S.C. & 118c) shock: the conscience

because state police have been preventing trucke)

from equipping their tracks with saletly feature

Justice Rehnquist wrote for the Courtin DeShaney «

|

Winnebago County Dept. of Social Servs., 449 US

189 at ZOO (1989), “itis the States affirmative act of

restraining the andividual freedom to act om hi

own behalf—through...restraint of personal liberty

Which is the ‘deprivation olf hberty triggering the

protections ol the Due Process Clause

Qn April 26%, 2006, foun tudent and an

{ mployee ol ‘Taylor Unive ty a small CVall te hical

Christian college, were tragically killed in a crash

involving a heavy truck near Fort Wayne Indiana

The crash received nationwide media attention

because, due to a mix up by the coroner, a victim who

was crushed so horrifically as to be unrecognizable

was buried in the wrong vrave while a similarly

injured victim who survived the crash was nursed by

the dead carl parent In re ponse to this outrage

three week later on May 16%, ZO0OG, President Bush

appointed an alumnus of ‘Taylor University, formes

Indiana State Police officer John tl Hill, to become

the Federal Motor Carrier Satety Administrator in

violation of 49 ULS.C. & 1L13(c)

On July PI’) 200% Hlill claimed in Worn

4

testimony befor the House ubcommittes on

Surface ‘Transportation that “2005 enjoyed one of the

lowest large-truck fatality rates in GO year when in

fact the mumber of truck drive. killed on the job

mcreased 17% from 2002 to 2005 and the number of

pedestrian and biecyels { killed by truck mcreased

LILA aojd4 year high.’ De pile record rate Ol seat

belt use and improvements in trauma care, the

number of heavy truck occupants killed on the job in

2007 remained 16% biagehne rthanin ZOOY even though

passenger car fatalitie decreased 2O% during the

ame period 1 $60% ditference mn fatal outcom: '

While change fo trucke! hours of service limit

IM po ed in 2OO3 can explain Is% of this difference

the reasonable person must conclude that approx)

mately 23% or 185 of the 805 heavy truck occupant

killed in 2ZOOV and VWW5 of the 677 heavy trucl

eccupants killed in ZOOS died a a result of bein

denied the modern ety feature that had mmproved

thie ilety ol passenger car occupant

1)y tr [ (court ruled if} fre Gil ‘ Pele

Peatadity rial i Neporling \ c'ii isa bitty

bal ritit Vdots Vi/tinals port.cim tithe Prendsé tatei1a—Ue

! POOH Atithe2=Larpe fruck Related

' Large Pruck Fact Sheet, Trafttic Safety Overview ({

ww. nhtsa.dot.gov/portal/nhtsa_static file downloader jsp?!

tatictiles/DOT/NHTSA/NCSA/Content/TSt/2007/8 10993 pdf

VvWonhtsa dot pov/portal/nhtsa static tile downloader jysp7tile

tatichles/DOU/NHPSA/NCSA/Content/TS/2007/8 LOY. pdt

Cl

Where Coonger ha hot eCXpre ly tated that

tatutory jurisdiction is ‘exclusive i Statute whick

Ves marisdiction in i particular court cut 8

Oonginal juruisdichtion in other court mi all cas

covered by the statute, quoting Felecomium Kesearch

& Action Ctr. hed. Communications Comm n, G50

ih 2d 70, 77 G.C. Cir. 1984) Conpre has provided

{QO} ( Kclu IV? PFeVICW aD LVenecy dec) mon making unde

lthe Motor Carricr Safety \ct} by the court. of

appeal See Crty of Rochester | Bond, GOS ki 2d

O27, Y3I CD.C. Cn 16) /$)) hor thi reason, and

because only the Secretary decision not to legalize

moder uwety feature was being challenged, not

the statutory mandate the 14" Amendment claim

that “Congre established a procedural requirement

that only a poe) nm with prok lonal ¢ Kperience mn

motor carrer safety may promulgate rules related to

motor Carrie) Ol motor Carries ifety md

\Ymerican may not be deprived of tit liberty (i!

properly without due proc ollaw were filed in the

Court of Appeals for the District of Columbia Circuit

is the court of first instance under the Hobbs Act

BUS... & 2A42(3)(A)

Qn April 22°¢, 2ZO0O8, the VC Circuit ordered

the question transferred back to the District Court

mn grounds that the Hobbs Act only grants the court

of appeals exclusive jurisdiction if the action is taken

pursttant to “uthority transterred trom the Interstate

Commer (Commission. On dune yt 2009. the

District Court dismissed the case tor failure to state

i laim

(On Lurust 1.3! ZV000 aat District Coourt

decision was appealed on grounds it contheted wath

prior decision Ol the 1 )( Coircull uch a Piibli

(,ifizen t KMCSA S74 F.SBd 1209 (1.4 Coir. 2004)

(lt may be the case, for example, that driving for

extended periods of time and sleep deprivation cause

drivers long-term back problems, or harm drivers’

Minune systems > Qn December 9, 2009, the

Circuit granted summary affirmance

Qn danuary Z2(th ZOO, a petition for

rehearmny en banc was filed on grounds that one of

the yuadges deciding the case had a possible conflict of

interest. Although most courts assign judges to cases

randomly, there is a 95% probability that President

sSush’s Staff Secretary® at the time he appointed the

ungqualihied administrator from ‘Taylor University

had been assigned to both panels hearing the case in

anon random manner. 42 U.S.C. 1986 provide:

avery person who, having knowledyve that any

of the wrongs conspired to be done...are about

to be committed, and having power to prevent

or aid in preventing the commission of the

same...shall be lhable...for all damages caused

by such wrongful act, which such person by

reasonable dilhgence could have prevented

The President's Counsel and Staff Secretary could

with reasonable diligence have prevented the SOO

death: that resulted from denying truckers the

modern salety devices that had improved the safety

of passenger car occupants. On March 9', 2010, the

petition for rehearing was denied

htty ldwww cade uscourt:

t+ dudpet-4+ MK

poviinterie t/home nst/Content/V1I 4

D

REASONS FOR GRANTING THE WRIT

[ The DC Cireuit has entered a decision

that has so far departed from the accepted and

usual course of judicial proceedings as to call

for an exercise of this Court’s’ supervisory

power.

A. Judges who are potentially hable through

di: COVCTY (oF have aa personal mterest in a particular

case should recuse themselves. “[D]ue process of law

requires an evaluation based on a= disinterested

Inquiry pursued in the spirit of science, on a balanc-

ed order of facts [and] the detached consideration of

conflicting claims.” Pochin vo. California, 3842 US

165 at 172 (1952). As Justice Powell wrote for a

unanimous court in Youngberg v. Romeo, 457 U.S

$07 at 321 (1982), quoting 644 F.2d at 178, “If there

is lo be any uniformity in pretecting these interests,

(has balancing cannot be left to the unguided

discretion of a judge...the Constitution only requires

that the courts make certain that professional

judyment ian fact was exercised” (internal quotes

omitted) Therefore, in denying discovery, A-1, the

DC Cireuit failed to satisfy the due process

requirement that it “make certain that professional

judgment in fact was exercisea’ in a “disinterested

Inquiry pursued in the spirit of science” according to

(he standards of the motor carricr safety profession.

The government employee who promulgated

the challenged rule had no apparent motor carrier

safety qualifications. The appellant/petitioner was

recommended to head the Federal Motor Carrier

safety Administration by his Congressman for five

patents on safer intermodal technology, a Bill before

the House Transportation Committee, a book and

1O

numerous articles and videos on the subject of

commercial motor vehicle safety,® and several safety

awards for driving 18 wheelers more than 400,000

miles without a preventable crash-—-having been self

employed since 1987. Because a qualified profession

al presented the court with mathematical formulae

indisputably proving that commercial motor vehicle

safety duties and powers in Chapter 311 of Title 49

(A-2, 5, 6, &, & 10) are related to motor carrier safety,

there should have been no doubt in the mind of any

judge that 49 U.S.C. §§ 1138) (1) & (g) prohibit the

Kederal Highway Administration from promulgating

regulations under this chapter. “[CJourts must show

deference to the judgment exercised by a qualified

professional, whose decision 1s presumptively valid”

Youngberg at 3807 (per curiam). “Rule 12(b)(6) does

not countenance ... dismissals based on a judge's

disbehef of a complaint’s factual allegations” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

quoting Neitcke v. Williams, 490 U.S. 319 at 327

(1989). “Because the complaint was dismissed for

failure to state a claim, [the Court] must take as true

fats] pro se allegations.” I¢stelle v. Gamble, 429 U.S.

97, 99 (1976) quoting Cooper v. Pate, 378 U.S. at 546.

The District Court decision should have been

Summarily reversed because it failed) to show

professional deference. A-5 & 9. Neither Congress

or the courts can overrule the laws of physics. The

6 Self loading Vehicle for Shipping Containers (U.S. Pat

G,910,844 & 6,840,724), Automatic Intermodal Railway Car

Coupler (U.S. Pats. 6,776,299 & 7,070,062), Stackable Open

Front Grocery and Goods Bin (U.S. Pat. 6,494,313); Creation of

a Minority Group—The New Danger tn America's Trucks; ‘The

Safer Truck Act’ GAR 2084, HR 1248, 107 & 108 Congress)

1]

pecious argument cited in the summary allirmance

A-11, that “Appellant has not demonstrated [size and

weight limits} are arbitrary, capricious...cte rr

irrelevant to the question of whether the Secretary

made a “professionally acceptable choice (see

Younpberp at 321) because the Secretary had the

option of promulgating cargo weight limits and

additional width exceptions under 49 U.S.C. &8§

31114(b) & 31136(a) to permit truckers to cquip their

vehicles with modern safety feature: without

exceeding statutory size and weight limit:

Bs. Denying truckers occupational health shock

the conscience because it 18 a form of collective

punishment inflicted upon all citizens who drive

trucks an retahation for the actions of a. single

individual who was himself hospitalized due to hi:

miyuries Kven if the President's staff knew nothing

about trucking or the standards of the motor carric:

safety profession, the President had the same

obligation as any health care provider to appoint a

qualified professional. ‘That the Federal Highway

Administration found it needful under 23 U.S.C. &

$15 to promulgate the challenged regulations, A-5

because an unqualified federal Motor Carrier Safety

Administrator neglected to do so docs not excuse the

Secretary from obeying civil mghts laws. 42 U.S.C

1984-19%6. One would not allow a police officer from

Virginia Tech to impersonate a doctor and withhold

health care from Koreans because a Korean shot

students at Virginia ‘Tech, for example pee County

of Sacramento v. Lewis, 523 U.S. 833 (1998) quoting

Dantels vo. Willtams, 474 U.S. at 331) (conduct

intended to injure in some way unjustifiable by any

rovernment interest is the sort of official action most

like ly to rise to the CONSCIENCE -s hocking leve| )

Police inspections violate “liberty interests in

freedom of movement and in personal security [that]

can be limited only by an overriding, non-punitive

State interest. Youngberg at 313 (internal quotes

omitted) While heavy or oversize safety devices

could pose a hazard on poorly maintained roads and

bridges, “liberty interests require the State to

provide minimally adequate or reasonable traiming

to ensure safety and freedom from undue restraint.’

la. at 319 The Administration's driver training

standards have already been ruled arbitrary and

capricious see Advocates for Highway & Auto

Safety v. MMCSA, 429 F.3d 11386 (D.C. Cir. 2005)

Therefore, the Federal Highway Administration

cannot just ban safety devices nationwide because an

untrained truck driver might damage a structurally

deficient road or bridge. States have a duty to teach

truckers where it 1s safe or unsafe for vehicles with

large or heavy safety features to travel.

[;, Neither court considered the claim raised in

the briefs that the Federal Highway Administration

violated the Regulatory Flexibility Act, 56 ULS.C. &&

GOS(e)(3) & GO4(a)(2), by including intermodal

vehicles in its revised definition of commercial motor

vehicle (a vehicle designed or regularly used to

carry freight”) in contradiction of the statutory

definition in 49 USC. & 81101) Cla] vehicle used

on the highways in commerce’). Intermodal vehicles

are a type of matenal handling equipment used to

load and unload trains and barges. ‘They are not

normally wsed on the highways nor are they used in

interstate commerce therefore the commercial

vehicle width limitation cited in the summary

affirmance, 49 U.S.C. § 311138(a)(1), A-12, should not

apply to them. Congress expressly prohibited the

Secretary from regulating intermodal vehicles. See

19 U.S.C. &§& 185038(b)01) & 13506(a)(11). The other

statute cited by the Circuit, 28 USC. § 127(a)(2),

apphes only to vehicles “using The Dwight D.

Misenhower System of Interstate and Defense

Highways.” Intermodal vehicles use local roads to

make pickups and deliverics, not the national

highway system. ‘The question District Court was

asked to consider is whether an intermodal vehicle

crossing a road (or driving a short distance on it to

reach a customer that cannot be reached in any other

way) is using the highway system

In Fflolrail v. Surface Transportation Board

(D.C. Cir. No. 07-1088, February 22, 2008), the

Curcuit ruled that even if itis necessary for a carrier

to “use fa] right-of-way for a quarter of a mile” in

order to cross it, that the word “cross” has a different

meaning than “use” as long as a carrer is “not

secking to use [the] property to attract new

customers or reach new markets, but only to

continue to aecess its own shippers...” (ship opinion

at 9, quoting Burlington Northern & Santa Fe

Railway Co., 6 S/VT.B. 862, May 9, 2008). Unlike in

Hlolrail where one railroad sought to use the private

property of another, public highways are state owned

hke the Pennhurst State School and Hospital

described in) Youngberg. ‘Truckers who decide to

replace their obsolete long haul trucks with modern

intermodal vehicles to eliminate the “driving for

extended periods of time and = sleep deprivation”

described in Public Citizen v. FMCSA therefore have

“constitutionally protected lberty interests under the

Due Process Clause [to] freedom from unreasonable

bodily restraints, and such minimally adequate

training as reasonably may be required by these

interests.” Youngberg at 307 (per curiam).

14

if. The DC Circuit has decided an important

question of federal law in a way that conflicts

with relevant decisions of this Court.

A. Whenever a government kills its own citizens,

there 1s inevitably a claim that decision makers had

no choice in Violating human rights. Judges appoint

ed by such persons often dismiss such complaint:

without hearing evidence on grounds that they are

implausible. ‘The United States District Court for

the District of Columbia has now ruled that thi:

Court gave its blessing to dismiss such cases in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)—an

anti trust case District Court's opinion that

“Trescott’'s complaint, however, contains essentially

no factual allegations,’ A-&, reveals that the judge

did not beheve the allegation raised in the initial

bref that a 23% increase in seat belt use contributed

toa 17% increase in fatalities 1c. that seat belts are

an “unreasonable bodily restraint’ as described in

Younpherp As a Ford Motor Company engineer

acknowledged in a letter obtained by the Ralph

Nader organization Public Citizen

“It as obvious that occupants that are

restrained an upright) positions are more

susceptible to injury from a collapsed roof than

unrestramed occupants who are free to tumble

about the interior of the vehicle. It) seems

unjust to penalize people wearinp effective

restraint systems by exposing them to more

severe injuries than they might expect with no

restraints. |

The Ihidds fil fhatlure: Of Belts ivi Rollove Cra lies, po & p 30

Wntil recently, seat belts were seldom used on

vehicles that lack roll over protection. One would

not want screaming children dangling upside down

mside a burning school bus falling on their heads

trying to get out, for example. In the past, trucker:

wore only lap belts because their air-ride seat:

needed to prevent the “long-term back problem:

described wn Public Citizen vo. KPMCSA, could slam

their heads against the ceiling with a force equal to

their own weight if their trucks rolled over while

restrained in a vertical position. When former police

officers began impersonating salety professionals at

the Federal Motor Carrier Safety Administration

state police began ticketing truckers for not wearing

shoulder belts even though many, if not most, were

weariny lap belts that the police could not see. Thi

harassment influenced many to wear shoulder

harnesses to avoid being fined, and truck occupant

fatalities skyrocketed to a 16 year high, topping SOO

per year.”

No one argues that truckers should not wea

eat belts—only that af state laws require shouldes

belts, truckers have constitutionally protected liberty

under the Due Process Clause of the Fourteenth

Amendment to install collapse resistant roofs and

any other devices they need to be safe without being

penalized. While it may seem implausible to a judge

Tapley, ‘Turner, MacCleery, Lynn, Pelkey, Kicer, Publie Citizen

2004, http://www.citizen_org/documents/belt_report pdt

hatahty Analysis Keporting System, NHTSA, http://www

lars nhtsa.dot.vov/finalreport.cim’tithe- Trends&stateid O& yea

r=2005&tithe2~ Large Truck Kelated

that a 23% increase in seat belt use could cause an

mecrease in fatalities, the question before the Court 1:

not whether the allegation: make ense to an

unskilled person bait whether — the allepation

represent a danger to a “person with professional

experence in motor carrer safety as required under

AQ U.S.C. § 118(e). The decision of the DC Circuit to

grant summary affirmance therefore conflicts with

This Courts unanimous decision in Youngberg at

$07 that “|[t}he proper standard for determining

whether the State ha: adequately protected such

nights is whether professional judgment in fact wa:

exercised (per curiam) and also” thi Court

unanimous decision m WNetrtzke as cited by” the

majority in Jiwombly, that “Rule 12(b)(6) does not

countenance...dismissals based on a judge's disbehet

ofa complaint’s factual allegation

Bs The District Courts many factual erro uch

as, “He holds five patents for certain safety device:

and heavy duty uSpension Component A-D

uggest that the judge did not even bother to read

(he bried Petitioners patents are for an intermodal!

velncle and related cargo attachment mechanisms,"

not safety devices or suspension component lt 3

not speculative to allege that stronger roofs and

crash absorbent body pancls proven to decreas

fatalities by 20% in cars will also save lives in track:

because, except for air-ride, drive. Cats in Cars and

trucks are ergonomically identical. As the mayorits

Seu loading Veh le ik ;} SHU Piney ( Onfatne? (| : Vat

(910844 & 6 840.724) lutomatic intermodal Rathivay Cay

Couple (| ; Pat t> £10. 2909 ras j Q/Q 062) Pe fachkabl € Jpre ai

front CGirocel and Good [yin (A :> Pat (> [194 .313)

| f

agreed inp Twombly, “|Ojnce a claim for rehet ha:

been stated, a plaintiff receives the benefit of

Imagination, so long as the hypotheses are consistent

with the complaint.” quoting Sanjuan v. American

Bd. of Psychiatry and Neurology, Ine., 40 Ff. 8d 247

at ZbI(CAT 1994) Ginternal quotes omitted)

While 1 is conceivable that an overworked

judge might mistakenly assume that decade old

safety features that reduced car fatalities by 20%

were recently invented and unproven, the opinion of

the Cireuit that “[t}he merits of the parties’ position

are so clear as to warrant summary action, A-I1,

suggests something more than just simple error

District Courts note that due to omissions in the

pleadings, “Trescott has limited this action to asking

the court to set aside an FHWA regulation,” A-9,

contradicts the stated cause of action and. relief

requested in the briefs that the Secretary failed to

respond within 120 days to a petition “for promulga

tion of performance based safety standards” as

required under 49 U.S.C. § d0162(d). A-l & Z. The

Circuits dubious yustification for denying subject

matter jurisdiction, which was not raised by any

party an the case that the defunct Interstate

Commerce Commission hypothetically lacked the

power to create exceptions for modern safety device

had they been invented in the 1970's, A-3, not only

inores the plain languaye of the Hobbs Act, which

clearly establishes exclusive jurisdiction of agency

decision making under the Motor Carrier Safety Act

in the courts of appeals, 28 U.S.C. § 2342(3)(A), i

ynores the plain language of the Motor Carrier

Safety Act itself which extends jurisdiction to all

outmoded commercial vehicle safety regulation:

promulgated before October 30%, 19%4-—including

the challenged regulation: 49 USC. §& 381136)

See Neutzke at 3829 ( laj complaint that faal LO state a

claim may not be dismissed for want of ubyoot

matter jurisdiction unl it) frivolous’) cilioy

Hlagans v. Lavine, 415 U.S. at 536-537 Phis Court

long held in Conley vo. Gibson, 355 UU. § 1) at 4

(1957), that “|[t}he Fkederal Rules reject the approach

that pleading is a game of skill in which one misstep

by [a pro se litigant] may be decisive to the outeoms

and accept the principle that the purpose of pleadimy

is to facilitate a proper decision on the merit (of

Maty v. Grassellt Chemical Co., 308% US. 197%

District Courts rehance on Ssell Atlantic 2

Mm) placed Thi Tiwombly and Conley decisions do

not contradict each othe: They are Opposite type Ol

Cases Twombly was attempting to prove collusion

wilhoul evidence While Conley had plenty ol

evidence, but was trying to prove a nepative—that

his union failed to fulfill its contractual obligation

This Court held in Twombly that af a plaintitt 3

attempting to prove a factual allegation, fhe hould

show some evidence because, without anything to

refute, the only defense available to defendant bike

Bell Atlantic 4 lo try to prove a nepative which

requires @xpensiv discovery ‘Tha Court held in

Clonfey thatafa plaintiff is trying to prove a negative

such as nonperformance of a contract (or an Agency

disobedience to aiestatute) the defendant hould

answer the complaint because discovery. of peo

facts costs little and “the Federal Rule of Corval

Procedure do not require a claimant to set out in

detail the facts upon which he bases his claim bt)

Us. at 41-42 Showiny a set of facts (or the absence

of specie facts) sulficient to raise a nmpht to rele

above a Spe Vlative level without discovery, a hie

(court required 11) fivombly, would bivolve iita

expensive investigation that would make btiivation

unattordabl tO tine nay de ed ketlim rac

discrimination. Ike (oonley rie onl i of tact

consistent with 1, nepvatblve id) il) rie gi ]

Phu this Court decided consistently in both ¢ rede

md Jiwombly to conserve earce yudicial resour

mnnd minimize the cost of tivation Mh (ie lon

hould theredore CO-f bilerent plead

tandards for different Lypr Ol cast md shoulda not

be construed a bemyv mutuall ( buasive

‘The mability of pore bith int 1 hora

ellective representation Cannot excuss int of

constitutional Oblivatios lf meake rl (|

prot pnal judyement (hi

required in} npeber

Cortiorari should t ranted to addi Dt

fandara | r pleading aque pro ( ij3y) 1] }

iti | 1} l { ('r rit i 1) ndu

Pi, i ]

j ,

I fasts i LAY |

ff my /; Wi, j

Fk tats Pe

William 14 ie Ql

JZ harm to Market Road 4

V\PPENDID

Linited State Court of Appeal

ROR THE DISTRI rOk COLUMBIA CIRCUIT

10. OF7-1382% September Term 2007

PRAN-49USC30162

byled On \p ()()!

i iCrTal | i , ,

lt poco? | |

j '

RBEERORI

| ane I 1) RO } id f I | [ '

I} rl ud its bots

imgumeni Hl not a L Live it t! (

rdinvly, th rt Hl) clasy the petition tor

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ren Pand the ps pbiatiol 1).

’rVer Curiam

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 07-1827 September Term 2007

TRAN-49USC30162

hiled On: April 22, 2008

Wilham Lb. Trescott

Petitioner

hederal Highway Administration and Secretary

of Transportation

Respondent

PETITION FOR REVIEW FROM AN ORDER OF

THE FEDERAL HIGHWAY ADMINISTRATION

BherORE:

Henderson, Rovers, and Kavanaugh, Circuit dudge

JUDGMENT

‘his petition for review of an orde of the

Federal Highway Administration was considered on

the agency record and the briets filed by the partie

See Fed. R App. P. 34(a)(2), DLC. Cir. Rule G4q). It es

ORDERED AND ADJUDGED that the

petition be transferred to the District Court for the

District of Columbia. The petitioner seeks review of

regulations assued pursuant to the agency's

authority under 23 U.S.C. §& 127, 315 and 49 US LO

8§ B1111, 81112, and 81114. This court lacks subject

A-33

matter jurisdiction because none of these statutes

falls within those listed in the Hobbs Act, 28 U.S.C. &

2342(3)(A), and the authornty exercised by the

hederal highway Administration Wis not

transferred from the Interstate Commerce

Commission to the Department of Transportation

see Aulenback, Inc. vo FHWA, 1038 FoSd 156 (DLC

Cir. 1997) (holding that the Hobbs Act only grants

the courts of appeals exclusive jurisdiction to review

actions of Department of Transportation agencies if

the action is taken pursuant to authority that was

transferred from the Interstate Commerce

Commission); Owner-Operator Independent Drivers

Ass'n v. Pena, 996 F.2d 338% (D.C. Cir. 199%) (same).

Therefore, the petitioner must seek review in district

court pursuant to the Administrative Procedure Act,

® USC. &§ 704, under federal question jurisdiction,

28 U.S.C. § 1331

The Clerk is directed to transmit the original

file and a certified copy of this order to the United

States District Court for the District of Columbia.

Pursuant to DC.) Cir. Rule 36, this disposition will

not be published

Per Curiam

A-4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action 08-00731 (HHK)

WILLIAM B. TRESCOTT,

Plaintiff,

REDERAL HIGHWAY ADMINISTRATION

and RAY LAHOOD, Secretary, U.S. Department

of Transportation,

Defendants.

MEMORANDUM OPINION

Plaintaff Wilham B. Trescott brings this action

apainst defendants Federal Highway Administration

(RFHWA”) and Ray LaHood, US. Secretary of

Transportation (“Secretary”), (together, “defendants’”)

under the Administrative Procedure Act, 5 U.S.C. &

(04. (APA”). Trescott claims that the FHWA

promulgated certain commercial motor vehicle size

and weight regulations that) are arbitrary) and

capricious and contrary to law. See 5 U.S.C. &

TOG(2)(A). Specifically, Trescott contends that these

regulations ban certain devices and components

based on their size and weight rather than on

screntific assessments of their efficacy in reducing

Injury and highway damage, even though some of

these devices and components are permitted for

recreational vehicles. Trescott also claims that the

HWA promulgated these rules “without observance

of procedure required by law.” See 5 U.S.C. 8&8

70G(2)(D). Before the court 1s defendants motion to

dismiss [#7]. Upon consideration of the motion, the

opposition thereto, and the record of this case, the

court concludes that defendants’ motion should be

pranted

1 BACKGROUND

Congres has established an overall gro:

vehicle weight limit of 80,000 pounds, 238 U.S.C. §&

27(ay(Z), and a commercial vehicle width limit of

102 inche: 49 U.S.C. § 311138(a)(1), for federal

highways. Pursuant to its authority to promulgate

revulations concerning highway preservation and

safety and to enforee the Conyressionally-mandated

size and width hbmitations, 23 U.S.C. § 315 and 49

Gas + § 104, the MLIWA ha: promulgated

regulations restating the width, 23 C. lf R. & 658.15,

and weight, 24 ©C.F_R. §& 658.17, limitation:

Trescott is a trucker and an inventor. He hold:

five patents for certain safety devices and heavy duty

SUSPeNsion components that May Improve

commercial motor vehicle safety and reduce highway

damage. The problem is that incorporating such

devices or components into commercial motor

vehicles may cause the vehicle: to exceed the

limitations set forth in the KHWA'’s most recently

promulyated regulations governing vehicle size and

weight restrictions, Size and Weight nforcement

and Regulations, 72 led. Rey. 7741 (Geb. 20, 2007),

Which mcorporate the statutorily mandated size and

weight restrictions set forth m 23 U.S.C. & 127(a)(2)

and 49 U.S.C & S31118(a)(1). As a result, ‘Trescott

alleges that he has been deprived of the value of his

patents. Accordingly, Trescott challenges the newly

promulgated regulation:

A-G

After the FHWA had published the challenged

regulations in proposed form, defendants concede

that Trescott submitted comments criticizing the size

and weight restrictions and questioning the kHWA’s

authority to promulgate rules governing commercial

motor vehicle size and weight. (See Defs.” Mot. to

Dismiss at 3.) The final rule addressed ‘Trescott’s

comments, explaiming that the comments

“address[ed] issues that were not raised in the

NPRM, and |welre therefore outside the scope of

thie] rulemaking.” Size and Weight Inforcement and

Regulations, 72 Fed. Rep. at 7745. The final rule also

addressed Trescott’s challenge to FHWA authority,

explaimming — that it was predicated on a

misinterpretation of a provision of the Motor Carrier

Safety Improvement Act, namely 49 U.S.C. §

113()01), which, according to the FHWA, describes

the delegation of powers to the Federal Motor

Carrier Safety Administrator but does not disturb

the delegation of powers to the FHWA to promulgate

rules governing commercial motor vehicle size and

weight Size and Weight Enforcement and

Repyulations, 72 Fed. Reg. at 7745. Trescott filed a

petition for reconsideration with the FIIWA, which

he subsequently withdrew. Then, he _ filed this

petition in the U.S. Court of Appeals for the DC

Circuit. The Circuit dismissed his petition for lack of

jurisdiction and transferred the matter to this court

11. ANALYSIS

Defendants move to dismiss’ ‘Trescott’s

complamt for lack of subject matter jurisdiction

under Iederal Rule of Civil Procedure 12(b)(1) and

for failure to state a claim upon which rehef may be

granted under Federal Rule of Civil Procedure

12(b)(6). Because the court finds that defendants’

motion to dismiss under Rule 12(b)Q1) is) wholly

without merit,!' the court focuses its analysis on

defendants’ motion to dismiss under Rule 12(b)(6)

“When ruling on a motion to dismiss, a

judge must accept as true all of the factual

allegations contained in the complaint.” frickson v.

Pardus, 551 U.S. 89, 94 (2007). To survive a motion

to dismiss for failure to state a claim, the complaint’s

“TfjJactual allegations must be enough to raise a rnght

to rehef above the speculative level . . . on the

assumption that all the allegations in the complaint

are true (even if doubtful in fact).” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555) (2007) Gnternal

quotations and citations omitted). Whether to grant

“a motion to dismiss for failure to state a claim upon

which relief may be granted is a pure question of

law. Dantelsen vo. Burnside-Ott Aviation Training

Ctr., Inc., 941 F.2d 1220, 1230 (D.C. Cir. 199]).

Defendants contend that Trescott’s complaint

must be dismissed because promulgating motor

vehicle size and weight limitations falls squarely

Within the FKHWA’s authority and because the

specific limitations incorporated into the challenged

regulations are mandated by statute. Therefore,

' Detendants contend that ‘Trescott’s petition for review 1:

barred by the six-year statute of limitations for civil suits

against the United States because ‘Trescott seeks to challenge

commercial motor vehicle size and weight restrictions that

have been in place since 1984. See 28 U.S.C. §& 2401(a); Harris

Vv. KAA, 355 FSd 1006, 1009-10 (D.C. Cir. 2004). The court

disagrees. ‘Trescott plainly is challenging a final rule that wa:

promulgated an 2007. Size and Weight Knforcement sand

Regulations, 72 Fed. Rep. 7741. Thus, his petition falls within

the six-year limitations period

A-&

according to defendants, the FHWA has authority

neither to deviate from the statutory standards nor

to grant an exception for the inventions for which

‘Trescott holds patents ‘Trescott counters that

Congress has provided exemptions to these size and

weight limitations for safety devices, such as side-

view mirrors, 49 U.S.C. § 31113(b), and that

Congress has provided a procedure for changing

regulations for safety reasons, 49 U.S.C. & 380162

Trescott farther contends that the real question 1s

Whether the FIIWA has followed proper procedures

to exempt modern safety devices like the ones he has

invented. Defendants rejoin that ‘Trescott has not

and indeed cannot poimt to any statutory provision

that empowers the FHWA to modify the statutory

size and weight restrictions. To the extent that the

hHWA is empowered to make exceptions for “safety

and energy conservation devices,” 49 U.S.C. &&§

Sl111(d) and 31118(b), defendants contend that

these provisions do not contemplate the exclusion of

an entire vehicle, which is what Treseott has

invented. Finally, defendants point out that Trescott

has identified no action on the part of the FHWA

that was procedurally incorrect and thus in violation

ol the APA

To survive defendants motion to dismiss

Trescott must have alleged sufficient facts to raise a

claim taat the FHWA’s actions were arbitrary and

capricious or otherwise contrary to law, 5 U.S.C. &

TOG(2)(a), or without observance of procedure

required by law, il & 706(2)(d), above the

speculative level. See Twombly, 550 WS. at 555

TrescotUs complaint, however, contains essentially

no factual allegations: he does not allege that the

KMHWA failed to respond to the comments he

submitted in connection with the rulemaking; nor

A-9

does he allege that there was information before the

PHWA that it failed to consider. See Motor Vehicle

Mfrs. Assn vu. State Farm Mut. Auto. Ins. Co., 463

UES. 29, 48 (19838) CJAJn agency rule fis] arbitrary

and capricious if the ageney has relied on factors

Which Congress has not intended it to consider,

entirely failed to consider an important aspect of the

problem, offered an explanation of its decision that

runs counter to the evidence before the agency, or 1:

so implausible that it could not be ascribed to a

difference in view or the product of apency

expertise.’). Likewise, ‘Trescott has not alleged what

achions, af any, the FHWA took which were

inconsistent with procedure required by law

Absent such allegations, the court cannot find that

Treseott has raised a right to rehef above the

speculative level. See id. Accordingly, his complaint

must be dismissed. See id. In any event, the court

agrees with defendants that the FHWA has the

authority to promulgate the challenged regulations,

including the size and weight restrictions thereim

See 23 U.S.C. § 315; 49 U.S.C. § 104. The court also

agrees with defendants that the FHWA lacks the

power to modify these statutorily-mandated size and

? Although ‘Treseott suggests in his opposition brief that he may

have filed a petition under 49 WSC. § SO1GZ asking the

secretary to promulyate a standard that would allow for bis:

mventions, Trescott has limited this action to asking the court

to set aside an FHWA | regulation size and Weight

enforcement and Regulations, 72 Ked. Rep. 7741, as “arbitrary

and capricious for} contrary to law’ or “promulgated ‘without

observance of procedure required by law (Pl’s Certificate of

Counsel at 2-4.) Prescott does not challenge the Secretary’:

purported — faslure fo respond to tu putative petition

Accordingly that issue is not before the court

weight restriction: See 23 U-.s.( & 127(a)(2); 49

U.S.C. §& 381118@a)01). Finally, the court generally

reyects the arguments in Trescott’s opposition brief

because they are irrelevant to the question = of

whether the factual allegations in his complaint are

sufficient to raise a nght to rehef above the

Sper ulative level. See Twombly, 550 U.S. at 555

Hl. CONCLUSION

lor the foregoing reasons, the court finds no

basis to hold unlawful or set aside the agency action

at assue. Accordingly, the court’ concludes that

defendants motion to dismiss [#7] must be

GRANTED. An appropriate order accompanies thi

Memorandum Opinion

Hienry H. Kennedy, Jr

UJnited States District Judge

SUDGMENT

Pursuant to red. Ro Civ. Po 120b)(6) and for the

reason tated by the court in itS memorandum

opinion docketed this same day, it is this &th day of

June ZOO9. hereby

ORDERED and ADJUDGED that judgment

is entered in favor of defendant:

Henry H. Kennedy, dr

lJnited States District Court

\-]]

United States Court of Appeals

rOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 09-5280 September ‘Term 2009

1:08%-cv-00731-HHK

killed On: December 9, 2009

William BB. Treseott

Appellant

Vv

federal Highway Administration and Secretary o

‘Transportation

Appellee

BEFORE:

(rarland, Brown, and WKWavanaugh, Circuit Judge

ORDER

[(Jpon consideration of the motion for summary

affirmance, the response thereto, and the reply; the

motion for summary reversal, the response thereto

and the reply and the motion to ¢ xpedite il J

QRDERED that the motion for summary

affirmance be granted and the motion for summary

reversal be demed. The merit of the partie:

positions are so clear as to warrant Summary action

see Taxpayers Watchdog, Inc. v. Stanley, 819 I*.2d

294, 297 (D.C. Cir. 1987) (per curiam). Appellant ha:

not demonstrated that the Iederal Highway

Administrations Size and Weight lnforcement and

Regulations, 72 Fed. Reg. 7741 GUteb. 20, 2007), arc

“arbitrary, caprmc@ious, an abuse of discretion, 061

otherwise not in accordance with law,” 5 U.S.C. &

TOO(ZV(A), or that the Administration lacks” the

authority to promulgate the regulation: ee 23

\-j2Z

USC. § 315: 49 USC. § 104: 49 CER. § 1.48(b)()

9 C.F_R. § 1.73(2); 72 Fed. Reg. at 7745-46. To the

extent the final rule is related to velucle size and

mn accordance with the

statutorily prescribed — limit: See 23 U.S.C. §

127(a)(2); 49 U.S.C. § 381113(@a)01). Nor has appellant

‘

weight restrictions, it 1

shown that the agency failed to comply with the

Admini: trative Procedures Acts notice and comment

requirements. See 5 U.S.C. § 553(b)

Pursuant to D.C Circuit Kule S86 this

disposition will not be published. The Clerk 1s

directed to withhold issuance of the mandate herein

until seven days after resolution of any timely

petition for rehearing or petition for rehearing en

banc. See Fed. R. App. P. 410d); DLC. Cir. Rule 4]

Per Curiam

Filed On: March 9, 2O1O

BerORTE: Sentelle, Chief Judge, and

Gansburg, Henderson, Kogers, Tatel,Garland, Brown

Griffith, and Kavanaugh, Circuit Judge:

ORDER

Upon consideration of the petition — for

rehearmy en banc, and the absence of a request by

anv member of the court for a vote, 111

ORDERED that the petition be denied

Per Curiam