                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 SMALL BUSINESS IN
 TRANSPORTATION COALITION,
        Plaintiff
                                                            Civil Action No. 20-883 (CKK)
         v.
 UNITED STATES DEPARTMENT OF
 TRANSPORTATION, et al.,
         Defendants


                                     Memorandum Opinion
                                       (August 14, 2020)

       The Court is in receipt of Plaintiff’s [31] Emergency Motion for Writ of Mandamus.

Plaintiff asks the Court “to Order Defendant, Elaine Chao, the Secretary of the Department of

Transportation to suspend the Hours of Service (“HOS”) regulations 49 C.F.R. §395, pursuant to

49 U.S.C. § 31136 (a) (2) and (4), and order the USDOT Office of Inspector General to

investigate, arrest and seek prosecution of persons interfering with interstate commerce under the

Hobbs Act, 18 U.S.C. § 1951(a).” ECF No. 31, 1. Plaintiff contends that these requests are

necessary because “commercial motor vehicle drivers are currently being injured, and killed and

commercial motor vehicle traffic is being disrupted daily during nationwide riots and occupation

of interstate highways.” Id. at 4. Plaintiff further argues that emergency relief is necessary

because the Black Lives Matter movement “has now announced publicly that it will imminently

bring 25,000 protesters to Chicago on August 15, 2020 to illegally disrupt and shut down a major

interstate thoroughfare.” Id. at 5. The Court finds that such mandamus relief is not appropriate

and DENIES Plaintiff’s Motion.

       Mandamus relief is proper only if “(1) the plaintiff has a clear right to relief; (2) the

defendant has a clear duty to act; and (3) there is no other adequate remedy available to

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plaintiff.” Council of and for the Blind of Delaware County Valley v. Regan, 709 F.2d 1521,

1533 (D.C. Cir. 1983) (en banc). The party seeking mandamus has the “burden of showing that

[his] right to issuance of the writ is ‘clear and indisputable.”’ Gulfstream Aerospace Corp. v.

Mayacamas Corp., 485 U.S. 271, 289 (1988) (citing Bankers Life & Cas. Co. v. Holland, 346

U.S. 379, 384 (1953)). Where the action petitioner seeks to compel is discretionary, he has no

clear right to relief and mandamus therefore is not an appropriate remedy. See, e.g., Heckler v.

Ringer, 466 U.S. 602, 616 (1984). Even if Plaintiff makes the required showing, the question of

whether or not mandamus relief should be granted is left to the Court and is granted only in

“extraordinary circumstances.” In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005). The Court

finds that Plaintiff does not establish any of the required elements.

        As a preliminary matter, the Court notes that it is unclear whether it has jurisdiction to

hear this petition. Plaintiff’s requests for mandamus are not encompassed within the operative

Complaint. See ECF No. 1. The Court understands that these requests would likely be

encompassed by Plaintiff’s proposed Amended Complaint. ECF No. 28. However, Plaintiff’s

motion to amend its Complaint is opposed, and briefing is not yet complete on that Motion. As

such, the operative Complaint does not encompass Plaintiff’s requests for relief.

        Even if Plaintiff’s requests for relief were encompassed by the operative Complaint,

Plaintiff would still not be entitled to the relief requested. Importantly, Plaintiff has failed to

show that Defendants have a duty to act in the ways requested. Instead, the actions requested by

Plaintiff are entirely discretionary.

        First, the Secretary of Transportation’s decision on whether to suspend hours of service

regulations is discretionary. Pursuant to statute, ““[t]he Secretary may grant a waiver [to hours of

service regulations]. . . if the Secretary determines that it is in the public interest to grant the



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waiver and that the waiver is likely to achieve a level of safety that is equivalent to, or greater

than, the level of safety that would be obtained in the absence of the waiver[.]” 49 U.S.C. §

31315(a) (emphasis added). Similarly, considering exemptions to the hours of service

regulations, “the Secretary of Transportation may grant . . . an exemption . . . if the Secretary

finds such exemption would likely achieve a level of safety that is equivalent to, or greater than,

the level that would be achieved absent such exemption.” Id. § 31315(b) (emphasis added). The

use of the word “may” demonstrates that suspending the hours of service regulations is a

discretionary decision to be made by the Secretary. See Zhu v. Gonzales, 411 F.3d 292, 295

(D.C. Cir. 2005) (finding use of the word “may” to confer discretion). Additionally, the statute

requires the Secretary to make a decision as to relative “level[s] of safety,” an amorphous

standard which requires the use of expertise and judgment. The Court notes that Defendants

state, and Plaintiff does not dispute, that Plaintiff failed to submit a formal request for an

exemption from the hours of service regulations.

       Furthermore, it appears that the Secretary has used her discretion to allow suspension of

the relevant hours of service regulations in the circumstances presented by Plaintiff. Under 49

C.F.R. § 395.1(b)(2), “[i]n case of any emergency, a driver may complete his/her run without

being in violation of the provisions of the regulations in this part, if such run reasonably could

have been completed absent the emergency.” The Court acknowledges that a strict reading of the

regulation may not encompass the circumstances described by Plaintiff as it is not clear that a

declaration of emergency has been made by a government official.1 However, it appears that the



1
  Pursuant to the regulation, “Emergency means … [an] occurrence, natural or man-made, which
interrupts the delivery of essential services (such as, electricity, medical care, sewer, water,
telecommunications, and telecommunication transmissions) or essential supplies (such as, food
and fuel) or otherwise immediately threatens human life or public welfare, provided such …


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Secretary has exercised her discretion to allow drivers to take advantage of the emergency

exception even in the absence of a declaration of emergency by a government official. On July 9,

2020, the Federal Motor Carrier Safety Administration (“FMCSA”) published the following

reminder—“Drivers: Know you may use the emergency exception in §395.1(b) to complete a

trip without violating HOS if the trip was delayed due to a civil disturbance causing reasonable

fear for physical safety.” See FMCSA (@FMCSA), Twitter (July 9, 2020, 6:56 PM),

https://twitter.com/FMCSA/status/1281361733320355840. Similar guidance has been published

on the FMCSA’s website. Emergency Conditions Exceptions—Applicability to Civil

Disturbance, https://www.fmcsa.dot.gov/emergency/emergency-conditions-exceptions-

applicability-civildisturbance (last visited August 14, 2020). Not only does the allowance of this

emergency exception demonstrate the Secretary’s discretion over these matters, but it also

provides Plaintiff with an alternative remedy.

       Next, the Court addresses Plaintiff’s request that the Department of Transportation’s

Office of Inspector General be ordered to investigate, arrest and seek prosecution of persons

interfering with interstate commerce. Plaintiff cites no authority that would require the Office of

Inspector General to investigate, arrest, or prosecute any persons in these circumstances. And,

the decision of whether or not to prosecute is a discretionary decision left to the Executive

Branch. See United States v. Nixon, 418 U.S. 683, 693 (1974) (acknowledging that the Executive

Branch “has exclusive authority and absolute discretion to decide whether to prosecute a case”);

Powell v. Katzenbach, 359 F.2d 234, 234 (D.C. Cir. 1965) (per curiam), cert. denied, 384 U.S.

906 (1966) (“[T]he question of whether and when prosecution is to be instituted is within the



event results in: (1) A declaration of an emergency by … government officials having authority
to declare emergencies; or (2) A request by a police officer for tow trucks to move wrecked or
disabled motor vehicles.” 49 CFR § 390.5T.

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discretion of the Attorney General. Mandamus will not lie to control the exercise of this

discretion.”). Generally, courts will not grant an individual’s request to mandamus a law

enforcement agency, such as the Department of Transportation’s Office of Inspector General, to

engage in an investigation. See Otero v. U.S. Atty. Gen., 832 F.2d 141, 141-42 (11th Cir. 1987)

(per curiam) (“First, a private citizen has no judicially cognizable interest in the prosecution or

non-prosecution of another,” and “[s]econd, prosecutorial discretion may not be controlled by a

writ of mandamus.”); Jafree v. Barber, 689 F.2d 640, 642 (7th Cir. 1982) (affirming dismissal of

mandamus because a court cannot force “[i]nitiation of a criminal investigation by the F.B.I.,”

which “is clearly a discretionary act”). Moreover, in the event that a driver is endangered due to

civil protests, that driver has the alternative remedy of calling on the applicable law enforcement

agency for protection in that instance.

       To conclude, in its discretion, the Court finds that mandamus relief is not appropriate in

these circumstances. The actions that Plaintiff asks the Court to order Defendants to take are

discretionary. Additionally, Plaintiff has failed to show that there are no alternative avenues for

relief. As such, the Court DENIES Plaintiff’s Emergency Motion for Writ of Mandamus.

       An appropriate Order accompanies this Memorandum Opinion.


                                                          /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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