Intermodal Technologies, Inc. v. Mineta

• Decision Date: 07 February 2006
• Docket Number: No. 05-10204-BC.,05-10204-BC.
• Citation: 413 F.Supp.2d 834
• Parties: INTERMODAL TECHNOLOGIES, INC., Plaintiff, v. Norman Y. MINETA, in his capacity as Secretary of Transportation, and Jacqueline Glassman, in her capacity as Acting Administrator of the National Highway Traffic Safety Administration, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

413 F.Supp.2d 834

INTERMODAL TECHNOLOGIES, INC., Plaintiff, v. Norman Y. MINETA, in his capacity as Secretary of Transportation, and Jacqueline Glassman, in her capacity as Acting Administrator of the National Highway Traffic Safety Administration, Defendants.

No. 05-10204-BC.

United States District Court, E.D. Michigan, Northern Division.

February 7, 2006.

COPYRIGHT MATERIAL OMITTED

Daniel L. Pulter, Daniel L. Pulter PLLC, East Lansing, MI, for Plaintiff.

James A. Brunson, U.S. Attorney's Office, Bay City, MI, for Defendants.

OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND SETTING CALENDAR DATES

LAWSON, District Judge.

This case represents the latest effort by William Washington to gain approval for the truck braking system he invented, the MSQR 5000®. In June 2001, the acting chief counsel for the National Highway Traffic and Safety Administration (NHTSA) posted a letter on the agency's website expressing the opinion that the MSQR 5000® would not meet a certain Federal Motor Vehicle Safety Standard (FMVSS) pertaining to anti-lock braking systems (ABS). Washington's company filed suit in this Court, but that matter was dismissed because the Court concluded that the letter did not constitute final agency action. See Air Brake Systems, Inc. v. Mineta, 202 F.Supp.2d 705 (E.D.Mich.2002). On appeal, the Sixth Circuit affirmed but observed that the plaintiff was not without a remedy: "the company remains free to petition NHTSA to alter Standard 121 under the agency's rulemaking powers. 49 C.F.R. § 552.3(a) (`Any interested party may file with the Administrator a petition requesting him ... [t]o commence a proceeding respecting the issuance, amendment or revocation of a motor vehicle safety standard.'). The denial of such a petition, notably, would be a final reviewable order." Air Brake Systems, Inc. v. Mineta, 357 F.3d 632, 646 (6th Cir.2004). The company filed such a petition, but the agency has not yet decided it. The plaintiff has filed the present complaint seeking a writ of mandamus directing NHTSA to decide its exemption petition. The defendants have filed a motion to dismiss, to which the plaintiff has responded. The Court heard argument from counsel for the parties on January 3, 2006, and now determines that the motion must be denied because the defendants have a duty to decide the plaintiff's application within a reasonable time, although, of course, the choice of whether to grant or deny the petition lies within the defendants' discretion.

I.

William Washington is the principal owner of the plaintiff in this case, Intermodal Technologies, Inc., which has filed this mandamus action pursuant to 28 U.S.C. § 1361. The plaintiff seeks a ruling by this Court to force the defendants, the Secretary of Transportation and the Administrator of NHTSA, to either grant or deny its petition for an exemption from certain safety standards promulgated by NHTSA. The plaintiff manufactures truck trailers that are required under the National Traffic Motor Vehicle Safety Act, 49 U.S.C. § 30101 et seq., and implementing regulations to be equipped with anti-lock breaks that have certain warning features. See 49 C.F.R. § 571.121. The plaintiff has chosen to outfit its trailers with a nonelectronic, pneumatic airbrake system for trucks and trailers called the MSQR 5000® made by Air Brake Systems, Inc. Air Brake Systems also is owned by Washington.

In prior litigation in this Court, Air Brake Systems challenged opinion letters written by NHTSA's acting chief counsel. See Air Brake Systems, 202 F.Supp.2d at 705. According to the complaint filed in this case, the chief counsel "opined [in the letters] that the MSQR-5000® does not satisfy the warning signal requirements of [Federal Motor Vehicle Safety Standard 121] due to the fact that there are no warning signals installed on the exterior of the truck trailer." Compl. at ¶ 15. This Court found that the opinion letters, one of which was posted on NHTSA's website, did not constitute final agency action and therefore could not be reviewed under the Administrative Procedures Act. Id. at 712-14.

As noted above, the Sixth Circuit affirmed. Air Brake Systems, 357 F.3d at 632. The gist of Air Brake System's arguments both in this Court and on appeal was that NHTSA effectively has decided that the company's brakes do not meet federal standards and has announced that decision to potential buyers of the brakes, leaving it no possibility to sell its brakes and no mechanism by which to challenge the agency's action. The result, the company stated, was a "Catch 22." Id. at 645. The court of appeals rejected that contention and noted that section 30113 of the Act permitted the company to seek an exemption from Safety Standard 121:

In all events, Air Brake errs in suggesting it has no other options. The company remains free to show the market its confidence in the product by agreeing to indemnify a prospective manufacturer against the costs of defending any potential NHTSA action. And more importantly (and perhaps more realistically for smaller companies), the company remains free to petition NHTSA to alter Standard 121 under the agency's rulemaking powers. 49 C.F.R. § 552.3(a) ("Any interested party may file with the Administrator a petition requesting him ... [t]o commence a proceeding respecting the issuance, amendment or revocation of a motor vehicle safety standard."). The denial of such a petition, notably, would be a final reviewable order.

Id. at 645-46. Washington, through plaintiff Intermodal Technologies, heeded the Sixth Circuit's advice, and on January 26, 2004, it filed a petition for an exemption.

As noted, section 30113 of the Safety Act authorizes the Secretary of Transportation to grant exemptions to safety standards "on a temporary basis ... on terms the Secretary considers appropriate." 39 U.S.C. § 30113(1). The agency also has promulgated regulations governing the handling of petitions. See 49 C.F.R. § 555.7.

Although a petition conforming to the administrative regulation was submitted in January 2004, the plaintiff alleges, it was not actually time-stamped as received by the agency the until July 15, 2004, more than six months later. However, on July 2, 2004, NHTSA's chief counsel informed the plaintiff in a letter that the agency had "prepared a notice for publication in the Federal Register requesting comment" and the agency would "inform [the plaintiff] when the Administrator has made a decision on the petition." Compl. at ¶ 21. The agency published the notice on July 19, 2004, and the deadline for filing comments was August 18, 2004.

By December 6, 2004, the plaintiff had not received information on the disposition of its petition, and its attorney wrote a letter to NHTSA requesting "any information you may have concerning the processing of our petition." Compl. at ¶ 23. On February 28, 2005, the plaintiff wrote again seeking "some indication as to when we could expect a decision concerning our application." Compl. at ¶ 24. Again, the plaintiff received no response.

On March 31, 2005, the plaintiff sent a final letter requesting information on the disposition of the petition. Attached to the letter was a proposed complaint for a writ of mandamus. According to the plaintiff, NHTSA's counsel responded to this letter and assured the plaintiff that the agency was reviewing the petition, but he could not specify a date for decision. Since that time, a decision on the petition has not been reached. On August 9, 2005, the plaintiff filed the present complaint asking the Court to force the defendants to resolve the petition one way or the other. In lieu of an answer the defendants filed the instant motion to dismiss.

II.

The defendants state that their motion to dismiss is based on Federal Rules of Civil Procedure 12(b)(1) and (6), suggesting that they are contending that the Court does not have subject matter jurisdiction over the case and the plaintiff has not stated a claim for which relief can be granted. Motions to dismiss are governed by Rule 12(b) of the Federal Rules of Civil Procedure; Rule 12(b)(1) concerns motions to dismiss for "lack of jurisdiction over the subject matter." Lack of subject matter jurisdiction may be asserted at any time, either in a pleading or a motion. Fed. R.Civ.P. 12(b)(1); Television Reception Corp. v. Dunbar, 426 F.2d 174, 177 (6th Cir.1970). When subject matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction in order to survive the motion. Michigan Southern R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n., Inc., 287 F.3d 568, 573 (6th Cir.2002); see also Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990).

Title 28, section 1361 of the United States Code states that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." To obtain relief under section 1361, an individual must establish that he has a clear right to relief and that a federal employee has a clear, nondiscretionary duty to act. See Heckler v. Ringer, 466 U.S. 602, 616-17, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984); In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.1995); Ryon v. O'Neill, 894 F.2d 199, 205 (6th Cir.1990). The Sixth Circuit has explained that a writ of mandamus "is an extraordinary remedy, and is intended to provide a remedy only if the plaintiff has exhausted all other avenues of relief and the defendant owes the plaintiff a clear nondiscretionary duty." Willis v. Sullivan, 931 F.2d 390, 395 (6th Cir.1991).

The plaintiff in this case does not seek an order compelling the defendants to grant his petition, which plainly would be beyond this Court's authority. Rather, he merely seeks an order compelling a decision on the petition one way or the other. The Court has subject matter jurisdiction to entertain that...