Weaver v. Federal Motor Carrier Safety Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 2013 Decided February 28, 2014

No. 13-1172

FRED WEAVER, JR. AND OWNER-OPERATOR INDEPENDENT
DRIVERS ASSN., INC.,
PETITIONERS

v.

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, ET AL.,
RESPONDENTS

On Petition for Review of Final Agency Action of the
Federal Motor Carrier Safety Administration

Paul D. Cullen, Sr. argued the cause for petitioners. With
him on the briefs were David A. Cohen, Joyce E. Mayers, and
Paul D. Cullen, Jr.

Mark W. Pennak, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief were
Stuart Delery, Assistant Attorney General, Matthew Collette,
Attorney, Paul M. Geier, Assistant General Counsel, U.S.
Department of Transportation, and Peter J. Plocki, Deputy
Assistant General Counsel.

Before: BROWN, Circuit Judge, and WILLIAMS AND
SENTELLE, Senior Circuit Judges.
 2

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

WILLIAMS, Senior Circuit Judge: This is a case about a
minor traffic violation and its persistence in a database
administered by the federal government. The petitioner, Fred
Weaver, Jr., received a citation for failing to obey a Montana
traffic ordinance. A record of the citation made its way into a
database administered by the Federal Motor Carrier Safety
Administration (“FMCSA”). Much of the information in this
database is, like Weaver’s citation, the product of state
authorities. And under a rule adopted by FMCSA, Privacy
Act of 1974; Department of Transportation, Federal Motor
Carrier Safety Administration (FMCSA) 007 Pre-Employment
Screening Program, 77 Fed. Reg. 42,548, 42,551/3 (2012)
(“FMCSA Systems of Record Notice”), state officials also
decide how to respond when a driver challenges a citation’s
inclusion in the database, as Weaver has here.

The crux of Weaver’s complaint is that, in maintaining
this record of the citation, FMCSA has violated the statute
authorizing the Secretary of Transportation to maintain the
database. He points particularly (though not exclusively) to
its requirements that the Secretary “ensure, to the maximum
extent practical, [that] all the data is complete, timely, and
accurate,” 49 U.S.C. § 31106(a)(3)(F), “provide for review
and correction” of information in the database, id.
§ 31106(e)(1), and, before releasing any information from the
system, both comply with certain standards of accuracy and
(again) “provide a procedure for the operator-applicant to
correct inaccurate information in the System in a timely
manner,” id. § 31150(b)(1), (4).

Though the parties disagree energetically on the merits,
they agree that Weaver’s action does not lie in this court.
Weaver frankly acknowledges that he filed this suit as a
 3

precaution, lest the district court dismiss a related suit filed
there on the grounds that it should have been filed here, but
only after the time to file here has expired. We agree that we
lack jurisdiction. Because the parties disagree as to the
reasons, and those reasons are critical to the parties’ dispute,
we explain them below, and end by transferring the case to the
district court.

* * *

In June 2011 Weaver received a misdemeanor citation for
failing to stop his truck at a weigh station as required by
Montana law. Weaver challenged the citation in Montana
court and it was dismissed “without prejudice”; there is some
dispute whether the court found Weaver not guilty or
dismissed his action as part of a deferred prosecution
arrangement.

That might have been the end of it, except that a record of
Weaver’s citation was included in a database administered by
FMCSA. This database, known as the Motor Carrier
Management Information System (“MCMIS”), contains
information on commercial truck drivers’ safety records, such
as accident reports and other safety violations. Potential
employers in the motor carrier industry may, with the written
permission of the driver, receive access to the data in order to
screen potential employees. 49 U.S.C. § 31150(a). (The
record does not disclose the employment fortunes of drivers
who withhold permission.)

To meet the statutory mandate of providing a correction
mechanism, FMCSA established “DataQs,” a web-based
dispute resolution procedure that allows “an individual to
challenge data maintained by FMCSA.” FMCSA Systems of
Record Notice, 77 Fed. Reg. at 42,551/3. Although MCMIS
is mandated by federal law and administered by a federal
 4

agency, much of its data comes from the states, which are
responsible for enforcing many FMCSA regulations, see
National Tank Truck Carriers v. Fed. Highway Admin. of U.S.
Dep’t of Transp., 170 F.3d 203, 205 (D.C. Cir. 1999). The
rule leaves to the states most critical decisions on what data to
submit to FMCSA and gives states the last word on whether to
amend the data in response to a DataQs request: “FMCSA is
not authorized to direct a State to change or alter MCMIS data
for violations or inspections originating within a particular
State(s). Once a State office makes a determination on the
validity of a challenge, FMCSA considers that decision as the
final resolution of the challenge.” 77 Fed. Reg. at 42,551/3.

In March 2013 petitioner Owner-Operator Independent
Drivers Association filed a DataQs request on Weaver’s
behalf, seeking to have the citation removed from his MCMIS
profile. The request was routed to the Montana Department of
Transportation, which denied it. The Association then
challenged the denial in DataQs, reasoning that because the
Montana court had dismissed the charges without prejudice,
FMCSA’s maintenance of a MCMIS record of the citation
was incorrect and in violation of the statute.

The Montana authorities would have none of it. Colonel
Dan Moore of the Montana Department of Transportation
replied: “You are obviously confused . . . . I will explain the
differences and the matter will be closed. Our decision is our
decision and any further argument will be turned over [to] the
FMCSA as a violation of the DQ process.” J.A. 12.
Understandably dissatisfied with Colonel Moore’s rebuff-
cum-threat, the Association filed this petition seeking to
enjoin FMCSA from disseminating citations that have been
overturned or dismissed.

Before proceeding to the parties’ jurisdictional
arguments, we pause to describe the related action in the
 5

district court. On facts similar to those just described, the
Association and four truck drivers have sought a declaratory
judgment seeking essentially the same relief as Weaver.
Owner-Operator Independent Driver Ass’n v. Ferro, No. 12-
1158 (D.D.C.). The principal difference between the cases is
that there at least three of the plaintiff drivers not only filed
protests in DataQs but followed up with letters directly to the
FMCSA Administrator, requesting that she remove the
violation from MCMIS. (One plaintiff driver proceeded to
her directly.) The agency declined to remove the violations
itself and passed the requests on to the relevant states.
Complaint, Owner-Operator Independent Driver Ass’n, No.
12-1158, at 10-18 (D.D.C. July 7, 2012) (Dkt #1). A few
months later the Administrator sent a follow-up letter, telling
the Association that the states had declined to purge the
violations from the database. Id. at 18. The Association then
brought suit in the district court, arguing that FMCSA’s
second letter constituted final agency action. Id.; 5 U.S.C.
§ 704 (providing generally for review of final agency actions).

The government moved to dismiss on jurisdictional
grounds, arguing that the Hobbs Act, 28 U.S.C. § 2342(3),
vests exclusive jurisdiction in our court. Motion to Dismiss,
Owner-Operator Independent Driver Ass’n, No. 12-1158, at
5-8 (D.D.C. Sept. 17, 2012) (Dkt #8). The government
argued that since the challenge might address the agency’s
“interpretation” of its regulations, it must be brought in the
court of appeals. Id. at 7 (citing Daniels v. Union Pac. R. Co.,
530 F.3d 936 (D.C. Cir. 2008)). The case is stayed pending
the outcome of this case.

* * *

The Hobbs Act, specifically 28 U.S.C. § 2342(3)(A),
provides for review in the court of appeals of all “rules,
regulations, and final orders” of the Secretary of
 6

Transportation issued under specified statutes. (It is not
disputed that if, pursuant to those statutes, FMCSA issued a
rule, etc., it would be covered. The statute in question here is
part of subchapter III of chapter 311.) But both sides agree
that FMCSA’s activity (or inactivity) vis-à-vis Weaver does
not qualify as a rule, regulation or final order reviewable
under § 2342(3), and that therefore we lack jurisdiction.

But they disagree, of course, over what follows from that
conclusion. Weaver argues that FMCSA’s action (the exact
nature of which we’ll consider shortly) constituted final
agency action, although not the type for which the Hobbs Act
vests exclusive jurisdiction in the court of appeals. Therefore,
he asks that we transfer the case to the district court, the
proper site for initial review of final agency actions for which
no statute has provided an alternative. Int’l Bhd. of Teamsters
v. Pena, 17 F.3d 1478, 1481 (D.C. Cir. 1994); 5 U.S.C.
§§ 703, 704.

The government argues that there has been no agency
action relating to Weaver, and that his claim amounts to an
out-of-time attack on an earlier rule—the FMCSA Systems of
Record Notice. Weaver has disguised the true nature of his
attack on the rule, it says, by purporting to attack the
government’s inaction in the face of Montana’s refusal to
correct the database error that Weaver alleges, an attack that it
says depends on claims against the rule and on FMCSA’s
interpretation. Because Weaver’s claim is in reality an attack
on the rule, it argues, his claim is barred by the Hobbs Act’s
60-day limit for seeking judicial review, which we have held
is jurisdictional. Natural Res. Def. Council v. Nuclear
Regulatory Comm’n, 666 F.2d 595, 602 (D.C. Cir. 1981).
Finally, the government acknowledges that someone who is
injured by a rule that he has failed to attack within the time
limit may still challenge that rule, but only as a defense in an
“enforcement action” initiated by the Secretary. FMCSA Br.
 7

24-26; FMCSA Post-Argument Letter, No. 13-1172, at 2
(Dec. 9, 2013).

The government is mistaken in its idea that a person in
Weaver’s position (affected by a rule that he has failed to
timely challenge) can draw the validity of the rule in question
only as a defense to an enforcement action. Where Congress
imposes a statute of limitations on challenges to a regulation,
running from a regulation’s issuance, facial challenges to the
rule or the procedures by which it was promulgated are
barred. Natural Res. Def. Council, 666 F.2d at 602. But
when an agency seeks to apply the rule, those affected may
challenge that application on the grounds that it “conflicts
with the statute from which its authority derives,” Nat’l Air
Transp. Ass’n v. McArtor, 866 F.2d 483, 487 (D.C. Cir. 1989)
(emphasis removed) (quoting Functional Music, Inc. v. FCC,
274 F.2d 543, 546 (D.C. Cir. 1958)); Murphy Exploration &
Prod. Co. v. Dep’t of Interior, 270 F.3d 957, 958-59 (D.C.
Cir. 2001); Graceba Total Commc’ns, Inc. v. FCC, 115 F.3d
1038, 1040-41 (D.C. Cir. 1997); Am. Tel. & Tel. Co. v. FCC,
978 F.2d 727, 734 (D.C. Cir. 1992); NLRB Union v. Fed.
Labor Relations Auth., 834 F.2d 191, 196 (D.C. Cir. 1987);
Geller v. FCC, 610 F.2d 973, 978 (D.C. Cir. 1979); see Arch
Mineral Corp. v. Babbitt, 104 F.3d 660, 664 (4th Cir. 1997),
at least where the statute does not expressly preclude such a
challenge, Am. Rd. & Transp. Builders Ass’n v. EPA, 588 F.3d
1109, 1113 (D.C. Cir. 2009).

Contrary to the government’s claim (from which it
somewhat retreated in its post-argument letter of December 9,
2013), the sort of “application” that opens a rule to such a
challenge is not limited to formal “enforcement actions.” We
have, for example, despite want of a prior timely attack,
considered the validity of rules that an agency applied in an
order imposing certain limitations on a broadcast licensee,
Functional Music, 274 F.2d at 547-48, in an order rejecting
 8

challenges to auction procedures to which a bidder objected,
Graceba, 115 F.3d at 1040-41, in an order dismissing a
complaint based on the FCC’s tariff-filing requirements, Am.
Tel. & Tel. Co., 978 F.2d at 734, and in an order denying a
mineral lessee’s claim to certain royalty reimbursements,
Murphy Exploration, 270 F.3d at 957-59.

Thus, to the extent that Weaver has alleged an agency
action that (1) qualifies as a rule, regulation or order within
the meaning of Hobbs Act § 2342(3), (2) applied the FMCSA
Systems of Record Notice, and (3) occurred within 60 days of
Weaver’s filing, we would have jurisdiction. It is the first
criterion that we find to exclude the case from our jurisdiction.

The government appears to contend that any activity of
the Secretary (under the named statutes) that qualifies as a
“final agency action” under 5 U.S.C. § 704 also constitutes a
“final order” (if it is not a “rule” or “regulation”) under
§ 2342(3). See FMCSA Post-Argument Letter, No. 13-1172,
at 2 (Dec. 9, 2013). But the cases it cites do not confront the
structure of the Hobbs Act; instead they address only the
question whether such actions are equivalent for the purposes
of being final and therefore permitting judicial review. Being
equivalent for the purposes of finality, however, does not
make them equivalent in all respects.

Indeed, the structure of the Hobbs Act runs against the
government’s theory. The Act contains seven subsections that
provide for initial review in the court of appeals for agency
actions of specified types, varying across subsections. One
subsection vests the courts of appeals with jurisdiction over
“all final agency actions,” § 2342(7), whereas the provision
here, § 2342(3), covers “rules, regulations, or final orders.”
These distinctions call into play the general notion that
Congress is likely to have attached importance to variations of
terminology in parallel contexts in a single statute. E.g.,
 9

Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 452, 454
(2002); Corley v. United States, 556 U.S. 303, 314 (2009);
Nat’l Min. Ass’n v. Dep’t of Labor, 292 F.3d 849, 856 (D.C.
Cir. 2002). Thus, the Act appears to contemplate “actions” of
the Secretary under the named statutes that are not rules,
regulations or final orders, i.e., a residue of agency activity
subject to initial review in the district court.

But even though § 2342(3) seems to contemplate such a
residue, there remains the question of classifying FMCSA’s
action (assuming there is one): is it a rule, regulation or order,
or does it fit in the residue assigned to review in the district
court? To address that we must look to Weaver’s claims of
how FMCSA acted.

Weaver insists that although FMCSA has not performed
any of the actions enumerated in § 2342(3), the agency has
nonetheless taken reviewable action, and that the district court
has jurisdiction under § 703. He suggests three possible
theories for what constituted this action. First, although it was
Colonel Moore who refused to remove the citation, FMCSA’s
policy of not altering the information submitted by the states
converts Moore’s decision into federal action. Second,
FMCSA “acted” by failing to meet its statutory obligation to
ensure the accuracy of the MCMIS data that Weaver disputes.
A third possibility, discussed at length at oral argument, is that
the FMCSA Administrator’s letter to the Association, alleged
in the district court case, was final agency action. But without
an allegation linking the letter to Weaver himself, this third
theory appears irrelevant, at least for this case. Weaver’s first
two theories add up to the proposition that FMCSA violated a
statutory duty by failing, both itself and through what Weaver
sees as its Montana puppet, to make a correction to which
Weaver says he is statutorily entitled. Inaction, of course, can
qualify as a form of agency action. See 5 U.S.C. §§ 551(13),
706(1); Telecommunications Research & Action Ctr. v. FCC,
 10

750 F.2d 70, 77 (D.C. Cir. 1984); see generally Norton v.
Southern Utah Wilderness Alliance, 542 U.S. 55, 61-65
(2004).

Without finally resolving the status of the FMCSA
activity, we feel confident in assigning challenges to that
activity to the district court. FMCSA’s alleged action was
plainly not a rule—i.e., a statement of “general or particular
applicability and future effect,” 5 U.S.C. § 551(4), and the
terms “rule” and “regulation” are generally used
interchangeably, Nat’l Treasury Employees Union v. Weise,
100 F.3d 157, 160 (D.C. Cir. 1996). But that does not
necessarily make it an “order.” The APA’s architects may
have considered “agency action” to consist exclusively of
orders and rules, see H.R. Rep. No. 79-1980, at 20-21 (1946),
a premise seemingly embodied in the APA’s definitions of
“order,” 5 U.S.C. § 551(6) (a “final disposition . . . in a matter
other than rule making”) and “adjudication,” id. § 551(7)
(“agency process for the formulation of an order”). But “rule”
and “order” do not in fact exhaust the field, at least when we
move beyond the APA itself. In Watts v. SEC, 482 F.3d 501
(D.C. Cir. 2007), for example, we declined to treat an SEC
refusal to let its employees testify in response to a subpoena as
an “order” under § 25 of the Securities Exchange Act of 1934,
15 U.S.C. § 78y, providing for court of appeals review of
“orders,” pointing out among other things that the process of a
decision on “whether to comply with a judicial subpoena is
not typically or comfortably described as an ‘adjudication’
(even given the broad scope of formal and informal
adjudications under the APA).” 482 F.3d at 506. This seems
equally true of any “action” that may inhere in FMCSA’s
alleged failure to carry out its statutory duty.

The complicated history of this court’s interpretation of
agency review statutes also favors treating the “action” here as
something other than a rule, regulation or final order. In
 11

considering the Natural Gas Act’s provision for review of
“orders” of the Federal Power Commission, we initially
thought it to exclude review of a rule adopted through
informal rulemaking, on the ground that the Commission’s
decision hadn’t emerged from a “quasi-judicial” procedure.
United Gas Pipe Line Co. v. FPC, 181 F.2d 796 (D.C. Cir.
1950). But the opinion was ambiguous, and ultimately we
explained it on grounds of its language about the absence of
an evidentiary record, and we found the products of informal
FPC rulemaking to be reviewable as “orders.” City of
Chicago, Ill. v. FPC, 458 F.2d 731, 740-41 (D.C. Cir. 1971).
As we said of another statute assigning review of “orders” to
the court of appeals, “It is the availability of a record for
review and not the holding of a quasi judicial hearing which is
now the jurisdictional touchstone.” Investment Company Inst.
v. Bd. of Governors of the Fed. Reserve Sys., 551 F.2d 1270,
1277 (D.C. Cir. 1977) (internal quotation marks omitted); see
also Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744-
45 (1985) (relying in part on absence of need for any fact-
finding in interpreting statute to assign review to the court of
appeals).

Here the “touchstone” referred to in Investment Company
Institute calls for placing initial review in the district court.
FMCSA has not compiled a record with an eye toward
judicial review—indeed it has insisted that it has no role to
play in the MCMIS process. And while district courts
generally cannot conduct de novo review of agency action,
Camp v. Pitts, 411 U.S. 138, 141-42 (1973); Citizens To
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971), there is a narrow exception where “the record is so
bare that it prevents effective judicial review,” Commercial
Drapery Contractors, Inc. v. United States, 133 F.3d 1, 7
(D.C. Cir. 1998) (citing Overton Park, 401 U.S. at 420)—a
circumstance that might well prove true here.
 12

* * *

Because we conclude that FMCSA’s action falls short of
being a rule, regulation or final order within the meaning of
28 U.S.C. § 2342(3), we lack jurisdiction under that provision
and we transfer the case to the district court pursuant to 28
U.S.C. § 1631.

So ordered.