Millard v. Duffy et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL D. MILLARD,
Plaintiff,
v. 	No. 1:25-cv-00691-SMD-KK
SEAN DUFFY, Secretary,
United States Department of Transportation,
Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Pro se Plaintiff alleged that the “Secretary of U.S. Department of Transportation (DOT)
has violated the 14th Amendment due process of law in adopting the Commercial Vehicle Safety
Alliance’s (CVSA) North American Standard Out-of-Service1 (OOS) Criteria (OOS Criteria)
denying the trucking industry the ability to have free access to the OOS Criteria and participation
in development of the OOS Criteria.” 	Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 at 2,
Doc. 1, filed July 24, 2025 (“Complaint”). 	Plaintiff challenged the validity of certain DOT
regulations and sought an order directing DOT to change some of the regulations. See Complaint
at 8.
1 An “out-of-service order” is:
a declaration by an authorized enforcement officer of a Federal, State, Canadian,
Mexican, or local jurisdiction that a driver, a commercial motor vehicle, or a motor
carrier operation is out of service pursuant to 49 CFR 386.72 [imminent hazard],
392.5 [alcohol prohibition], 392.9a [operating authority], 395.13 [drivers ordered
out of service], or 396.9 [inspection of motor vehicles and intermodal equipment in
operation], or compatible laws, or the North American Standard Out–of–Service
Criteria.
49 C.F.R. 390.5.
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United States Magistrate Judge Kirtan Khalsa notified Plaintiff it appears this Court does
not have jurisdiction to grant the relief Plaintiff seeks because “[t]he court of appeals . . . has
exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity
of . . . all rules, regulations or final orders of . . . the Secretary of Transportation issued pursuant to
. . . subchapter III of chapter 311 [49 U.S.C. § 31131 et seq.].” Order to Show Cause at 2-3, Doc. 8,
filed August 22, 2025 (ordering Plaintiff to file an amended complaint). Plaintiff filed an Amended
Complaint on September 12, 2025. See Doc.10.
Defendant filed a Motion to Dismiss the Amended Complaint for lack of jurisdiction
stating:
the Administrative Orders Review Act (the “Hobbs Act”) and the Hazardous
Material Transportation Act (the “HMTA”) vest exclusive jurisdiction for such
challenges in the United States Courts of Appeals. In addition, Plaintiff’s claims
are barred by the mandatory 60-day jurisdictional time limit for seeking judicial
review set forth in the Hobbs Act and the HMTA. Furthermore, Plaintiff has failed
to establish standing.
Motion to Dismiss at 1-2, Doc. 20, filed March 10, 2026.
Instead of filing a response to the Motion to Dismiss, Plaintiff filed a Motion which states
in its entirety: “Due to a better understanding of the law[,] I am requesting my case be dismissed.
I will resubmit my case to the US Court of Appeals as required. 	Thank you for your time in
considering my request.” Motion at 1, Doc. 23, filed March 16, 2026.
The Court grants Defendant’s Motion to Dismiss the Amended Complaint. Plaintiff, as the
party seeking to invoke the jurisdiction of this Court, has not met his burden of alleging facts that
support jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013) (“Since federal
courts are courts of limited jurisdiction, we presume no jurisdiction exists absent an adequate
showing by the party invoking federal jurisdiction”).
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The Court dismisses this case without prejudice for lack of jurisdiction and denies
Plaintiff’s Motion to dismiss this case as moot. 	See Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action”);
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (“[D]ismissals for lack of
jurisdiction should be without prejudice because the court, having determined that it lacks
jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying
claims.”) (emphasis in original).
IT IS ORDERED that:
(i) 	Defendant’s Motion to Dismiss at 1-2, Doc. 20, filed March 10, 2026, is
GRANTED.
(ii) 	This case is DISMISSED without prejudice.
(iii) 	Plaintiff’s Motion, Doc. 23, filed March 16, 2026, is DENIED as moot.
_________________________________
UNITED STATES DISTRICT JUDGE
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