United States Court of Appeals
For the First Circuit
No. 15-2310
THOMAS O. FLOCK, ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Stahl, and Thompson,
Circuit Judges
Paul D. Cullen, Sr., with whom Joyce E. Mayers, Paul D.
Cullen, Jr., The Cullen Law Firm, PLLC, and John A. Kiernan,
Bonner, Kiernan, Trebach & Crociata, LLP were on brief for
appellants.
Caroline D. Lopez, Attorney, Appellate Staff Civil Division,
U.S. Department of Justice, with whom Kathryn B. Thomson, General
Counsel, Department of Transportation, Paul M. Geier, Assistant
General Counsel for Litigation, Peter J. Plocki, Deputy Assistant
General Counsel for Litigation and Enforcement, Joy K. Park, Senior
Trial Attorney, with whom Charles J. Fromm, Acting Chief Counsel,
and Debra S. Straus, Senior Attorney, Federal Motor Carrier Safety
Administration, Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Carmen M. Ortiz, United States Attorney for the
District of Massachusetts, and Matthew M. Collette, Attorney,
Appellate Staff Civil Division, U.S. Department of Justice, were
on brief for appellee.
October 21, 2016
STAHL, Circuit Judge. As part of its regulatory mandate
to maintain and enhance safety on the nation's highways, the
Federal Motor Carrier Safety Administration (FMCSA) maintains a
database of inspection history and safety records pertaining to
commercial motor vehicle operators. These reports, which are
provided to the agency by individual states in exchange for federal
funding, can be made available for a small fee to employers seeking
to gather records on prospective drivers whom they might wish to
employ. In order for such reports to be disseminated, the agency
must obtain driver consent, consistent with the requirements of
the Privacy Act, 5 U.S.C. § 552a et seq.
Appellants in this case are a group of drivers who allege
that disseminating certain information contained in the database,
in particular, driver-related safety violations that are not
deemed by the Secretary of Transportation to have been "serious,"
exceeds the agency's statutory mandate under 49 U.S.C. § 31150,
which governs the agency's disclosure obligations. Appellants
brought suit against the FMCSA and the Department of Transportation
in the U.S. District Court for the District of Massachusetts,
arguing that § 31150 unambiguously prohibited the agency from
disclosing non-serious driver-related safety violations. They
further argued that, although they had signed consent forms, these
were ambiguous as to whether they authorized disclosure of non-
serious violations or, in the alternative, were coercive in that
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the drivers had no choice but to sign the forms if they ever wanted
to apply for future jobs. Appellants therefore argue that the
potential disclosure to employers of non-serious driver-related
safety violations violates the Privacy Act.
The district court granted the FMCSA's motion to
dismiss, reasoning that § 31150 was ambiguous as to the agency's
authority to include non-serious driver-related safety violations
in the database and that the agency's interpretation of the statute
was entitled to deference and ultimately permissible under
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837 (1984). This appeal followed. After oral argument and careful
consideration, we AFFIRM.
I. Facts & Background
The FMCSA, a sub-agency of the Department of
Transportation (DOT), is tasked with the maintenance of safety in
motor carrier transportation. FMCSA works with individual states
to collect motor carrier safety data, including crash reports and
safety violations, through roadside inspections. Collected data
is stored in a database known as the Motor Carrier Management
Information System (MCMIS).
In 2005, Congress mandated, through 49 U.S.C. § 31150,
that the agency grant motor carrier employers access to certain
minimum information from the MCMIS database in order to provide
potential employers with a fast and reliable method for obtaining
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information about prospective employees. That statute provides,
in relevant part:
The Secretary of Transportation shall provide persons
conducting pre-employment screening services for the motor
carrier industry electronic access to the following reports
contained in the [MCMIS database]... 1) Commercial motor
vehicle accident reports; 2) Inspection reports that contain
no driver-related safety violations; 3) Serious driver-
related safety violation inspection reports.
49 U.S.C. § 31150(a).
The purpose of the database is "to assist the motor
carrier industry in assessing an individual operator's crash and
serious safety violation inspection history as a preemployment
condition." 49 U.S.C. § 31150(c). "Serious" driver-related safety
violations are defined in the statute as a violation which "the
Secretary [of Transportation] determines will result in the
operator being prohibited from continuing to operate a commercial
motor vehicle until the violation is corrected." 49 U.S.C. §
31150(d). The statute does not explicitly state whether the agency
is required to make available non-serious driver-related safety
violations. Driver consent is required before records can be
disseminated to a potential employer. 49 U.S.C. § 31150(b).
On March 8, 2010, the agency issued a System of Records
Notification (SORN) proposing the establishment of a system of
records for a Pre-Employment Screening Program (PSP), which was
designed to give prospective employers rapid access to crash and
inspection data about potential driver employees. The SORN
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indicated that payment of a $10 fee would be required to access
the PSP, and also explained that the PSP would contain MCMIS data
regarding the most recent five years' crash data and the most
recent three years' inspection information. Consistent with 49
U.S.C. § 31150(b)(2) and 5 U.S.C. § 552a, driver consent was also
required before such information could be disclosed. The consent
form states, in relevant part, "I understand that I am consenting
to the release of safety performance information including crash
data from the previous five (5) years and inspection history from
the previous three (3) years." On July 19, 2012, the FMCSA issued
another SORN, reaffirming that the PSP would include the most
recent five years' crash and most recent three years' inspection
data, adding that this would "includ[e] serious safety violations
for an individual driver." 77 Fed. Reg. 42548-02. Neither of
these SORNs purported to exclude non-serious driver-related safety
violations from the database.
Appellants, professional commercial vehicle operators,
brought suit against the DOT, the FMCSA and the United States,
alleging that the FMCSA had prepared and made available for
dissemination to potential employers one or more PSP reports that
included non-serious driver-related safety violations. According
to Appellants, the inclusion and possible dissemination of non-
serious violations runs afoul of the Privacy Act, which contains
"a comprehensive and detailed set of requirements for the
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management of confidential records held by Executive Branch
agencies." F.A.A. v. Cooper, 132 S. Ct. 1441, 1446 (2012). The
Privacy Act limits all administrative agency disclosure of
personal records, subject to various exceptions, one of which is
the consent of the person to whom the record pertains. 5 U.S.C.
§ 552a(b).
FMCSA moved to dismiss the case for failure to state a
claim under Fed. R. Civ. P. 12(b)(6), and alternatively argued
that the plaintiffs lacked standing and that the case should be
dismissed for lack of subject matter jurisdiction. Fed. R. Civ.
P. 12(b)(1). The district court held that the complaint adequately
alleged an impending future injury for Article III purposes, and
elected to reach the merits without deciding whether the plaintiffs
had adequately alleged standing under the Privacy Act. On the
merits, the district court held that 49 U.S.C. § 31150 was
ambiguous as to the question of non-serious driver-related safety
violations, and that FMCSA's interpretation of the statute was
ultimately permissible under Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837 (1984). This appeal followed.
II. Discussion
We review a district court's grant of a motion to dismiss
for failure to state a claim de novo. Woods v. Wells Fargo Bank,
N.A., 733 F.3d 349, 353 (1st Cir. 2013). This requires us to
"construe all factual allegations in the light most favorable to
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the non-moving party to determine if there exists a plausible claim
upon which relief may be granted." Wilson v. HSBC Mortgage Servs.,
Inc., 744 F.3d 1, 7 (1st Cir. 2014). To survive a motion to
dismiss, the complaint must state a claim for relief that is
plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
A. Standing
As a threshold matter, the FMCSA argues that Appellants
have not properly pled standing under Article III or under the
Privacy Act. In order to satisfy the requirements of Article III
standing, a party must allege sufficient facts to demonstrate
injury-in-fact, a causal relationship between the injury and the
challenged conduct, and redressability of that injury. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). Allegations of
future injury must be sufficient to show that such injury is
"certainly impending" in order to constitute injury-in-fact.
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1147 (2013). In
addition to the constitutional standing requirements, in order to
bring a claim for damages under the Privacy Act, Appellants must
demonstrate that the FMCSA's actions had an "adverse effect" on
them in a way that caused "actual damages," and that the FMCSA's
actions were "intentional or willful." 5 U.S.C. § 552a(g)(1)(D);
id. § 552a(g)(4)(A).
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The district court found that the complaint "adequately
alleges an adverse effect sufficient to meet the constitutional
standing requirements," while noting that "[w]hether the complaint
adequately alleges an injury sufficient to state a claim under the
Privacy Act is a different question, which the Court does not
reach." Because we believe this case can be decided easily on the
merits, we assume without deciding that Appellants have adequately
pled standing under both Article III and the Privacy Act.
B. The Agency's Interpretation under Chevron
When agency action is grounded in an interpretation of
the agency's organic statute, we apply the familiar framework set
forth by the Supreme Court in Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837 (1984). Under Chevron, we first
ask whether Congress has spoken to the precise question at issue.
"If the intent of Congress is clear," using the "traditional tools
of statutory construction, ... the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress." Chevron, 467 U.S. at 842-43. If Congress has not
unambiguously expressed its intent as to the precise question at
issue, the agency's interpretation is "given controlling weight
unless [it is] arbitrary, capricious, or manifestly contrary to
the statute." Id. at 843-44. Under the second prong, the agency's
construction is accorded substantial deference, and courts are not
to substitute their own judgment for that of the agency. See
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United States v. Mead Corp., 533 U.S. 218, 229 (2001) ("[A]
reviewing court has no business rejecting an agency's exercise of
its generally conferred authority to resolve a particular
statutory ambiguity simply because the agency's chosen resolution
seems unwise.").
Determining whether ambiguity exists within a statute
requires us to apply the "ordinary tools of statutory
construction." City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863,
1868 (2013). First and foremost, this requires beginning with a
textualist approach, as the "plain meaning" of statutory language
controls its construction. Summit Inv. & Dev. Corp. v. Leroux, 69
F.3d 608, 610 (1st Cir. 1995) (internal citation omitted).
We conclude that § 31150 does not unambiguously restrict
the agency's discretion to make records including non-serious
driver-related safety violations available to potential employers
with driver consent. The statute is silent as to non-serious
violations. Appellants argue that by including three specific
categories of reports that the agency must make available, Congress
imposed a ceiling on the agency's disclosure authority, excluding
categories of reports not specifically enumerated. However,
§ 31150's command that the agency "shall provide" certain reports
can just as easily be read as a floor, an articulation of the
agency's minimum disclosure obligations, rather than a ceiling.
See Mass. Trs. Of E. Gas & Fuel Assocs. v. United States, 377 U.S.
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235, 244 (1964) (noting that "the word ['shall'] does not of
linguistic necessity denote a maximum"). There is no specific
language in the statute which precludes the agency from making
other driver-related information available to prospective
employers, provided they have driver consent. We therefore agree
with the district court's conclusion at Chevron Step One that
Congress has not spoken to the precise question of non-serious
violations.
Finding, as we have, that the statute is ambiguous as to
the precise question of non-serious driver-related safety
violations, we will not disturb an agency's interpretation unless
it is "arbitrary, capricious, or manifestly contrary to the
statute." Chevron, 467 U.S. at 843-44. The agency's
interpretation easily passes muster under this test for two
reasons. First, reading the statute as a floor comports with the
broader statutory purpose of § 31150 and the agency's mandate to
promote highway safety. Given that the focus of the database is
on the motor carrier industry, by providing information on driver
safety records to potential employers, it is hard to see how this
goal would be undermined by the disclosure of more information.
See 49 U.S.C. § 31150(c) ("The process for providing access to
[the MCMIS database] shall be designed to assist the motor carrier
industry in assessing an individual operator's crash and serious
safety violation inspection history as a pre-employment
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condition."). Indeed, the disclosure of other non-serious driver-
related safety violations, such as speeding tickets or other fines,
would presumably help achieve Congress's objective in empowering
the FMCSA to promote highway safety.
Second, the agency's reading does not leave driver-
employees without protection, as both the Privacy Act and
§ 31150(b)(2) require driver consent before the relevant MCMIS
records can be disclosed. There is no suggestion that the agency
has disclosed any information without driver consent, and nothing
in the record which leads us to conclude that the agency's reading
of the statute is impermissible.
To conclude, we agree with the district court that the
agency's interpretation is a reasonable and permissible
construction of the statute and is entitled to Chevron deference.
C. Consent Forms under the Privacy Act
One final argument raised in this appeal is whether the
mandatory consent form signed by Appellant drivers are
illegitimate as a result of being ambiguous or coercive. The
parties argued this issue before the district court, but the court
did not make a ruling.1 The form reads as follows: "I understand
1 By failing to raise the arguments about the consent form in
their opening brief, appellants may have waived this argument on
appeal. However, because the consent form argument fails on the
merits, we need not address the issue of waiver.
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that I am consenting to the release of safety performance
information including crash data from the previous five (5) years
and inspection history from the previous three (3) years."
Appellants make two arguments that the consent forms are invalid,
neither of which we find convincing.
First, they argue that the consent forms can only be
read as authorizing disclosure of violations specifically
enumerated in § 31150. Since we conclude that the agency's reading
of the statute as a floor, rather than a ceiling, is permissible,
Appellants' argument on this score, that "crash data from the
previous five (5) years and inspection history from the previous
three (3) years" should be read as including only "serious" driver-
related safety violations, is unavailing. A plain reading of the
consent form reveals nothing that would suggest that only
violations deemed by the Secretary of Transportation to be
"serious" would be released to a potential employer.
Second, Appellants argue that the consent forms are
coercive, since drivers have no choice but to sign off on the
release of their records in order to seek future employment, and
that signing this form "would certainly doom any prospect for
employment." This argument fails for two reasons. First,
Appellants do not allege, nor is it suggested, that employment
with motor carriers is contingent on participation in the PSP.
The language of § 31150 itself makes clear that the use of the PSP
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by employers is entirely optional. See 49 U.S.C. § 31150(c) ("Use
of the process shall not be mandatory and may only be used during
the preemployment assessment of an operator-applicant."). Second,
even assuming that the majority of motor carrier employers would
seek to use the MCMIS database, Appellants have failed to show
that their chances for employment are doomed entirely as a result
of employers having access to their driving records which include
non-serious violations. Finally, it bears repeating that broader
access to such information in the motor carrier industry, from the
standpoint of improving highway safety, is consistent with
Congressional intent in passing § 49 U.S.C. § 31150.
AFFIRMED.
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