Sema v. Elaine Chao ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: SPECIALTY EQUIPMENT No. 19-72623
MARKET ASSOCIATION,
______________________________
SPECIALTY EQUIPMENT MARKET
ASSOCIATION, ORDER*
Petitioner,
v.
ELAINE L. CHAO, Secretary of
Transportation; U.S. DEPARTMENT OF
TRANSPORTATION; NATIONAL
HIGHWAY TRAFFIC SAFETY
ADMINISTRATION; JAMES OWENS,
Acting Administrator of NHTSA,
Respondents.
Petition for Writ of Mandamus
Submitted May 6, 2020**
Pasadena, California
Before: M. SMITH, OWENS, and BRESS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Section 24405 of the Fixing America’s Surface Transportation (FAST) Act
permits low-volume vehicle manufacturers to produce and sell a limited number of
replica vintage automobiles that are exempt from certain motor safety standards.
Pub. L. No. 114-94, § 24405, 129 Stat. 1312, 1721–25 (2015). Congress also
provided that the Department of Transportation had to issue any regulations
implementing the FAST Act by December 4, 2016. See Pub. L. No. 114-94,
§ 24405(c), 129 Stat. at 1725. This responsibility has been delegated to the National
Highway Traffic Safety Administration (NHTSA). See 49 C.F.R. § 1.95.
NHTSA did not issue any implementing regulations by December 4, 2016.
This prompted petitioner Specialty Equipment Market Association (SEMA), a trade
association, to petition this Court for a writ of mandamus directing respondents to
propose regulations implementing Section 24405, or to determine that such
regulations are unnecessary. On November 22, 2019, this Court ordered a response
to SEMA’s petition. On December 20, 2019, respondents answered that a notice of
proposed rulemaking had issued on December 12, 2019. A notice of proposed
rulemaking has also now been published in the Federal Register. See Replica Motor
Vehicles, 85 Fed. Reg. 792 (proposed Jan. 7, 2020) (to be codified at 49 C.F.R. pts.
565–67, 586).
“The writ of mandamus is a drastic and extraordinary remedy,” and SEMA
“bears the burden of establishing that [its] right to issuance of the writ is clear and
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indisputable.” In re Bozic, 888 F.3d 1048, 1052 (9th Cir. 2018) (quotations omitted).
Because SEMA’s requested rulemaking is now underway, SEMA has not
established a “clear and indisputable” right to mandamus relief. Id. (quotations
omitted). Although SEMA requested that we order a fixed timetable for the
rulemaking, require status reports, and retain jurisdiction, we decline to do so in light
of the circumstances here. Respondents are encouraged to complete the rulemaking
process in a reasonably timely manner in view of the delay that has already occurred.
Accordingly, we DENY the instant petition for a writ of mandamus without
prejudice to SEMA seeking further relief should the circumstances so warrant.
IT IS SO ORDERED.
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