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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 832

## Text

= 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)

iA TeEer tz 2 tl romeo

Po. JO7 C1982) » ovrea, 20, 20

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UI). S.C. & 185038(b)(1)

U..C. &§ LBd06(a)(11) |

U.S.C. § 30162(d) ls
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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

Wilhout ral arvument Lth byes t th
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1994%3A1. Public record. Not legal advice.