United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2015 Decided January 15, 2016
No. 14-1298
SILVERADO STAGES, INC.,
PETITIONER
v.
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION AND
UNITED STATES OF AMERICA,
RESPONDENTS
On Petition for Review of an Order of the
Federal Motor Carrier Safety Administration
William H. Shawn argued the cause and filed the briefs
for petitioner.
Gerard Sinzdak, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Matthew M. Collette, Attorney.
Before: ROGERS, TATEL and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
2
WILKINS, Circuit Judge: Petitioner Silverado Stages,
Inc., a California charter bus service, petitions this Court for
review of a Federal Motor Carrier Safety Administration
(“FMCSA”) determination denying Silverado’s petition for
administrative review after the FMCSA publicly reported that
Silverado violated a number of federal and state safety
regulations. Because some of Silverado’s claims should have
been brought before the District Court, and we find those
properly before us meritless, we deny Silverado’s petition.
I.
A.
Congress requires the Department of Transportation
(“DOT”) to “determine whether an owner or operator is fit to
operate safely commercial motor vehicles,” based upon,
among other things, “the safety inspection record of such
owner or operator.” 49 U.S.C. § 31144(a)(1). DOT is also
required to “make such final safety fitness determinations
readily available to the public.” Id. § 31144(a)(3). DOT has
delegated these responsibilities to the FMCSA. See 49 C.F.R.
§ 1.86 (listing the overall responsibilities of the FMCSA).
The standards and procedures the FMCSA uses to
determine the safety of motor carriers such as Silverado is
provided in 49 C.F.R. § 385 et seq. See id. § 385.1(a) (“This
part establishes the FMCSA’s procedures to determine the
safety fitness of motor carriers, to assign safety ratings, to
direct motor carriers to take remedial action when required,
and to prohibit motor carriers receiving a safety rating of
‘unsatisfactory’ from operating a [commercial motor
vehicle].”). These procedures require the FMCSA to assign
each carrier a safety rating based on an on-site examination of
that carrier’s operations. See id. § 385.9 (describing the
procedure for assigning a safety rating). The result of that
3
examination is twofold. First, the FMCSA issues violations
to carriers found to be out of compliance with pertinent safety
regulations. See id. pt. 385, App. A (explaining the safety
audit evaluation process). The FMCSA may seek civil
penalties for such violations. See 49 U.S.C. § 521(b); 49
C.F.R. § 386.11(c). Second, based on these violations, as
well as other factors such as the carrier’s accident history, see
49 C.F.R. § 385.7, the FMCSA assigns carriers one of three
ratings: “satisfactory,” “conditional,” or “unsatisfactory,” id.
§ 385.3. An “unsatisfactory” rating precludes a carrier from
operating a commercial motor vehicle in interstate commerce.
49 U.S.C. § 31144(c); 49 C.F.R. § 385.13.
A carrier may petition the FMCSA to review its safety
rating pursuant to 49 C.F.R. § 385.15. The agency will adjust
the carrier’s rating if it finds that it made “an error in
assigning [the carrier’s] proposed or final safety rating.” Id.
§ 385.15(a). Because the FMCSA uses the § 385.15 review
process to review only a carrier’s safety rating, the FMCSA
typically will not review the validity of carrier safety
violations as a part of that process. See FMCSA Order
Dismissing Pet. For Admin. Review of Safety Rating
(“FMCSA Order”), J.A. 13 (“In a petition filed under 49 CFR
385.15, the only relief afforded for any alleged errors in
calculating a safety rating is an upgrade of Petitioner’s safety
rating. Therefore, only errors affecting a safety rating will be
addressed in a 49 CFR 385.15 proceeding.”). The FMCSA
will review a carrier’s safety violations, in addition to the
safety rating itself, when, and only when, the agency is
reviewing a carrier’s appeal of a less-than-“satisfactory”
rating, and only if it is necessary to determine whether the
FMCSA should change the carrier’s rating. See Resp’t’s Br.
18 n.2 (“To be clear, a carrier who received a ‘conditional’ or
‘unsatisfactory’ rating can challenge particular violations in
the course of a § 385.15 proceeding, and FMCSA will correct
4
violation information during that proceeding if the correction
is necessary to its decision to upgrade a carrier’s safety
rating.”).
The FMCSA provides information to the public about
operating motor carriers through a searchable, web-based
information database called the Safety Measurement System
(“SMS”). See Safety Measurement System, FED. MOTOR
CARRIER SAFETY ADMIN., https://ai.fmcsa.dot.gov/sms/ (last
visited January 5, 2016). A carrier’s SMS profile displays the
carrier’s overall safety rating, as well as specific information
about violations that either the FMCSA or other agencies
have issued against that carrier. These violations are grouped
into seven categories, each of which is represented by a large
icon displayed on the front page of the carrier’s profile. If an
agency has issued certain violations against the carrier within
a given category, a large, yellow warning triangle is placed on
top of that category icon. 1 The FMCSA uses the SMS to
collect violation information from a variety of sources,
including the separate but related Motor Carrier Management
Information System (“MCMIS”), to determine which carriers
should be prioritized for inspections. See 79 Fed. Reg.
32,491, 32491-92 (June 5, 2014); 75 Fed. Reg. 18,256, 18,258
(Apr. 9, 2010).
To maintain the accuracy of the information displayed
within the SMS, the FMCSA has created DataQs, “a web-
1
More specifically, the FMCSA explains on each carrier’s SMS
profile that the warning triangles denote that the carrier “exceeds
the FMCSA Intervention threshold relative to its safety event
grouping based upon roadside data and/or has been cited with one
or more serious violations within the past 12 months during an
investigation.” J.A. 94. Although warning triangles are removed
from the carrier’s main SMS page after the requisite period, they
remain visible on the carrier’s SMS history page. See J.A. 145-46.
5
based dispute resolution [system] that allows an individual to
challenge data maintained by FMCSA.” Weaver v. FMCSA,
744 F.3d 142, 143 (D.C. Cir. 2014) (internal quotation marks
omitted). The FMCSA allows carriers to use DataQs to
challenge those safety violations that the FMCSA will not
review through its § 385.15 process. See 79 Fed. Reg. at
32,492 (“A driver has always been able to challenge the
correctness of a violation that has been cited in a roadside
inspection report using the DataQs system, whether a citation
has been issued for that violation or not.”). DataQs users
submit their requests for review by filling in text fields in a
web application. See DataQs Analyst Guide § 3.1, available
at https://dataqs.fmcsa.dot.gov/Data/Guide/DataQs_Users_Gu
ide_and_Best_Practices_Manual.pdf. (providing background
on the DataQs system). DataQs also permits users to provide
additional information by submitting digital documents. See
Resp’t’s Br. 16 (“[C]arriers are not only permitted, but
encouraged to submit as much supporting documentation as
they can when filing a DataQs request.” (citing DataQs
Analyst Guide, supra, §§ 4.13-4.16)).
B.
The FMCSA initiated an on-site examination of
Silverado’s operations in April 2014. In June 2014, after
completing that review, the FMCSA found Silverado to have
violated a number of safety regulations. See J.A. 49-69.
Notwithstanding these violations, the FMCSA issued
Silverado a “satisfactory” rating, the highest rating available,
presumably because the violations Silverado received were
not substantial enough to warrant a lower rating. The
FMCSA included these violations on Silverado’s SMS
profile, which resulted in the imposition of warning triangles
6
over four of the seven categories displayed on Silverado’s
profile. See J.A. 96. 2
Silverado claims that the public display of these allegedly
erroneous violations has caused it to lose several high-value
contracts.
Silverado filed a § 385.15 petition with the FMCSA in
October 2014. The petition did not challenge Silverado’s
“satisfactory” rating; it alleged only that the violations
displayed on its SMS profile were erroneous. The FMCSA
dismissed Silverado’s petition, stating that “[i]n a petition
filed under 49 CFR 385.15, the only relief afforded for any
alleged errors in calculating a safety rating is an upgrade of
Petitioner’s safety rating.” FMCSA Order, J.A. 13. The
agency explained that “[c]hallenges to the impact of the
compliance review data [i.e., Silverado’s safety violations] on
the SMS [profile] are not within the subject matter
jurisdiction of a request for administrative review of a safety
rating under 49 C.F.R. 385.15.” Id.
Silverado filed a petition for our review of the FMCSA’s
dismissal on December 23, 2014. Several months later, in
March 2015, Silverado submitted a number of DataQs
requests, urging the FMCSA to remove the allegedly
erroneous violations posted on its SMS profile.
2
Silverado’s profile later displayed only three warning triangles
after the FMCSA removed the alleged violations listed under the
“Hours-of-Service Compliance” category. See J.A. 94; see also
Pet’r’s Opening Br. 6 (displaying a screen grab of Silverado’s SMS
web profile).
7
II.
Silverado’s petition for review boils down to two
arguments. First, Silverado contests the FMCSA’s dismissal
of Silverado’s § 385.15 petition by arguing that the dismissal
was arbitrary and capricious under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706.3 Second, it contends
that the violations issued against it are invalid because they
were not promulgated pursuant to notice-and-comment
procedures and because they constitute impermissible
sanctions. The first of these arguments lacks merit because
the FMCSA was not required to provide Silverado with any
more process than it received; the second is foreclosed by our
decision in Weaver, 744 F.3d at 144-48.
A.
Before reaching these arguments, however, we pause to
address Silverado’s criticism of the FMCSA’s DataQs system,
which runs throughout Silverado’s briefing. Silverado calls it
a “Twitter-like void,” Pet’r’s Opening Br. 22, and “opaque,”
Pet’r’s Reply Br. 8. It also complains that “there is no time
limit or other requirements obligating the charging state
organization to respond” to DataQs requests. Pet’r’s Opening
Br. 22. Although the FMCSA contests much of Silverado’s
criticism, see, e.g., Resp’t’s Br. 15-16 (arguing that DataQs is
not a “twitter-like void” because “carriers . . . face no word
limitations” and are “encouraged to submit as much
3
Silverado also claims that the FMCSA violated its “administrative
due process rights.” See, e.g., Pet’r’s Opening Br. 22, 26. Yet it
does not explain from where it derives such a right, or how the
alleged violation differs from its claim that the FMCSA acted
arbitrarily and capriciously. Accordingly, we will treat Silverado’s
discussion of “administrative due process” as part and parcel of its
arbitrary and capricious claim under 5 U.S.C. § 706.
8
supporting documentations as they can”), at oral argument,
the FMCSA acknowledged that there is no deadline by which
the FMCSA must respond to a DataQs request. In fact,
Silverado submitted its DataQs requests in March 2015 –
more than nine months ago – yet the FMCSA has not
responded to a number of Silverado’s requests.
Despite this criticism, Silverado explicitly states in its
reply brief that “[t]his is not an appeal of or collateral attack
upon the FMCSA’s DataQ and its deficiencies; rather, this
appeal is a challenge to Respondent FMCSA’s failure to
correct its damaging and erroneous SMS violations . . . .”
Pet’r’s Reply Br. 1; see also id. at 5 (titling a section
“Silverado Did Not Challenge and Need Not Have
Challenged SMS and DataQ in Its 385.15 Petition Below”).
Nor could Silverado mount a challenge to the DataQs system
in this proceeding. The record indicates that Silverado did not
submit its DataQs requests until approximately three months
after it petitioned this Court for review of the FMCSA’s order
denying Silverado’s § 385.15 petition. See Ass’n of Flight
Attendants-CWA v. Chao, 493 F.3d 155, 158 (D.C. Cir. 2007)
(“[N]o one is entitled to judicial relief for a supposed or
threatened injury until the prescribed administrative remedy
has been exhausted.” (quoting Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 50-51 (1938))); cf.
Unemployment Comp. Comm’n v. Aragon, 329 U.S. 143, 155
(1946) (“A reviewing court usurps the agency’s function
when it sets aside the administrative determination upon a
ground not theretofore presented . . . .”); Hinson v. NTSB, 57
F.3d 1144, 1149 (D.C. Cir. 1995) (“[I]n most circumstances a
reviewing court should not adjudicate issues not raised in the
administrative proceeding below, so that the agency has an
opportunity to consider and resolve the objections prior to
judicial review, and the reviewing court has the benefit of a
9
full record.” (citing United States v. L.A. Tucker Truck Lines,
Inc., 344 U.S. 33, 36-37 (1952))).
Because Silverado is not challenging the validity or
effectiveness of the DataQs system, we will assume, for the
purposes of Silverado’s petition, that the DataQs system
provides carriers with an adequate process for achieving
review over the information displayed on SMS profiles. 4
B.
Silverado’s arbitrary and capricious claim relies on a
flawed fundamental premise: that the FMCSA’s refusal to
review safety violations within the confines of a § 385.15
petition is impermissible because it “exempt[s] an entire class
of on-line summary violations of law from any pre-or-post-
violation challenge by the alleged violator.” Pet’r’s Opening
Br. 20.
Silverado’s claim must fail because that fundamental
premise is incorrect. The DataQs process is not exempt from
challenge; carriers are provided with an opportunity to appeal
and correct erroneous violations. See DataQs Analyst Guide,
4
Certainly, because the DataQs process is the only means by which
motor carriers can receive review over certain potentially erroneous
violations – violations which are publicly displayed on the
FMCSA’s website – we expect that the FMCSA will be particularly
mindful of complaints such as Silverado’s, and will work to ensure
that motor carriers receive appropriate responses to their DataQs
requests in a timely fashion. Should the FMCSA fail to respond in
a timely fashion, carriers such as Silverado may seek a writ of
mandamus compelling agency action. See, e.g., In re Am. Rivers &
Idaho Rivers United, 372 F.3d 413, 418-20 (D.C. Cir. 2004)
(granting mandamus where the agency had failed to respond to a
petition under the Endangered Species Act for a significant period
of time).
10
supra, § 3.2 (explaining that carriers may use the DataQs
system to “request the review of various types of data
including . . . data documented during a roadside safety
inspection” and “data collected during investigations”); 79
Fed. Reg. at 32,492.
Moreover, an agency’s interpretation of its own
regulations is generally “controlling unless plainly erroneous
or inconsistent with the regulation.” Auer v. Robbins, 519
U.S. 452, 461 (1997) (internal quotation marks omitted).
Here, the FMCSA has interpreted § 385.15 to permit only
those petitions that seek review of a carrier’s safety rating and
not its individual safety violations. This is a reasonable
interpretation. The consequences of a less-than-“satisfactory”
rating can be severe – most notably by precluding the carrier
from operating in interstate commerce. See 49 U.S.C.
§ 31144(c)(1); 49 C.F.R. § 385.13. It is therefore sensible for
the FMCSA to prioritize review for those carriers with sub-
par ratings; it ensures that the FMCSA’s compliance review
process precludes only those carriers that should, in fact, be
kept from operating. Carriers with satisfactory ratings may
still have their violations reviewed; they simply must use the
DataQs system, rather than the § 385.15 review process, to do
so.
C.
Silverado’s remaining argument – that the FMCSA, in
issuing safety violations against Silverado, failed to comply
with notice-and-comment procedures and levied
impermissible sanctions against it – is not properly before this
Court. According to our decision in Weaver, such challenges
must be brought in the first instance before the District Court.
In Weaver, petitioners challenged the FMCSA’s refusal
to remove a safety violation contained in an individual
11
driver’s MCMIS profile after petitioners filed a DataQs
request with the FMCSA seeking the violation’s removal. See
744 F.3d at 143-44. Petitioners brought their challenge to the
FMCSA’s refusal directly to this Court pursuant to the Hobbs
Act, 28 U.S.C. § 2342, which provides this Court with
exclusive jurisdiction over a determination that concerns,
among other things, the validity of “all rules, regulations or
final orders” of the FMCSA. 28 U.S.C. § 2342(3); see also
Weaver, 744 F.3d at 144-45; Am. Trucking Ass’ns, Inc. v.
FMCSA, 724 F.3d 243, 246 (D.C. Cir. 2013). We held that the
FMCSA’s refusal to remove the carrier’s violation did not
constitute a final agency action under the Hobbs Act, and that
therefore petitioners needed to bring their challenge in the
District Court. Weaver, 744 F.3d at 146-48.
Following Weaver, we hold that Silverado’s challenge to
its safety violations must also be brought initially before the
District Court. Accordingly, we lack authority to hear
Silverado’s safety violations challenge.
***
For the foregoing reasons, we deny the petition for
review.
So ordered.