Flat Creek Transportation, Llc v. Federal Motor Carrier Safety Administration et al

BRIEF/MEMORANDUM in Support re MOTION to Dismiss for Lack of Jurisdiction

M.D. Ala.February 15, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION FLAT CREEK TRANSPORTATION, LLC, ) ) Plaintiff, ) ) CIVIL ACTION NO.: 1:16-CV-876-TFM v. ) ) FEDERAL MOTOR CARRIER SAFETY ) ADMINISTRATION, et al., ) ) Defendants. ) DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION COME NOW Defendants, the Federal Motor Carrier Safety Administration (FMCSA), and Secretary of Transportation Elaine L. Chao1 and FMCSA Alabama Division Administrator Kenneth Price in their official capacities, by and through George L. Beck, Jr., United States Attorney for the Middle District of Alabama, and submit this memorandum in support of their motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. INTRODUCTION Plaintiff, Flat Creek Transportation, LLC, (“Flat Creek”) is a commercial trucking company that operates in interstate commerce and is subject to regulation by the Federal Motor Carrier Safety Administration (“FMCSA” or “the Agency”). Compl. ¶ 16. Plaintiff brings Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., claims against the FMCSA, the Secretary of Transportation, and the FMCSA’s Alabama Division Administrator seeking to enjoin anticipated future FMCSA safety inspections and possible regulatory sanctions. Compl. 1 On January 31, 2017, Elaine L. Chao was confirmed as the Secretary of Transportation. Pursuant to Federal Rule of Civil Procedure 25(d), Secretary Chao is automatically substituted for Secretary Anthony R. Foxx as a defendant in this case. Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 1 of 15 2 §§ 52, 59. Plaintiff’s claims fail because (1) Flat Creek lacks Article III standing because it has not suffered an "injury-in-fact," (2) there is no final agency action, (3) plaintiff has an adequate remedy in the Court of Appeals which has exclusive jurisdiction under the Hobbs Act, 28 U.S.C. § 2342(3)(A) and 49 U.S.C. § 521(9), and (4) plaintiff seeks an improper "obey the law" injunction. Accordingly, plaintiff's claims are due to be dismissed for lack of subject-matter jurisdiction. LEGAL STANDARD This is a facial attack on subject-matter jurisdiction under Rule 12(b)(1). The Court should accept the well-pleaded facts in plaintiff’s complaint as true in determining whether it has subject-matter jurisdiction. Hughes v. United States, 110 F.3d 765, 767 n. 1 (11th Cir. 1997). See generally, Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)(explaining difference between facial and factual attack on subject-matter jurisdiction). The Court should not accept plaintiff’s legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 681 (“the conclusory nature of respondent’s allegations . . . disentitles them to the presumption of truth); Butler v. Sukhoi Co., 579 F.3d 1307, 1313-14 (11th Cir. 2009). THE REGULATORY SCHEME Commercial trucking is a pervasively regulated industry, Owner-Operator Independent Drivers Assoc. v. United States Dept. of Transp., 840 F.3d 879, 893 (7th Cir. 2016); United States v. Delgado, 545 F.3d 1195, 1201-02 (9th Cir. 2008)(collecting cases), and anyone who “embarks upon such a business . . . has voluntarily chosen to subject himself to a full arsenal of governmental regulations.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978). Congress requires the Secretary of Transportation (the “Secretary”) to “determine whether an owner or operator is fit to operate safely commercial motor vehicles, utilizing among other things . . . the Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 2 of 15 3 accident record and safety inspection record of such owner or operator[,]” and to “maintain by regulation a procedure for determining the safety fitness of an owner or operator.” 49 U.S.C. §§ 31144 (a)(1) & (b). The Secretary has delegated these responsibilities to the FMCSA, 49 C.F.R. § 1.87(f), an operating administration of the Department of Transportation created by Congress with “maintenance of safety as the highest priority[.]” 49 U.S.C. § 113(a) & (b). See generally, Silverado Stages, Inc. v. FMCSA, 809 F.3d 1268, 1270 (D.C. Cir. 2016)(explaining regulatory scheme); TransAm Trucking, Inc. v. FMCSA, 808 F.3d 1205, 1207 (10th Cir. 2015)(same); Multistar Industries, Inc. v. DOT, 707 F.3d 1045, 1048-1050 (9th Cir. 2013)(same). Congress has granted the FMCSA broad authority to investigate owners and operators of commercial motor vehicles to ensure that they are safe to operate on the nation’s roadways, see, e.g., 49 U.S.C. §§ 502, 506, 31134, 31143, 31142, and has directed the Agency to determine whether an owner or operator is fit to operate and to periodically update such safety fitness determinations. 49 U.S.C. § 31144. The FMCSA has developed a safety fitness rating methodology to comply with this mandate that is contained in 49 C.F.R Pt. 385 & Pt. 385, App. B. The Agency is authorized to conduct an investigation, referred to as a compliance review, of a motor carrier’s operations to evaluate its safety fitness as measured by the safety fitness rating methodology. 49 C.F.R. § 385.3. Congress has given the FMCSA broad discretion to determine when and under what circumstances to conduct a compliance review or other investigation. A compliance review is an in-depth, on-site examination of the carrier’s operations that examines the motor carrier’s compliance with the applicable Federal Motor Carrier Safety Regulations (“FMCSR”), 49 C.F.R. §§ 350-399, the Federal Hazardous Materials Regulations (“HMRs”), vehicle performance, and crash history. 49 C.F.R. § 385.3; 385.7, Pt. Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 3 of 15 4 385 App. B, § I (b). FMCSA’s investigation thoroughly examines documents such as those contained in driver qualification files, records of duty status, and vehicle maintenance records. 49 C.F.R. Pt. 385 App. B, § I (b). Performance-based information, when available, is used to evaluate the carrier’s compliance with vehicle regulations, and reportable accident information is also collected. Inspectors also determine whether the carrier is complying with drug and alcohol testing requirements found in 49 C.F.R. Part 382. As a result of an investigation, a motor carrier may receive a proposed safety rating of Unsatisfactory, Conditional, or Satisfactory. 49 CFR § 385.3. The carrier’s safety rating is calculated using a mathematical formula based upon the number and type of violations discovered and other factors. 49 C.F.R. Pt. 385, App. B § II (setting forth methodology for converting compliance review information into safety rating); Multistar Industries, 707 F.3d at 1048-49 (explaining calculation of safety rating). The FMCSA is required to provide a carrier with written notice of its safety rating within 30 days of a compliance review. 49 C.F.R. § 385.11(a). Unsatisfactory and Conditional ratings become final in 60 days if they are not upgraded or overturned. 49 C.F.R. § 385.11(c). A carrier may seek administrative review of a proposed Unsatisfactory or Conditional safety rating by FMCSA’s Chief Safety Officer to determine if an error was committed in assigning the safety rating. 49 C.F.R. § 385.15. The Chief Safety Officer is required to issue a written decision that constitutes final agency action. 49 C.F.R. § 385.15 (e)-(f). The carrier has the right to seek judicial review of the final safety rating in the Court of Appeals pursuant to the Hobbs Act, 28 U.S.C. § 2342(3)(A). See Chhetri v. United States, 823 F.3d 577, 585 (11th Cir. 2016). Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 4 of 15 5 A carrier may also take corrective action and request an upgrade of a proposed or final safety rating based on the corrective action taken. 49 C.F.R. §§ 385.11(f), 385.17. The carrier has the right to administrative review if the Agency denies its upgrade request, 49 C.F.R. § 385.17(j), and is entitled to judicial review in the Court of Appeals of the Agency's final denial of an upgrade request. 28 U.S.C. § 2342(3)(A). FMCSA’s initiation of a compliance review is not a prerequisite to the issuance of an imminent hazard order. If the FMCSA determines that a violation or combination of violations poses an imminent hazard to safety, it may order a vehicle or an employee operating the vehicle out of service, or order an employer to cease all or part of its operations. 49 U.S.C. § 521 (b)(5)(A); 49 C.F.R. § 386.72(b)(1). An imminent hazard means any condition of a vehicle, employee, or operations that substantially increases the likelihood of serious injury or death if not discontinued immediately. 49 U.S.C. § 521 (b)(5)(B); 49 C.F.R. § 386.72(a). Any such out- of-service order must be narrowly tailored and impose no restriction beyond that required to abate the hazard. 49 U.S.C. § 521 (b)(5)(A); 49 C.F.R. § 386.72(b)(1). Imminent hazard orders are subject to expedited administrative review within 10 days of issuance and, following the administrative review, are subject to judicial review in the appropriate Court of Appeals. 49 U.S.C. § 521 (b)(5)(A),(9); DND Internat’l, Inc. v. FMCSA, 843 F.3d 1153, 1156-57 (7th Cir. 2016)(explaining administrative and judicial review scheme for out-of-service orders). PLAINTIFF’S CLAIM The gravamen of plaintiff’s 33-page complaint is found in paragraphs 52 and 59. Flat Creek alleges that it believes that an FMCSA compliance review is imminent and that FMCSA will use the compliance review to falsely charge it with regulatory violations that pose an Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 5 of 15 6 imminent hazard to safety and order it to cease operations and also impose civil penalties for the falsely charged violations. Compl. ¶¶ 52 & 59. Plaintiff alleges that such future action would be arbitrary, capricious, ultra vires and in violation of its due process rights. Plaintiff brings APA claims seeking an order enjoining defendants from conducting any future compliance reviews or other enforcement actions of any kind against Flat Creek. See, e.g., Compl. ¶ 66(F), page 31 (E). Essentially, Flat Creek asks this Court to absolve them from the pervasive regulatory scheme governing safety in commercial trucking. FACTS Flat Creek is a commercial motor carrier that operates approximately 90 trucks in interstate commerce and is subject to regulation by the FMCSA. Compl. ¶ 16. FMCSA has performed compliance reviews of Flat Creek in April 2006, February 2008, October 2008, and June 2015. Id. ¶¶ 15, 16. In each of these past compliance reviews, Flat Creek received a satisfactory safety rating, the highest possible rating. Id. ¶ 52. ARGUMENT I. Plaintiff Lacks Article III Standing. As an initial matter, this Court lacks subject-matter jurisdiction because Flat Creek has not suffered an "injury-in-fact" and therefore lacks Article III standing. Article III of the Constitution limits federal court jurisdiction to actual cases and controversies. U.S. Const., Art III, § 2. Standing, and the closely-related doctrine of ripeness, are grounded in the case-or- controversy requirement. Susan B. Anthony List v. Driehaus, __U.S.__, 134 S.Ct. 2334, 2341 (2014); Kelly v. Harris, 331 F.3d 817, 819 (11th Cir. 2003). "The party invoking federal jurisdiction bears the burden of establishing standing," and "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof[.]” Susan B. Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 6 of 15 7 Anthony List, 134 S.Ct. at 2342 (internal quotes and citations omitted). In order to establish Article III standing, the plaintiff must show (1) an injury in fact, (2) a causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. Id. at 2341. The Eleventh Circuit instructs that "[t]hese requirements are the irreducible minimum required by the Constitution for a plaintiff to proceed in federal court." Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)(internal quotes and citation omitted). Moreover, "because injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges a real and immediate as opposed to a merely conjectural or hypothetical threat of future injury." Id. (emphasis original). See also, Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013)(holding same); Eland v. Basham, 471 F.3d 1199, 1205 (11th Cir. 2006)("whether this case is examined through the prism of standing or ripeness, it can be distilled to a single question: whether the Plaintiffs have sufficiently alleged an imminent and concrete threat of future injury . . ."). Plaintiff here seeks a preenforcement injunction preventing the FMCSA from conducting a compliance review or pursuing enforcement action of any sort. The Supreme Court explains that a plaintiff seeking preenforcement review may only satisfy Article III's injury-in-fact requirement when it "'has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.'" Susan B. Anthony List, 134 S.Ct. at 2342 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). Plaintiff's claim here does not satisfy this straightforward test. Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 7 of 15 8 Plaintiff does not allege that it is engaging in or plans to engage in conduct that violates an FMCSA statute or regulation, but that is constitutionally protected, and that FMCSA will enforce the unconstitutional statute or regulation in a compliance review. In fact, plaintiff does not challenge the legality of the FMCSA enforcement regime in any way. Rather, plaintiff alleges that FMCSA has an "improper and ongoing [sic] prejudice against Patterson, Sr. and Flat Creek[,]" Compl. ¶ 58, and "the CR will operate as a pretext for the FMCSA's real purpose of fabricating regulatory violations upon which its agents can be expected to issue [an operations out of service] Order for the further illegal purpose of terminating Flat Creek's operations[.]" Compl. ¶ 59. See also, Compl. ¶¶ 52, 57. In other words, plaintiff alleges that FMCSA is out to get Flat Creek and may use the facially constitutional compliance review process improperly at some point in the future to put Flat Creek out of business. These entirely conjectural and conclusory allegations of bad motive are entitled to no presumption of truth and are insufficient as a matter of law to support a preenforcement injunction against the FMCSA. Susan B. Anthony List, 134 S.Ct. at 2342-43. Accordingly, because plaintiff has not alleged facts sufficient to demonstrate that it has or will suffer a concrete injury-in-fact, it has failed to carry its burden of establishing Article III standing, and this Court lacks subject-matter jurisdiction. II. This Court Lacks Subject-Matter Jurisdiction Because There is no Final Agency Action and There is an Adequate and Exclusive Remedy in the Court of Appeals. Plaintiff brings claims against the FMCSA and Secretary of Transportation Elaine L. Chao and FMCSA Alabama Division Administrator Kenneth Price in their official capacities. Compl. (Doc. # ) && 6, 7, 8. An official-capacity claim is simply another way of pleading a claim against the official’s employing agency. Kentucky v. Graham, 473 U.S. 159, 165-166 Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 8 of 15 9 (1985). The United States, its agencies, and their employees in their official capacities are all immune from suit except to the extent that Congress has waived their sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994); Asociacion De Empleados Del Area Canalera (ASEDAC) v. Panama Canal Commission, 453 F.3d 1309, 1315 (11th Cir. 2006). Waivers of sovereign immunity must be unequivocally expressed in clear statutory text and their scope must be strictly construed in favor of the sovereign. Lane v. Pena, 518 U.S. 187, 192 (1996). Sovereign immunity is jurisdictional, and the terms and conditions of a waiver of sovereign immunity delineate the Court’s subject-matter jurisdiction. Meyer, 510 U.S. at 475. Plaintiff bears the burden of establishing this Court’s subject-matter jurisdiction and must prove that a waiver of sovereign immunity covers its claims. OSI v. United States, 285 F.3d 947, 951 (11th Cir. 2002). A. There is no Final Agency Action. The only waiver of sovereign immunity that plaintiff invokes is the APA.2 Compl. ¶¶ 2, 9, 10. The APA is a limited waiver of sovereign immunity that makes “final agency action for which there is no other adequate remedy in a court [] subject to judicial review.” 5 U.S.C. § 704 (emphasis added)(quoted in Compl. ¶ 10). See generally, Dept. of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). The APA’s “final agency action” requirement is jurisdictional. LabMD, Inc. v. Federal Trade Commission, 776 F.3d 1275, 1278-1280 (11th Cir. 2015); National Parks Conservation Assoc. v. Norton, 324 F.3d 1229, 1240 (11th Cir. 2003). To be final, agency action must satisfy the two-part test articulated by the Supreme Court 2 Plaintiff also cites the Declaratory Judgment Act (“DJA”), 28 U.S.C. §§ 2201-2202, Compl. ¶ 1, but the DJA is procedural only and is not a waiver of sovereign immunity. Household Bank v. JFS Group, 320 F.3d 1249, 1253 (11th Cir. 2003); Weeks v. Housing Authority of Opp. Ala., 887 F. Supp.2d 1232, 1236 (M.D. Ala. 2012). Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 9 of 15 10 in Bennett v. Spear, 520 U.S. 154, 177-178 (1997). “’First, the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.’” LabMD, Inc., 776 F.3d at 1278 (quoting Bennett, 520 U.S. at 177-178). Plaintiff’s claims here clearly fail the finality test because Flat Creek seeks a pre-enforcement injunction against anticipated future agency enforcement action that has not even started, let alone been completed. See, Compl. ¶¶ 52, 59. If plaintiff were to receive a less than Satisfactory safety rating, a civil penalty assessment or a possible imminent hazard order, it has the right to challenge any of these actions through the Agency administrative process and then to the appropriate Court of Appeals. The Eleventh Circuit’s recent opinion in LabMD, 776 F.3d at 1278-1280, is directly on point and precludes Flat Creek’s claims here. In LabMD, the Federal Trade Commission (FTC) initiated an investigation of an Atlanta-based medical lab when it discovered that the lab’s patient files were available on a peer-to-peer file-sharing network. Id. at 1277. After a three- year investigation and shortly after the lab’s CEO published an online criticism of the FTC, the agency filed an administrative complaint alleging that the lab had violated the FTC Act by failing to prevent unauthorized access to patient information. Id. The lab moved to dismiss the complaint, and the FTC denied the motion. Id. Ultimately, the lab filed suit in district court arguing that the FTC’s enforcement action violated the APA, was ultra vires, and was unconstitutional. Id. at 1278. The district court dismissed the lab’s claim for lack of subject-matter jurisdiction because there was no final agency action subject to judicial review, and the Eleventh Circuit affirmed. Id. The Eleventh Circuit explained that the FTC’s administrative complaint and order denying the lab’s motion to Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 10 of 15 11 dismiss were not final agency actions within the meaning of the APA because they did not mark the completion of the enforcement action. Id. See also FTC v. Standard Oil Co. of California, 449 U.S. 232, 242-43 (1980). Rather, they were interlocutory steps that allowed the FTC’s enforcement action to proceed to its ultimate conclusion in a later, final order. Id. The lab argued that “the filing of an FTC complaint almost certainly leads to a cease-and- desist order,” but the Eleventh Circuit held that even “high odds of a cease-and-desist order do not advance our ability to review the FTC actions. It is the nature of the action we must consider, and the Complaint and Order do not finally decide these issues.” Id. Plaintiff’s claims here are even more attenuated than those the Eleventh Circuit rejected in LabMD. Plaintiff has not identified any final agency action in its lengthy complaint. Rather, Flat Creek seeks to enjoin anticipated future FMCSA enforcement actions that have not occurred. Plaintiff asserts that the FMCSA is planning an unannounced compliance review that will be used “as a pretext to arbitrarily and improperly charge Flat Creek with false regulatory violations of a critical and/or acute nature, upon which the FMCSA agents may further issue an ‘operations out-of-service’ order (OOS Order) premised on a false charge that Flat Creek’s operation poses an ‘imminent hazard’ to the motoring public.” Compl. ¶ 52. See also, Compl. ¶ 59 (making same allegations). Even if the Agency were to commence an enforcement action at some point in the future, mere initiation of such an action does not constitute final agency action, and plaintiff must wait for the completion of any enforcement action before seeking judicial review. LabMD, 776 F.3d at 1278-80. B. There is an Adequate and Exclusive Remedy in the Court of Appeals. Plaintiff's claim also fails because the hypothetical future agency actions that it asks this Court to enjoin are all subject to judicial review in the Court of Appeals which enjoys exclusive Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 11 of 15 12 jurisdiction over these matters. By its plain terms, APA review is limited to final agency actions "for which there is no other adequate remedy in a court [.]" 5 U.S.C. § 704 (emphasis added). Plaintiff here seeks to challenge a hypothetical safety rating, imminent hazard order, and civil penalty action that the FMCSA might issue at some point in the future. Compl. ¶¶ 52, 59. These actions are subject to judicial review in the Court of Appeals pursuant to the Hobbs Act, 28 U.S.C. § 2342(3)(A), and 49 U.S.C. § 521(9). See Chhetri, 823 F.3d at 585.3 "Where statutory review is available in the Court of Appeals it will rarely be inadequate." Telecommunications Research and Action Center (TRAC) v. FCC, 750 F.2d 70, 78 (D.C. Cir. 1984). Imminent hazard orders are issued pursuant to the civil penalty provisions of 49 U.S.C. § 521(5)(A) that authorize the Secretary to order a carrier to cease all or part of the carrier’s commercial motor vehicle operations upon a determination that a violation or combination of violations poses an imminent hazard to safety. Such orders are subject to expedited administrative review within ten days of issuance in accordance with 5 U.S.C. § 554. Id. Thereafter, a carrier who is adversely affected by a final imminent hazard order may seek judicial review in the appropriate United States Court of Appeals. 49 U.S.C. § 521(9); DND Internat’l, Inc, 843 F.3d at 1156-57(explaining administrative and judicial review scheme for out-of-service orders). A carrier can also receive an out-of-service order if a proposed unsatisfactory safety rating becomes final. 49 C.F.R. § 385.13(d)(1). Any such final safety rating, like all FMCSA final orders, is subject to judicial review in the Court of Appeals pursuant to the Hobbs Act. 28 U.S.C. § 2342(3)(A); Chhetri, 823 F.3d at 585. 3 Plaintiff must first exhaust any administrative remedies before seeking judicial review in the Courts of Appeals. See, e.g., Woodford v. Ngo, 548 U.S. 81, 88 (2006)(doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law). Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 12 of 15 13 The Eleventh Circuit instructs that in addition to APA claims "all constitutional claims must [also] be funneled through the direct-appeal process after a final agency action if that is the scheme created by Congress." LabMD, 776 F.3d at 1279. Plaintiff cannot avoid a statutory direct-appeal process by rushing to the district court for an injunction preventing the very agency action that would set the process in motion. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-216 (1994)(rejecting preenforcement district court challenge to anticipated Mine safety and Health Administration enforcement action); LabMD, 776 F.3d at 1279; Doe v. FAA, 432 F.3d 1259, 1262-1263 (11th Cir. 2005)(rejecting preenforcement district court challenge to anticipated FAA enforcement action). Accordingly, because Plaintiff has an adequate and excluisive judicial remedy upon final agency action in the Court of Appeals, this Court lacks subject-matter jurisdiction. Moreover, Congress's grant of exclusive jurisdiction to the Court of Appeals strips this Court of subject-matter jurisdiction. Kabeller v. Busey, 999 F.2d 1417, 1421 (11th Cir. 1993)("'it is well settled that if Congress . . . specifically designates a forum for judicial review of administrative action, that forum is exclusive'")(quoting Drummond Coal Co. v. Watt, 735 F.2d 469, 475 (11th Cir. 1984)); TRAC, 750 F.2d at 77 (holding that by “lodging review of agency action in the Court of Appeals, Congress manifest[s] an intent that the appellate court exercise sole jurisdiction over the class of claims covered by the statutory grant of review power”). Pursuant to the Hobbs Act, “[t]he court of appeals…has exclusive jurisdiction to enjoin, set aside, suspend [], or to determine the validity of…all rules, regulations, or final orders of the Secretary of Transportation issued pursuant to…part B or C of subtitle IV, subchapter III of chapter 311, chapter 313, or chapter 315 of title 49.” 28 U.S.C. § 2342(3)(A). Here, Plaintiff seeks to challenge FMCSA’s authority to regulate commercial motor vehicle safety, set forth in Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 13 of 15 14 subchapter III of chapter 311, chapter 313, and chapter 315 of title 49, which falls squarely within the exclusive jurisdiction vested by Congress in the courts of appeals. III. Plaintiff Requests an Improper "Obey the Law" Injunction. Finally, plaintiff's requested relief runs afoul of the Eleventh Circuit's admonition that it "will not countenance injunctions that merely require someone to 'obey the law.'" Hughey v. JMS Development Corp., 78 F.3d 1523, 1531 (11th Cir. 1996). Plaintiff seeks an injunction precluding the FMCSA from initiating any enforcement action "which are or would be ultra vires in nature, and/or would fail to comply or comport with applicable governing statutes, rules and regulations, and would instead be intended by Defendants to illegally harass, abuse, harm, and/or irreparably injure plaintiff[.]" Compl. page 31 ¶ E. This is a classic "obey the law" injunction that fails to put defendants on notice of exactly what conduct is prohibited and is unenforceable. Id.; S.E.C. v. Sky Way Global, LLC, 710 F.Supp.2d 1274 (M.D. Fla. 2010). CONCLUSION For all of the above reasons, plaintiff’s cause of action against defendants the Federal Motor Carrier Safety Administration (FMCSA), and Secretary of Transportation Elaine L. Chao and FMCSA Alabama Division Administrator Kenneth Price in their official capacities should be dismissed in its entirety for lack of subject-matter jurisdiction. Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 14 of 15 15 Respectfully submitted this 15th day of February, 2017. GEORGE L. BECK, JR. United States Attorney By: /s/Stephen M. Doyle STEPHEN M. DOYLE Chief, Civil Division Assistant United States Attorney Post Office Box 197 Montgomery, AL 36101-0197 Telephone No.: (334) 223-7280 Facsimile No.: (334) 223-7418 E-mail: stephen.doyle@usdoj.gov Attorney for Defendants FMCSA, Secretary of Transp. Elaine L. Chao, and FMCSA Administrator Kenneth Price CERTIFICATE OF SERVICE I hereby certify that on February 15, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to counsel of record Jeremy P. Taylor, Esq., and James F. Noble, III, Esq. /s/Stephen M. Doyle Assistant United States Attorney Case 1:16-cv-00876-TFM Document 20 Filed 02/15/17 Page 15 of 15